page 1 1 Thursday, 22nd October 2009 2 (10.00 am) 3 PETER MALCOLM SWANN 4 Examined by MR MOYNIHAN (continued) 5 THE CHAIRMAN: Good morning, Mr Swann. Thank you for the 6 document which you completed. It was very helpful. 7 MR MOYNIHAN: Good morning, Mr Swann. 8 A. Good morning, Mr Moynihan. 9 Q. What I will do is, as advertised, just complete the 10 assessment of QI2. If I could bring up again, please, 11 TS0004, page 17. 12 I indicated to you yesterday that I would like to 13 look at the area of your points 12, 13 and 14 but, 14 before doing so, what I would like to show you is the 15 SCRO charting because you make some comment on not being 16 comfortable about using a certain area of the print. If 17 I show you the SCRO charting first, the SCRO charting is 18 FI0166A. Perhaps if we could also keep up TS0004, 19 page 17, as a second image. (Pause) 20 What I have actually done is brought up two 21 chartings, one by the Scottish Criminal Record Office of 22 QI2 and one by yourself. If I can highlight and enlarge 23 the QI2 chartings, again there is just an inability on 24 the screen to bring up the first digits of the numbers 25 on the left-hand margin but we know those to have a 1 page 2 1 added to them. 2 I have noted in your comparative exercise 3 contribution that in relation to SCRO points 11 to 13 -- 4 those are on the right -- while you do not positively 5 disagree you have a comment that you find the area in 6 which the SCRO points 11 to 13 are located an area that 7 is difficult to work with; is that correct? 8 A. I found it an area which to me there's a degree of 9 movement there and I sort of steered clear of that area 10 and went to other areas elsewhere which to me were 11 clearer. 12 Q. Fair enough, I take your point that there are other 13 areas that are clearer to work with but specifically 14 what is the difficulty with the area 11 to 13 that SCRO 15 has used? Sorry, perhaps more to the point, what are 16 the signs of movement in that area that you observe? 17 A. Well, it's difficult to pinpoint but it isn't an area to 18 me that lends itself to be particularly clear to -- 19 well, for marking up. I didn't like the area so I went 20 elsewhere, simple as that. It was just simply my view 21 as someone examining this particular mark. We all have 22 different views on the mark and, you know, particular 23 areas of it and I went elsewhere. Simple as that 24 really. 25 Q. The reason I have brought the two up together is to page 3 1 enable a discussion of this particular point. 2 You have charted on the left-hand side three points, 3 12, 13 and 14. 4 A. Yes. 5 Q. My question was simply that 12, 13 and 14, while not in 6 exactly the same area as 11 to 13 are not too distant 7 from it, therefore my thinking was to ask you why you 8 regarded your area 12, 13 and 14 as clearer than the 9 area that SCRO has, not too far away, as 11, 12 and 13? 10 A. Well, it's not too far away but it's certainly removed 11 from the area that I'm talking about and to me it was an 12 area where characteristic details were more, shall we 13 say, easier to mark, to ridge count and so on, than the 14 area which is lower down and then towards the centre 15 core. 16 Q. Perhaps it again just passes over to the Chairman in due 17 course to study it and look at. It probably would not 18 be capable of more explanation than that, is it? 19 A. Well, I don't really have any more explanation. I mean, 20 it's simply I was marking the chart up the way I would 21 mark it up and the areas I selected tended to, sort of, 22 steer clear of that particular area. 23 Q. The final one I should ask I see in my notes is point 24 number 11 for you is a point that is lower on the 25 charting than anything comparable on the SCRO. Again, page 4 1 it is on the same side of the core. Is it the same 2 point that you would make that you simply found on the 3 image that you were studying, this was an area that had 4 clearer detail? 5 A. The area that I was avoiding, if that's the right word, 6 is more between my characteristic 11 and the centre core 7 where points 5, 6 and 7 of mine are marked. That was 8 the area I was not -- I won't say particularly 9 interested in but it was the area I was steering clear 10 of. 11 is on the periphery at the bottom here. 11 Q. One thing even just as I look at the screen there does 12 seem to be a difference perhaps in contrast between the 13 two images that there one on the right that the Scottish 14 Criminal Record Office has used is more predominantly 15 black and grey; whereas the one on the left that you 16 have used one might say is more shades of grey. 17 Is that fair? 18 A. It is yes. Well, that's a result of the printing 19 process which ... 20 Q. So that we then compare like with like, are you still 21 finding with the benefit of the SCRO image that we have 22 on the right, even with their image, that the area 23 around 11 to 13 lacks the clarity that you yourself were 24 seeking? It's obviously different from that 25 corresponding area in your image. page 5 1 A. All I'm saying about that area is, whilst I can see the 2 characteristic details that have been marked by SCRO and 3 I certainly don't dispute it, it's just simply an area 4 that I didn't want to mark my characteristics there. I 5 wanted to go elsewhere. It's just simply a choice a 6 fingerprint expert makes when he's marching a chart. 7 Really, I think you can see the area doesn't look 8 exactly smooth and clear and what have you. It's a bit 9 difficult so I went away from it. 10 Q. Thank you. I will not take up any more of your time on 11 that. 12 What I then want to look at is the second cluster of 13 points that I have mentioned to you that I wanted to 14 look at. That is a cluster of points at the top of the 15 mark on the left-hand side. 16 If I can take down the right-hand side of the screen 17 and give us a second copy, please, of TS0004.17. 18 What I will do as usual, Mr Swann, is to highlight 19 or enlarge a copy of the known mark and a copy of QI2. 20 Again, the numbers on the left-hand side have been 21 clipped but it does not matter because what I wanted to 22 ask you about is points 1, 2, 3, 4 and 10. That is a 23 cluster you have marked immediately above the core that 24 we have not otherwise discussed. 25 A. That's right, yes. page 6 1 Q. Before I look at anybody else's view about that 2 particular area, would you simply like to talk through 3 the factors which have led you to identify points 1, 2, 4 3, 4 and 10 and, indeed, as part of that, give us your 5 description of what each of these points is. 6 A. Point number 1 is a ridge ending coming in and upwards 7 from the left. Points 2 and 3 on the ridge above going 8 more or less centrally at 12 o'clock are a ridge ending 9 from the left. There's a gap and then there's a ridge 10 ending, number 3, is coming in from the right. Number 4 11 is immediately below number 3 and that's a ridge ending 12 coming in from the right. Number 10 is an island ridge. 13 They form, to me, a very unique cluster of 14 characteristics. 15 Q. When you say a very unique cluster would that mean this 16 cluster has a proportionately greater importance because 17 of that combination? 18 A. No more important than any other cluster, no more 19 important, just that they are there, all together, quite 20 close together and, in themselves, they are in my 21 opinion unique but no more unique than any other. 22 Q. What I would like to do is to show you an alternative 23 interpretation, two alternative interpretations of those 24 areas and they are alternative interpretations you are 25 aware of from the comparative exercise material. One is page 7 1 by Mr Wertheim and the other is by Mr Grigg. I will 2 bring them up in turn and enable you to comment on them. 3 First of all, if I begin with Mr Wertheim, what I am 4 going to do is to bring up a charting that Mr Wertheim 5 did for the Inquiry, if you just allow me a second. 6 (Pause) 7 If I begin with FI2409.06 just on the right-hand 8 side of the screen if I keep what is there on the left. 9 I am going to start by giving you this in the form 10 that you are perhaps more familiar with. 11 A. I have seen it, yes. 12 Q. Then I will look at a specific charting Mr Wertheim did 13 for us. What he has done is circled, I believe in 14 yellow, the same area approximately above the core in 15 QI2 -- approximately. Is that correct? 16 A. Yes. 17 Q. Then he has in manuscript drawn his interpretation of 18 that area. I think ultimately his preferred 19 interpretation of QI2 itself is the left-most drawing so 20 that while he would see on Marion Ross an area of 21 continuous ridges with some signs of, as you've said it, 22 islands or incipient ridges. He finds on QI2 continuous 23 ridges with one interposed ridge ending. 24 Do you see that, as he has drawn? 25 A. I can see what you're referring to, yes. But the page 8 1 most -- 2 Q. Before we look at the charting he did would you like to 3 comment, please, on in a sense the support for your 4 interpretation as opposed to his in relation to this 5 detail? 6 A. Well, when you first started then you said "his 7 interpretation". All right, we all perhaps have 8 different interpretations but in my many years -- I 9 won't say how many but many years -- as a fingerprint 10 expert I've never had to resort to drawing them because 11 there's no need to draw them. You examine the detail 12 that's apparent on the mark which you can see, with the 13 aid of magnification if necessary, which of course you 14 do need in the initial stages, and you work out the 15 characteristic detail, its sequence, mark it, but I 16 never would start drawing fingerprints because possibly 17 you are drawing what you want to see and not what is 18 actually there. So whilst I can see what he is marking, 19 I don't agree with his interpretation of what I've 20 marked is incorrect, if that's what he's suggesting. 21 Q. If I could bring up also on the right-hand side 22 something that you will not have seen before, if I look 23 at a drawing that he did for us in the hearing, 24 FI2409.07. 25 We can enlarge this if you wish. This is a drawing page 9 1 that Mr Wertheim did on the images that we have 2 available, the comparative exercise material. Perhaps 3 the more relevant one is if I highlight the left image. 4 What he did was, whilst sitting where you are just now 5 with one of the comparative exercise images, he then 6 drew on it -- I think by the reference code he has drawn 7 on an SCRO image -- he drew in the ridge detail that he 8 finds and you will see the red arrow that has been added 9 coming from the top left is pointing to what he has 10 drawn in in manuscript, the ridge ending that he says 11 enters that particular field. 12 I can bring up a clearer image so that you can see 13 that particular area if you wish or just ask you to 14 comment on what Mr Wertheim has drawn relative to what 15 you have observed on the left-hand side? 16 A. From what I can see on the right-hand image, all the 17 ridge structures simply flows from right to left 18 starting at the top within the purple ring until it 19 comes down to this green ridge he's indicated with a red 20 arrow saying it ends at that particular point. 21 Well, I can't see a ridge on the picture I'm looking 22 at, on the image I'm looking at, which ends there. Why 23 didn't he indicate it on the fingerprint form as well 24 then? Then we could see which one he's talking about. 25 Q. I can bring up again -- if I just stop so I can actually page 10 1 have a look myself. 2 A. He's marked the fourth ridge up above the centre core. 3 If you start at the centre core, 1, 2, 3, it's the 4 fourth and it isn't a ridge ending. 5 Q. You are able to help me, please, because you are much 6 better at doing the ridge counts than I am. What I was 7 wondering -- and I do not know -- but what I was 8 wondering is whether the ridge ending that he has 9 indicated by the arrow corresponds to the detail you 10 have marked as 10 and 4 or is it on a different ridge? 11 A. Well, if anything it's going to be number 4. It's going 12 to be number 4 if it's any of them. If he's marking it 13 there as a ridge ending, then I've marked it there as a 14 ridge ending. 15 Q. If you will forgive me, please, just for clarity, if 16 this is looking at the same area, the red arrow ridge 17 ending for Mr Wertheim would correspond to which detail 18 on your charting? 19 A. What he's done, he's carried on from my characteristic 20 number 4, his green line has gone over the end of it and 21 he's brought into play the small island ridge which I 22 marked at 10 and is calling it all one. 23 Q. That's what I had wondered. 24 A. He's calling it all one for whatever reason. 25 Q. If I can understand it -- again, this is what I would page 11 1 understand from his evidence -- what you have yourself 2 observed as 10 he referred to as a spot or dot and his 3 interpretation, a term he would have himself used, his 4 interpretation of this area is the ridge detail you have 5 as point 4 he would interpret as carrying on and 6 bringing into the same ridge the point number 10 that 7 you have at which point it ends? 8 A. Correct. 9 Q. That's his interpretation. 10 A. That's what he's -- yes. Clearly it isn't. 11 Q. Your view is it clearly does not. 12 A. It doesn't. You can see it doesn't. 13 Q. Just to be clear, just to make sure it doesn't alter in 14 any way the point we have just talked about, you had 15 asked how Mr Wertheim marked the known print. That is 16 the Marion Ross print. So what I will do is again bring 17 up the whole image. If you wish it enlarged, please 18 just indicate. 19 Now side-by-side are Mr Wertheim's markings of QI2 20 on the left and Marion Ross on the right. If I 21 understand it, on the fourth ridge out he has marked on 22 Marion Ross a continuous ridge which he says is out of 23 sequence with or does not match the ridge ending which 24 he has drawn on QI2. 25 What we should do, Mr Swann, is in fairness to you page 12 1 bring up FI2409.07 alone so that you can study that. 2 There it is now, a better scale for you. So that is his 3 charting of this detail in QI2 relative to Marion Ross. 4 A. So what he is indicating there then is that all this 5 ridge structure above the centre core runs without any 6 breaks. 7 Q. That is what he is indicating, yes. 8 A. Well, with respect, I mean, he's got the purple circle 9 marked on the left as well. I mean, you can see quite 10 clearly that they stop and start, there's breaks, 11 et cetera. So how can they all run in true, straight 12 continuous ridges? They can't. This is it, when you 13 start drawing lines over ridge structure it's a 14 dangerous exercise, in my opinion. 15 Q. One of the points that if not Mr Wertheim but certainly 16 someone has made to us is the fact that if we look, just 17 as we see on the Marion Ross print, the pattern tends to 18 be one of dots, namely sort of breaks rather than 19 continuous ridges, the suggestion might be either due to 20 the lady's age or the fact that these particular prints 21 were taken after death so that her ridge structure tends 22 to be more broken rather than a normal fingerprint. 23 Is there anything in that? 24 A. No, not in my opinion. Certainly not. The ridge 25 structure on the fingers and the feet are the last page 13 1 things to decompose after a body dies -- after a person 2 dies, rather. 3 THE CHAIRMAN: Could we may be have the clear prints of 4 Marion Ross, in other words without Mr Wertheim's 5 drawing over it just so I can see the clear print and 6 perhaps ask Mr Swann just to point out to us exactly the 7 comparative point. 8 MR MOYNIHAN: Sir, there are a variety of sources. What we 9 can try is FI2109.04. This is an image of the print. 10 THE CHAIRMAN: Yes. Sometimes I find it easier if it's 11 enlarged. 12 A. Do you want one unmarked, Mr Chairman? 13 THE CHAIRMAN: No thank you, we have one on the screen. I 14 just wanted it without the interference of drawing over 15 it. I just wanted to see your point about how there is 16 a break. 17 MR MOYNIHAN: Do you want simply the image of QI2 on the 18 screen alone? 19 THE CHAIRMAN: No, just the image of Marion Ross's print. 20 MR MOYNIHAN: In that case what we will do is put that up 21 alone so it's even larger. 22 THE CHAIRMAN: What I was wondering is the points where you 23 say Mr Wertheim has drawn over, as it were, if you could 24 just point out to me the break where you say one should 25 not draw over it because there is a break given the two page 14 1 points you have referred to. 2 MR MOYNIHAN: Sir, I have an alternative thought because I 3 am a little concerned myself that the image we have on 4 the screen looks, to my eye, blurred. 5 THE CHAIRMAN: It's not very good. 6 A. It is a bit hazy. 7 THE CHAIRMAN: We will get a better one. 8 MR MOYNIHAN: The alternative would be to take the same 9 image that Mr Wertheim used as his base and that is the 10 SCRO charting of QI2, FI0166A. The reason for using 11 this, sir, is that the area that we are interested in 12 has no markings by SCRO to obscure the detail. 13 If we could highlight the Marion Ross print, that I 14 think is a little better clarity if you are content to 15 use that. 16 Mr Swann, the alternative is, if you give me just a 17 second, I am just checking if we have a spare photograph 18 because this is the comparative exercise material so we 19 may actually have a photographic original that we could 20 use for this purpose. 21 THE CHAIRMAN: You might find it easier than trying to do it 22 from the screen. (Handed) 23 What I am keen to do is just in the one you were 24 shown before Mr Wertheim had drawn over it and I wanted 25 to see a clear copy and the point where you say one page 15 1 doesn't draw over it, that it is the break. That is 2 really what I was keen to see. 3 A. I will mark points 2 and 3 first, which are there and 4 there (indicated). Point 2 on the left and 3 on the 5 right. 6 THE CHAIRMAN: So can you put in 2 on the left and 3 on the 7 right. 8 A. Number 1, this one here (indicated). Can you mark that? 9 THE CHAIRMAN: If we could just mark -- 2 was on the left; 10 isn't that right? 11 A. Yes. 12 THE CHAIRMAN: And 3 is the one on the right? 13 A. Correct. 14 THE CHAIRMAN: It is just for future use. 15 MR MOYNIHAN: Sir, what I suggest is we finish the chart 16 because the problem is putting the boxes in is obscuring 17 the detail itself. So if we finish the chart we will 18 find some way of numbering them. 19 THE CHAIRMAN: The numbering can be put in later. It is 20 just so we have a record of it. 21 MR MOYNIHAN: We will put the numbers in at the end. 22 A. Number 1 is there (indicated), this one coming up here 23 and ending there. Characteristic number 1 is the one 24 we've just indicated coming down in the space between 2 25 and 3, starting at about 11 o'clock and coming page 16 1 downwards. 2 THE CHAIRMAN: Do you want them enlarged, again? They are a 3 bit difficult to see. 4 MR MOYNIHAN: Yes, we can enlarge them, sir, so we can then 5 put in some numbering. That is enlarged. 6 Mr Swann, we will proceed through them and just 7 number them appropriately. The one that is -- if you 8 can just tell me which you described as number 1 -- 9 sorry, if you just tell me as I go past them, first of 10 all, the one my pen is pointing at, how did you number 11 that one? 12 A. The one I've just marked now is number 1, the same as 13 I've marked on my chart. 14 Number 1 ends at about 11 o'clock. If you go to the 15 ridge above -- 16 Q. That's 1. 17 A. -- the ridge above and go to about nearly 12 o'clock 18 that one is ending at number 2. 19 Q. The one that the pen is against is number 2? 20 A. Yes. Then there's the gap. 21 Q. Yes. 22 A. Then to number 3, which is the one ending from the right 23 at 12 o'clock. 24 THE CHAIRMAN: Of the gap, ending on the right of the right 25 of the gap? page 17 1 A. Sorry, it's coming in from the right, Mr Chairman, and 2 ending close to number 2 but there's a gap, quite a 3 distinct gap. 4 MR MOYNIHAN: It is actually quite difficult to write. 5 THE CHAIRMAN: Well, one can go back to Mr Swann's chart. 6 It will show on your chart in any event but it is just 7 so that I can see drawn by you. That is helpful. Thank 8 you. 9 MR MOYNIHAN: What I will do also, Mr Swann, is let you 10 comment on a similar drawing in fact by Mr Grigg. So 11 far as Mr Grigg is concerned -- sorry, save this. 12 MISS BAHRAMI: That's saved as FI2210.01. 13 MR MOYNIHAN: If we could bring up, please, FI2909.22. 14 If I recollect correctly this is a drawing that 15 Mr Grigg did of the same area. First of all, the area 16 that he has -- if I begin immediately above the core, 17 there's the tail of a red arrow. 18 A. Yes. 19 Q. Either side of the tail of the red arrow there are two 20 blue arrows. 21 A. Yes. 22 Q. Mr Grigg's interpretation of the feature between the 23 points of the two blue arrows, he described that as a 24 small lake or enclosure. 25 Do you have any comment on that? page 18 1 A. I don't think it is a lake or enclosure. I think it's 2 simply a sweat pore. You can see the same phenomena on 3 ridge structure all over the print. Whilst it might 4 give the appearance of a lake, which I wouldn't 5 dispute -- it is elongated, left to right -- but there 6 are many other areas where you can see quite large sweat 7 pores and if you wish I suppose you could call them all 8 lakes, lake enclosures, but in my opinion they're not. 9 They are sweat pores. 10 Q. If I continue on to the tip of the red arrow he has 11 drawn in and, again, it becomes difficult to actually 12 just make out, he has drawn in a yellow line which I 13 understand to be his representation of a ridge ending at 14 the same spot. 15 Perhaps what I can do is bring up the basic chart 16 that he was using for that before he marked on it, which 17 is FI0169A. 18 I will just simply highlight, first of all, in 19 Marion Ross so we can now see the ridge detail, the 20 underlying ridge detail, and you will see that what he 21 has marked would seem to be the features that my cursor 22 are on now, two features immediately to the right of 23 where his green line 5 ends on the print. Do you see 24 that? 25 A. On the Marion Ross print? page 19 1 Q. On the Marion Ross print. 2 A. Yes, I can. 3 Q. If I understand it correctly, what he is indicating 4 there is that his interpretation would be that that is a 5 ridge which continues and ends. It starts to the right 6 and continues and ends at the point 5 on the left. 7 Do you see that? 8 A. Well, I think it's more of a very, very small island 9 ridge. I can't see a ridge coming up and ending there. 10 The one below it seems to carry on and go round. 11 Q. What I would like to do is just go back to your own 12 charting, TS0004.17 and bring that up on the right-hand 13 side. 14 I suppose it is a little easier to work with the 15 Marion Ross print rather than QI2. Looking at the 16 Marion Ross print, I had asked you to comment on 17 Mr Wertheim's charting relative to your own charting of 18 1, 2, 3, 4 and 10. 19 Now that you have the benefit of Mr Grigg's drawing 20 on the left-hand side, the area that he referred to as a 21 lake and that you have referred to as a sweat pore is 22 not a feature in your charting. The area that would 23 correspond to the red arrow, the ridge ending, if I am 24 correct it is the yellow line. 25 Does that correspond to any of your details or not? page 20 1 A. No, it doesn't, no. The yellow indication on the middle 2 of the three charts I'm looking at, the yellow, when it 3 raises upwards towards 12 o'clock it should carry on 4 round above the red arrow and then come down on the 5 left-hand side of the centre core, one continuous ridge 6 circling the centre core, two or three out of the centre 7 core but nevertheless circling it. 8 Q. What I should do just for completeness then is put the 9 third expert who commented on this, Mr Zeelenberg, 10 AZ0061. If we take down the left-hand side of the 11 screen -- AZ0061, it is slide 152. 12 If we could bring it up on PowerPoint so we can 13 actually see the point that is being made. (Pause) 14 I think if we can proceed through these slides. If 15 we can just step back ... if we proceed back, please, in 16 the slides on the screen, it's still on slide 152 and 17 stop there. I don't know which particular one it is 18 within the series. 19 What Mr Zeelenberg has done is that he has also done 20 a charting of Marion Ross's print. I am looking at the 21 prints on the lower right. These are a charting of 22 Marion Ross which he also construes as uninterrupted 23 ridges primarily. 24 On the bottom left he does a charting of QI2 and you 25 will see that what he has on QI2, similar to page 21 1 Mr Wertheim, is a ridge that comes in from the right 2 going to the left and ending in a red dot, with then 3 immediately above it a yellow ridge of a rather peculiar 4 shape, to the left of which is another ridge that ends 5 in a red dot. Do you see that? 6 What he, Mr Zeelenberg, has done is given us above a 7 clearer view of QI2 marking only the red dots so that 8 the ridge that comes in from the right and ends, he has 9 as his point number 11. Do you see that? 10 If I understand it correctly, what he is doing, as 11 Mr Wertheim had done, was to take point number 11 and to 12 say it is not an isolated point but rather he is 13 connecting it with the ridge immediately to its right, 14 where my arrow is just now, (indicated) and making it 15 one continuous ridge coming in from the right that ends 16 at the point of the red dot. 17 Do you have any comment on that? 18 A. Well, was he asked when he made that statement why it 19 was a continuous ridge. I mean, why is he saying that 20 it doesn't end with a gap and then there's this dot as 21 we call it or on this island ridge? Why? Was he asked 22 to explain that? 23 Q. No, he wasn't. This is simply the charting we have. 24 A. He's making, well, an assumption I suppose. When you 25 examine a fingerprint, whether it's a donor's print or a page 22 1 crime scene print, you've got to accept what you see 2 there, not try and interpret, well, this might have gone 3 there, this might have gone, this might be all one ridge 4 or it might not be. You can't do that or you shouldn't 5 do that because you don't know whether you're right or 6 wrong and there's no point in doing it anyway. You mark 7 the characteristic detail you can see and if there's a 8 gap there, there's a gap there; if there isn't, there 9 isn't. If there's no gap there, then yes it would be a 10 continuous ridge but there is a gap there so it stops 11 and the other one starts. It's as simple as that. 12 Q. If I can then just so that we can come back and 13 reconsider your own charting, just for the avoidance of 14 any doubt, if we look then at TS0004 .17 and just have 15 that up, the one image. 16 Is that really in a nutshell, if we look at the 17 points 10 and 4 that we have in fact been discussing, is 18 that really just in a nutshell how you are interpreting 19 QI2, that where there is a gap on QI2 you read it as you 20 see it with the gap and that gives you the points 10 and 21 4? 22 A. Yes. Well, there's no other way you can interpret it. 23 Q. Thank you very much. That was a brief look at the top 24 that has enabled me to look at your opinion relative to 25 three of the other experts in this particular case and page 23 1 that concludes QI2 for me. 2 I then have, in fact, two other matters only to take 3 up with you, the first of which is a general point. You 4 have told me that I can concentrate on Y7 to illustrate 5 this point. What I want to talk to you about is a 6 proposition, a psychological proposition, which is not 7 just confined to fingerprint experts but to indeed most 8 disciplines, that where someone finds himself or herself 9 arguing a particular point to the point of conviction 10 that when they look at the point again what they may 11 tend to do -- it's human nature -- is tend to see more 12 factors consistent with their existing opinion rather 13 than fewer. I have come to use a term called 14 confirmation bias. It is a subconscious personal trait 15 that as soon as anyone forms a conviction on either side 16 of an argument they just tend to see more points in 17 their favour, so that is the general thesis, if you 18 will. 19 I have looked at it with people on each side of the 20 debate about Y7 so it is nothing peculiar to you. What 21 I have observed is that when you first saw the mark in 22 February/March 1997 you of course were addressing the 23 national standard, you required only to consider if 24 there were 16 points present and you did consider there 25 to be 16 points present. You did not need to consider page 24 1 the maximum number of points that you could find but you 2 saw 16. 3 The charting that you did for Mr Kent a few months 4 later in July 1999 you had charted 18 points, some 5 strong, some weak. 6 The next point in the agenda, June 2001 when you 7 speak to Mr Gilchrist -- I will bring up the document, 8 CO0003.18 and for the benefit of those in the hall if I 9 could make stand out the paragraph I have just marked. 10 What Mr Gilchrist wrote is: 11 "Mr Swann's position remains unchanged. He 12 maintains that he can identify 21 individual 13 characteristics in the lower portion of the mark. When 14 he compared those to the left thumbprint of Shirley 15 McKie he found all 21 characteristics in agreement and 16 none in disagreement. His approach was to attempt to 17 identify every possible characteristic. Accordingly, he 18 accepts that many of the 21 points which he identified 19 are questionable, with only 11 being clear 20 characteristics, however all 11 match similar 21 characteristics on Shirley McKie's print: and the other 22 10, which are difficult to see, would also match 23 characteristics on the McKie print." 24 Before I ask you anything about confirmation bias, 25 just as a record of your position in June 2001, would page 25 1 that be an accurate impression of your position in 2 June 2001 or not? 3 A. I don't know and Mr Gilchrist doesn't know because he 4 said he can't remember the meeting even. So, I mean, 5 where he's got these words from to say it I don't know. 6 If he can't remember the meeting he had with me how 7 could he put all this on paper? 8 The point is, yes, I did do a chart on some occasion 9 with 21 characteristics marked. Unfortunately, I don't 10 have it now. I don't know where it is. The words used 11 here regarding some are weak and some are unclear, 12 et cetera, et cetera, on any fingerprint identification 13 you will get strong points and some which are not as 14 strong for a variety of reasons and that's what I mean 15 there. I mean, all the characteristics I marked, if I 16 did mark 21, then they were all positive 17 characteristics, whether you could see them clearly or 18 not. 19 But I recall vividly the meeting with Mr Gilchrist. 20 I know what he showed me, I know what I showed him but 21 if he can't remember meeting with me then I don't know 22 how he can write this down, quite honestly. 23 Q. When I am now about to take the next step I have to be 24 conscious of the fact that what is said here is 25 21 points were marked in the lower part of the mark and, page 26 1 indeed, the 18 from the Kent image are in the lower part 2 of the mark. 3 The next numerical point I have is your chart D (for 4 delta) which you produced for the Scottish Parliament. 5 Now there's a mismatch because it refers to a total of 6 32 points but of course by the stage of chart D you are 7 looking not just at the lower part, you are looking at 8 the totality of the mark. Is that correct? 9 A. Yes. 10 Q. Indeed, if I have now a clear recollection, when you are 11 looking at the Rosetta area you are bringing in at least 12 8 points in that area. We now have 32 looking at the 13 totality of the mark and when you have given evidence 14 yesterday and we looked at some of the features that had 15 not been present in your charts (that was around 10, 11, 16 12 and 13, the SCRO points, the lake and the incipient), 17 you could see an extra three points being arguable, 18 that's one of the two bifurcations in the lake and the 19 incipient, so the 32 could now be a minimum of 20 35 points. 21 Would that be fair? 22 A. Yes, yes, yes. 23 Q. Do you have any observation on my underlying thesis 24 here, intending no impropriety and not casting any 25 aspersions on your integrity at all, that what can page 27 1 happen over time is that someone who is convinced, as 2 you are convinced, of the identity of Y7 will over time 3 see more and more features of significance that are 4 regarded as being in common? 5 A. Well, I don't think at this stage now, as far as my 6 working with this mark is concerned, I shall see 7 anything else in it, quite honestly. Yes, there's 8 somewhere in my opinion round about the 20 mark 9 characteristics at the bottom part of the mark, you've 10 got the 8 in the middle regarding the Rosetta 11 characteristic which are unique in themselves and you've 12 got the 8 at the top, the tip of the thumb, which are 13 only present on the rolled impression of Shirley McKie 14 and all those: the 8 at the top stand alone as an 15 identification, those in the Rosetta do and indeed those 16 at the bottom do. 17 So I take your point what you're getting at but the 18 more you look at the fingerprint then, yes, sometimes it 19 is a fact the more you can see into it. I think, you 20 know, that's the nature of the work but as far as I'm 21 concerned these charts I prepared are from work I did 22 years ago and I certainly don't intend to alter them and 23 I certainly don't intend to add anything to them. What 24 is there can be seen and is marked. 25 I'm sorry to go back to what we have been looking at page 28 1 on the screen regarding all this tracing of ridges 2 et cetera, et cetera, and covering them with felt tip 3 pen or what have you. I think that is -- well, not 4 something which is advisable to do in fingerprint work. 5 Indicate things by all means with lines and arrows and 6 what have you but not to start drawing fingerprints. I 7 think it's a dangerous game. 8 Q. Thank you, that finished that particular point. 9 The final point I wanted to ask you myself about was 10 the IAI (International Association of Identification), 11 in a particular part of your own witness statement. If 12 I can bring up, please, FI0149.04 and go to pages 24 and 13 25. 14 Mr Swann, what I have done is brought up, in fact, I 15 am choosing to highlight paragraph 42 of your statement 16 which starts on page 24 and continues on page 25. You 17 are dealing with a complaint that was made against you 18 and, indeed, Mr Leadbetter to the IAI. I don't wish 19 myself to go too far into this but you may be aware that 20 the allegation that you make in paragraph 42 has been 21 put to Mr Wertheim and to Mr McKie already in evidence. 22 So, anticipating your own evidence based on 23 paragraph 42, they have already been asked to comment on 24 it. 25 If I can highlight, without wishing to detract from page 29 1 anything else that is said in the paragraph, I will 2 highlight the particular part. I am not very good at 3 the highlighting but what I intended by the highlighted 4 yellow passage is, the allegation is that: 5 "The case against me was conceived, encouraged and 6 pursued between Iain McKie, Shirley McKie and Pat 7 Wertheim and the International Association for 8 Identification (IAI)." 9 So the accusation is the case against you was 10 conceived, encouraged and pursued among three 11 individuals and the Association. 12 The question that I wanted to ask you -- and it is a 13 deliberately limited one in this first instance -- is 14 what evidence do you have that the charge that was 15 brought against you at the IAI was one that was 16 conceived, encouraged and pursued, first of all, by Iain 17 McKie or involving Iain McKie? 18 A. Well, it follows a pattern. First of all, he reported 19 me to the Fingerprint Society. The letter I got from 20 them criticised me for giving evidence in the perjury 21 trial in Glasgow and for making a false statement 22 regarding the identification of Shirley McKie's left 23 thumbprint. I never even went there. I was never even 24 called to give evidence. So that was that one. 25 The second one was he reported me to do CRFP page 30 1 regarding breach of confidentiality and all sorts of 2 associated matters. That was, for want of a better 3 phrase, kicked out because it was all false statements. 4 Following that at an appropriate time the next thing 5 we get, Mr Leadbetter and myself, is a petition from the 6 IAI, a petition by a gentleman called Mr Les Bush from 7 Australia in association with the IAI, Mr Wertheim. 8 It's all documented on the CLPEX website. If it hadn't 9 come from Mr McKie and his associates then who has done 10 it? I don't know. There is a series, a pattern here 11 Fingerprint Society, CRFP, last resort the IAI, where 12 they form this committee, this IAI Y7 Committee. They 13 have already decided the mark is not identical, 14 according to their literature. They haven't proved us 15 how they've done it but, I mean, this is what they're 16 saying. 17 THE CHAIRMAN: I think I should tell you that I am not 18 interested in the views of the IAI. I am merely 19 interested in the limited issue as to who was 20 responsible or not responsible for them embarking on an 21 inquiry at the time they did. So I am only interested 22 in that. Their views are not otherwise -- don't have 23 any bearing on this Inquiry. 24 A. Fair enough, sir. Well, all I can say is if it didn't 25 come from Mr McKie and his daughter and Mr Wertheim in page 31 1 conjunction then I don't know who did it. I've no idea. 2 MR MOYNIHAN: In that case then, would the same answer to 3 the question of what evidence you have of the 4 "conceived, encouragement and pursuit" of this, as far 5 as Ms McKie was concerned, would the same answer apply 6 to her as you have given to Mr McKie? 7 A. Then yes, it has to, yes. 8 Q. Do you have anything that would specifically show that 9 her hand was in any way involved in this specific 10 complaint to the IAI? 11 A. Well, not having it in front of me, certainly there's 12 documentation which has been submitted by my legal 13 representative, as you well know. All the details are 14 in there and I can't bring it up verbatim because I 15 can't remember it all but I mean the point is it's 16 documented on the website, the build-up to it. How far 17 I can go I don't know, the formation of what has 18 happened and the results and all this that and the 19 other. So, no, I can't prove anything really except 20 what I've seen and what I've heard. I've no 21 documentation saying, you know, "This is from me to 22 you", et cetera, et cetera. No, I haven't. 23 Q. The final one is Mr Wertheim. Mr Wertheim, so far as 24 his hand being specifically on this complaint, his 25 involvement, do your answers that you have given before page 32 1 just apply to him as well; namely, you look at the 2 website and the pattern? 3 A. His involvement is quite clearly stated on the website 4 and that's been -- extracts have been taken from that 5 and submitted with the report that went to the Chairman 6 I believe and to yourselves no doubt from Mr Russell. 7 It's there in black and white. 8 Q. You see what Mr Wertheim said under oath -- this is the 9 reason I'm asking you what the evidence was -- what 10 Mr Wertheim said under oath was that he had tried in 11 years past to get the IAI to take an interest in 12 complaints and they had failed to do so. He had 13 specifically raised the possibility that someone might 14 complain against him to instigate an investigation by 15 the IAI but that did not happen and that he was not, in 16 fact, responsible for instigating the complaint against 17 you but he did, at the request of the IAI, provide 18 material to them, provide information to them, after the 19 complaint was made. That is what he has said under 20 oath. 21 Are you actually in a position to contradict what he 22 has said under oath in relation to that matter? 23 A. Well, I wouldn't wish to comment without having the 24 proof in front of me. I mean, I know there's 25 documentation which exists but I'm not going to sit here page 33 1 and say this, that and the other without being able to 2 read it and bring it off the website. 3 Q. That's fair enough, Mr Swann, because I don't want to 4 inveigle you into anything in particular when you are on 5 oath to this hearing. 6 Sir, that would finish that particular point. 7 What I had said to you this morning, Mr Swann -- I 8 have completely finish now, so this is the point I had 9 indicated to you this morning that when you arrived in 10 Glasgow the expectation is that you would give a 11 presentation to the hearing. You have felt unable to do 12 so because you've got a throat infection so you have, in 13 fact, spent yesterday and this morning answering my 14 questions. I had indicated to you this morning I would 15 give you the opportunity at the end of my questions just 16 to cover anything else that you wished to say either, 17 first of all, about Y7 or QI2 or anything else that you 18 would wish to contribute to the hearing. 19 Is there anything you wish to add to your evidence? 20 A. Yes, Mr Chairman, I would like to emphasise certain 21 points, the main one being experts in this case, from 22 the word go, as far as I'm aware, have not been using 23 the right material. I was not using the right material 24 when I first saw what I had to look at, but when I got 25 the rolled impression of Shirley McKie's left thumb, the page 34 1 blue thumbprint as we call them, fingerprints as we call 2 them, it became apparent the full extent of the detail 3 on mark Y7 in association with her fingerprints -- her 4 thumbprint rather. 5 Since then, my first meeting with Mr Gilchrist, 6 Mr Wertheim's exhibit, apparently -- I wasn't there -- 7 but apparently one of his reasons given in court that 8 the mark was not identical was the fact that there were 9 these characteristics at the tip of the mark Y7 which 10 were not on Shirley's thumbprint and they probably 11 weren't on the one he was looking at but there were on a 12 proper rolled impression, had he had the right material. 13 Why he didn't have the right material I don't know 14 because apparently he took, I'm told, hundreds if -- I 15 don't know how many, but fingerprints of her. 16 Secondly, I noticed that in the comparative exercise 17 Mr Zeelenberg makes reference to it -- bear with me. 18 (Pause) 19 Mr Zeelenberg's comment -- my comments regarding 20 Mr Zeelenberg's comparative exercise, he says, well, he 21 does find numerous characteristics in agreement which 22 I've indicated but he does say: 23 "The tip is not charted because the counterpart on 24 the comparison print fails." 25 So he hasn't had the chance in the comparative page 35 1 exercise to refer to the characteristics at the tip and 2 associate them with the relevant points on Ms McKie's 3 left thumbprint. So if he'd seen those -- I don't know 4 whether he's seen them to this day, I've no idea -- but 5 had he seen those he would possibly come to a different 6 conclusion. They are there. They are very, very clear 7 indeed and they are very important characteristics. 8 It's the same with the -- I don't think either he, 9 Mr Zeelenberg or Mr Wertheim, had grasped the 10 significance of the Rosetta characteristic. I mean, 11 we've got a unique cluster of sweat pores to the left of 12 the mark with associated characteristics, a large 13 bifurcation forming within those sweat pores travelling 14 to the right towards 3 o'clock, the lower missing a 15 ridge and going down, you come to the ridge that slopes 16 down a little bit like the trains in our rail system, 17 the GNER system, where the nose goes down like that 18 (indicated) at 128 degrees, you've got the little island 19 ridge to the side of it. You've got all these 20 characteristics and others in association with each 21 other. 22 Additionally, the 20 points or whatever how many you 23 want to call on the bottom part of the mark -- I have 24 marked 16 on the charting here obviously -- the 16 25 there, the 8 in the middle and the 8 at the top, a page 36 1 combination of characteristics -- 2 Q. If you give me just a second. I apologise for 3 interrupting your thought process. This is important so 4 perhaps if we can locate the microphone in a position 5 that is comfortable for you. 6 A. The point I want to make regarding those three areas of 7 mark Y7 is you're not going to get repeated in any other 8 person those at the top, those in the middle, and those 9 at the bottom, a total of 32 characteristics. The ones 10 at the top, in my opinion, stand alone because I can't 11 associate them with those lower down because of the 12 movement, the slight distortion and what have you -- 13 well, the large distortion, if you like, with 14 66(?) degrees anticlockwise movement -- but the Rosetta 15 characteristic in the middle can be associated with 16 those in the bottom part of the mark. So you have a 17 total there of 24 characteristics in agreement. 18 Now, studies have been carried out over the years, 19 obviously. The latest one that I can find on the web is 20 the one conducted by Lockheed Martin FBI in 1991 when 21 their studies only looked at, I must admit, 50,000 sets 22 of fingerprints but their conclusions were -- or 23 statistical conclusion was -- that if you get four ridge 24 characteristics in agreement (and they've got to be in 25 agreement), which I thought was a bit low, they worked page 37 1 out that the odds of anybody else having those four 2 characteristics in that same position was 10 to the 3 power 27. I'm not a mathematician but where they got 4 that figure from I don't know, but that's a very, very 5 high figure indeed. You're talking about four 6 characteristics. Here we're talking about 8 times that 7 number. What the odds of those being found in somebody 8 else are beggars belief. 9 So the thing about it is the positivity of this. I 10 mean, I can appreciate the comments passed by other 11 experts and their views of, you know, whether this is a 12 characteristic or not and so on and so forth. So be it. 13 But as far as I'm concerned what are marked on those 14 charts that I presented is positive and there's no doubt 15 about that at all. 16 Not so many years ago we had the -- I mean, I saw 17 some passage somewhere recently in the material I've had 18 here "my flawed Aberdeen findings". It wasn't "my 19 flawed Aberdeen findings", it was the flawed findings of 20 the Aberdeen people who did the report that they 21 prepared. The report in itself was, to my mind, very, 22 very elementary. They didn't state anything categorical 23 like ridge characteristic this and so on and so forth. 24 It was just simply a general report and their conclusion 25 was that, because there was a number of characteristics page 38 1 outstanding which they couldn't resolve, it was not 2 Shirley McKie's left thumbprint. But the material they 3 used they got from Mr Wertheim. It's there. It's 4 produced, it's all produced and all they've used are 5 eight or nine, I think it is, left thumb plain 6 impressions. 7 Of course, the detail they are talking about at the 8 tip is not on those. So, therefore, the same as 9 Mr Wertheim in his court appearance is saying it's not 10 identical because those characteristics are missing. 11 They are not missing. If they look at the right 12 material, which you'd think that experts carrying out 13 some very important report on a very, very important 14 topic would have got the correct material to work but 15 they don't. They just simply go willy-nilly and produce 16 a report and that's it. 17 The whole thing to me is ... I don't know. It's as 18 if a group of experts can see the correct detail in the 19 mark -- and I'm saying that I'm seeing the correct 20 detail in the mark, obviously -- and others just simply 21 cannot see it. Why they can't see it I don't know but 22 it's there plain enough. I don't think -- there's 23 certain people, the majority of the ones who we've 24 called the contradicters, have not worked out the 25 movement of the mark and they don't appreciate what's page 39 1 happened to it. 2 I can't say any more than that really but, I mean, 3 this is the impression -- well, it's not the impression 4 I get, it's factually. I mean, I've seen their reports, 5 I've read them. I don't go along with this drawing 6 fingerprints. I think it's -- well, I've never had to 7 resort to it. I never saw anybody in the bureau I 8 headed for many, many years having to resort to some 9 kind of action like that, drawing over ridges to sort of 10 highlight things and what have you. You simply prepare 11 an enlargement of the mark and you compare it and you 12 mark the characteristic detail and when you've got 13 sufficient in agreement, then that's the end of the 14 matter. 15 QI2 I didn't find as difficult a mark to compare as 16 Y7. There's no movement as such on it. It's a very -- 17 I won't say "poor" mark. It's a mark which is in the 18 middle of a whole host of other fragmentary detail, as 19 you know, on this M&S tin as I understand it. It was 20 developed by the superglue process, as I've been 21 informed, and the detail there which I have marked on 22 this chart here, irrespective of the comments regarding 23 gaps in ridges and so on and so forth, to my mind it is 24 positive. 25 You're not going to get that extent of detail in page 40 1 agreement in somebody else. It's not on. I mean, I 2 can't prove to you you can't get that detail from 3 somebody else but it is a well-known fact. Fingerprints 4 are produced or the ridge detail our fingers, palms and 5 feet of course are produced between, early on in the 6 foetal growth of an unborn child, 12 to 20th weeks I 7 believe it is. The detail that we eventually get on our 8 hands and fingers is formed by the internal and external 9 pressures and movement on what they call the volar pad 10 within the body tissue and that determines the ridge 11 characteristic detail and because you cannot reproduce 12 those internal/external pressures and movement within an 13 unborn child you'll never get two people with the same 14 ridge detail. It's called the theory of relative 15 growth. I've not read it but that's what it's called. 16 So the detail that you get is yours, it's positive 17 and if you see that same detail in somebody else then 18 you have an identification. There's nothing more I can 19 say really. 20 Those are the two most important marks. I don't 21 think there's a great deal of point referring to the 22 bank note or the gift tag. I don't think there's any 23 great -- any comment about that. I know the bank note 24 mark, which is a very, very simple straightforward 25 mark -- page 41 1 Q. It's okay. For reasons that are lost in time we need 2 not go into the bank note which is QD2 and, equally, XF 3 that we have discovered through the comparative exercise 4 that there is a consensus, a unanimity of view, as to 5 its identity so we need not take up your time in 6 relation to either of those two. 7 I am sorry, I have again interrupted you. Is there 8 a -- 9 A. No, no. You can talk all day about fingerprints but I 10 think I'd better stop. 11 MR MOYNIHAN: I think that as that coincides with the coffee 12 break, perhaps it is -- 13 THE CHAIRMAN: Yes, it might be convenient. 14 I was going to ask you first, Mr Smith, if there 15 were issues you wanted to raise with the witness. 16 MR SMITH: Thank you, sir. Yes, there are matters that I 17 would like to raise with the witness. They are as 18 follows: the first relates to the basis of the original 19 instruction to Mr Swann on behalf of Shirley McKie, in 20 particular the issue of forgery and transplantation 21 because that is something that majors in the report, as 22 I understand it. 23 THE CHAIRMAN: I think that was touched upon but you want to 24 ask some further questions about that? 25 MR SMITH: Indeed so, sir, I do. page 42 1 The second area is the progress of the analysis of 2 the various productions at various times. There are a 3 few matters that are unclear to me as to what was 4 available at what stage to Mr Swann and, indeed, the 5 point at which he formed various opinions about the 6 matters. In particular, under that umbrella, the extent 7 of the second examination on 2nd March in Glasgow. 8 The next matter relates to some further questions 9 about his contact with Mr Terry Kent. Then moving on to 10 the point in time, and this theme goes through, when 11 differences were observed by Mr Swann and what he did 12 when he became aware of these. 13 I would like to ask him some questions about -- 14 THE CHAIRMAN: Sorry, when you say differences were 15 observed ...? 16 MR SMITH: Yes, the differences between Y7 and Shirley 17 McKie's inked mark and what he did in the light of that. 18 I would like to ask him some questions about a point 19 of detail arising from his statement. It is his 20 position regarding his evidence in the McNamee case. I 21 can deal with that fairly shortly. I would like to ask 22 him some questions about what his expertise is and where 23 that's derived from. 24 There are a few points of detail, sir, that I would 25 like to ask about relating to the images but they are page 43 1 very, very short points, matters that I find quite 2 difficult to understand what the position is. 3 THE CHAIRMAN: If it is clarifying some points then ... 4 MR SMITH: It is. I will not take much time with it. 5 THE CHAIRMAN: Insofar as I have been able to note them I 6 will give you leave. I am sure the question about the 7 MacNamee case I hope will be very limited what you want 8 to ask about that. 9 MR SMITH: It is. I should say, sir, there's one other 10 matter that I meant to mention. I realise that 11 Mr Moynihan covered the question of the IAI. I am 12 conscious you, sir, have no interest in the IAI's 13 findings -- 14 THE CHAIRMAN: No, there is only one matter that was raised 15 with me was the coincidence of the IAI beginning their 16 inquiry at just about the time of this inquiry was about 17 to begin and, indeed, of publishing their views before 18 this witness had given evidence. It's only in relation 19 to that that I'm interested in but not in their 20 conclusions or observations. 21 MR SMITH: Sir, I have no intention of going into that point 22 but perhaps if I just make it clear, the statement 23 Mr Swann has lodged -- and bearing in mind of course I 24 do represent Mr Wertheim as well -- goes a little 25 further in one part than my learned friend page 44 1 Mr Moynihan -- 2 THE CHAIRMAN: If there is something further he said then 3 certainly I will let you touch on that but I would ask 4 you to bear in mind that I am -- 5 MR SMITH: I can give you an assurance -- 6 THE CHAIRMAN: -- not interesting myself in the IAI beyond 7 the limits I've expressed. 8 MR SMITH: Do you wish me to commence just now, sir, or -- 9 THE CHAIRMAN: No, it is 11.30 so we will sit again at 10 11.50. 11 (11.30 am) 12 (A short break) 13 (11.50 am) 14 Cross-examined by MR SMITH 15 Q. Mr Swann, are you an expert in the forgery of 16 fingerprints? 17 A. In the what of fingerprints, sorry? 18 Q. Forgery of fingerprints? 19 A. No, there's no such person. 20 Q. I will come back to that in due course, if I may. 21 The first thing I would like to ask you is a point 22 of clarification from something that came up yesterday. 23 I think in the course of your evidence yesterday, in 24 response to a question from the Chairman, you were asked 25 about whether you could have a situation where a number page 45 1 of points was, in fact, in sequence and agreement 2 between a known and an unknown mark, but there were 3 certain points that were in disagreement. I think the 4 Chairman asked you how one handles that. 5 Yesterday I think what you did was you referred to 6 an article which you said you had which indicated that 7 you could have that situation and nonetheless there 8 would be an identification. 9 Did I pick that up correctly? 10 A. That's correct, yes. 11 Q. I think you are aware at the close of business yesterday 12 a request was made for you to provide a copy of that 13 copy of that article to ourselves. 14 You did provide that Article, did you? 15 A. Well, I gave one to the young lady over there. 16 Q. Yes. I can tell you, Mr Swann, that she provided us 17 with a copy of it. I would just like to be clear about 18 this. I think the paper you produced was a copy of a 19 chapter from a book called "The study of latent 20 fingerprints", by someone by the name of Wendell W 21 Clements. 22 Is that the paper you were referring to? 23 A. That's correct, yes. 24 Q. Mr Swann, I do not wish to take up too much time with 25 this but would you agree with me that what that is is page 46 1 simply a mock cross-examination of a fingerprint expert 2 and the author is giving guidance as to how the expert 3 might handle the questions from a defence attorney? 4 A. Yes, I take it to be that, yes. 5 Q. It is not a real case, is it? 6 A. I don't think so, no. 7 Q. It is not, as it were, an article that has been peer 8 reviewed that suggests that you can have a situation 9 where there are 12 points, I think is the example you 10 gave from this paper, in agreement but three points in 11 disagreement. It's not a finding, is it? 12 A. I think he's making the point that if you get X number 13 of characteristics in agreement sufficient to satisfy 14 the expert that it is an identification then there's an 15 explanation for those that you cannot agree. 16 Q. I think what the gentleman is doing is suggesting how an 17 expert witness for the prosecution might respond to a 18 challenge by a defence attorney if pressed on that 19 point. That's all it comes to. 20 A. Yes. It's a training exercise. 21 Q. Forgive me, it's not an article, is it, that says that 22 there is a real case here where a real judge decided 23 that you could have points in disagreement and points in 24 agreement but still a valid identification? 25 A. That would seem to be correct. page 47 1 Q. I think I am right in saying that you were initially 2 involved with Shirley McKie and Iain McKie when they 3 visited your premises down in Wakefield? 4 A. They did, yes. 5 Q. Was that a relatively informal discussion you had with 6 them? 7 A. It was, as far as I can recall, yes, yes. 8 Q. There was no solicitor present, was there? 9 A. No. 10 Q. At that time did you consider yourself instructed on 11 their behalf? 12 A. No, I didn't. 13 Q. What was the nature of the discussion, as far as you 14 recall it? 15 A. Well, I was given to understand the discussion would 16 revolve round three particular areas of fingerprints. 17 One was can fingerprints get mixed up. The forgery and 18 transplanting of fingerprints and can fingerprints be 19 mistakenly identified. I think I'm correct. I didn't 20 write notes about all this but that's as I recall. 21 Q. That forgery, transplant, were considered as being an 22 issue that may arise? 23 A. Yes. 24 Q. Did you tell them at that time that you were not an 25 expert in forgery and transplant? page 48 1 A. I've no idea. I don't know who on earth is an expert on 2 the forging and transplant of fingerprints. 3 Q. I'm sorry, can you ...? 4 A. I don't know who is an expert on the forging and 5 transplanting of fingerprints. I mean, if you ask an 6 expert has he ever seen a forged fingerprint -- 7 THE CHAIRMAN: Mr Smith, before we go on on this point, it 8 is not an issue in this Inquiry, forgery, as I 9 understand it. This witness is giving evidence here on 10 the interpretation of fingerprints and I do not think 11 there is any question mark over his expertise over many 12 years in that subject. So what exactly is the relevance 13 of whether he is an expert on forgery? 14 MR SMITH: Sir, the reason I ask the question is this: it 15 goes fundamentally to the issue of credit of the witness 16 and what he was disclosing at various times in the 17 context of his report. I am sure, sir, you are aware of 18 the obligations of experts disclosing such things -- 19 THE CHAIRMAN: Of course. 20 MR SMITH: -- for example, any matter which goes against the 21 opinion that is being expressed and it is my submission, 22 sir -- I don't wish to take it much further if you, sir, 23 are not wanting to go there. 24 THE CHAIRMAN: I don't think it really needs to go because 25 my view has been that each expert on fingerprint page 49 1 interpretation comes here and gives his evidence in the 2 form of his opinion and it stands or falls by that and 3 we really haven't gone into people's expertise and 4 qualifications and so on. 5 MR SMITH: I understand that, sir. Perhaps I can say this: 6 that as you will recall I haven't either with any other 7 witness and quite deliberately not done so but of course 8 my understanding is, regards to Mr Swann, I understand 9 that it was broadly at that stage being accepted the 10 mark was, in fact, Shirley McKie's. So the question of 11 what he was doing examining it is, it seems to me, with 12 respect, relevant because what was he trying to achieve 13 by looking at it if it wasn't looking to see if it was 14 forged or transplanted? 15 THE CHAIRMAN: Is your point that he was only looking at it 16 from the point of view of transplant and it was not a 17 question for him whether it was a true mark or not? 18 MR SMITH: Correct. That is really it, sir. 19 THE CHAIRMAN: If that is the issue, then I will certainly 20 let you ask that. 21 MR SMITH: Thank you. 22 I will try not to go into a great deal of detail 23 about that particular matter, but you understood, did 24 you, when you first met Shirley and Iain McKie that they 25 were proceeding on the assumption that the fingerprint page 50 1 Y7 was a fingerprint of Shirley McKie. 2 A. Yes. 3 Q. Therefore, you would have a purpose in looking at it, 4 looking at the evidence in due course when instructed by 5 Levy & McRae? 6 A. I didn't know at that time whether I would be instructed 7 but I subsequently was, yes. 8 Q. But when you received instructions, written 9 instructions, from the solicitous to be an expert 10 involved in the case, what did you understand the 11 purpose of your engagement actually was? 12 A. First of all, to examine a document they sent down to 13 me, which was a comparison chart of an SCRO production 14 in the forthcoming trial. Following that, I was 15 instructed to attend at the Justiciary Building in 16 Glasgow to examine the door standard on which the mark 17 Y7 had been found and was still there and also to check 18 the positivity of the identification that had been made. 19 That was the purpose of going to Glasgow and that was 20 evident by the materials that were laid out for me to 21 examine. 22 Q. I would like to be clear about what information was sent 23 to you, first of all, by Levy & McRae, the solicitors, 24 before you visited Glasgow. 25 Can I ask you to look at some documents. These are page 51 1 what featured as productions number 152, 180 and 189 in 2 the criminal trial and the references, for the purposes 3 of this Inquiry, are ST0006. If we could have that one 4 up, first of all, please. Can we flick on I think until 5 we get some images ... pause there, please. 6 Can you recall if these two photographs were part of 7 the documentation sent by Levy & McRae solicitors? 8 A. Well, if it was, I don't recall seeing it. 9 Q. Can I have the next page on that image, please. 10 Is that something you recall having been sent down? 11 A. That is the comparison chart that I examined, yes. 12 Q. Just for completeness I don't think there are any other 13 pages but can you just check there is nothing after that 14 is material. Just one more page. I think I am being 15 given an indication that that is the limit of that 16 document. 17 Can we keep that image on the screen, please, and go 18 to SG0126 which was production 189 in the criminal 19 trial. Can we flick through pages. 20 Again, we see two images. I think they one above 21 the other rather than one beside the other. 22 Then the next page, please, which again there are, 23 even to the relatively untrained eye, differences 24 between the two. 25 Can you identify, Mr Swann, what is the difference page 52 1 between the right-hand image on the left-hand side of 2 the page and the right-hand image on the right-hand side 3 of the page? 4 A. I'm sorry, could you repeat that? 5 Q. Yes, I'm sorry, it was a very poor question. 6 You see the inked mark on the left-hand image? 7 A. Yes. 8 Q. And the inked mark on the right-hand image? 9 A. Yes. 10 Q. And we can see that they are different? 11 A. Indeed. 12 Q. Are you able to help me with what is the difference, 13 what do these appear to be in comparison to one another? 14 A. Well, they're both impressions of -- well, they are both 15 the same fingerprint, except that the one on the right 16 is more or less a fully rolled impression. We see most 17 of it except from the top part that seems to have been 18 cut off and perhaps, indeed, the bottom half. 19 On the left-hand side indeed more has been cut off, 20 well, to facilitate the chart that they were preparing. 21 Q. Did you know that was why the image was partly cut off, 22 to facilitate the charting? Did you know that? 23 A. Did I know that? 24 Q. Yes. 25 A. Well, I could tell when I saw the chart it had been cut page 53 1 off. 2 Q. I am interested in your understanding of the reason why 3 it had been cut off. 4 A. Well, in any preparation of comparison charts we 5 always -- well, I did as well and no doubt the whole of 6 my department did -- you balance one mark against the 7 other by putting it on top and working out where the 8 characteristic detail fell and then when you got the 9 area you wished to portray in the chart you couldn't get 10 it all on the chart because the chart wasn't big enough 11 so, therefore, you had to cut off certain areas. It's 12 not -- 13 Q. I would like to ask you this. You may not know the 14 answer from this remove, but the images that you were 15 provided with by Levy & McRae, first of all, were they 16 original images or were they photocopies of this type of 17 presentation? 18 A. It was a photocopy. 19 Q. A photocopy. I take it you would agree that a photocopy 20 of something is poorer quality than the original. We 21 are agreed about that much, are we? 22 A. Yes, it has to be, yes. 23 Q. Can you remember whether the image you were provided 24 with contained the rolled inked impression or the plain 25 inked impression? page 54 1 A. Part of the plain. Oh, sorry, this one here. The one 2 on the left-hand side. 3 Q. Very well. I wonder if for completeness we could also 4 have up -- 5 MR MOYNIHAN: Sir, before we remove anything, because the 6 questions are relating to what is on the right and left 7 of the screen it might help if the screen is saved. 8 THE CHAIRMAN: We will save the screen then. 9 MR MOYNIHAN: Can I also just say to my learned friend that 10 we actually have the originals here if the need arises. 11 MR SMITH: Thank you. I am not sure I necessarily wish to 12 undertake that exercise. 13 MISS BAHRAMI: That's saved as FI2310.02. 14 MR SMITH: Could I ask for the right-hand image to be 15 removed, that is SG0126.003. I would like another image 16 brought up, please, SG0125 and again flicking through to 17 find ... if you can hold it there, please. Can we have 18 the left-hand image expanded to show both halves of it, 19 as it were, to show both photographs on the left-hand 20 side of the page ... I am not describing that very well. 21 Mr Swann, I think again even to the untrained eye we 22 can see that in the mark Y7 on each of these images the 23 photograph shows a different area. Do you see that? If 24 you wish it expanded, it might make it easier. Just 25 help me with this. We can see there is a lot more page 55 1 space, as it were, below the print on the left-hand 2 image than there is on the right-hand image. 3 Do you see that? 4 A. Yes, that appears to be so, yes. 5 Q. Are you able to help me, you have a copy of a document 6 in front of you which I assume is your original 7 instruction in the case; is that right? The document 8 you are wrong in your hand, I think. 9 A. This is the one that I received, which would appear to 10 be the one on the left-hand side. 11 Q. On the left-hand side. You are quite clear that you 12 only received one document, as it were, from 13 Levy & McRae. You didn't receive a spread of images? 14 A. No, this is all I recall receiving. 15 Q. What you are holding just to be clear about it, is a 16 photocopy, a single A4 sheet, which shows on one side of 17 it Y7 and on the other side of it a plain impression of 18 Shirley McKie. That's right, isn't it? 19 A. It is the left thumbprint of Shirley McKie. Whether 20 it's a plain impression or a rolled impression I'm not 21 sure from this photograph. 22 Q. Very well, what I'm interested in is you were not 23 obviously not sent the copies of the photographs of the 24 entire mark? 25 A. I don't recall seeing them, no, I don't, no. page 56 1 Q. You explained that the next thing you did was, after 2 having received that, it's in your statement, you were 3 provided with an air ticket and you had to come up to 4 Glasgow to facilitate your examination? 5 A. Yes. 6 Q. Had you, before you got in the plane, as it were, had 7 you formed any view at all as to whether or not there 8 was a match between Y7 and Shirley McKie's inked mark as 9 provided to you? 10 A. Yes. 11 Q. The view was? 12 A. It was identical. 13 Q. To be clear, you were going from a photocopy of an image 14 and you were able to form a preliminary view from the 15 document in front of you just now? 16 A. Yes, indeed. 17 Q. Was it a preliminary view or a concluded view? 18 A. A preliminary or what? 19 Q. Concluded view. 20 A. What I did -- I think I explained earlier on in the 21 course of giving evidence -- when I'd received this, I 22 said it was a dull, matt-type finish photograph, not 23 sort of glaring clear or anything like that and I spent 24 one day examining it and formed a view. I then missed a 25 day and had another go, just to be sure, and to be page 57 1 absolutely sure I missed a day and had a final go, ie 2 Monday, Wednesday, Friday, something like that -- 3 whether it was those days, I don't know -- until I was 4 quite satisfied in my own mind. 5 Well, I was satisfied in my own mind the first time 6 I examined it but not that I have the chance to pass 7 something to another person and say, "Have a look at 8 that and confirm me", I tend to do a triple check and, 9 at the end of the day, I was satisfied as to identity. 10 Q. Mr Swann, since you have that document I wonder if it 11 would be possible, first of all, if you would be 12 prepared to allow it to be produced to the Inquiry and, 13 secondly, if we could have it put on the overhead 14 projector so we can see what it is you have. 15 Do you have any difficulty with that? 16 A. Well, it's one that I have worked on and marked certain 17 characteristics. 18 Q. I am sure that would be even more assistance than I 19 thought it was at the outset. I take it you are quite 20 happy for it to be produced? 21 A. Yes, I've no problems. (Handed) 22 Q. I wonder if we could have the left-hand image, as it 23 were, taking up most of the screen, please, and zooming 24 in and allowing it to focus. 25 Can I just understand the dots on it. Obviously, page 58 1 I'm not looking at the original but how are the dots 2 applied? Is it some kind of ink? 3 A. It's a silver -- not felt tip pen but a silver pen. It 4 just highlights characteristics. 5 Q. I haven't obviously had the opportunity of looking at 6 this but how is it that you identified the points there? 7 We don't see, for example, in the left-hand image or I 8 can't see, as it were, the SCRO marking-up of it. 9 Are these your lines, so number 16, for example -- 10 A. No, no, the marking-up and the preparation of the chart 11 originally was by SCRO and I've just -- 12 Q. So what you are doing is really confirming there -- if 13 we take point 16, for example, what you are doing is you 14 are, what, simply following the line from 16 down to the 15 end and putting a dot there. Is that the idea? 16 A. Well, I went through every characteristic on the chart 17 to ensure they were accurate and they had been properly 18 marked. 19 Q. I am interested in the way the exercise was carried out. 20 Let us take one that's a little more legible, if that's 21 the right word, point 6 at the bottom of the page. I'm 22 imagining the exercise you carried out, Mr Swann. When 23 you are looking at it, you obviously begin with the 24 proposition that point 6, according to SCRO, ends up at 25 some point of relevance. page 59 1 A. Yes. 2 Q. I am right. So you follow the line from 6 and it goes 3 along to the end of the line. Now, what do you do then? 4 Do you just put a dot there or do you -- 5 A. If I was originally marking-up the identification? Then 6 I would put a black dot, as I have done on the 7 photographs you have seen on my exhibits. 8 Q. But, mr Swann, you weren't doing the original marking-up 9 here, of course. You were looking at someone else's 10 work. 11 A. I was, yes. 12 Q. What you were doing was your eye was being drawn to the 13 end of a line to see if a point of relevance was there, 14 wasn't it? 15 A. Correct. 16 Q. Then you were saying, do I see that point? 17 A. Correct. 18 Q. And at that point if you said, "Yes, I do" were you then 19 putting a dot on it? 20 A. No. Someone else has already done that. This marking 21 with this silver pen I did about three or four weeks 22 ago. You are going back to 1990-something, aren't you, 23 with the original, when I first got it. I simply was 24 sent this down by Levy & McRae to -- they asked me 25 specifically to look at this particular chart, which I page 60 1 did and I conveyed the information, as I recall anyway, 2 by telephone back to a lady called Angela McCracken at 3 Levy & McRae. 4 Q. I follow. It's my mistake. I should have asked you 5 when you applied the dots and that's been done recently 6 with the silver pen. 7 A. Just to be prepared for this Inquiry I had a further 8 look at it and perused it, et cetera, et cetera, and 9 marked it accordingly. So it will stand out and you can 10 see them. 11 Q. Just one point on this: point number 1, can you tell me 12 what is that? Is that a ridge ending, a bifurcation? 13 What is it? 14 A. I'm sorry, I can't really see it on here. It's lost 15 its -- 16 THE CHAIRMAN: Do you need your own copy? 17 A. Yes, I could do with the original to answer that 18 question, please. 19 THE CHAIRMAN: It just means we cannot have it in two places 20 at once. 21 A. The more you enlarge it the more vague it will become, 22 unfortunately. (Handed) 23 Point number 1 is a ridge ending. 24 MR SMITH: It's a ridge ending. Is the ridge coming from 25 the bottom right going up or coming from the top left page 61 1 coming down or is it -- 2 A. It's coming from the bottom right and going up. 3 Q. Just while we have the images on the screen, the ones we 4 do from the database, can we take it that point 1 on the 5 database is pointing to point 1 in the document we have 6 in front of us. It should be, shouldn't it? 7 A. Sorry, point number 1 is a ridge ending up. 8 Q. It's a ridge ending up? 9 A. Yes. 10 Q. Are you able to see that on the screen in front of you? 11 Are you able to identify on that image, either of these 12 two images on the screen, point 1, a ridge ending coming 13 up? 14 A. It's where the end of the pencil, where the pencil point 15 is (indicated). 16 Q. So the answer is, yes, you can see it on the screen? 17 A. It's not as clear on the screen as it is on this in 18 front of me because we've enlarged it on the screen and 19 the more you enlarge it the vaguer it will become. 20 Q. The reason I am asking, Mr Swann, is this: it may just 21 be me, but I am having difficulty seeing anything other 22 than a black mass where point 1 ends but you are telling 23 me that you can see on the screen, albeit a little bit 24 fainter, you can see a ridge ending, ending upwards, on 25 the screen? page 62 1 A. I know where the point number 1 ends on the screen 2 because I'm looking at it here on the actual -- well, 3 not an actual size one but on this one here which is 4 clearer. 5 Q. Forgive me, Mr Swann -- 6 A. It is not as easy to see on there. 7 Q. Mr Swann, the question is this: are you telling me that 8 on the screen just now you can see a ridge ending, 9 ending up, at point 1? 10 A. Yes. 11 THE CHAIRMAN: But only because you have a clear copy in 12 front of you. 13 A. Yes, Mr Chairman, but I know where it is ends because I 14 can see where the line goes to and it's the same as it 15 is on here. It's just that it's clearer on here than it 16 is on there. 17 MR SMITH: So what happens to the ridges at either side of 18 that ridge ending? Can you see that on your copy? 19 A. They both carry on in an upwards direction. 20 Q. I take it, Mr Swann, you are happy for that document to 21 be left with the Inquiry, the one you have in front of 22 you? 23 A. Yes, certainly. 24 Q. Let us go back to the sequence of events. You then came 25 up to Glasgow, I think to the High Court, the Justiciary page 63 1 Building in Glasgow? 2 A. Correct. 3 Q. The purpose of the examination at that stage, you having 4 concluded that this was a match between Shirley McKie's 5 print Y7, the purpose of visiting the High Court was 6 what? 7 A. My purpose of the visit was, first of all, to see the 8 actual mark on the exhibit, exhibit 102 I think it was, 9 the door standard, which I did. I checked that. I 10 sketched it, et cetera, measured it, the position of the 11 mark and so on, which can be seen on the charts I 12 prepared. I assessed it as to my opinion as to whether 13 it was genuine or otherwise and then, secondly, I 14 compared the mark on the door standard with the 15 photograph that was supplied for me to look at, which 16 was an actual size copy of Y7. I checked that with the 17 mark on the door standard to make sure it was a 18 photograph of the same mark and then I compared the mark 19 in the photograph with the fingerprint form that was 20 there for me to use which had been provided and compared 21 the two and was satisfied again that the mark in the 22 photograph -- I'd never seen an actual sized photograph 23 before -- that that photograph was identical with the 24 left thumb of Shirley McKie. 25 Q. I may be misunderstanding this. You had reached a page 64 1 concluded view before you went to Glasgow that this was 2 Shirley McKie's mark? 3 A. Well, that was -- yes, indeed, yes. 4 Q. Did you tell Levy & McRae or indeed anyone at that 5 stage, "I'm telling you now, it's her fingerprint"? Did 6 you communicate that? 7 A. I certainly didn't communicate it in writing. Whether 8 it phoned Angela McCracken and told her I can't recall. 9 Q. Surely it would be a matter of importance when you are 10 coming up to Glasgow to confirm your three days' 11 investigation which concluded that SCRO were right. 12 Is that not something that you ought to have made 13 clear? 14 A. Well, I say I probably spoke with her and told her. I 15 didn't make a note of it. I mean ... 16 Q. So the two possible purposes of examining the original 17 mark, full size photographs and inked prints, would be 18 either to confirm your concluded view that it was her 19 print or to explain how her print got on to the 20 doorframe when she says it can't be hers. These are two 21 possibilities. 22 Do you understand what I'm putting to you? Which of 23 these was the purpose of your visit? 24 A. As far as I was aware, it was both -- 25 Q. Sorry -- page 65 1 A. Both reasons. 2 Q. I'm sorry, I didn't mean to interrupt. 3 A. The purpose of my visit was, first of all, to see the 4 mark, to assess it as to its genuineness and, secondly, 5 again, to do a comparison to make sure, yes, it was her 6 mark. 7 Q. I am not sure I understand what you mean by its 8 genuineness. What do you mean by that? 9 A. Whether I could detect anything by looking at the door 10 standard and looking at the mark, was there anything 11 there to suggest to me that it was anything other than 12 genuine, had it been tampered with or whatever? I mean, 13 you've got to look to see and when I looked at the mark, 14 I couldn't see anything in it, around it, close to it or 15 what have you, to suggest it was anything other than 16 genuine. 17 I've seen hundreds of thousands of marks, not on 18 door standards but certainly on door standards 19 sometimes, windows frames, you name it, and what have 20 you, and as soon as you see a mark you form an 21 impression. 22 Q. The fact that you were wanting to verify your view that 23 mark Y7 was Shirley McKie's, does that not suggest that 24 there might have been some doubt in your mind? 25 A. Not at all. page 66 1 Q. Why did you check it then? 2 A. Because the equipment was laid out there for me to use 3 and I'd never seen an actual sized impression before so 4 I got down with the magnifying glass, the things we use 5 in the fingerprint departments, and compared the two. 6 Q. Mr Swann, were you happy with the quality of the image 7 that you have been provided with by Levy & McRae 8 initially? 9 A. What the one you've -- 10 Q. Yes. 11 A. Well, it wasn't a question of being -- that's what I got 12 so that's what I had to use. 13 Q. With respect, I am not sure that is an answer to the 14 question. Were you happy with the quality of the image 15 you were provided with by Levy & McRae? 16 A. It was sufficient for my purpose but it was a bit dull 17 and a bit grey, what have you, and probably I've no 18 doubt at all that the original would have been probably 19 a little bit clearer. 20 Q. Did you not think before you started your three-day 21 analysis that you should have asked Levy & McRae for 22 better quality images to work from? 23 A. No, I worked from that and I was quite satisfied. 24 Q. Did you tell Levy & McRae you were unhappy with the 25 quality of the images? page 67 1 A. No. 2 Q. Why not? 3 A. I didn't see the need. 4 Q. Did you tell Levy & McRae it might be helpful to have a 5 full sized copy of the photograph? 6 A. No, I just simply did what I was asked to do and that 7 was to compare that chart and to report back as to 8 whether it was identical or not. I can't remember the 9 exact words spoken, it's so long ago but that was the 10 task that I was given. 11 Q. Mr Swann, we heard some evidence in this Inquiry that 12 these images were created by a charting enlargement 13 machine. 14 Are you familiar with such equipment? 15 A. No, I'm not. I've heard it mentioned here but I've 16 never used it in my career. I don't even know what it 17 looks like. 18 Q. We have also heard some evidence to the effect that SCRO 19 were unhappy with the quality of the images being 20 produced from the charting enlargement machine. I take 21 it you wouldn't contradict that if they were unhappy 22 with it? 23 A. Well, I don't know whether they were happy with it or 24 not. I've never used one. I wouldn't particularly want 25 to use one. page 68 1 Q. Why not? 2 A. Because I'm quite capable of drawing exhibits, as you've 3 seen in the albums I've provided, without the assistance 4 of machinery. 5 Q. We've also heard some evidence that one of the 6 complaints about the charting enlargement machine was 7 that when lines were drawn the end point of the line 8 didn't actually meet up with the point that was sought 9 to be identified. 10 Do you understand what I'm putting to you? 11 A. Yes, I do know what you mean, yes. 12 Q. Did you see any evidence of that when you examined the 13 SCRO's workings? 14 A. Not to any extent to prevent me from doing a comparison. 15 I mean, we all mark up -- every fingerprint expert marks 16 up comparison charts in their own way. If I'd have been 17 marking this up then probably I might have marked it up 18 differently. 19 Q. I just want to be clear about this. The lines that were 20 drawn by SCRO, were the end points of the lines exactly 21 on top of the relevant ridge detail that you saw? 22 A. No, I think they are pretty straightforward and they go 23 to the characteristic detail they are supposed to 24 indicate. I'm looking at it now and I can't see 25 anything which suggests to me that it's out of alignment page 69 1 or whatever you want to call it. 2 Q. Your position is that they do end up at the ridge detail 3 that's relevant, is it? 4 A. Well, they might not end up exactly on the spot but, I 5 mean, they aren't more than, what, a fraction of a 6 millimetre away or whatever measurement you want to talk 7 about. No-one gets them there exactly. 8 Q. Are you saying if there is any shift it's only a 9 fraction of a millimetre? Is that your position? 10 A. I'm just using that measurement for the sake of using 11 it. I mean, as far as I'm concerned, the lines that are 12 marked here are indicating the characteristic detail 13 that they are supposed to indicate. 14 Q. Do any of the end points of the lines just end up 15 nowhere, miss the point on the fingerprint completely, 16 any of them at all? 17 A. Well, I can't see any offhand. To do an exercise like 18 that it would probably take some time but I can't see 19 any on here that do not arrive at the point they are 20 intended to arrive at. 21 Q. Going back to the sequence of events, if I may, I think 22 in fact it was in the Procurator Fiscal's Office that 23 you undertook an examination of the various new bits of 24 information, the doorframe, et cetera, in the Procurator 25 Fiscal's office; is that correct? page 70 1 A. No, I never went to any Procurator Fiscal's Office. 2 Q. It may be the Fiscals' Office within the High Court 3 building. I don't wish to be unnecessarily detailed 4 about it but it was in the office of a prosecutor within 5 the High Court building -- 6 A. The room I went to in the High Court building, I think 7 it was a storeroom, to be quite honest. As I recall, 8 there were shelves in there with stuff on it, and what 9 have you, and I don't think it was the Procurator 10 Fiscal's Office to be quite honest. In fact, I'm sure 11 it wasn't. 12 Q. I am sure it is not important. But I think in your 13 Inquiry statement, for those who are interested it's in 14 paragraph number 10, what you say is that at that stage 15 you undertook exhaustive examination of the material 16 provided to you by Ms McKie's solicitors. 17 That is a phrase I take it you are sticking with, it 18 was an "exhaustive examination"? 19 A. In the Justiciary Building? 20 Q. Yes. 21 A. Well, it was an examination that I carried out as long 22 as I needed to carry it out and satisfy me as to what I 23 needed to do. 24 Q. Mr Swann, it is the word "exhaustive". Are you sticking 25 with it being exhaustive? page 71 1 A. Well, I carried out everything I had to do, yes. 2 Q. How long did it take you? 3 A. I've no idea. I can't remember. I don't know. 4 Q. Mr Swann, was it 5 minutes, 5 hours, a whole day? 5 A. Oh good lord, no, no. It certainly wasn't 5 hours, but 6 certainly wasn't 5 minutes either. It was somewhere in 7 between. 8 Q. There's a lot in between 5 minutes and 5 hours. 9 A. There is indeed. 10 Q. At this remove, you are saying you have no recollection 11 of roughly how long it took? 12 A. I spent quite some time looking at the door standard, 13 examining it with a magnifying glass, the mark on it. I 14 took a certain amount of time to draw a sketch of it, 15 measure it, et cetera, et cetera. I'm not quite sure 16 how long this is all taking but that's what I did first. 17 Secondly, I sat down at the desk that was provided. 18 I examined the mark in the photograph with the left 19 thumbprint of Shirley McKie. Whether that took a good 20 half hour or so, I don't know. It doesn't take all that 21 long to do a comparison between one mark and a donor's 22 print. So, all in all, I might have been there an 23 hour/two hours. 24 Q. You didn't take photographs? 25 A. No, I'm not a photographer. page 72 1 Q. Did you ask for photographs to be taken? 2 A. I asked numerous times to Angela McCracken to get 3 photographs from the authorities, for want of a better 4 word, and I got nothing. They wouldn't supply me with 5 anything. 6 Q. Did you ask for defence photographs to be taken? 7 A. Yes, I asked for everything. 8 Q. You asked Angela McCracken to obtain defence 9 photographs; is that your evidence? 10 A. Not in so many words. I asked to get photographic 11 copies of the exhibits, as I always do. 12 Q. Did you take handwritten notes when you were there? 13 A. No. 14 Q. Why not? 15 A. Well, you could hardly take handwritten notes when 16 you're examining a door standard and examining 17 fingerprints bent over a desk. I know what I was doing. 18 I don't need to take handwritten notes. 19 Q. Well, you could note, for example, the amount of time 20 you spent examining the exhibits, couldn't you? 21 A. Well, I wasn't concerned about the time I spent. I 22 spent a sufficient time to do what I had to do. 23 Q. Mr Swann, let us suppose that you had decided that the 24 fingerprint was forged or lifted. You could have 25 anticipated you might have been giving evidence in the page 73 1 High Court. 2 A. If I'd have thought that the mark was forged or had been 3 planted, et cetera, then I would have mentioned this to 4 Angela McCracken, she was the lady who was instructing 5 me from the firm, and I would have said that I would 6 like it photographed and I would like a photograph of 7 it. 8 Q. Mr Swann, you might have been in the High Court of 9 Justiciary giving evidence for the defence. If you had 10 come to that conclusion and been asked by prosecuting 11 counsel, "How long did you examine the mark; what other 12 exhibits did you" -- 13 A. None. 14 Q. -- "What conclusions did you draw" and without notes you 15 would not have been able to answer these questions with 16 any degree of accuracy, would you? 17 A. I did what I was asked to do at the Justiciary Building, 18 took the notes I took regarding the door standard and 19 then later on we went to report to somebody else, who 20 you probably no doubt know about. 21 Q. Mr Swann, did you at that time ask for a series of 22 rolled fingerprints to be taken from Shirley McKie? 23 A. No, I did not. 24 Q. Why not? 25 A. Because I'd examined the form there and also examined page 74 1 the mark. I'd asked Angela McCracken to get me copies 2 of all the exhibits so I assumed that they would come, 3 but I was wrong. They didn't. I thought all 4 independent experts when they went into a job were 5 supplied with the appropriate material but, as far as 6 Scotland was concerned, it was not on. 7 Q. When you left the High Court building to return back 8 down south, you were dissatisfied with the quality of 9 information you had been provided with by Miss 10 McCracken? 11 A. No. No, I wasn't dissatisfied. She was trying her best 12 to get what I'd asked for but she was unsuccessful. 13 Q. Mr Swann, you had asked for further information for a 14 reason. What was the reason you had asked for the 15 further information? 16 A. Because when I -- well, never mind usually -- when I 17 always prepare an independent report for whoever 18 instructs me, then I always mount the photograph of the 19 mark I'm examining, I always indicate on the copy of the 20 fingerprint form that I've been supplied with which 21 digit it is, et cetera, et cetera, and these go in my 22 report and any other information. On this occasion, I 23 didn't get it. 24 Q. Did you tell Angela McCracken at that stage what your 25 opinion was? page 75 1 A. I'm sure I must have, yes. 2 Q. So you're going away having formed a concluded view but 3 you are still asking for further information to be 4 obtained? 5 A. Well, yes, I was but it wouldn't make any difference to 6 the outcome of my examination. 7 Q. Why did you ask for the further information? 8 A. As I've just told you: to include with report so it was 9 a complete report. 10 Q. What would have happened, Mr Swann, if you had received 11 some further information that had indicated a contrary 12 view to the opinion you had expressed? 13 A. Then I would have changed my mind. But I didn't leave 14 the Justiciary building there and travel down south 15 straightaway. I went to see the barrister in the case, 16 counsel in the case. 17 Q. Mr Findlay I think you met. 18 A. That's right, yes. 19 Q. You expressed a view to Mr Findlay that there was no 20 doubt whatsoever that it was Shirley McKie's mark, 21 didn't you? 22 A. He asked me and I told him. 23 Q. Do you recall ever having met Mr Pat Wertheim and 24 discussing at a very early stage in 1998 or19'99 -- it 25 must be 1999 -- do you recall meeting Pat Wertheim and page 76 1 discussing the instruction you had received in respect 2 of Shirley McKie? 3 A. I report having seen Pat Wertheim -- I didn't know what 4 his name was, never even heard him -- at a 5 fingerprint -- 6 Q. Sorry, can you keep your voice up a little, please. 7 A. I became aware of Mr Pat Wertheim at a fingerprint 8 conference in Liverpool, I believe, in the late 1990s 9 but I didn't know him and I didn't speak to him. 10 Whether I was introduced to him with other people, I 11 don't know. I don't recall. 12 Q. You see, Mr Wertheim gave evidence -- and I am going to 13 paraphrase it slightly -- that you approached him or it 14 may have been he approached you, I'm not sure which way 15 round it was at the conference you are referring to -- 16 A. Well, I wouldn't approach him because I wouldn't know 17 him. 18 Q. Well, somehow you ended up in conversation with him. I 19 don't think it matters much how the conversation 20 happened. He says that you indicated to him that you 21 knew he had been instructed in the McKie case? 22 A. How would I know that? 23 Q. Well, I am telling you his evidence. Mr Wertheim may be 24 able to confirm what his understanding is in due course 25 but he says to this Inquiry, on oath, that you indicated page 77 1 to him that you had examined Y7 against Shirley McKie's 2 mark and they were identical and he says you indicated 3 of that there is no doubt. 4 If Mr Wertheim said that on oath before this Inquiry 5 do you concede that may have happened? 6 A. I doubt it very much. I don't recall it and I don't 7 think I would start talking about a case which -- mind 8 you, I had no idea he was going to Scotland. Why would 9 I know? 10 Q. I would like to be clear about it. Are you saying it 11 didn't happen or it's possible it could have happened 12 but you can't recall it? 13 A. As I recall, it didn't happen. I don't recall it 14 either. 15 Q. Very well. Would you agree with me it would be wholly 16 inappropriate, had that happened, for an expert witness 17 to approach another expert witness and express a view in 18 advance of the second expert looking at the material? 19 It would be wholly inappropriate, wouldn't it? 20 A. Yes, I would agree with you. 21 Q. Why would that be so, Mr Swann? Why would it be 22 inappropriate? 23 A. Well, I don't usually go round talking about cases I 24 have been involved with, with anybody. I tend to -- 25 well, keep it to myself. page 78 1 Q. You spoke to Mr Kent, didn't you? 2 A. That was of necessity, yes. 3 Q. What was the necessity to speak to Mr Kent? 4 A. To get an image of Y7, a copy of the photograph of Y7. 5 Q. This was after Shirley McKie's acquittal? 6 A. I don't know. I haven't got the date. It probably 7 would be but I don't even know when the court case was 8 heard but it would probably be so, yes. 9 Q. So you then approached Mr Kent and you asked for a copy 10 of Y7, the photograph he had taken? 11 A. Well, it came to my knowledge that Terry Kent had 12 photographed the mark. I used to work with him so I 13 knew him very, very well and I said, "Can you send me a 14 copy off", because by that time, whether it is something 15 you are going to come on to next, I don't know, I don't 16 want to sort of move forward, but by that time I had 17 received some fingerprints from Levy & McRae of Shirley 18 McKie and I had nothing to compare them with. 19 Q. Mr Swann, why were you continuing to work on the case 20 after Shirley McKie's acquittal? 21 A. Because after the court case it came to my knowledge 22 that two American gentlemen had been over here and said 23 the mark was not identical and, as any fingerprint 24 person would in those circumstances, they would recheck 25 their work. So I asked for a photograph from Terry Kent page 79 1 in view of the fact that none were forthcoming from the 2 authorities in Scotland. I had the fingerprint of her 3 because they had been sent to me but nothing to compare 4 them with. 5 Q. In what capacity was Mr Kent providing you with a copy 6 of Y7? 7 A. He was a colleague. 8 Q. Not in any official capacity? 9 A. No, no. 10 Q. Did you think it appropriate to make an approach to 11 someone and ask on an unofficial basis to produce a 12 document belonging no doubt to his employers? Did you 13 think that was appropriate, Mr Swann? 14 A. At the time, yes. 15 Q. Why? 16 A. Because I needed one. 17 Q. For what purpose? 18 A. I mean, the case had been heard and the case was 19 finished. I simply asked for a copy of the mark. 20 Q. Mr Swann, you felt, didn't you, that your reputation had 21 been effectively impugned by the American gentlemen, 22 didn't you? 23 A. I was curious. I was certainly curious as to what had 24 happened. 25 Q. Your opinion that there was a match between Y7 and page 80 1 Shirley McKie's inked mark was something that had been 2 seriously attacked in court, hadn't it? 3 A. Sorry, I didn't catch all that. 4 Q. When you expressed the opinion that there was no doubt 5 between Y7 and Shirley McKie's inked fingerprint it was 6 clear to you that two Americans had said something 7 different to that and your reputation was effectively, 8 to some extent, at stake, wasn't it? 9 A. I wanted to see a copy of the mark so I could have a 10 further look because, yes, I was curious as to how on 11 earth they could have come to that decision. 12 Q. At that stage, Mr Swann, did you think there was any 13 possibility you might have been wrong? 14 A. No. 15 Q. Why did you ask for it to be checked? 16 A. Why did I ask for a copy to be sent? 17 Q. Yes, why did you want to check it if you were, at that 18 stage, sure you were right? 19 A. Because I had been sent down these fingerprints by 20 Levy & McRae of Shirley McKie but had nothing to compare 21 them with and I wanted a copy, my own copy, to be able 22 to do that. 23 Q. You already had the charts you have told us that were 24 sufficient for your purposes that Levy & McRae had sent 25 down originally? page 81 1 A. You mean this (indicated)? 2 Q. Yes. 3 A. Well, I can't do a reproduction from that, I'm sorry. 4 Q. I'm sorry, you can't do a what from it? 5 A. I couldn't make a reproduction from that. 6 Q. What do you mean do a reproduction from that? 7 A. To compare with the fingerprint that had been sent down 8 to me. 9 Q. Mr Swann, you had already done that and expressed a view 10 it was her fingerprint. 11 A. I know. 12 Q. You had, hadn't you? 13 A. I compared that to start with and formed an opinion that 14 it was identical, which I conveyed verbally to Angela 15 McCracken. I went to the Justiciary Building, compared 16 an actual size photograph with the fingerprint form of 17 Shirley McKie and confirmed my original findings. 18 Then I understood the American people had come over 19 and said the mark was not identical so, therefore, for 20 my own satisfaction, I wanted a copy of Y7, a 21 photographic copy of Y7 to compare with the fingerprints 22 that had been sent down to me by Levy & McRae. Simple 23 as that. 24 Q. It may be simple, Mr Swann, the -- 25 A. It's straightforward. page 82 1 Q. The straightforward position is either you had doubts 2 about your examination originally -- 3 A. None at all, none at all. 4 Q. -- or you wanted to try and present something to the 5 effect that you could justify your position. It is one 6 of the two, isn't it? 7 A. I've no doubt at all. 8 Q. Can we take it from what have you said, at least by the 9 stage you got in touch with Mr Kent, the quality of 10 information you had originally had from Levy & McRae you 11 were at least by that stage dissatisfied with? Can we 12 take that to be correct? 13 A. I wouldn't use that word, no. I wouldn't use that word. 14 I mean, they sent me down what they had. They had no 15 alternative. That's all they had. It's not a question 16 of them being choosy and sending me down probably, you 17 know, something which is not very good. 18 Q. Can we move on to the way matters developed with regards 19 to the identification. You have explained meeting with 20 Mr Findlay. You gave your opinion and then effectively 21 you were, as it were, no longer instructed in the 22 matter. You did not feature again in the criminal case. 23 A. When I left Mr Findlay on that date, 2nd March, I 24 prepared a report dated 16th March but also, dated the 25 same day, I prepared a further report answering page 83 1 questions that had come down via a letter from Shirley 2 McKie. 3 Q. In the reports -- I think you prepared an original 4 report and a supplementary report before doing that? 5 A. That's right. 6 Q. We can bring these up if we need to but I take it you 7 would agree with the suggestion that there is no 8 detailed analysis of how you reached the conclusion that 9 it was Shirley McKie's mark; Y7 was belonged to Shirley 10 McKie. You haven't done that in your report? 11 A. What do you mean by "detailed analysis"? 12 Q. Let us, if we can just have these brought up. Your 13 first report is SG0283. Have the right-hand image taken 14 away, please. I have finished with that, thank you. 15 We see the front page of the report which gives your 16 details. Can we move on to the next page, please. You 17 indicate the brief circumstances of the case, as you 18 understood them. You explain in the last paragraph 19 that: 20 "The forging and transplanting of fingerprints is 21 discussed, problems in this respect, addressed and a 22 final summary assesses the evidence as I see it." 23 Move on to the next page, please. What we see is an 24 identification of the various defences that you see are 25 possible in connection with fingerprint identification? page 84 1 A. That's right. 2 Q. A denial of the identification and then we have an 3 admission of the identification, a satisfactory account 4 of existence. The next (c) is transplantation or 5 forgery and the bulk of that page, I take it you will 6 agree with me, deals with the issue of transplantation 7 and forgery? 8 A. It does, yes. 9 Q. So far these are just the possible defences that being 10 considered. Can you go on to the next page, please. 11 Again, would you agree with me -- if you wish to 12 scan through it -- that what this page is dealing with 13 is the issue of transplantation and forgery. That's 14 right, isn't it? 15 A. It does yes. 16 Q. Next page. Again, a lot of that deals with 17 transplantation and forgery? 18 A. Yes. 19 Q. Next page, please. Again, transplantation and forgery? 20 A. Yes. 21 Q. Next page. We see a reference to the exhibit itself, 22 the piece of wood, and then you give a number of bullet 23 points, a number of paragraphs, within section 4. 24 A. Yes. 25 Q. Just while we have it here, I think what we see is on page 85 1 number 4 you say: 2 "Whilst the ownership of the mark is not in dispute, 3 I can confirm that it is her left thumb with at least 16 4 ridge characteristics in agreement in both detail and 5 position." 6 A. Yes. 7 Q. I will come back to this but I take it that you will 8 agree with me that that is the only reference to, as it 9 were, any examination being carried out between Y7 and 10 Shirley McKie's fingerprint? 11 A. Well, that's the only reference that's needed. 12 Q. Just while we have this, we can see point 6 says: 13 "There was no sign of any disturbance to either the 14 mark or the area around it which may have followed had 15 any adhesive medium made contact or some form of replica 16 used." 17 So you looked at it close enough to see if there was 18 any disturbance to the mark? 19 A. Yes, indeed, yes. 20 Q. I take it from that observation when you looked at Y7 21 itself you saw no evidence of any disturbance of any 22 kind to it, did you? 23 A. I did not. 24 Q. So we can take it that that disturbance would include 25 the absence of any evidence from the mark itself, from page 86 1 the mark itself, of any twisting or movement or 2 cross-over of ridges or anything of that sort? 3 A. At that time I saw none of that, no. 4 Q. Then, to finish this off, we see in numbered paragraph 5 5 after the reference to the meeting with Donald Findlay 6 QC and Victoria Young, Advocate, that you confirmed 7 various things. We can see on the next page, if we can 8 flick on to that, largely a repetition of what went 9 before which was dealing again with the issue of 10 forgery. 11 Am I correct in summarising it that way? 12 A. Sorry, could you repeat that? I was following the next 13 page coming up. 14 Q. Sorry. Down to the point where it says "examination of 15 exhibit", everything above that on the page deals 16 substantially with the question of forgery or 17 transplantation? 18 A. Yes. 19 Q. Then we get to the examination of the exhibit. You 20 explain having visited the High Court building and, on 21 the next page at the very top, we see in numbered 22 paragraph 2 you say: 23 "There was confirmation [this is your confirmation] 24 that the mark on the door was the left thumbprint of 25 Shirley Jane McKie." page 87 1 Then you go on to say: 2 "Confirmation that in my opinion based on all the 3 points I have made and referred to in this report the 4 mark on the door is a result of it being deposited by a 5 natural thumb." 6 We can read the rest of it for ourselves but you say 7 in the 6: 8 "Having examined exhibit 102, the door standard, 9 being satisfied as to the genuineness of the developed 10 mark thereon and the positivity of its identification as 11 the left thumb of Shirley Jane McKie, there is only one 12 conclusion that I can arrive at ..." and you explain 13 what it is. 14 Would you agree with me, Mr Swann, that the vast 15 majority of this report was taken up with a detailed 16 analysis of why this fingerprint was not forged or 17 transplanted? 18 A. I've put down all the reasons -- sorry, all the areas 19 that one should look at if a suggestion of transplanting 20 or forgery is made. 21 Q. We can at least be agreed that what you have done is, 22 despite what the background may have been, you have not 23 gone into any great detail as to how you affirmed the 24 analysis of SCRO that Y7 was in fact Shirley McKie's. 25 You more or less just said it is and there's no doubt page 88 1 about it? 2 A. No, no, no. Not at all, no. I spent -- I don't know 3 how long -- apart from examining this chart whenever, 4 whatever date it was. I then examined the plain 5 impression of the mark Y7 with her fingerprint form and 6 I found sufficient characteristic detail in agreement to 7 satisfy me and that's all a fingerprint person does. 8 Q. Are you familiar with the technique ACE-V? 9 A. ACE-V? 10 Q. Yes? 11 A. Well, I've heard of it. It's an Americanism. 12 Q. An Americanism? 13 A. Well, it's used in America, isn't it. I think they 14 burst(?) it into the Durham Training School now as well. 15 Q. I take it from the answer that you are not overly 16 familiar with how it operates? 17 A. Well, ACE-V: assessment, comparison, verification -- 18 sorry, examination and verification I presume it stands 19 for. 20 Q. Well, that is certainly what I think it is stands for. 21 Do you know how it works? 22 A. It's what we do naturally without thinking but it's been 23 put down into writing. 24 Q. I am reminded that the first A I think is "analysis" -- 25 A. Well, analysis, assessment, same thing. page 89 1 Q. -- comparison, evaluation, verification, I think is the 2 way it works. 3 Is that something you have ever practised, that 4 methodology? 5 A. We practice it all the time, automatically. 6 Q. Can you tell me how you went about the analysis 7 originally in this case when you first saw the 8 paperwork? How did you do the analysis to comply with 9 the ACE-V methodology? 10 A. That I should conform to it? Why? At that time in 1997 11 I don't think anybody in this country had ever heard of 12 it. 13 Q. I think the answer you gave a few moments ago was: 14 "We practice it all the time, automatically"? 15 A. Yes. 16 Q. Did you do it in 1999, practice it automatically? 17 A. Yes. 18 Q. What is your understanding of how the methodology works? 19 Just tell us, if you can, what is the automatic practice 20 that you adopted that conforms with the ACE-V protocol? 21 A. You examine a mark -- you're given a mark to examine, 22 you look at it; you examine it under magnification. You 23 assess what it is as to its pattern, ridge flow, 24 clarity, detail, whatever, then you compare it. You 25 select a suitable area of the crime scene mark for page 90 1 scrutiny then you compare that with the appropriate area 2 on the fingerprint form of the suspect, donor or what 3 have you. When you find sufficient characteristic 4 detail in agreement to satisfy you it is or has been 5 made by the same person, both made by the same person, 6 then you've got an identification. 7 Q. How do you work when you do this? Do you go from the 8 inked version to the crime scene mark or vice versa when 9 you are trying to identify the appropriate points to be 10 looked for? 11 A. Generally speaking, you put a magnifying glass over the 12 mark from the crime scene, a magnifying glass over the 13 digit on the fingerprint form, using a pair of metal 14 scribers or pointers, as we call them, you mark 15 characteristics. I know now they do it on a screen but 16 I'm talking about 1997. 17 Q. But that is something you did have the capability of 18 doing when you first saw the material sent by 19 Levy & McRae, did you? 20 A. Sorry, I beg your pardon? 21 Q. You didn't have the capability of doing it that way when 22 you were first receiving information from Levy & McRae? 23 A. Well, no, because it was already in enlarged format. 24 Q. Yes. I am still struggling to know why you didn't say 25 to Levy & McRae, "Listen, I'm not interested in what page 91 1 SCRO say. I want to see the original myself. I want 2 inked prints from Shirley McKie and I want to make my 3 own mind up". That would have been easy to do, wouldn't 4 it? 5 A. They had already got that in hand. I went to see it and 6 I saw the fingerprint form of Shirley McKie and they 7 sent me down some that had been taken by whoever of her 8 left thumb. 9 Q. Do you understand or can you appreciate, Mr Swann, that 10 there can be a danger, I think Mr Moynihan called it 11 confirmation bias, that if you look at something and you 12 know someone else has come to a conclusion on it that 13 you may be drawn in to support that conclusion? Do you 14 understand what is being suggested? 15 A. I know what you're saying, yes. 16 Q. Do you not think there's even the remotest possibility 17 that when you were looking at the points on the material 18 sent by Levy & McRae you eye was being drawn down the 19 line and you were looking for something that may not, in 20 fact, have been there? Any possibility whatsoever? 21 A. No. 22 Q. I am not sure if you have been aware of the evidence we 23 have heard about the systems of ACE-V but just so 24 that -- I will put to you what I understand the first 25 exercise to be. What you do is, as you mentioned, you page 92 1 look at the crime scene mark, you identify the points, 2 maybe in a cluster, maybe in a group, but points that 3 look as though they are capable of analysis. Then and 4 only then do you look at the inked mark to see if you 5 can find these points coinciding. 6 Do you understand that is good practice, do you? 7 A. It might be good practice for some but it depends on the 8 way you were taught when you took your initial course. 9 THE CHAIRMAN: You said, "It might be good practice for some 10 but it depends ..."? 11 A. It depends upon how you were taught on your initial 12 training course. As I say, all fingerprint bureaux 13 probably work differently. I don't know but, I mean, 14 the way I do it, I look at the crime scene mark, I look 15 at the fingerprint form and I work out, if I possibly 16 can, before I look which finger has probably made the 17 mark -- that's sometimes quite easy to determine, not 18 always but sometimes -- then I compare the mark with the 19 appropriate digit on the form. 20 MR SMITH: Do you always work from crime scene mark, first 21 of all? 22 A. Well, you've got to look at the crime scene mark first 23 to assess it to see if it's capable of being compared, 24 it's of sufficient quality. 25 Q. Once you have made the assessment it can be compared do page 93 1 you then try to identify points that are capable of 2 analysis? 3 A. No, I put a fingerprint glass on one mark and a 4 fingerprint glass on the donor print, digit -- whether 5 it's right thumb, left thumb or whichever it might be -- 6 and then look for characteristics in agreement. That's 7 the basis of an identification. 8 Q. The material you were sent by Levy & McRae, did it have 9 good Second Level Detail, good Second Level Detail? 10 A. This chart? 11 Q. Yes. 12 A. Is it good Second Level Detail? 13 Q. Yes. 14 A. It's sufficient for purpose. 15 Q. Do you understand what I mean by Second Level Detail? 16 A. Of course I do, yes. 17 Q. Did it have good Third Level Detail? 18 A. Well, it's got sufficient First Level Detail to tell me 19 that it's a loop pattern, it's the tip of a centre core 20 and above or to the right. The Second Level Detail, of 21 course there's the ridge characteristic detail. I don't 22 think Third Level Detail comes into this but ... 23 Q. It doesn't come into it, you are saying it is there but 24 you don't need to consider it? 25 A. It hadn't been used. It's there but it hasn't been page 94 1 used. 2 Q. You can see Third Level Detail there, can you? 3 A. No, I didn't say that. I said there's no doubt Third 4 Level Detail there. 5 Q. Can you see Third Level Detail within that -- 6 A. Third Level Detail, of course, is poroscopy and 7 edgeoscopy and, yes, I can see differences on the ridge 8 structure, the shape, size, formation, et cetera, at the 9 edges of the ridges and so on. 10 Q. You put this down to the actual shape of the ridges 11 rather than to any possibility that there might be 12 degrading in the quality of the images that were sent to 13 you, do you? 14 A. I'm sorry, I didn't catch all that. 15 Q. I'm sorry, a very long question. There are two 16 possibilities for the shape of the detail on a 17 fingerprint. One is it's actually on the digit that's 18 left it? 19 A. Yes. 20 Q. The other one is that when you are looking at a second 21 generation copy, maybe a third generation copy, it's the 22 copying process that's altered the shape of the ridge or 23 the pore. That's a possibility as well, isn't it? 24 A. I don't think it should do, really. If it's a straight 25 copy, it shouldn't alter it. page 95 1 Q. Very well. You will appreciate, Mr Swann, we have heard 2 some evidence from other people about this, about the 3 issue of shapes being altered by the copying process but 4 your position is it shouldn't make any difference, is 5 it? 6 A. If you put something on a copying machine I presume it 7 produces an exact copy of it. 8 Q. Very well, Mr Swann, if your position is the copying 9 process wouldn't alter the shape of the pores I 10 understand what you are saying. That is your evidence, 11 is it? 12 A. Ah, you've suddenly introduced shape of the pores. I 13 don't know what the shape of the pores were in the first 14 place so I can't comment on what one might see on a 15 copy, unless I've seen both. 16 MR SMITH: Sir, I can see the time. I was going to move on 17 to something else. 18 THE CHAIRMAN: We will rise now until 1.50. 19 We will stop now until 1.50, Mr Swann. 20 (1.00 pm) 21 (Luncheon Adjournment) 22 (1.50 pm) 23 PETER MALCOLM SWANN 24 Cross-examined by MR SMITH (continued) 25 Q. Mr Swann, I think you are a member of the Academy of page 96 1 Expert Witnesses; is that right? 2 A. That's correct, yes. 3 Q. I think under reference to an entry on the Internet 4 relating to yourself you say you are single joint(?) 5 expert trained? 6 A. Yes. 7 Q. I take it from that you have given or hold yourself out 8 to be capable of giving evidence in civil cases as well 9 as criminal cases? 10 A. Yes, but not very, very often. 11 Q. Have you done it before? 12 A. Civil cases? 13 Q. Yes. 14 A. Oh, yes, yes, but few and far between. 15 Q. I also note from what you say you indicate that you have 16 an area of expertise in fingerprint legislation. 17 Can you tell me what is fingerprint legislation? 18 A. Well, it's simply any question regarding the legislation 19 regarding to fingerprints, the Act of Parliament or what 20 have you. 21 Q. Sorry, I missed that. Legislation relating to 22 fingerprints. 23 A. Relating to the taking of fingerprints. There's not a 24 great deal of it, to be quite honest. 25 Q. Can you help me, is there any of it? page 97 1 A. Well, there's the Police and -- in England, I'm not 2 talking about Scotland, in England there's the Police 3 and Criminal Evidence Act 1984 and the Criminal 4 Justice Act 2003, which amended certain of the sections 5 in '84. 6 Q. As an expert witness, I take it you understand that 7 there are certain duties that are upon an expert when 8 they are providing an opinion. You know that? 9 A. Yes, oh, yes. 10 Q. One of these duties, and these are laid down in a number 11 of very important cases particularly in England and 12 Wales, but one of the duties is that an expert witness 13 should state the facts or assumption upon which opinion 14 is based. 15 You are aware of that, aren't you? 16 A. State the facts and circumstances ... 17 Q. I will read it out to you. Sir, this is from the 18 Ikarian Reefer case which I am sure is fairly well-known 19 but I will provide the citation later. But it was laid 20 down by Cresswell J and has been adopted repeatedly. 21 The reason I am putting this to you, Mr Swann, is as 22 a member of the organisation that I referred to and as 23 an expert witness it is something I take it that you 24 have had some concern about establishing what an expert 25 has to do, what the duties are. Have you done that? page 98 1 A. Well, I know what the duties of an expert are. I mean, 2 we make a declaration at the end of each report I do. I 3 don't have a copy in front of me but the declaration of, 4 you know, your evidence is to the court, et cetera, and 5 there's something about fees, you know, you're not 6 working for a no-win-no ... whatever it is. 7 I don't know them all off by heart but certainly we 8 print a declaration and sign it. I mean, I've read them 9 more than once but I couldn't repeat them now, if that's 10 what you're asking. 11 Q. Surely -- I don't think I need to take you to it at this 12 stage -- but the report that you wrote for Levy & McRae 13 in relation to Shirley McKie did not contain such a 14 declaration. 15 Is this a more recent practice? 16 A. Yes, it is, yes. 17 THE CHAIRMAN: I think it came in with Lord Woolf's reforms 18 in England and Wales. 19 MR SMITH: It was indeed, sir, the CPR. 20 THE CHAIRMAN: I think it's reasonably recent. 21 A. I know I started using it about, what, 5 or 6 years ago. 22 THE CHAIRMAN: I would think it's about that, maybe slightly 23 longer. 24 MR SMITH: That would fit but the principles that are 25 detailed are principles that have been around for a long page 99 1 time. 2 A. Yes. 3 Q. And I take it that you would be keen to comply with 4 these principles when you're preparing your reports when 5 instructed on behalf of Shirley McKie in 1999? 6 A. Yes. 7 Q. You see one of the principles -- and this is at least 8 since 1993, perhaps before -- that what an expert should 9 do is state the facts or assumption upon which his 10 opinion is based. 11 We can see that there's a lot of facts and 12 assumptions relating to the issue of forgery but would 13 you agree with me that in your report you haven't 14 actually stated in your report what is the basis of fact 15 upon which your opinion is based. 16 Would you agree with that the observation? 17 A. My opinion regarding identity? 18 Q. Identity, yes. 19 A. It's based on the fact, as I said in the report, that I 20 found 16 characteristics in agreement. That's all that 21 one needs. 22 Q. That principle goes on to say: 23 "He, the expert, should not omit to consider 24 material facts which could detract from his concluded 25 opinion." page 100 1 That's a principle that you would adhere to in 1999, 2 I take it? 3 A. Sorry, could you repeat that? 4 Q. Yes, I will. What is said is that: 5 "He, the expert, should not omit to consider 6 material facts which could detract from his concluded 7 opinion." 8 So something contrary to the concluded opinion you 9 should still consider them and no doubt disclose them to 10 the instructor of the opinion; do you understand 11 that's -- 12 A. Yes, I take your point, yes. 13 Q. You have explained to us already in your evidence that 14 at some stage, and I think it is some stage prior to 15 being interviewed for the Operation Alba Inquiry, you 16 became aware that there were some problems, some 17 differences in the top part of the fingerprint. 18 Do you recall saying that? 19 A. There was a problem that I couldn't resolve it at a 20 certain period of time, yes. 21 Q. You, of course, examined the fingerprint itself on the 22 doorframe when you visited the High Court? 23 A. Yes. 24 Q. And you did so with a magnifying glass, you have 25 explained to us? page 101 1 A. Yes. 2 Q. You had access, no doubt, to fingerprints of Shirley 3 McKie as you may require? 4 A. Yes. 5 Q. I take it that almost as soon as you saw the fingerprint 6 Y7 on the doorframe and compared it with the material 7 that you had access to, you would have been aware that 8 there were problems with the top part of the print when 9 you saw it in the High Court building? 10 A. The top part of the print on the fingerprint forms 11 wasn't too clear. There was a problem with that. Is 12 that what you're referring to? 13 Q. Mr Swann, I am sure it is my fault. At some stage you 14 became aware that there were differences between Y7 and 15 Shirley McKie's inked fingerprint. Did you? 16 A. Yes. 17 Q. When was it that you first became aware that there were 18 differences between Y7 and Shirley McKie's inked 19 fingerprint? 20 A. I would think probably when I got the photograph from 21 Terry Kent and I was able examine something at leisure. 22 Q. There was no pressure placed upon you when you were 23 given access to Y7 or the doorframe, was there? 24 A. When? 25 Q. When you went to examine Y7 on the actual doorframe at page 102 1 the High Court building in Glasgow, there was no 2 pressure on you to conclude within a period of time, was 3 there? 4 A. No, not at all, no. 5 Q. So you had the opportunity to examine it at leisure in 6 the High Court building, didn't you? 7 A. Yes, the mark on the doorframe, yes, yes, yes. 8 Q. What difference does it make when you get Terry Kent's 9 photograph to then give you an advantage that you didn't 10 have when you saw the actual fingerprint on the actual 11 doorframe at that period of time? 12 A. When I examined the mark on the doorframe, as I've said 13 before, I don't want to repeat myself, but I compared it 14 with the photograph that was provided and I compared the 15 areas of that photograph with Shirley McKie's left thumb 16 and satisfied myself as to identity. Whether I went up 17 to the top of the mark and tried to compare those points 18 up there at the top, I can't recall. I probably didn't. 19 Q. You probably didn't try and compare the top part of the 20 mark -- 21 A. Well, I can't remember -- I mean, I compared the mark as 22 I saw it, mainly round the centre core area and compared 23 it with the appropriate area on the fingerprint form and 24 formed an opinion. 25 Q. Forgive me for pointing this out, Mr Swann, but if you page 103 1 had taken notes when you examined it at the High Court 2 you would be able to answer the questions I am putting 3 to you, wouldn't you? 4 A. Well, I didn't take any notes. 5 Q. Yes. I am suggesting to you that if it was evident from 6 the Terry Kent photograph that there were differences, 7 it would be equally evident and possibly more evident 8 from the actual doorframe when you had access to it at 9 the High Court Justiciary Building? 10 A. Well, it wouldn't be more evident. One's a photo of the 11 other so it'd be exactly the same. 12 Q. So it would have been evident then when you saw the 13 doorframe at the High Court building? 14 A. If I'd homed in on that area, yes. 15 Q. What I am trying to get to, Mr Swann, is this: that 16 either you noticed the differences when you saw it at 17 the High Court building and didn't disclose them or you 18 didn't notice them. 19 Can you help me with which of those two it is? 20 A. I didn't notice them. Had I noticed them I would have 21 mentioned them but I didn't. 22 Q. Mr Kent provided you with a photograph, as you have 23 explained. 24 A. Yes. 25 Q. How did you know Mr Kent had a copy of the photograph? page 104 1 A. Because it came to my knowledge that Mr Kent had been 2 involved in the photography of the mark on the door 3 standard and had been asked to, I believe, pass an 4 opinion as to its genuineness. 5 Q. How did it come to your knowledge that Mr Kent had been 6 involved in the photography of the mark on the door 7 standard? 8 A. Well, someone must have told me. 9 Q. Who told you? 10 A. I've no idea. 11 Q. I think you told me earlier under reference to 12 questioning about conversations with Mr Pat Wertheim 13 that you don't go about discussing cases you have been 14 involved in? 15 A. Mm-hm. 16 Q. I understood you to indicate that Mr Kent's involvement 17 was limited. What you said to me certainly implied it 18 was limited to the provision of the photograph. You're 19 nodding. Is that your -- 20 A. Sorry -- 21 Q. -- evidence. 22 A. Sorry, you hadn't finished, I'm sorry. 23 Q. Was Mr Kent's involvement limited to the provision of 24 the photograph? 25 A. As far as I was concerned, yes. page 105 1 Q. I think we saw the document yesterday -- I will have 2 this brought up -- which was the with compliments slip. 3 A. Oh, yes. 4 Q. Do you remember being asked about that? If you give me 5 just one moment while I find the reference. 6 Perhaps while that is being identified I can ask you 7 this: you sent the with compliments slip to Mr Kent 8 obviously giving him something along with it. 9 A. Yes. 10 Q. It was a charting of the fingerprint, wasn't it? 11 A. Yes. Some time after he sent me the photograph, I don't 12 know how long or when, he asked me if I could prepare 13 him a chart. He was going somewhere. He needed it to 14 refer to, so I said, yes, I would. 15 Q. Did you find that a strange request by Mr Kent, asking 16 you to provide him with a chart of the photograph? 17 A. No. 18 Q. Is this something you have done on other occasions, you 19 had provided Mr Kent with work on cases you had 20 completed, is it? 21 A. No, I haven't, no. 22 Q. Why this one? 23 A. Because he asked me. 24 Q. Would you do it if he asked you in any other case, he 25 just says to you, "Listen, I'd like you to do a chart page 106 1 for me in such and such a case that's" -- 2 A. I think he was probably interested from the fact that he 3 had been involved in it and he had been involved in 4 photography of it and he had heard the outcome also. He 5 was going to some conference somewhere, I've no idea 6 where, and he wanted some -- well, material to take with 7 him. 8 Q. Mr Swann, this was your work that you were handing over 9 to Mr Kent. According to you, he was going to take it 10 to a conference somewhere -- 11 A. I'm assuming he was taking it to a conference. I'm not 12 certain. 13 Q. Mr Swann, you surely asked him, "Why do you need this, 14 Terry", did you not? 15 A. I might have done. I don't know. It's a long time ago. 16 Q. It may be a long time ago, Mr Swann, but it was a very 17 important point in time in your career, wasn't it? 18 A. Oh, yes, it was, yes. 19 Q. The fact of the matter is the fingerprint community was 20 buzzing with the talk that two American experts had come 21 over and they'd contradicted something that British 22 experts had said? 23 A. Mm-hm. 24 Q. And the reason you were providing it to Terry Kent was 25 to try and justify your position, wasn't it? page 107 1 A. No, it wasn't. I provided it to Terry Kent because he 2 asked me as a colleague. Why should I need to justify 3 my position? 4 Q. I will answer your question, Mr Swann. It is because 5 your career could have been seriously impacted upon by 6 two American experts coming across and giving contrary 7 evidence to you. That's right, isn't it? 8 A. Oh, yes, they did, yes, yes. I don't see how it 9 seriously impacted on my work. 10 Q. You had very clearly given information to Levy & McRae, 11 to Donald Findlay, to Iain McKie, to Shirley McKie and, 12 apparently, to Terry Kent, that you thought there was a 13 match between Y7 and Shirley McKie's print. 14 A. Correct. 15 Q. Yes. So it was out in the market that you had said 16 that. But on the other hand there'd been two American 17 experts that came across and said, effectively, that you 18 were wrong. That's right, isn't it? 19 A. Not only me then. There are many other people who had 20 identified the mark. 21 Q. We will maybe come on to that in due course. We have 22 the with compliments slip in front of us. We have 23 looked at this in some detail. 24 If you look at the screen, please, it begins and Mr 25 Moynihan asked you some questions but I just want to be page 108 1 clear about this: 2 "After a lot of thought and time this is one of 3 those marks where, the more you look at it, you either 4 become more convinced it is identical or you can say 5 because of the detail not in agreement it cannot be so." 6 We can read the rest of it if we want to do so, but 7 are you suggesting that this with compliments 8 slip doesn't betray any suggestion of doubt on your 9 part? Are you saying that we should read this as being 10 a statement of absolute positive opinion on your part? 11 Should we? 12 A. I'm just giving alternatives, that's all. 13 Q. No doubt -- 14 A. I mean -- 15 Q. Sorry, please finish. 16 A. I'm just giving an alternative situation. It was a 17 complex mark and I'd looked at it for an awful long time 18 and, as I say, the more you look at it you know darn 19 well that it is identical but then you've got these 20 characteristics which you cannot explain and you're 21 looking for an explanation which is not there, wasn't 22 there at the time. 23 Q. Can we perhaps agree about this: that there are 24 arguments both ways. Is that what you are trying to 25 communicate to Mr Kent? page 109 1 A. I couldn't really say. 2 Q. I'm sorry, I missed that. 3 A. I couldn't really say. 4 Q. I'm asking you what you were trying to communicate to 5 Mr Kent. You read the first paragraph. Is it not 6 clearly saying, Mr Swann, there are arguments both ways 7 on this fingerprint? 8 A. I suppose there could be arguments both ways, depending 9 on who the people are who are participating in the 10 argument ... or the discussion rather. 11 Q. So you are saying it depends on the quality or identity 12 of the individuals who are maintaining the contrary 13 position, are you? 14 A. It depends upon the expertise of the individuals. 15 Q. Do you know anything about the expertise of Mr David 16 Grieve? 17 A. I've read articles he's written in the IAI journal but 18 as far as working with him, no, I've no contact at all. 19 Q. You know he was one of the gentlemen who said that, 20 effectively, you were wrong. You know that, don't you? 21 A. Yes, I do know that, yes, yes. 22 Q. You are not questioning his expertise in being able to 23 identify the mark, are you? 24 A. I'm not questioning anybody's. All I know is that he 25 got it wrong. page 110 1 Q. I think we are at least agreed that there are two 2 arguments. This is communicating a position where there 3 can be two sides to this argument. 4 Are we still agreed about that, Mr Swann? 5 A. The way the words are written there I can't disagree 6 with what you're saying. I mean, possibly the choice of 7 words is not very good but, as far as I'm concerned, I 8 was simply sending a chart down to a colleague because 9 he'd asked me to do one. Where he was taking it I'm not 10 absolutely certain. 11 Q. At this point in time at least and up until, I think, 12 the Operation Alba period you had this problem with the 13 top part of the print. Am I right so far? 14 A. Well, I don't like the choice of the word problem but -- 15 I know I've used it myself, probably -- but there was 16 these characteristics at the top which I couldn't find 17 on the print that I had of Shirley McKie -- not Shirley 18 McKie, sorry, the ones that I saw in the Justiciary 19 Building. 20 Q. I understand. One obvious explanation for that may be 21 that it's not Shirley McKie's, Y7 is not Shirley 22 McKie's. Would you agree with that proposition? 23 A. No, because the characteristic detail in the body of the 24 mark was sufficient to determine that it was. 25 Q. I think you indicated yesterday that out of the points page 111 1 that were found, in fact, it's on this with compliment 2 slip, third paragraph: 3 "18 points marked, some strong and other, weak." 4 Can you tell me how many were weak and how many were 5 strong? 6 A. No. 7 Q. Did you take any notes? 8 A. No. All I know is that some were clearer, to see than 9 others. The choice of the word "weak" is perhaps not 10 the right choice. You can still see the characteristic 11 but it's not as easy to see as some of the ones that are 12 more clear. 13 Q. You will have to help with that, Mr Swann. The 14 characteristic is either there or it's not. 15 A. Correct. 16 Q. Would you agree with the proposition that, as an expert, 17 your expertise is in guiding someone who is not 18 necessarily an expert as to what points it is you're 19 identifying? Would you agree with that as a general 20 proposition? 21 A. Yes. 22 Q. Would you agree with the proposition that if you can see 23 it you should be able to demonstrate it to me as a 24 non-expert? Would you agree with that proposition? 25 A. Not necessarily, no. Why would I need to show you it? page 112 1 Q. Well, suppose I was defence counsel in a case, Mr Swann? 2 A. Well, in that case then, yes, I'd have a chart marked up 3 ready for your perusal. 4 Q. Yes, you should be able to demonstrate it to me. 5 A. Then I would, yes. 6 Q. Because the opposite of that then, if that is not 7 correct, then what you are saying is, "I'm an expert. I 8 can see it. You may not be able to see it but I can see 9 it", and that position would be pretty untenable, 10 wouldn't it? 11 A. Well, fingerprint experts can, with respect, see more in 12 a fingerprint than a lay person but certainly for court 13 purposes then, yes, I prepare a chart and explain it to 14 you fully and ensure that you could see what I had 15 marked. 16 Q. So imagine you're appearing in a case with a judge and 17 jury and it's not just defence counsel you've got to try 18 and persuade but you've got to persuade the judge and 19 the jury on a point, whether a point exists or not. 20 You agree it has to be demonstrable? 21 A. Yes, indeed but, as you well know, probably also, very, 22 very rarely -- I don't agree with it -- but very, very 23 rarely do comparison charts get produced in court these 24 days. 25 THE CHAIRMAN: We are finding it just difficult. It is very page 113 1 awkward for you, I appreciate, because you have to turn 2 to look at the questioner but then the stenographer 3 can't hear quite so clearly. That's the problem. Don't 4 make it uncomfortable for yourself. 5 The last answer was: 6 "Yes, indeed because, as you well know, also very, 7 very rarely, I don't agree with it, but very, very 8 rarely ..." 9 A. Produce comparison charts in court. 10 MR SMITH: I think you indicated to me earlier that from 11 looking at Y7 on its own, without reference to any inked 12 fingerprint, there was no evidence of distortion itself. 13 Are you still maintaining that position? 14 A. There was nothing which was apparent, no, that's 15 correct. 16 Q. So we can identify there was a difficulty, if I put it 17 as neutrally as I can. At some stage you had what 18 appeared to be differences in the top part of the print 19 and you had no evidence of twisting or smudging or 20 movement or anything of that kind in the print itself. 21 We agree that we have a bit of difficulty at that 22 stage? 23 A. That's correct, yes. 24 Q. At some stage you came to a conclusion that the 25 differences were explained by some kind of twisting or page 114 1 movement? 2 A. Well, when I received the fingerprint form, the 3 fingerprints in blue, from Levy & McRae and I identified 4 the characteristics at the tip, they weren't at the tip 5 on the fingerprint form, they were at 2 o'clock. So 6 therefore, the thing, the mark, had been twisted round 7 and in so doing the top half, mainly the top half of the 8 print, Y7, had been moved roughly 66 degrees in an 9 anticlockwise direction. 10 Q. I take it, Mr Swann, that you received the inked 11 fingerprint from Levy & McRae prior to Shirley McKie's 12 trial? 13 A. I'm not sure what date I received it. 14 Q. They can't possibly have been sending it to you after 15 the trial, can they? 16 MR MOYNIHAN: Sir, I may actually be able to help. We have 17 the covering letter which we didn't produce with the 18 print. It's TS0009 and I think the date is 19 3rd March 1997, so that will assist to clarify this. 20 We have the original here and this is what 21 Mr Russell submitted to us with the blue inked forms so 22 I assume that the blue inked form is the set of 23 fingerprints that is mentioned in the letter. 24 MR SMITH: Will you take it from me, Mr Swann, that is 25 before the trial date? Can you just take that as a page 115 1 given for the moment? 2 A. If you say so. I don't know when the trial date was. 3 MR MOYNIHAN: It may also assist if Mr Swann is told that 4 the trial occurred in May 1997. 5 A. Right, thank you. 6 MR SMITH: I think indeed it is the day after you were at 7 the High Court. 8 A. Sorry? 9 Q. I think the date of this letter is the day after you 10 were at the High Court. 11 A. It's the day after, yes. 12 Q. So it appears that Levy & McRae were at least sending 13 you some of the material that you had requested? 14 A. Yes. 15 Q. You don't know who took the inked print? 16 A. I've no idea, no, but that wasn't the material I 17 requested, albeit it was very, very useful indeed. I 18 was requesting copy material of the exhibits in the 19 case. 20 Q. Do you know how quickly after you received -- we assume 21 you did receive this letter as it has been produced by 22 Mr Russell -- how soon after receipt of the letter you 23 looked at the inked prints, the blue inked prints, and 24 compared them against Y7? 25 A. Well, it would be after I had received the photograph page 116 1 from Terry Kent because I'd received no photographs from 2 the authorities so therefore I had nothing to compare 3 the blue prints with. 4 Q. You had the charting enlargement by SCRO, didn't you? 5 A. I did but that doesn't show anything of the area that I 6 wanted to see. 7 Q. So you requested further information from Levy & McRae 8 which was sent to you on or about 3rd March 1999, some 9 months before the trial and you say you didn't even look 10 at it prior to Shirley's trial. Is that your position? 11 A. When I received the copy of these blue fingerprints 12 obviously from Levy & McRae there was nothing I could do 13 with them because I'd nothing to compare them with. 14 There was this one. That's the only one I had 15 (indicated), the copy, and that doesn't show the middle 16 or the top of the mark. 17 Q. Mr Swann, if you had wanted to see the middle or top of 18 the mark, all you had to do was ask Levy & McRae to see 19 it again or to get a photograph of it. 20 A. I did do on many occasions. 21 Q. So -- 22 A. Angela McCracken apparently tried her utmost to get me 23 copy materials but she couldn't. 24 Q. So the position is, if I have understood you correctly, 25 you didn't compare the blue inked fingerprints against page 117 1 anything between this date and the time of the trial 2 and, indeed, didn't do so until the Terry Kent 3 photograph was produced after Shirley McKie's trial? 4 A. Correct. 5 Q. At what stage then was it you did notice there were 6 difficulties between Y7 and the top portion of the 7 print? How long after you got Terry Kent's photograph 8 did the light come on? 9 A. Well, I couldn't really tell you. I don't know. I 10 don't know. 11 Q. It must have been some time after the Operation Alba 12 Inquiry? 13 A. Yes, indeed. 14 Q. Whose idea was it, was it yours, Mr Berry's or 15 Mr Leadbetter's, that this could be explained by a 66 16 twist anticlockwise? 17 A. Mainly Mr Berry's. 18 Q. For how long had you known Mr Berry prior to this point 19 in time in 2000? 20 A. I can't tell you exactly. I don't know. Many years. 21 Q. A friend of yours? 22 A. He's a colleague of mine, not a close friend. He lives 23 some distance away but he's a colleague. 24 Q. Mr Leadbetter: how long had you known him prior to 2000? 25 A. Many years again. page 118 1 Q. Did you ever work with Mr Leadbetter? 2 A. No -- sorry, how do you mean work with him? 3 Q. I mean did you ever work in any department that he 4 shared with you? 5 A. No. 6 Q. Is he a friend of yours or was he a friend of yours in 7 2000? 8 A. He's a friend of mine, yes. 9 Q. Was he a friend of yours in 2000? 10 A. I can't really remember. I don't know. 11 Q. You don't remember -- 12 A. I probably would have met him at a conference but I 13 mean, you know, who's a friend? Who's a colleague? 14 Q. Your position, Mr Swann, is you don't remember if he was 15 what you might describe as a friend of yours in 2000? 16 That is your evidence? 17 A. Well, all right then, let's say he was a friend of mine 18 in 2000. I can't specifically remember but I've known 19 him for quite some time, mainly through the Fingerprint 20 Society but also I've worked with him on certain cases. 21 Q. When did you first discuss the question of Y7 and 22 Shirley McKie's fingerprint with Mr Leadbetter? 23 A. I'm sorry, I've no idea. I can't answer that question. 24 Q. Was it before or after the Operation Alba statement was 25 taken from you? page 119 1 A. I don't know. 2 Q. Do you remember the circumstances under which you first 3 discussed it with Mr Leadbetter? 4 A. No. 5 Q. You don't recall whether it was a formal meeting or 6 whether he sent you a report or whether he phoned you up 7 or whether he met you at conference? Nothing at all, 8 you have no recollection of it? 9 A. No, I don't. When we go to conferences we discuss many 10 matters but whether this was discussed I couldn't tell 11 you. 12 Q. Sorry, you did tell me but can you remind me the idea of 13 the 66-degree twist was Mr Berry's, was it? 14 A. Yes, he was the one who first, I think, realised what 15 had happened and once that had been -- once he passed 16 the information on to myself and possibly to others, I 17 don't know -- then the characteristic detail which we 18 were not able to assess in the first place quickly fell 19 into place. 20 Q. You did give some answers yesterday about this question 21 of the mechanics of the twist but I would like to ask 22 you, if you can, to be clear about this. 23 Are you saying that the Rosetta point stays in the 24 same place or is the only point that moves? What 25 happens to the Rosetta in this twist? page 120 1 A. The Rosetta point is probably halfway between the centre 2 core, top of the centre core, and the tip where these 3 characteristics again that were out of alignment are 4 found. 5 The marks at the tip together with the Rosetta 6 characteristic are further over to the right on Shirley 7 McKie's left thumb so that when the left thumb has made 8 contact with the door standard and for whatever reason 9 it's moved anticlockwise because of probably she 10 adjusted the position of her thumb or it slipped. I 11 don't know but one of the two. 12 Q. When you were first told about this theory of the 13 66-degree twist I take it your response is, "Well, I'm 14 sorry, I can't see any evidence of any crossover ridges 15 or twisting or movement from Y7. How can that be 16 explained?" 17 I take it you raised that, did you? 18 A. We discussed it certainly -- whether in so many words, I 19 don't know -- but you can see at the right-hand side of 20 the mark the appearance of ridge structure indicating 21 that. Once you realise what has happened, then other 22 things fall into place. 23 Q. Just to get that right, once you accept the 66-degree 24 twist theory you can then see, what, cross-over ridges? 25 A. How do you mean cross-over ridges? page 121 1 Q. What is it you meant when you said -- I will just read 2 back the section of the transcript. You said: 3 "You can see the right-hand side of the mark the 4 appearance of ridge structure indicating that once you 5 rule out what has happened, then other things fall into 6 place." 7 What is it you are talking about with the appearance 8 of the ridge structure on the right-hand side? 9 A. There are signs on the mark. If we had an enlargement 10 of Y7 on the screen, then I could point it out to you. 11 Q. Just tell me, if you can just now, signs of what? 12 A. On the right-hand side of Y7, the mark comes in like 13 that and it goes round like that and there's an area 14 here where the ridge structure has broadened, if you 15 like, or the space between the ridge structure has 16 broadened and you can see where it's possibly turning. 17 Q. Can we have a photograph of Y7 up on the doorframe. 18 THE CHAIRMAN: Which one would prefer to use? The 19 Daily Mail one or some other one? 20 A. Y7. 21 THE CHAIRMAN: Y7 itself. I see. 22 A. Any one of the -- 23 MR MOYNIHAN: If I can help, sir, the one that is 24 conventionally used for this in fact happens to be 25 Mr Swann's own Terry Kent image which is TS0006. page 122 1 MR SMITH: Thank you. That is exactly the image I was 2 looking for. 3 Mr Swann, I think we can see that if we follow the 4 line of the ridges to the right-hand side of Y7 it goes 5 almost on that page straight down and then takes a 6 slight dog-leg heading, as it were, south-east first of 7 all and then more or less 90 degrees across towards the 8 bottom. Is that the feature you described? 9 A. What I was talking about, if I can point it out on the 10 screen, is the area to the right here where the ridges 11 start bulging upwards, if that's the right expression, 12 and the movement has taken place and twisted it over 13 there (indicated). 14 Q. I wonder if we could have that saved and then taken off 15 to a clear image. 16 MISS BAHRAMI: That's saved as FI2210.03. 17 THE CHAIRMAN: That line is marking where you have just said 18 that the ridges broaden; is that correct? 19 A. The twisting, Mr Chairman, starts somewhere there and it 20 takes the top half of the mark in an anticlockwise 21 direction. When I say it takes it, it's moved that way, 22 it's twisted that way. 23 MR SMITH: I wonder if we could have a clean image put up, 24 please. 25 Mr Swann, the difficulty I have with this is that page 123 1 you saw the mark originally. You did not see any 2 evidence of twisting when you first saw it. You 3 confirmed that on a number of occasions. 4 A. Well, I didn't notice any evidence of it, no. 5 Q. You didn't see it or didn't notice it -- 6 A. I'm right. I didn't see it -- 7 Q. -- we're not going to argue about the use of the word 8 "see" and "notice", are we? 9 A. No. 10 Q. It was only after an explanation of the twisting came 11 along to justify differences that you then look at it 12 and say, "Ah, now I can see evidence, I can see evidence 13 of some of the structure on the right-hand side. I've 14 got the sequence of events correct." 15 A. Mm-hm. 16 Q. I don't understand why it is it takes an explanation of 17 a difference to then superimpose a suggestion of 18 twisting. Can you explain that to us, please? 19 A. Having spoken with Mr Berry and he'd seen this and 20 worked it out then, yes, I followed suit and applied the 21 same principle to the mark I had and there it was. It's 22 just a case of examining the mark, information between 23 colleagues and we resolved it. 24 Q. Mr Swann, I think we can see on that page the Terry Kent 25 image. If you go up to the label -- do you see the page 124 1 label? 2 A. Yes. 3 Q. Just where the pointer is just now, you see what is very 4 clearly the piece of wood grain that goes from there 5 right down the side of the fingerprint; do you see that? 6 A. Yes. You mean down the left-hand side? 7 Q. It's down the right- hand side of the print. 8 A. Sorry, down the right-hand side, yes. 9 Q. If we follow that line down, would you agree with the 10 suggestion that the shape of the fingerprint with the 11 dog-leg, as I have described it, could be accounted for 12 by a depressed wood grain following that line? 13 A. I can't really answer that question, but my knowledge of 14 the door standard was that it was flat and very nicely 15 painted, I think it was white. I didn't see any sign of 16 wood graining at all. 17 Q. We may hear some evidence from Mr Bleay in due course 18 who has taken some photographs of this under oblique 19 light and, as I understand it, his position is that 20 there is indeed a depression in the wood. It is a 21 groove rather than a raised grain but it follows the 22 contour of the edge of the fingerprint from the top, 23 down the way and round the dog-leg, as we can see. 24 Would you be prepared to accept that might actually 25 be the explanation for the dog-leg shape on the page 125 1 right-hand side of Y7? 2 A. Well, I'm prepared to accept anything providing it's 3 reasonable. I mean, I can see what you're looking at 4 and maybe it has some bearing on it. 5 Q. I think, Mr Swann, in fairness if we could perhaps show 6 you the Bleay photographs. I don't wish to be unfair to 7 you. The production before the Inquiry is EA-0164. I 8 wonder if the originals could be handed to Mr Swann. I 9 wonder if we can go to the next image, please. In fact, 10 can you take us on to page 6, please. Pause there for 11 the moment. 12 If you take it from me that there is oblique 13 lighting used on this particular piece of wood. 14 A. I've never seen this before by the way. 15 Q. I realise you've not seen the report before but you have 16 seen the piece of wood before and that's what I'm 17 interested in. 18 Would you accept from me if you see it under that 19 kind of lighting, the photograph, that we can see 20 actually the wood is quite heavily grained? Do you see 21 that? 22 A. Yes, I think I can see what you're referring to, yes. 23 But, of course, I never saw the piece of wood under 24 these conditions. 25 Q. You saw the piece of wood and if you had wished to have page 126 1 oblique lighting I'm sure that could have been arranged, 2 could it not? 3 A. I didn't see the need to have it under oblique lighting 4 at the time. What I was looking for was very clear and 5 quite clear without any lighting at all. 6 Q. No doubt the originals can be passed to you, if you wish 7 to see them, of the photographs but what I am suggesting 8 to you, Mr Swann, is this: if Dr Bleay is correct that 9 the shape of the fingerprint can be accounted for by 10 wood grain and not by twisting, by wood grain, where 11 does that leave your evidence regarding an indication of 12 problems with the right-hand side consistent 13 with twisting? 14 A. I can't accept that the twisting movement has occurred 15 because of the wood graining. All I can work from are 16 the characteristic details. They have moved 60 degrees 17 to the left, whether caused by wood graining or not I 18 don't know. 19 Q. I am trying to get the cart and horse in the right order 20 here, Mr Swann. What I am suggesting to you is that if 21 it is accounted for, if the shape of the print is 22 accounted for not by twisting -- we're not trying to 23 work out if it's twisting -- you're saying what accounts 24 for it and Dr Bleay says, well, this is entirely 25 coincidental with a wood grain that follows the pattern page 127 1 of it, then you cannot say because of the shape of it it 2 was twisting, if that evidence is accepted. 3 You understand what I'm putting to you? 4 A. Yes. 5 Q. So we start from the proposition that we have a 6 fingerprint that may be an unusual shape but we are then 7 asking ourselves is there any evidence of twisting on 8 that fingerprint. Leaving aside the 66-degree twist 9 theory for the moment, leaving that aside, you still 10 agree with me, don't you, that there is no evidence from 11 that fingerprint of twisting? 12 A. From a visual viewpoint then, no, I can't see any but I 13 know that some movement has taken place because of the 14 position of the characteristic detail, whether it's been 15 caused by twisting, movement, distortion, wood grain, I 16 don't know. 17 Q. Mr Swann, you are doing it round the wrong way. You are 18 saying there must have been ...? 19 A. Well, there has to be. 20 Q. But then you are saying it must have been twisted. You 21 saying to justify the differences there must have been a 22 twist; therefore, it was twisted. 23 A. There's been some movement of the thumb when it touched 24 the door standard. It's twisted slightly to the left or 25 moved slightly to the left by whatever means and taken page 128 1 the characteristic detail with it and it's obviously 2 wood. How that situation occurred, I don't know. 3 Q. Mr Swann, did you try to replicate this twist movement 4 in your lab? 5 A. No, no. 6 Q. Do you have any papers that have been written by any 7 fingerprint expert in a peer reviewed journal which 8 suggests this could be achieved without any evidence of 9 cross-over or other indication from the mark of 10 twisting? 11 A. No. 12 Q. Have you or any of your colleagues who adhere to this 13 theory published any article to be peer reviewed which 14 suggests that this theory has any validity? 15 A. Sorry, could you repeat that? 16 Q. You understand what a peer reviewed journal is? 17 A. Yes. 18 Q. I think in the entry on the Internet relating to you you 19 indicate you keep an extensive library of information 20 regarding fingerprints? 21 A. Yes, indeed, yes. 22 Q. You will understand that when someone has a position to 23 take which may be unusual it's a common thing for them 24 to publish it and for colleagues, who have experience, 25 to consider whether it has any validity. You look page 129 1 puzzled? 2 A. I'm trying to follow the question actually. 3 Q. I'm just trying to see where the difficulty is in the 4 question I put. 5 A. I've not seen anything written down about this as to how 6 it should happen, how it could have occurred. If that's 7 what you -- 8 Q. What I'm asking you is this is a really important 9 theory, isn't it, Mr Swann? 10 A. Important? 11 Q. It's important to try and explain whether or not Y7 12 belongs to Shirley McKie. It's very important, isn't 13 it? 14 A. Absolutely, yes. 15 Q. And it's been the talk of the fingerprint community for 16 10 years, hasn't it? 17 A. It has, yes. 18 Q. The theory that you are presenting about a 66-degree 19 twist is one that, if correct, would mean that your 20 opinion was right and dozens if not hundreds of other 21 experts are wrong? 22 A. I wasn't aware there was hundreds of experts had passed 23 an opinion on it. 24 Q. We may or may not hear evidence about who has expressed 25 a view but you will agree with me, I take it, that some page 130 1 experts of unquestionable ability, for example, 2 Mr Grieve who has not been questioned on this, have come 3 to the opposite conclusion to you. 4 If you have a theory that you say can justify your 5 position is it not obvious that you would want to 6 publish it in detail and try and justify it in the 7 fingerprint community? 8 A. No, it never entered my head. 9 Q. A way of testing this theory would be to try to 10 replicate it to show that you could have movement 11 without any cross-over, without any smudging, without 12 any twisting. That would be a way of establishing it 13 having validity? 14 A. A very difficult thing to replicate how someone 15 performed at a crime scene, to try and do the actions 16 that were carried out. You can't really do that. 17 Q. It would be a lot harder to do it a crime scene, 18 wouldn't it, where you are perhaps somewhere you 19 shouldn't be, than it would be in a laboratory where you 20 can take as many days, as many hours, as many bits of 21 paper, as many fingers as you want to to try to 22 replicate it? Would you not agree it would be easier to 23 try and replicate it? 24 A. No, I haven't tried. I believed Mr Wertheim has but I 25 haven't. page 131 1 Q. I think Mr Wertheim doesn't adhere theory, you know 2 that? 3 A. Sorry? 4 Q. Mr Wertheim doesn't adhere to the 66-degree theory? 5 A. How does he explain the movement then from one side to 6 the other? 7 Q. At the risk of answering questions, I think you know 8 that his position is there was no such movement. It was 9 a different fingerprint. 10 Mr Swann, if I can move on to just a couple of other 11 matters. A very short point about the McNamee case. I 12 think in your Inquiry statement you indicate -- and this 13 is on page 34, paragraph 5.3 -- I think you say: 14 "In respect of that hearing, the second appeal 15 hearing, when it came to the crunch, my expert opinion 16 on the mark, at that stage backed up by Martin 17 Leadbetter and others, was accepted by the Appeal 18 Court." 19 That is what you say in your Inquiry statement. Do 20 you wish to see it? 21 A. Which case is this, sorry? 22 Q. This is about the McNamee case. I am referring to your 23 Inquiry statement. Perhaps we could just have the 24 Inquiry statement brought up. It is FI0149.04. What I 25 am looking for, please, is page 34, paragraph 5.3. page 132 1 I will just try and identify the section of it. You 2 see about maybe six or seven lines down from the top 3 17th December 1998 and just after that it says: 4 "In respect of that hearing, the second appeal 5 hearing, when it came to the crunch my expert opinion on 6 the mark, at that stage backed up by Martin Leadbetter 7 and others, was accepted by the appeal judges." 8 A. Yes, I can see that. 9 Q. You understand that we have access to the Appeal Court 10 decision. We can see it for ourselves. I am going to 11 suggest do you that, in fact, what happened in that case 12 was that there was such a confusion of evidence from 13 experts, some saying, yes, it was a match and some 14 saying, no, it wasn't and some saying you can't tell, 15 that what happened was the Appeal Court said the 16 conviction was unsafe. 17 Are you aware of that? 18 A. Well, I might have heard it. I don't know. 19 Q. Well, it is different to what is suggested, with 20 respect, in your statement, Mr Swann. What you are 21 saying is you were accepted and Mr Leadbetter was 22 accepted in preference to some others at least? 23 A. Well, perhaps that's a wrong choice of words again. 24 Q. One other matter I would like to ask you about just on 25 the question of the doubts you were having in the top page 133 1 part of the print. 2 A. Yes. 3 Q. Did you ever report these doubts at any stage to Shirley 4 McKie or her legal team? 5 A. No, I didn't. 6 Q. Why not? 7 A. Well, after my meeting with Mr Findlay, I got the 8 distinct impression that my services were dispensed 9 with -- which they had. I had no further communications 10 from anybody. 11 Q. Mr Swann, the final matter I want to ask you about is 12 this and could we have, again, your Inquiry statement 13 up. I would like to go to paragraph 42 to 43, please -- 14 sorry, it may be page 42 to 43. 15 MR MOYNIHAN: It is pages 24 to 25. 16 MR SMITH: Thank you. 17 You will recall that we looked at this earlier and I 18 just have one short point to make. Can I just explain 19 to you that I also act for Mr Wertheim and so that's the 20 reason I am asking this question. 21 You see at the bottom of the left-hand page 24, 22 second last line: 23 "The concept of a false complaint founded (yet 24 again) on identification of mark Y7, coupled with the 25 setting up of a sham IAI disciplinary hearing was page 134 1 devised and implemented in consequence of a deal agreed 2 between Pat Wertheim and a vice-president of the IAI 3 (subsequently the President of the IAI)." 4 As I understand the allegations being made there, a 5 deal was agreed involving Pat Wertheim and I think a 6 Mr Garrett is perhaps the gentleman you are referring 7 to? 8 A. Yes. 9 Q. What evidence do you have, Mr Swann, of a deal being 10 reached between the two of them to cause you difficulty? 11 A. It's all on CLPEX where Mr Wertheim suggested that 12 someone make a complaint against him regarding Y7 then 13 they could have a hearing. Then they could find in his 14 favour. They could come over here armed with the 15 knowledge that the IAI had said that mark Y7 was not 16 identical. 17 Q. You see, what one might take from that statement, your 18 Fingerprint Inquiry statement, is that somehow it was a 19 done deal set up in advance between Pat Wertheim and 20 Mr Garrett. 21 You have no evidence whatsoever of such a thing, do 22 you? 23 A. Well, what was then? 24 Q. It was a disciplinary hearing, Mr Swann, following a 25 complaint by someone to the IAI? page 135 1 A. A complaint from someone in Australia. 2 Q. Is there something wrong about Australians making a 3 complaint? 4 A. No, not at all. I've been there, very nice place. No, 5 all I'm saying is that it's on the CLPEX. You can read 6 it for yourself. It makes the point -- it comes out 7 that there's a hearing going to be heard and they are 8 going to find in favour of Mr Wertheim so they can come 9 over here armed with the information and knowledge that 10 the IAI are backing him that the mark is not identical. 11 That's the implication of it. 12 Q. What I am concerned about is a suggestion of a 13 conspiracy between the IAI, Pat Wertheim and, indeed, 14 the McKies to somehow do this. I think Mr Moynihan 15 asked you questions about this and your answer is it's 16 all over CLPEX? 17 A. It is, yes, and it's all been very well documented by my 18 solicitor and sent to the Chairman and ... 19 Q. So if we're looking for evidence of a conspiracy, people 20 actually getting together and deciding in advance to 21 reach a conclusion it's all on CLPEX, is it? 22 A. Well, there's certainly a lot of information about it on 23 CLPEX. If can't quote it all verbatim but it's 24 certainly there. 25 Q. I would you just to look very briefly at one last page 136 1 document in connection with this. It is DB0759. This 2 is a letter from the IAI dated September 24th 2009. I 3 would just like to ask you if you have seen this letter? 4 A. No, I haven't. 5 MR SMITH: Thank you, Mr Swann. 6 THE CHAIRMAN: Miss Grahame, do you have any application? 7 MISS GRAHAME: Yes, I do, just one very small matter in 8 relation to what was said about Sheriff Gilchrist's 9 evidence. I would like to clear up what I understand to 10 be a mistake. 11 THE CHAIRMAN: Yes, certainly. 12 Cross-examined by MISS GRAHAME 13 Q. Mr Swann, before the morning break you were asked a 14 number of questions by Mr Moynihan and I want to go back 15 to those for a moment. You were asked under reference 16 to the report prepared by Bill Gilchrist, who is now 17 Sheriff Gilchrist. 18 A. Yes. 19 Q. You were asked to comment on certain things that 20 Mr Gilchrist or Sheriff Gilchrist had written in his 21 report about his meeting with you. 22 Do you remember being asked those questions this 23 morning? 24 A. Sorry, do I remember the meeting with Mr Gilchrist? 25 Q. No, no. Do you remember being asked those questions page 137 1 this morning about Mr Gilchrist and what he had said in 2 his report about you? 3 A. Yes. Well, most of it, yes. 4 Q. I will go through it again if you don't mind. You said 5 this morning in your evidence that Sheriff Gilchrist had 6 said he couldn't remember meeting you and you questioned 7 where he'd got the words from and you said: 8 "If he can't remember meeting me I don't know how he 9 can write this down." 10 Do you remember saying that? 11 A. I remember saying that, probably -- I presume he does 12 remember the meeting but he couldn't remember the 13 content of the meeting. I think that's the point I 14 should have made. 15 Q. Sheriff Gilchrist gave evidence on 24th June to this 16 Inquiry. For those of us with LiveNote it is page 48 to 17 52. I will not take you to that, Mr Swann, but what he 18 actually said was that it was Mr Graham he couldn't 19 remember but he did remember you and that was probably 20 because he met you in London. 21 A. Correct. 22 Q. So, in fact, Sheriff Gilchrist did remember meeting you. 23 A. Sorry about that. Fine. 24 Q. He was correct: you did meet him in London? 25 A. Yes, indeed, yes, yes. page 138 1 Q. He also said he remembered you talking about 21 2 characteristics and identifying that. 3 A. Right. 4 Q. So in that regard he would be correct about that because 5 you did talk about 21 characteristics? 6 A. Sorry? 7 Q. You did talk to Sheriff Gilchrist about finding 21 8 characteristics? 9 A. I can't remember. Probably. I don't know. I can't 10 remember. 11 Q. I might be wrong, Mr Swann, but I thought you had said 12 you remembered that this morning? 13 A. Well, I do remember the meeting whether I specifically 14 said 21 -- well, I presume I must have said 21 if he's 15 quoting it but I mean we said lots of things and, again, 16 we didn't take notes but I can't remember everything 17 word that was passed there. I can remember what the 18 main -- most of the time was spent during the meeting 19 was looking at Mr Wertheim's exhibits and then they 20 showed me some reports from the Dutch and from the 21 Durham Training School and I pointed out to him what I 22 had prepared and showed him it, et cetera. 23 Q. So do you accept that you probably did mention 21 24 characteristics to Sheriff Gilchrist? 25 A. I may, I may. page 139 1 Q. Just one final thing: can I ask you to look at your 2 statement to the Inquiry. Do you have that in front of 3 you? 4 THE CHAIRMAN: Do you want some paragraph put up? 5 MISS GRAHAME: It may be easier, yes, sir. If we could have 6 FI0149.04, which is the statement to the Inquiry. It is 7 paragraphs 23 and 24 which are on page 14 of the 8 statement. I don't know if that would be 14 on the -- 9 yes, it is 14 on the pdf. 10 Do you see in paragraph 23 -- 11 A. Yes. 12 Q. -- that from line 4 you received a letter from William 13 Gilchrist, the Regional Procurator Fiscal, on 14 13th June 2001? 15 A. Yes. 16 Q. And he wanted to interview you? 17 A. Yes. 18 Q. Then do you see in paragraph 24 -- and if perhaps that 19 could be brought up -- that you subsequently met with 20 him on 16th June 2001 in London? 21 A. Correct. 22 Q. If you take from me for the moment, Mr Swann, that 23 Mr Gilchrist completed and signed his report on 24 6th July 2001, if you take that from me for the moment. 25 A. Yes. page 140 1 Q. Then can we look again, please, at the report which is 2 CO0003.018. Can we enlarge the second last paragraph on 3 that page, please. 4 You have already been referred to this, Mr Swann. 5 Would you like to just take a moment to read that 6 paragraph again just to refresh your memory. (Pause) 7 A. Well, I've read it and I understand it. 8 Q. That's what Mr Gilchrist wrote in his report? 9 A. That was the report of the whole meeting? 10 Q. No, this was his report into the criminal allegations 11 against the four SCRO officers. The report was a 12 lengthy report but this was the paragraph that related 13 to what you said to him at the meeting. 14 A. Right. 15 Q. What Sheriff Gilchrist said in evidence to this Inquiry 16 was that he didn't remember, at the time he gave 17 evidence here, he didn't remember the detail about the 18 11 characteristics being clear and 10 being difficult to 19 see, but what he did say was that that was in the report 20 "... because that is what Mr Swann said to me at the 21 time." 22 Do you accept that what was written by Sheriff 23 Gilchrist in his report, that was written some time in 24 the three-week period between meeting you and completing 25 and signing the report, and do you accept that it is page 141 1 likely to be an accurate record of what you said to him? 2 A. It's difficult to comment or to answer in the 3 affirmative to that because I don't see how I would be 4 talking about individual characteristics to him. I 5 might have said, "Yes, I've prepared a chart or I can 6 find 21 characteristics in agreement", but going down to 7 the 11 being clear, clearer than the other 10 rather, I 8 don't think I would have said that. I can't dispute it 9 but I don't think I would have said it. It's not 10 something I would have discussed with Mr Gilchrist. 11 Most of the time I spent showing him a chart, not 12 this one with 21 characteristics on but a chart of 13 another area of the mark which I don't think he 14 remembered that, did he? 15 Q. Do you accept that your recollection now may be flawed? 16 A. Yet it might be correct. 17 THE CHAIRMAN: I don't think the witness can really go 18 further than that. 19 MISS GRAHAME: I have no further questions. 20 THE CHAIRMAN: We normally take a break at 2.50 but we will 21 take it now at 2.55 and sit again at 3.05 and then I 22 will hear an application from you, Mr Holmes and Mr 23 Russell. 24 MR MOYNIHAN: Sir, just before we rise, perhaps it's just as 25 well I put on the record that if there's any error in page 142 1 Mr Swann's evidence this morning in which he was 2 recounted what Sheriff Gilchrist said on a previous 3 occasion then that is my fault because he is simply 4 giving evidence this morning of what I told him by way 5 of an explanation of Sheriff Gilchrist. So any error is 6 mine, not Mr Swann's. 7 THE CHAIRMAN: It is a good thing that you've owned up, very 8 good. 9 (2.55 pm) 10 (A short break) 11 (3.07 pm) 12 THE CHAIRMAN: Mr Holmes, you have an application? 13 MR HOLMES: Thank you, sir, I do have an application but it 14 relates to only one matter. I appreciate Mr Wertheim 15 has not yet completed his evidence but the matter I 16 would like to ask Mr Swann about relates to a point in 17 Mr Wertheim's evidence so far where he made reference to 18 a charting that was prepared by Mr Swann and I would 19 just like to put a piece of that for comment to him. 20 THE CHAIRMAN: Yes. 21 Cross-examined by MR HOLMES 22 Q. Mr Swann, if you can have a look at an image for me 23 FI2309.14. Ignoring the coloured lines that are drawn 24 on those images, do you recognise those as coming from 25 the chartings that were prepared by you. page 143 1 A. Yes, I do. 2 Q. I can't show you the transcript of proceedings but I am 3 going to read you out a portion of what was said during 4 the evidence of Mr Wertheim. 5 He asked to be shown these particular pages of your 6 charts and he asked to mark these coloured lines on them 7 that you see there. For those using LiveNote it's on 8 day 24 of the transcript and the comments are page 100 9 onwards. 10 Mr Wertheim marked from what he saw as the core of 11 each of these inked impressions out to the Rosetta 12 characteristic and that's the yellow line that you see 13 marked on both impressions there. 14 A. Yes. 15 Q. What he then did was to count the ridges in between and 16 to mark each ridge as he went in green. So those are 17 the lines that you see crossing each of the yellow 18 lines. 19 If you take it from me that the image on the left is 20 the inked impression from page N of your chartings and 21 the image on the right is the inked impression from page 22 M of the chartings that you have prepared. 23 Mr Wertheim commented that the ridge counts that he 24 performed while he was giving evidence seemed to be 25 different from inked impression to inked impression and page 144 1 what he said is that: 2 "Mr Swann cannot have it both ways. We are using 3 inked impressions for crying out loud. Mr Swann is 4 utterly mistaken and I reject both his interpretations. 5 Mr Swann obviously doesn't even review his own work." 6 Just looking at those two impressions, can you tell 7 me why the ridge count from the core to the Rosetta 8 point that is marked on each would differ? 9 A. Simply because he's not marked the right characteristic 10 on the right-hand mark. 11 Q. Ah. 12 A. I can indicate where the Rosetta characteristic is on 13 the right-hand mark, if you wish. 14 Q. If you would, please. 15 THE CHAIRMAN: Could we copy this and then have it, in other 16 words, as a different exhibit with the mark on it of 17 where the Rosetta is? In other words, so we're not 18 interfering, if that is the right word, with 19 Mr Wertheim's. 20 MR MOYNIHAN: Unless I am corrected when what is on the 21 screen is saved it will become a new image for today 22 and not disturb what is there. 23 THE CHAIRMAN: That is fine. If you would not mind marking 24 the Rosetta then this becomes a new document, as I 25 understand it. page 145 1 Slightly to the left, is it, of that circle the 2 Rosetta characteristic? 3 A. The Rosetta characteristic is just immediately to the 4 left of that circle. (Indicated) 5 THE CHAIRMAN: Yes, to the left of the circle. It's still 6 slightly to the left, is it? 7 A. It's just to the left of it, Mr Chairman. If you are 8 going to draw a line to it? 9 THE CHAIRMAN: I think just to make it clearer if we take it 10 off and I think an arrow to it would be safer. 11 (Indicated) 12 MR HOLMES: What you have marked now is the correct position 13 of the Rosetta characteristic on the right-hand chart; 14 is that correct? 15 A. That's correct, yes. 16 MR HOLMES: Could we save that image, please? 17 MISS BAHRAMI: That's saved as FI2210.04. 18 MR HOLMES: So, Mr Swann, any criticism that Mr Wertheim had 19 to make of you at the time seems to be based on the fact 20 that he has marked the Rosetta characteristic in quite 21 the wrong place on chart N; is that correct? 22 A. Yes, I think he's miles out. 23 MR HOLMES: Thank you very much, Mr Swann. 24 THE CHAIRMAN: Mr Russell, have you any application? 25 MR RUSSELL: Yes, sir. I would with to apply to put six page 146 1 matters to Peter Swann. Firstly, Mr Swann's ranking as 2 a fingerprint expert, his position as Shirley McKie's 3 defence expert and the duty of an independent expert. 4 It is a matter that can be put very briefly -- 5 THE CHAIRMAN: Yes, certainly. 6 MR RUSSELL: -- as with each matter. 7 Secondly, sir, the Police Service of Northern 8 Ireland report of 15th October 2009, a matter which 9 arises. 10 THE CHAIRMAN: Yes. 11 MR RUSSELL: Thirdly, Mr Moynihan's clockface PowerPoint 12 presentation and the movement on mark Y7. 13 THE CHAIRMAN: Yes. 14 MR RUSSELL: Fourthly, passing reference to the disciplinary 15 proceedings against Mr Swann by the Fingerprint Society 16 and the Council for the Registration of Forensic 17 Practitioners on the complaints of Iain McKie and 18 Shirley McKie. 19 THE CHAIRMAN: Yes. 20 MR RUSSELL: Fifthly, Iain McKie's admission in evidence to 21 this Inquiry on 15th October that in March 1999 Shirley 22 McKie had been notified of Peter Swann's identification 23 of mark Y7 as her left thumbprint, that is to say prior 24 to standing trial for perjury in May 1999. 25 Sixthly -- page 147 1 THE CHAIRMAN: Is that not a matter of comment now? 2 Mr McKie has given that evidence. 3 MR RUSSELL: It is a matter which now requires response and 4 comment by Mr Swann because throughout he has 5 consistently argued that Shirley McKie was fully aware 6 of his identification of mark Y7 and pages 42, 43 and 44 7 of his statement to the Inquiry takes this very specific 8 issue. 9 Sir, it is an issue which firstly arises because 10 Mr Swann was requested by this Inquiry to deal with the 11 telephone call from the Procurator Fiscal's Office 12 concerning his examination of Y7 as Shirley McKie's 13 expert. It is an integral part of our evidence to this 14 Inquiry that Shirley McKie committed perjury in her 15 trial Her Majesty's Advocate v Shirley McKie when she 16 was tried for perjury and it's -- 17 THE CHAIRMAN: I am sorry to interrupt you but, obviously, 18 so far as criminal offences are concerned, I can't 19 enquire into that but -- 20 MR RUSSELL: Absolutely agreed, sir. 21 THE CHAIRMAN: But I thought Mr McKie had rather confirmed 22 the view expressed by Mr Swann that she would have known 23 or did know. 24 MR RUSSELL: But it has been consistently denied by the 25 McKies to include the basis that even the letters she page 148 1 wrote, she had not seen but merely signed it. I very, 2 very specifically put to you, sir, as a matter of 3 considerable importance the fact that Andrew Smith and 4 all of the McKie lawyers made a signed statement 5 submission to the Scottish Parliament in April 2006 when 6 they said: 7 "The pursuer, Shirley McKie, advises us and we have 8 no reason to doubt this that she was not aware of the 9 opinion of Swann on the matters she was asked about. At 10 all material times her father was being advised of the 11 developments and not all matters were communicated to 12 her." 13 These are matters of great importance because, even 14 if you go back to the perjury trial, the question arises 15 as to why would Shirley McKie lie about entry into the 16 murder scene of Marion Ross and the answer is that she 17 has consistently lied, sir. 18 THE CHAIRMAN: I appreciate that is what you say but I am 19 not quite sure how Mr Swann can take it further. That 20 is all I am trying to discover. 21 MR RUSSELL: It is an opportunity to have Mr Swann rebut the 22 allegations which have been made against him. When he 23 raised these matters before the Council for the 24 Registration of Forensic Practitioners, it was 25 vehemently denied by the McKies that such an allegation page 149 1 could be made and it was a terrible allegation to make 2 against Shirley McKie. It now transpires to have been 3 entirely true and there is a very interesting aspect in 4 how the McKies are trying to operate before this 5 Inquiry. 6 Sir, just one brief point and that is: when Shirley 7 McKie, on direct instructions to Andrew Smith and 8 others, made that submission to the Scottish Parliament 9 she subsequently sought to shelter behind Andrew Smith 10 QC who was responsible for that she said. She now seeks 11 to shelter behind Donald Findlay QC on her false 12 evidence in her original perjury trial. These are 13 matters of great importance, sir. 14 THE CHAIRMAN: But what is the question that you want to ask 15 Mr Swann? 16 MR RUSSELL: The matter that I wanted to put to Mr Swann 17 was, having regard to Iain McKie's admission, which is 18 Shirley McKie inevitably committed perjury in her 19 perjury trial Her Majesty's advocate v Shirley Jane 20 McKie a/k/a Cardwell what comments he would have having 21 regard to his involvement in these proceedings to the 22 answers that she gave on oath when she was 23 cross-examined by the Advocate Depute on sworn oath in 24 May 1999. 25 THE CHAIRMAN: I am not really persuaded that his comment is page 150 1 relevant on an issue like that. 2 MR RUSSELL: Sir, if I can in that case transfer that 3 question to a secondary application and that is this: 4 one, I do not know what the position is regarding 5 Shirley McKie giving evidence before this Inquiry. I do 6 not know what date or what is proposed or what the 7 arrangements are. If the matter is being dealt with on 8 a voluntary basis, then we will stand back and await 9 notification and that will be no doubt entirely proper. 10 But, sir, if there is an issue of perhaps whether 11 through matters which Mr McKie touched upon of Shirley 12 McKie not giving evidence before this Inquiry then we 13 would wish to be heard on an application to have her 14 summonsed to appear before this Inquiry. 15 Sir, if and when Ms McKie does give evidence before 16 this Inquiry, we would wish to have a wholly independent 17 member of Crown Office and the Procurator Fiscal Office 18 as well as an officer from Strathclyde Police present 19 during the questioning. 20 THE CHAIRMAN: At the moment, I am dealing with the question 21 of what questions you should be permitted to put to this 22 witness and all I am saying at the moment, I am not 23 persuaded that that is a topic that Mr Swann can assist 24 me on today in answer to any question. 25 MR SMITH: Sir, I wonder if I might just say a very few page 151 1 words by way of assistance. The first thing I should 2 say is it's a matter of regret that there have been 3 suggestions made by Mr Russell regarding members of 4 faculty, and I include myself in that. 5 As Mr Russell is well aware, although he made a 6 complaint to the Faculty of Advocates it was dismissed 7 by the Faculty of Advocates, as was his appeal to the 8 Ombudsman. I think it is right and proper that is a 9 matter of public record. But in a slightly different 10 matter I should say that if Mr Russell had wished to put 11 allegations of that kind to anyone, the obvious person 12 to put them to was Mr Iain McKie. I don't know why 13 Mr Russell wasn't here whenever Mr McKie gave his 14 evidence. 15 THE CHAIRMAN: I think I am with you in the sense that I 16 made it clear to Mr Russell that I am not persuaded that 17 that is a topic that he should put to this witness. 18 Is there any other matter, Mr Russell, that you want 19 to raise? 20 MR RUSSELL: Sir, because Mr Smith has referred to the 21 Faculty of Advocates and his reference to matters having 22 been dismissed, may I remind him that his QC, Mr Jones, 23 wrote to the Faculty of Advocates on 31st August 2007 24 and said: 25 "The terms of the submission made it clear that all page 152 1 four signatories, Mr Smith, Mr Duncan, Mr Dalyell 2 (solicitor) and Mr Cassells (solicitor), had prepared it 3 on the instructions Ms McKie and her father." 4 The Faculty of Advocates, contrary to what Mr Smith 5 suggests, the complaints committee of the Faculty of 6 Advocates said In relation to what Mr Smith and the 7 lawyers for McKie had stated was: 8 "The committee considers it in general inappropriate 9 for counsel to express a personal opinion about the 10 credibility or reliability of a client. Accordingly, in 11 the committee's view, it was ill-advised for counsel 12 (that's Andrew Smith QC and others) to support 13 Ms McKie's assertion about the state of her knowledge." 14 So there is an inevitable inference inevitably 15 Ms McKie committed perjury in her perjury trial. But, 16 secondly, she had either lied to Mr Smith or Mr Smith 17 has lied to the Faculty of Advocates. There is no other 18 interpretation. 19 THE CHAIRMAN: At the moment, I am dealing with questions 20 you should be allowed to put to this witness. These are 21 not matters for this witness. These are not matters 22 with which this witness is concerned. Is there any 23 other matter other than those that you have -- 24 MR RUSSELL: If we work on the basis, sir, the fifth 25 question has gone to return as an application at a page 153 1 future date, then my fifth question is a couple of 2 points on the IAI solely response to the matter raised 3 this morning. 4 THE CHAIRMAN: You will bear in mind that what I said about 5 it, that my interest in the IAI is limited to the one 6 aspect of it; namely, who initiated the complaint. 7 MR RUSSELL: That is the only point I wish to make, sir. 8 THE CHAIRMAN: Very good. Then other than the one question 9 which I have ruled against, the others you may ask. 10 MR RUSSELL: Thank you, sir. May I respectfully ask 11 Mr Mackenzie to move slightly to one side because I 12 don't want to strain the microphone as I speak to 13 Mr Swann and if I could ask Mr Swann to stay close to 14 the microphone but to address his replies direct to his 15 Lordship, not to me. 16 THE CHAIRMAN: It's a very unnatural thing to have to do not 17 to look at the person who is speaking to you, but 18 Mr Russell is quite right. It is better, if you would 19 not mind. 20 Cross-examined by MR RUSSELL 21 Q. Mr Swann, your ranking as a fingerprint expert. You 22 were superintendent and head of department of West 23 Yorkshire Police; correct? 24 A. Correct. 25 Q. You were Home Office Adviser on fingerprints? page 154 1 A. Correct. 2 Q. You were 30 years West Yorkshire Police fingerprints? 3 A. Indeed, yes. 4 Q. You're 22 years Independent Fingerprint Expert? 5 A. Correct. 6 Q. You've got 52 years in fingerprint work as an expert? 7 A. I have. 8 Q. You maintain a fingerprint library? 9 A. I do. 10 Q. Is it likely to be the most extensive fingerprint 11 library in the United Kingdom? 12 A. Sorry? 13 Q. Is it likely to be the most extensive fingerprint 14 library in the United Kingdom? 15 A. I believe it is. 16 Q. You have been involved in many of the highest profile 17 cases in the world; that's correct, is it? 18 A. I have, yes. 19 Q. You have been involved in terrorism cases, the Yorkshire 20 Ripper, you have given evidence in Australia and you 21 have been involved in a great many matters, in 22 particular McNamee? 23 A. Yes, I have. 24 Q. In your 52 years' work as a fingerprint expert, has any 25 identification made by you been overturned before any page 155 1 court? 2 A. No. 3 Q. Having regard to your expertise, 52 years, and a 4 life-long obviously keen interest in fingerprints aside 5 from your professional work, how certain are you that 6 the mark Y7 is the left thumbprint of Shirley McKie, 7 from 0 per cent to 100 per cent? 8 A. 100 per cent. 9 Q. When you work as an Independent Fingerprint Expert and 10 you're examining marks, do you take into account who is 11 instructing you as a relevant factor, defence, 12 prosecution, whatever? 13 A. No, not at all. 14 Q. So when you are instructed, say, by Shirley McKie you're 15 not there to present Shirley McKie's case? 16 A. Sorry? 17 Q. When you are instructed, say, on behalf of Shirley 18 McKie, you would not approach your work in looking to 19 see how you could assist her on the fingerprint 20 evidence? 21 A. No, certainly not. 22 Q. If your CV isn't already before the Inquiry, then could 23 you just confirm that you have one in front of you, that 24 that is correct and it could be handed in? 25 THE CHAIRMAN: Does it go beyond what is in the statement? page 156 1 MR RUSSELL: Well, it's recited; just so there is a formal 2 CV. 3 THE CHAIRMAN: I have the first five paragraphs, six I 4 think, all relating to that. But if there is more, 5 certainly. 6 MR RUSSELL: I was simply referring to a simple two-page CV 7 in a classic form. 8 That is correct, is it, Mr Swann, apart from the 9 fact it may be a little out-of-date now? It is 10 June 2005. 11 A. Yes. 12 Q. On to the second matter, sir, and that is the Police 13 Service of Northern Ireland. 14 Mr Swann, what is the value of simply sending marks 15 for evaluation, say, to the Police Service of Northern 16 Ireland without any fingerprint forms for comparison 17 purposes? 18 A. In my opinion very little. Certainly an opinion can be 19 passed on a mark that you see but, for the sake of 20 completeness, you should have the donor's prints -- if 21 they're available of course -- with you to be able to 22 make a comparison. 23 Q. You have seen the report from the Police Service of 24 Northern Ireland which is 15th October 2009, findings by 25 Dawson, McKewan, Green in relation to marks QI2 and page 157 1 others where they refer to, for example, insufficient 2 ridge detail, could use pattern to eliminate 3 individuals. 4 If a mark is sufficient to eliminate individuals, 5 could it not reasonably be used for comparison purposes? 6 A. Indeed. If it can be used for proving elimination, it 7 can also be identified to prove a case. 8 Q. In respect of the Police Service of Northern Ireland and 9 the approach to these marks, is it correct that you were 10 previously invited by the PSNI to go to Belfast, you 11 were flown there, albeit that you clearly attended 12 without any fees, but they arranged your travel and is 13 it correct that you attended PSNI in order to make a 14 presentation on marks Y7 and QI2 and the other marks in 15 this matter? 16 A. Yes, I was. 17 Q. When you gave your presentation on Y7 and QI2 to all of 18 the Senior Fingerprint Officers within PSNI, was there 19 any successful challenge that either the marks were not 20 suitable for comparative purposes or that your 21 identification of them was not appropriate or incorrect? 22 A. No, none at all. 23 THE CHAIRMAN: Can you remember when that was? 24 A. At a guess, I'd say three to four years ago now. 25 MR RUSSELL: The third matter, Mr Swann -- and, again, if page 158 1 you resist the temptation to watch me and give your 2 responses to his Lordship -- Mr Moynihan put to you 3 yesterday a clockface PowerPoint presentation. He used 4 a flat screen image of a clockface. 5 The question is: would the rotation of a single 6 image clockface replicate the movement of a human thumb 7 in relation to a door standard? 8 A. I don't think so. I had great difficulty in working out 9 really what was happening with the clockface, to be 10 quite honest. The movement wouldn't occur as suggested 11 because the Rosetta characteristic certainly was not at 12 the tip as was suggested on there, it was halfway 13 between the centre core and the top of thumb. I don't 14 think really it could be worked out like that. I don't 15 know how it happened. We went through that at great 16 length but I certainly don't think you can work it out 17 by putting marks on a clockface. 18 Q. A question on the same issue is in order to demonstrate 19 the movement in deposition of a thumbprint, would you 20 have to have regard to the elasticity of skin, the 21 pressure of application, the direction of application, 22 skin contamination, the physical condition of the donor 23 in terms of secretion, the surface and position of the 24 hard surface? 25 A. Certainly I think that all the areas you've mentioned page 159 1 all play a part. Nobody knows -- well, I don't think -- 2 it's never been mentioned. I mean, was the door 3 standard had it been in a bathroom? Was it damp? 4 Moisture you do get in a bathroom. I don't know the 5 state of Shirley McKie's skin on her left thumb but I'm 6 assuming it was quite in good order and the elasticity 7 of the ridge detail. 8 I think the mark was there due to slippage. When 9 she's placed her thumb on there, the ridge structure 10 causes it to act as a brake and it grips the wood, a 11 little bit like corrugated sheeting in appearance, and 12 it grips to prevent any further slippage. I think it 13 just slipped a fraction; that's about all, just a 14 fraction. But a fraction of slippage with a thumb would 15 certainly easily give you from ten past to the hour on a 16 clockface with a degree of movement. 17 The movement that was worked out by Mr Berry, whilst 18 it's accurate as far as he could take it, it's not 19 forced(?) to be exactly spot on. I think we've got 20 appreciate that. There might be some slight slippage 21 either way. But it does depend upon all the factors 22 that Mr Russell has just mentioned. 23 Q. If I can take you to the fourth matter, Mr Swann, the 24 disciplinary proceedings pursued against you by Iain 25 McKie and Shirley McKie, both of whom were separate page 160 1 complainants with Mr McKie also adopting a role to 2 present evidence. 3 Is it correct that you were subject to disciplinary 4 investigation and, in one case, disciplinary tribunal 5 proceedings by the Fingerprint Society and then the 6 Council for the Registration of Forensic Practitioners? 7 A. Yes, I was. 8 Q. Is it fair to say that in respect of the McKies 9 multiple -- and they were multiple -- complaints to the 10 Fingerprint Society and thereafter the CRFP, you were 11 the subject of intensive, protracted disciplinary 12 proceedings for the best part of five years? 13 A. That's correct, yes. 14 Q. Is it correct that the charges against you were thrown 15 out by the Fingerprint Society? 16 A. They were. 17 Q. Is it correct that the charges against you were 18 eventually thrown out by CRFP on the personal 19 intervention of Mr Sherman(?)? 20 A. That's correct, yes. 21 Q. Is it also correct that the CRFP, in throwing out the 22 case after many hearings, deemed Iain McKie and Shirley 23 McKie to have become unreliable witnesses? 24 A. That's as I was told, yes. 25 Q. Your ultimate sin seems to have been a refusal to recant page 161 1 your identification of mark Y7 as being Shirley McKie's 2 left thumbprint; is that about it? 3 A. That would appear to be the case, yes. 4 Q. Is it also correct, as a final point on that, that you 5 refused to be gagged on disclosure of your opinion on 6 mark Y7 as Shirley McKie's expert? 7 A. That's correct too. 8 Q. Is it also correct that the matter which the Chairman is 9 not going to permit a question on was a factor 10 considered in the CRFP disciplinary proceedings and that 11 goes to the McKie's motivation? 12 A. That's correct too, yes. 13 Q. Thank you. 14 Finally, a few brief points on the IAI. Is it 15 correct -- and if you just accept the chronology from 16 me -- that on 14th March 2008 Kenny MacAskill, the 17 Justice Secretary Scottish Government, announced this 18 judicial statutory Fingerprint Inquiry? 19 A. Yes. 20 Q. At the same time announced Sir Anthony Campbell, 21 Lord Justice of Appeal Northern Ireland, Chairman? 22 A. Yes. 23 Q. Is it also correct that within 48 hours under the 24 heading "Judge to head Fingerprint Inquiry" on CLPEX Les 25 Bush and others started postings to set up an IAI page 162 1 disciplinary case against you? 2 A. That's correct. 3 Q. Is it correct that in the posting of 16th March 2008 4 within 48 hours of the Justice Secretary's announcement, 5 Bush said: 6 "I'm interested in the proactive steps that can be 7 taken through the IAI to put some early pressure on the 8 supporters of the mis-identification." 9 That was as he welcomed the setting-up of this 10 Inquiry and the probable start of proceedings. But 11 straight away he wanted to apply pressure to the two 12 supporters of mis-identification who he named as Peter 13 Swann and Martin Leadbetter; is that correct? 14 A. That's correct. 15 Q. You have seen a submission from Iain McKie dated 16 19th October to this Inquiry saying: 17 "[He had] no knowledge of or involvement in the 18 establishment of the IAI Y7 Committee ..." 19 But adds he had, over the years: 20 "... made Internet appeals to the IAI and the 21 Fingerprint Society on www.clpex.com and the family 22 website to take action to have the identity of print Y7 23 established to their satisfaction." 24 To your knowledge, is Iain McKie a keen poster of 25 these statements on the CLPEX website? page 163 1 A. Yes, I would say so, yes. 2 MR RUSSELL: On this question, sir, there is a matter which 3 Mr Smith might be able to assist on. I will put it to 4 Mr Swann. 5 It is understood that when Mr McKie admits to having 6 posted statements on the CLPEX website that he also 7 posts under the pseudonym of Taggart? 8 THE CHAIRMAN: Are you in a position to answer that? 9 A. That's as I understand it. 10 THE CHAIRMAN: Do you know? 11 A. No, I don't know. 12 THE CHAIRMAN: No. Well, then I think you should not -- 13 A. That's as I understand it. 14 THE CHAIRMAN: If you don't know, I wouldn't answer a 15 question on oath that you don't know the answer to. 16 MR RUSSELL: That is, sir, something that perhaps Mr Smith 17 could assist on because Taggart -- 18 THE CHAIRMAN: Mr Smith isn't the witness. 19 MR RUSSELL: I beg your pardon, it is just sir -- 20 THE CHAIRMAN: At the moment, we are dealing with 21 Mr Swann who, as you know, has had a long time in the 22 witness box. He, as I understand it, agrees that it's 23 not an answer he can give on oath and I think we should 24 leave it there. 25 MR RUSSELL: Thank you. In which case I will bypass the page 164 1 issues of what matters arise in respect of how the IAI 2 has conspired against Peter Swann and Martin Leadbetter 3 because this is an issue which we say is a criminal 4 offence under the section 35 of the Inquiries Act 200. 5 But as to why we do it in this way instead of, with 6 respect, being at loggerheads with your Lordship as to 7 the matters that we cannot rehearse before this Inquiry, 8 may I just with refer Mr Swann finally to a letter dated 9 14th October 2008 from Mrs Ann Nelson, solicitor and 10 Secretary to the Inquiry. It's a very straightforward 11 matter. 12 Mr Swann, in a letter dated 14th October 2008 in 13 response to matters concerning the IAI and alleged 14 breach of section 35 of the Act, she wrote to me on 15 behalf of yourself and Mr Leadbetter saying: 16 "I assume that the reference is to section 35(2)(b) 17 which makes it an offence to do anything that is 18 intended to have the effect of preventing any evidence, 19 document or other thing from being given, produced or 20 provided to the Inquiry panel or anything that he knows 21 or believes is likely to have that effect. As you will 22 be aware, the Chairman has no power to institute 23 proceedings in relation to any alleged offence. The 24 only person who could institute proceedings in Scotland 25 is the Lord Advocate or one of the Procurators Fiscal. page 165 1 The investigation of such allegations is a matter for 2 the police and the Crown Office and Procurator Fiscal 3 Service." 4 With that very clear statement as to how this matter 5 should be dealt with, are you satisfied, and do you 6 accept, that this is a matter which, since it cannot be 7 investigated before his Lordship, should be dealt with 8 by the Crown Office, Procurator Fiscal Service and the 9 Strathclyde Police? 10 MR SMITH: Sir, I must step in at this point. That is not a 11 question for the witness. It is a public statement 12 Mr Russell is determined to make. 13 I don't quite know why it is Mr Swann is thought to 14 know who the best person to investigate criminal 15 offences is in these circumstances, but we are straying 16 into territory that, as a result, we have to devise a 17 protocol about issues when accusations are going to be 18 made of criminal offences. I am very concerned that we 19 end up in a position where accusations are being made 20 not about me but about other people who have given 21 evidence in circumstances where the protocol has not 22 been adhered to. 23 So I take objection if Mr Russell is wishing to make 24 a statement on such matters -- 25 THE CHAIRMAN: I think really the position is the witness page 166 1 can merely say that is a letter that was received and I 2 think the matter rests there. 3 MR RUSSELL: Yes, sir. The fact is that this matter could 4 only go to Crown Office on the instructions of Peter 5 Swann and Martin Leadbetter; so I'm merely putting it to 6 Mr Swann that you would wish to have this matter dealt 7 with before Crown Office, the Procurator Fiscal Service 8 and the Strathclyde Police? 9 THE CHAIRMAN: Well, it can only be referred by you on the 10 instructions of your client. 11 MR RUSSELL: Yes. 12 THE CHAIRMAN: Yes, that is right. 13 THE WITNESS: Yes. 14 THE CHAIRMAN: Well, it is a matter between you and your 15 client whether he instructs you or not. 16 MR RUSSELL: Mr Swann has just confirmed, sir, that is the 17 matter -- 18 A. Yes, Mr Chairman. 19 THE CHAIRMAN: Those will be your instructions? 20 A. Yes. 21 MR RUSSELL: Sir, that completes my questions. Thank you. 22 Re-examined by MR MOYNIHAN 23 Q. There is only one point I would like to clarify, 24 Mr Swann, in your evidence and it arises from the 25 photocopy that you produced today of the chartings that page 167 1 were referred to. I just want to clarify something. 2 Do you have the photocopy just in front of you just 3 now? 4 A. Yes. 5 Q. Yesterday at the very start of your examination, I was 6 asking you some questions about the information that you 7 had available to you before you met Mr Findlay on 8 2nd March 1997. I am looking at page 6 into page 7 of 9 the transcript. What you told me was that the 10 solicitors (that's Levy & McRae) sent you a package. 11 That package contained a fair amount of material but 12 there was a particular exhibit. You say it was quite a 13 bundle. There was, however, a particular matter that 14 you homed in on and that was a comparison chart copy. 15 A. Yes. They indicated to me that this is what they wanted 16 me to look at. 17 Q. I am grateful to you because that is the link. The 18 document that you have in your hand at the present 19 time -- which we will, with your permission, retain -- 20 is the comparison chart copy you were referring to 21 yesterday? 22 A. Yes. 23 Q. What I would also like to ask, just following on from 24 that, in the days after you received that and before you 25 met Mr Findlay you told me that you had worked on page 168 1 alternate days, for the reason you indicated, studying 2 certain material. 3 Do I take it that what you are working from on 4 alternate days is the photocopy that you had before you? 5 A. Yes, it is. 6 Q. Accordingly, what you were working with on 7 those alternate days were charted copies of the mark and 8 the print? 9 A. This: that's all. 10 Q. Did you have at that stage uncharted, ie unmarked, 11 copies of the mark Y7 and Shirley McKie's fingerprint? 12 A. No. 13 MR MOYNIHAN: Sir, those are the only questions I would ask 14 of the witness. Thank you. 15 THE CHAIRMAN: There were just a few matters I wanted to ask 16 you about. The first is about the position of the 17 Rosetta characteristic. I want to get clear I 18 understand your evidence about that and the 66 or 60 19 degree movement. 20 Is that a possibility that you are putting forward 21 because, as I understand your evidence, you are saying I 22 can see the characteristics in this what I might call 23 new position and therefore it's whether I can explain 24 how they got there or not. That's where I see them and 25 therefore it's a possibility that 60 degree movement page 169 1 accounts for it but, whatever accounts for it, I can see 2 those characteristics in that position. 3 A. Yes. 4 THE CHAIRMAN: Is that a fair representation of what you 5 were saying? 6 A. Yes. I can see the Rosetta characteristic on the left 7 of mark Y7? 8 THE CHAIRMAN: Yes, that's what I mean, yes. 9 A. You can also see it over to the right on the rolled 10 impression. So therefore something has moved. 11 THE CHAIRMAN: So however it got there, it's there? 12 A. Yes. 13 THE CHAIRMAN: And 60 degree movement is a possible 14 explanation but, however it got there, you see it? 15 A. Yes. 16 THE CHAIRMAN: That is the point I am trying to get clear in 17 my mind. 18 On the question of the Rosetta, characteristics have 19 been described to me of simple ones like ridge endings 20 and bifurcations. Nobody ever referred to a Rosetta 21 characteristic in the early stages as to the type of 22 characteristic one sees in the print. So what I am 23 asking is: in your long experience, is it a very unusual 24 characteristic or is it quite common or how would you 25 regard it? page 170 1 A. The name has simply been given it by Mr Berry because of 2 the uniqueness and the Rosetta Stone, et cetera, 3 et cetera. 4 I mean, it is unusual in the sense that the ridge 5 comes along, goes downwards for a short distance and 6 then a little island ridge or whatever it is just to the 7 right of it there. It's not something I've ever seen 8 before, never. Where it starts one ridge up you've got 9 this cluster of five sweat pores, quite prominent, 10 another ridge there, another characteristic and so on. 11 The combination of characteristics around 12 surrounding the Rosetta characteristic are so, well, 13 unique you just don't -- you know, I've never seen them 14 like that before, never. I don't think anybody else 15 ever will. But it's just simply a name given to the 16 uniqueness but the Rosetta characteristic itself is 17 simply the ridge going along, veering down like the 18 front of a train and a dot there. 19 THE CHAIRMAN: If we could break it into parts, is the ridge 20 dropping down I think you said 128 -- 21 A. 128 degrees where it angles down -- 22 THE CHAIRMAN: Is that in itself unusual whether the dot is 23 there or not? 24 A. Yes, it is. 25 THE CHAIRMAN: Have you ever seen that before? page 171 1 A. It's not a common occurrence. I can't say I've ever 2 seen it in that format before no, I haven't. 3 THE CHAIRMAN: But what you have never seen before is the 4 ridge dropping down and a dot after it? 5 A. Correct, and where it starts on the left. 6 THE CHAIRMAN: And where it starts. So in that sense, from 7 your considerable experience, it's a very unusual 8 characteristic as you see it? 9 A. Most unusual. 10 THE CHAIRMAN: On a different topic, when you are carrying 11 out an examination I think it was in the Evett 12 & Williams report and indeed in one of the witnesses, 13 Mr Zeelenberg, was describing how you go through 14 examination and it was suggested that in some 15 jurisdictions what is done is that you look only at the 16 mark and size up what usable points there are and only 17 then, when you have done that and noted them, do you 18 then look at the print. 19 From your experience, what would be your view of 20 that as a desirable way of carrying out an examination? 21 A. Well, it isn't a way I would advocate personally. It's 22 not the way that I was trained. I mean, yes, we were 23 shown Scenes of Crime marks and you looked at them and 24 you assessed them, et cetera, et cetera, but more or 25 less immediately you don't -- well, you can start page 172 1 marking out characteristics on them if you want to but 2 what they suggest, my training was you select a suitable 3 area of the Scene of Crime mark (a clear area obviously 4 as opposed to a non-clear area) and you compare the 5 characteristic detail in that area with the appropriate 6 characteristic detail which hopefully you've got on the 7 donor print and you compare the two. You see how many 8 characteristics fall in the same place, in the same 9 sequence, et cetera, et cetera, until you've got a 10 sufficient number in sequence on both, a sufficient 11 number being a minimum of at least eight and you can go 12 higher if you wish. Well, we always did go higher. 13 But I never sort of just had the Scene of Crime 14 mark, the one on the left, and look at that to the 15 exclusion of the one of the right. 16 THE CHAIRMAN: The reason I am asking is at the end of the 17 day one of the tasks I have is to make recommendations 18 and I am just wondering whether that is something, from 19 your long experience, you would think would be a good 20 way to do it or not a good way to do it. 21 A. I don't think -- it wouldn't be my way. 22 THE CHAIRMAN: That's good enough. 23 A. I mean, we were a training establishment at Wakefield 24 with students from all over the world and we certainly 25 never taught them that. We taught them to look at the page 173 1 Scene of Crime mark. Obviously, you must look at the 2 Scene of Crime mark first, obviously, and then you look 3 to see where that detail you can home in on on the crime 4 mark whether you can see it on any of the ten 5 fingerprints on the form. When you think you've got the 6 right one, then you just put a glass on each one and get 7 your eye down and sort out the characteristic detail. 8 Until you had sufficient to satisfy yourself. 9 THE CHAIRMAN: The last question really was this, that in 10 the Evett & Williams report which I was looking at they 11 said that there was anecdotal evidence of more than 12 eight points of comparison of prints being actually of 13 different individuals, but then when they looked at it 14 they decided that it wouldn't cause any qualified 15 examiner any difficulty to see the differences. 16 I mean, is there any point -- or maybe there 17 isn't -- at which you would decide that a mark clearly 18 belonged to an individual; in other words, would it be 19 at eight, nine, ten or does it just vary with the mark 20 that you are looking at? 21 A. When you start examining the mark and you start finding 22 one -- well, you can't have one in agreement. You get 23 two in agreement, three, four, five. You know then that 24 you're going to go forward usually and get six, seven, 25 eight and so on. It's not often that you get five or page 174 1 six and it peters out to be not identical. 2 Nevertheless, you still carry on and the minimum of 3 eight is the bottom line required, in my opinion and 4 many others', to be sure of a positive identification 5 providing there's nothing in obvious disagreement that 6 can't be explained. 7 Then we went on a course to meet the standards that 8 were applicable at the time, 16 points. 9 THE CHAIRMAN: I think that answers my question. Thank you 10 very much indeed. I am sorry that you have been 11 labouring under a throat infection. 12 A. These things happen. 13 THE CHAIRMAN: It's bad enough giving evidence but to do it 14 under that must make it difficult, but thank you very 15 much for your help. 16 (The witness withdrew) 17 THE CHAIRMAN: It is almost 4.00. I am not sure it is fair 18 to the witness to start today. Perhaps we should begin 19 at 10.00 in the morning. 20 MR MOYNIHAN: With this one observation, sir, and I have 21 told everyone in the hall: Mr Leadbetter is available 22 tomorrow. There is great difficulty even returning next 23 week. So the understanding I have had with everyone 24 else in the hall is that time properly taken up today 25 will eat into the available time that Mr Leadbetter has page 175 1 tomorrow. The intent is to finish Mr Leadbetter's 2 evidence tomorrow and I think everyone in the hall 3 appreciates the compromise we're making. 4 THE CHAIRMAN: We may have to do without some of the breaks 5 but I am always anxious that it is for the witness a 6 break as much as anybody else because it is very 7 demanding to be there for a long spell. 8 MR MOYNIHAN: It is not so much sacrificing the breaks, it 9 is simply there may be less time available tomorrow for 10 cross-examination but everyone has been aware of that as 11 the day has progressed. 12 THE CHAIRMAN: I am sure with co-operation we can manage. 13 Tomorrow morning then at 10.00. 14 (3.58 pm) 15 (Adjourned until 10.00 am the following morning) 16 17 18 19 20 21 22 23 24 25