page 1 1 Tuesday, 3rd November 2009 2 (10.05 am) 3 HUGH MACPHERSON 4 Examined by MR MOYNIHAN (continued) 5 THE CHAIRMAN: Good morning, Mr MacPherson. Thank you for 6 coming back. 7 MR MOYNIHAN: Good morning, Mr MacPherson. 8 A. Good morning. 9 Q. I want actually just to complete QI2. We finished on 10 point 13 on Friday and I was going to move to points 14 11 and 15. 12 If I bring up again your own charting FI0166A -- 13 perhaps we should just bring it up twice. This is to 14 enable us to simply orientate. 15 Points 14 and 15 are both to the left of the core, 16 point 1 perhaps in the middle of the core and point 15 17 above the core but to the left? 18 A. Yes. 19 Q. Reflecting on this, it is perhaps I think better if I 20 show you what Mr Zeelenberg and Mr Wertheim say, to give 21 you an opportunity to build up your explanation of 22 points 14 and 15, in effect, while responding to them. 23 If I begin with Mr Zeelenberg on point 14, if I 24 bring up Mr Zeelenberg's PowerPoint AZ0061 and go 25 to slide 151 to begin with. (Pause) page 2 1 If I can take you through -- again, I will do it on 2 PowerPoint so we get the full progression and then if it 3 is necessary for you to mark we can either return to 4 your own copy or to the Trial Director version of this. 5 Do you have beside you upon the easel the marked 6 version of QI2? 7 A. Yes. 8 Q. Just so you can check. If I bring in -- what we are 9 going to see is that Mr Zeelenberg is going to discuss a 10 point which for him is point number 9. He is also going 11 to bring in a point number 8. The point that he has as 12 number 9 he also associates with the SCRO point 14. 13 A. Yes. 14 Q. Do you want to just check the original of your charted 15 enlargement -- it is to your side -- to see whether he 16 has correctly positioned point number 9 as being 17 equivalent to your point 14? 18 A. Yes, it is. 19 Q. He has? 20 A. Yes. 21 Q. Therefore, if we watch the slide as it progresses, what 22 Mr Zeelenberg does, as normal, is to chart the ridge 23 flow. He has now in the bottom left brought in the 24 point for him 9, for you 14. (Pause) 25 If I understand it correctly, what he has done is he page 3 1 has marked point 14 for you, his point 9. I would 2 understand him to accept, as he says in the text here, 3 that point 9 is in the two, the latent and the known, in 4 a similar position and it is a similar type of 5 characteristic. However, looking to other 6 characteristics in the area he sees a discrepancy and, 7 in particular, he sees a discrepancy relative to the 8 point which he has numbered 8, which on the left-hand 9 side is the upper of the two red dots within the red 10 circle. 11 Do you see that? 12 A. Yes. 13 Q. Can you comment on what he has drawn and in particular 14 for me one of the points, in the light of what you were 15 discussing with me on Friday, I noticed was that 16 Mr Zeelenberg -- and we see this also in relation to 17 point 15 and point 14 as well -- has in the bottom 18 centre of the image traced ridges up to the point number 19 6 but immediately below point number 6 is the feature I 20 have inelegantly termed the "hook". 21 Do you see that? 22 A. Yes. 23 Q. So if I understand his evidence correctly, he is saying 24 that he is able to discern a ridge flow in the vicinity 25 and in particular, perhaps, relative to your evidence, page 4 1 ridge flow to the left that would give an explanation of 2 flow up to point number 6. 3 Is that an area that you feel is one that is capable 4 of reliable interpretation of the ridge flow? 5 A. I think I've said previously that the right middle 6 fingerprint of Mr Asbury is below there and I think 7 that -- 8 Q. Sorry, let us not confuse ourselves. I know you have 9 done a charting of the other QI2 -- sorry, I follow you. 10 So you say the right middle finger of Mr Asbury is 11 in that area? 12 A. Yes. 13 Q. Therefore, you are unable to see a reliable ridge flow 14 in that area? 15 A. That's correct, yes. 16 Q. What is your comment then on what Mr Zeelenberg has 17 drawn in as point number 6? 18 A. Yes, that's an area that I believe to the left of -- I 19 think I said in evidence before, to the left of point 13 20 there's one ridge and then to the left of that I believe 21 there's interference by other marks -- or mark or marks. 22 Q. Would it therefore mean that so far as point 6 itself is 23 concerned you would consider that an area of 24 unreliability? 25 A. Yes. page 5 1 Q. Above that, there are then two other features one of 2 which, at least to my eye, the first of the ones that we 3 come to within the red circle seems to be unnumbered. 4 Do you have any comment on Mr Zeelenberg 5 highlighting that as a ridge characteristic? 6 A. No, I don't really know what he's marked there. 7 Q. Look at your own unmarked original to see that what he 8 would seem to have marked is the top of a black shape, 9 which he is presumably indicating as a ridge ending and, 10 at least to my eye, there is a black shape that comes to 11 an end at that position? 12 A. Yes. For me, where he's marked point A, that's actually 13 a continuous ridge. 14 Q. I may be misunderstanding because what I am 15 understanding is that he has the lower of the two 16 reds, which is the one I am just talking just now, with 17 above it, the upper of the two reds would be point 8. 18 Perhaps we can just go back in the slides and we will 19 see. 20 The key, for coming to that view, is in the top left 21 image. We will see that point 8 comes in at a point 22 above the two lower black shapes, to some extent either 23 side of it. There are two prominent black shapes just 24 beneath point 8. 25 Is that correct? I am not interpreting; I am just page 6 1 trying to locate it. 2 A. Yes. 3 Q. Two prominent black shapes beneath number 8 and number 6 4 is marked. At least on this upper left image, there are 5 only two red circles highlighted, 6 and 8, and the 6 complication is, as we proceed through the analysis, a 7 third red dot appears. If I understand it correctly, 8 the third red dot will appear at the tip of one or other 9 of the black shapes. 10 Let us proceed through. First of all, what he has 11 now drawn is ridge structure on one side, on the right, 12 terminating on the black shape that is beneath the red 13 dot on the right. Yes? 14 A. Yes. 15 Q. On the left, he has in fact drawn a continuous ridge 16 running through the black shape to the left and carrying 17 on? 18 A. Yes. 19 Q. He now inserts point number 9, your 14. So far no 20 difficulty. He inserts point 6 which we have mentioned 21 and then comes in the difficulty: he inserts a red dot 22 which is at the tip of the black shape. If we look 23 above, the tip of the black shape is to the right of the 24 red dot and he also has another red dot introduced. I 25 suppose the question really is which of those two upper page 7 1 red dots is he intending to correspond to his point 8. 2 Can you assist? 3 A. Not really, no. As I say, to me to the left of the 4 point that I've marked 13 it's actually a continuous 5 ridge. I see what he's done. He's marked it as a ridge 6 ending but I don't believe it is. 7 Q. When you say he has marked it as a ridge ending -- 8 A. Yes. 9 Q. -- do I take it that what you are referring to is the 10 lower of the two dots within the red circle or not? 11 A. Number 8, the upper one. 12 Q. The upper of the two red? 13 A. Yes, I think it's the upper. 14 Q. Since it's a continuous ridge, in which direction do you 15 see it continuing? To the right where he has drawn a 16 continuous ridge of green dots or do you see it 17 continuing in the path of the left where we see a 18 continuous ridge of yellow dots or do you see it 19 continuing in some completely different pattern? 20 A. I would have to mark maybe an un -- can I mark one 21 that ... 22 Q. Okay. There is one other slide to look at to see if I 23 can resolve the ambiguity and then let you mark. The 24 other slide that has a bearing on this is 25 Mr Zeelenberg's slide 165. If I proceed through, page 8 1 he talking now about the SCRO point 14. He has brought 2 up ridge structure on the bottom with point 14. 3 A. He has -- 4 Q. We can see the characteristic hook that I have been 5 describing, can't we? He has brought in your point 6 number 13 -- 7 A. Yes. 8 Q. -- to the right of what I described as the hook. This 9 is where he draws what may in fact be, at least to my 10 eye, a different flow of ridges in between 13 and 14. 11 Does it look different? 12 A. Well, in the top right-hand he's marked -- is that meant 13 to be our point 14? 14 Q. Yes. 15 A. Well, actually it's to the left of that. 16 Q. Okay. 17 A. That is -- actually to me it looks like a crease which 18 is running across Marion Ross's print. So actually the 19 point 14 should be to the left. Just to the left of our 20 point 14, there's a small kink in the ridge. So I don't 21 know if that makes a difference to the accuracy of what 22 you're saying. 23 Q. In a sense, it may in fact exaggerate the problem 24 because if we take point 14 in the bottom and put it to 25 the left, we will, therefore, increase the number of page 9 1 ridges that he is suggesting are present between 13 and 2 14? 3 A. No, he's marked it correctly on the bottom left. 4 Q. I'm sorry. 5 A. That's correct on the bottom left. There's three 6 intervening ridges between 13 and 14 but in the top 7 right he's actually marked it to the right. So, 8 therefore, the ridge count would be out. 9 Q. If, in fact, we take in the bottom right he has drawn a 10 large dot -- 11 A. That's inaccurate. If it's meant to be point 14, it's 12 inaccurate. 13 Q. Therefore, would you put it where he has, in fact, drawn 14 the adjacent small red dot? 15 A. That's correct. 16 Q. Then if we run the ridges down, we would then be taking 17 as the ridge count from 13, we would be running it not 18 to the yellow dots but left one to the green dots. 19 Would that be correct? 20 A. The small dot rather than the large red dot, yes. 21 Q. So we would have to carry his red line one more ridge to 22 the left; is that correct? 23 A. Yes. 24 Q. We would then have how many ridges between 13 and 14? 25 A. Three. page 10 1 Q. How many ridges would you have on the left? How would 2 you construe that? 3 A. That's three also, yes. 4 Q. This is where we come into the complication though in 5 relation to the ridge flow in the vicinity of the hook, 6 that there seems to be some ridge endings in this 7 vicinity. There are green ridge endings in the bottom 8 left -- 9 A. Yes. 10 Q. -- which don't enter the ridge count because they stop 11 just below the line but are absent in Marion Ross. Yes? 12 A. Yes. 13 Q. What would your explanation be of that? 14 A. Again, I think there's interference there. For me, you 15 count three ridges but you don't count across the way 16 into an area that's not really decipherable. 17 Q. This is where, I suppose, with the image here on screen, 18 where in the bottom left the red line runs from point 13 19 across, correctly, I think I understand it, to a green 20 ridge that runs up to point 14, how much of that length 21 of red line, from point 13 out to the ridge on which 22 point 14 sits, would you regard as an area that's 23 indecipherable? 24 A. As I think I said, to the left of point 13 I would only 25 go one ridge from that and then count up to my point 14. page 11 1 Q. If I am following the red line then Mr Zeelenberg has 2 drawn, to the left of point 13 he would only go one 3 ridge -- 4 A. One ridge. 5 Q. -- and that is you would only go to the yellow ridge 6 immediately adjacent to point number 13? 7 A. Yes and then count up another two yellow ridges and that 8 would give you your three intervening ridges. 9 Q. So you are happy to count up the yellow ridges -- is 10 that right -- despite the fact you regard this as an 11 area that is of poor clarity? 12 A. If you take a line directly from point 13 to point 14, 13 that's the way I would count up and there's three 14 intervening ridges. 15 Q. But that then means by drawing the line in that way, you 16 are in fact taking out of the equation what we see in 17 the bottom left image as the two ridge endings which are 18 marked by green dots? 19 A. Yes. 20 Q. And you take those out because that's an area that lacks 21 clarity for you? 22 A. For me, yes. 23 Q. I did earlier on stop you in relation to drawing 13 and 24 14 because I was conscious that this other Zeelenberg 25 image was there. page 12 1 Do you wish to draw yourself or would you be content 2 with what we have just been looking at, if we understand 3 that the red line from 13 instead of going horizontally 4 across to the ridge for 14, if we turn it vertically up 5 to connect 13 and 14 and count the ridges? 6 A. Yes. 7 Q. You are content with that? 8 A. That's fine, yes. 9 Q. The other one that I want to look at in relation to 10 point number 14 is an image by Mr Wertheim. It is 11 FI2409.04. If I understand this correctly, he has drawn 12 perhaps it is a magenta circle and I am only going to 13 look in fact at the left-hand image. He has drawn a 14 magenta circle that happens to incorporate my 15 hook -- so, again, just my point of reference. To the 16 right of that would be the area that you have marked as 17 point number 3 and, indeed, we see the red line coming 18 in. Sorry, your point number 13. I apologise. Point 19 number 13. 20 We see the red line coming in and in fact we see on 21 this occasion that what Mr Wertheim has interpreted by 22 his green line is that there is, in fact, a continuous 23 ridge joining the two halves either side of point number 24 13. So that is his interpretation of that. 25 A. Yes. page 13 1 Q. Do you see that? 2 A. Yes. 3 Q. That is a point of difference with you. Then if I 4 understand what Mr Wertheim is doing with the rest is he 5 is taking -- if I go to the hook and go above to the 6 yellow circle, he is looking at what Mr Zeelenberg had 7 as Mr Zeelenberg's point 6 and 8 and, if I understand by 8 the yellow circle, he is just finding some difficulty in 9 construing the ridge flow in that area because of lack 10 of clarity. 11 Do you see that? 12 A. Yes. 13 Q. If I follow that out we come next to point number 14. 14 A. Yes. 15 Q. Which he has in the red circle and, again, he is having 16 some difficulty construing point number 14. He seems 17 himself to prefer that it is itself on a continuous 18 ridge but he admits of the possibility that there could 19 be a bifurcation, again indicated perhaps by a magenta 20 line. Later on in his evidence he accepted that perhaps 21 the magenta line is not present if point number 14 is to 22 be understood, as I think you would understand it, a 23 ridge ending? 24 A. Yes. 25 Q. Is that correct? So you understand it as a ridge page 14 1 ending? 2 A. Yes. 3 Q. The magenta bifurcation need not be present but still 4 Mr Wertheim is seeing a continuous ridge in this area. 5 Can you comment on that? 6 A. Well, I think where he's put the magenta line just to 7 the right of my point 14 you can see where the crease 8 that I was mentioning comes in. It looks like a ridge 9 ending but I believe it's a crease. 10 Q. This happens, I think, by coincidence fortunately, to be 11 an image that you can mark. Would you care, please, to 12 mark what you regard as the crease. We already have a 13 fair number of colours used so you may have to just use 14 whatever seems sensible to you. (Indicated) 15 You have marked in mustard, either side of the red 16 circle, in the vicinity of point number 14, what you 17 regard as the crease. 18 A. Yes. Sorry, the top one is not very accurate. 19 Q. What do you mean by a crease? 20 A. Just a fold in the skin. 21 Q. What is the significance of that? 22 A. Well, they are not always permanent, creases, and 23 basically as I say there's just a fold in the skin with 24 the bending movement of the skin. Sometimes creases, as 25 on the palm, are flexing creases and they are permanent. page 15 1 These large creases across and down the palm 2 (indicated), they are permanent but other creases on the 3 fingers are sort of transient. 4 Q. Do you have any particular comment then on Mr Wertheim 5 drawing a continuous ridge running through point 14? 6 A. No, I see it as a ridge ending. 7 Q. Is it as short as that? 8 A. Yes. 9 Q. Looking at my notes, what Mr Wertheim was suggesting in 10 connection with point 14 and indeed it runs on into 11 point number 15 is that in this area that we are looking 12 at on screen at the present in QI2 there is too much 13 confusion to draw any reliable picture that would, in 14 fact, encompass the points 13, 14 and 15. That is why I 15 have been asking you about the presence of pressure, 16 movement, superimposition of other prints. 17 A. Yes. 18 Q. That is why Mr Wertheim has these various circles. 19 These are just points for him of uncertainty that make 20 this area unreliable. 21 A. Okay. 22 Q. Do you have a comment in relation to that? 23 A. No. Particularly point 15 I think is pretty strong, a 24 strong characteristic. 25 Q. So far as point 15 -- let us move on to point 15 because page 16 1 this is a helpful position to start -- so far as 2 point 15 is concerned, that would be the upper of the 3 two blue arrows within the red circle that is drawn. 4 Are you reasonably content with what Mr Wertheim has 5 drawn in that vicinity? 6 A. Yes. 7 Q. So far as point number 15 is concerned, his drawing 8 would serve as an illustration of the feature that you 9 see? 10 A. Yes. 11 Q. If I can then go back on the PowerPoint, please, to 12 Mr Zeelenberg. If I simply go on to slide 166, first of 13 all, the usual question: Mr Zeelenberg starts by 14 inserting your points, the SCRO points, on to his own 15 images. 16 Has he correctly positioned point number 15 in the 17 two upper images? 18 A. Yes. 19 Q. If I then proceed through his slide. You will see that 20 he has brought in some dots now in the bottom left-hand 21 screen. There are some dots in magenta. 22 Do you have any comment on the flow of those dots? 23 I can take them away so that you can look at them again 24 because if I give you the import of what this slide -- 25 in fact, before I ask you any questions, I will go right page 17 1 through the slide so that we can see. (Pause) 2 What he is demonstrating here is, we will just read 3 the text. It says: 4 "It is a distorted area of low quality. Point 15 is 5 assigned to a questionable event of arbitrary origin. 6 Similar events are ignored. [There is an] inconsistent 7 assessment of the information based upon what is desired 8 and what is not. This is bad practice." 9 So if I then return to the start of this slide, he 10 has inserted magenta dots to describe a ridge flow. You 11 may want to look at your original. Can you take the 12 original down to have a look. 13 Do you have any comment on the ridge flow he has 14 marked? 15 A. There is some interference, yes. There's background 16 interference but I don't think it goes as low as where 17 he's put it. It maybe comes down to just to the right 18 of point 15. 19 Can I say again, in the top right-hand image he's 20 marked a ridge ending but it's not the point 14. Again, 21 it should be to the left of where he has marked it. 22 Q. Is it just one ridge to the left or -- 23 A. Sorry, yes. It's certainly correct on the upper left 24 image but it's incorrectly placed on the upper right 25 image. page 18 1 Q. So on the upper right it is on a ridge ending and, if I 2 understand it correctly, it should be moved left? 3 A. Left, yes. 4 Q. Just to the adjacent ridge? 5 A. To the adjacent ridge. 6 Q. In fact, to the adjacent point ending? 7 A. Yes, that's right. 8 Q. If I understand it correctly by the magenta lines he is 9 indicating there is an area here of some confusion? 10 A. Yes, he is quite right, yes. As I say, I don't think it 11 goes as low as where he's marked it. 12 Q. By low, I just again look at the hook so, therefore, we 13 are in the vicinity of point number 13, SCRO number 13, 14 you don't believe that that disturbance which is above 15 and slightly to the right of point 13, in fact, comes 16 down as low as point number 13? 17 A. No, I don't think so, no. 18 Q. He is now, however, going to concentrate on the upper 19 section that is in the vicinity of points 14 and 15 and 20 he is trying to bring in, well he points to three 21 features now in blue that he ... 22 (Fire alarm: pause) 23 THE CHAIRMAN: Apparently we can resume. The person testing 24 the alarm set it off by mistake. These things happen. 25 MR MOYNIHAN: I apologise, sir. I was actually trying to page 19 1 take advantage of that break by anticipating something 2 to come. 3 THE CHAIRMAN: Can you get back to where you were? 4 MR MOYNIHAN: Roughly. 5 What I was looking at was, if I understand 6 Mr Zeelenberg correctly, that he is indicating that in 7 the vicinity of point number 15 there are other ridge 8 characteristics marked by the blue features that one 9 might follow-up if QI2 were regarded in this area as 10 reliable. He has not followed them up because he does 11 not regard this area as reliable, but what he is 12 pointing here is that point number 15, the red dot, has 13 been selected and used in comparison when some of the 14 other associated features, the blue ones, that might 15 have been used, have not. I think that is the thesis. 16 What is your comment on that, Mr MacPherson? 17 A. I just don't see what he's marked as characteristics. 18 THE CHAIRMAN: Do you need to look at it in a clear copy? 19 It must be very difficult when you are -- you have a 20 clear enough one. 21 A. I've got that, thanks. 22 THE CHAIRMAN: But you don't see any of those points? 23 A. No. There is a dragging but I don't believe they are 24 genuine characteristics. There is a sort of slippage in 25 that area but ... page 20 1 MR MOYNIHAN: I suppose if we follow that through then, if 2 there is a slippage in that area, I suppose inverting 3 what Mr Zeelenberg is saying, why would you take out of 4 that area of slippage one characteristic that you regard 5 as clear? 6 A. I think, as you can see where he's marked, his area of 7 disturbance or whatever is above characteristic 15. 8 Q. In that case, is that simply your answer: the area of 9 disturbance that you see is above your point 15 and that 10 your point 15, you believe, stands out on its own. 11 A. Is genuine, yes, yes. 12 Q. Unless you want to add anything else to point number 15, 13 that was going to conclude my questions in relation to 14 point number 15. 15 A. Would it be possible -- there are other characteristics 16 that I can see or -- I don't know if ... 17 Q. Yes, please. In that vicinity, if you wish. Do you 18 want to start with a clearer image? 19 A. Okay. 20 Q. If I bring up again FI0166A twice, please -- sorry, I 21 apologise. I haven't saved your image that was relating 22 to point number 14 so if I save the image relating to 23 point number 14, with apologies. 24 MISS BAHRAMI: That's saved as FI0311.01. 25 MR MOYNIHAN: If we bring up then FI0166A twice, all I will page 21 1 do is do as I normally do and Marion Ross on one side 2 and QI2 on the other. If these images are sufficient 3 for your purposes, Mr MacPherson, I'd just like you to 4 illustrate the points you wish to point to. (Pause) 5 A. I think just to the left of point 15, there's another 6 bifurcation down. Admittedly it is in an area that I 7 think I described before looked like another whorl 8 pattern coming in so that was one of my reasons for not 9 using it. But if we trace up, if you trace up that 10 ridge there (indicated) just to the right of point 15, 11 trace that ridge up ... (Pause) 12 I'm sorry, I'm having difficulty actually seeing it 13 on this. I'd have to enlarge it some more. There's a 14 bifurcation with a ridge ending and just above the 15 bifurcation is another ridge ending. If we go two 16 intervening ridges we come to another bifurcation above, 17 one, two intervening ridges and another bifurcation but 18 that was just another couple of characteristics that 19 were available. 20 MR MOYNIHAN: This perhaps assist us. If we could first of 21 all save that. 22 MISS BAHRAMI: That's saved as FI0311.02. 23 MR MOYNIHAN: That neatly brings us into the area that was 24 the last area I wanted to refer you to, which is the 25 area at the top. If I had understood the position, page 22 1 until you drew just what you drew just now, there had 2 been, in fact, three different positions about the area 3 at the top of the core. 4 First of all, in your own charting which you have in 5 front of you (which for us is FI0166A) you had not 6 highlighted any points towards the point? 7 A. No. That's correct. 8 Q. Whereas when we look at others, we have Mr Swann on the 9 one hand saying there are features at the top of the 10 core consistent with a match between Marion Ross and 11 QI2. 12 Were you aware of that? 13 A. I don't know if I've seen Mr Swann's ... 14 Q. Equally, Mr Zeelenberg, Mr Wertheim and Mr Grigg look in 15 exactly the same area and they say their interpretation 16 of the corresponding features is such that they are 17 indicative of a mismatch. 18 I had, therefore, three ranges of view. One was 19 that you had not picked out any features at the top. 20 That is point 1. Then go down one level, those who did 21 point out features at the top, some said they were 22 features are of identity; some said they were features 23 of mis-identity. 24 Overall, what is your own opinion as to the clarity 25 of the detail above the core in QI2? page 23 1 A. I think, as you saw, I believe the characteristics are 2 genuine enough but I think, as you saw, I had difficulty 3 going through from the characteristics that had been 4 marked, the 16 in sequence and agreement, and getting up 5 to basically these other characteristics at the top and 6 that was one reason why we didn't use them. 7 MR MOYNIHAN: First of all, we have saved these images. The 8 images have been saved as 02? 9 MISS BAHRAMI: Yes. 10 MR MOYNIHAN: If I could just keep that as one image for the 11 moment, please, and also bring up beside it FI2910.16, 12 what I am going to do is just on each side to highlight 13 the QI2 drawings so we are comparing like with like. 14 Last Thursday when you were discussing the core, you 15 draw what I have on the left-hand side (that's 16 FI2910.16) and if I understand it correctly, you 17 inserted the red V as an area of disturbance? 18 A. Yes, that's correct. 19 Q. Which meant that you have said you would steer clear of 20 this area. 21 A. Certainly that area, yes. 22 Q. When we look at the charting that you have done today 23 (which is FI0311.02) you have at least on the outer part 24 above the core you have features which you would say do 25 match? page 24 1 A. Yes. 2 Q. Can you explain how you reconciled those two different 3 images and those two different opinions? 4 A. Just because where I've marked the V there's some kind 5 of -- whether it's deposition pressure or whatever, 6 there's just something wrong with the mark in that area 7 and certainly above the core I've not used any 8 characteristics. But I think as you can see what I have 9 marked, you can count -- if you go to the extreme of the 10 print and count up, you can come to these 11 characteristics. 12 Q. What is your view then of the reliability of the area 13 that is between, on the left-hand image, the top of the 14 green line, the green ridge that descends to point 1 of 15 your charting, between the top of that and the area of 16 your red line that descends, the left-hand side of that 17 V? What is your view of the reliability of that area? 18 A. That's just not an area I would rely on. 19 Q. Why is that? 20 A. Because of the movement. You clearly can see the ridges 21 are crushing together. It's just been, I think, the 22 deposition pressure and that's one reason why I wouldn't 23 use that area. 24 Q. Because if I show you, just for illustrative purposes, 25 it is in that gap area -- maybe just slightly above it page 25 1 but roughly in that gap area, that there is a debate 2 between on the one hand Mr Swann and on the other 3 Mr Grigg, Mr Zeelenberg and Mr Wertheim. 4 Perhaps if I bring up Mr Swann, first of all, if we 5 just save this pair just now? 6 MISS BAHRAMI: That's saved as FI0311.03. 7 MR MOYNIHAN: In Mr Swann, if I could bring up, please, 8 TS0004 and if we could just proceed to find the relevant 9 image. It's maybe P, if we go to image P. Yes, it is 10 image P. 11 So in TS0004 it is .017. Again, it is easier if I 12 start with Marion Ross and we'll move across. We see 13 the area immediately above the core and perhaps slightly 14 to the left Mr Swann has picked up points 1, 10, 2, 3 15 and 4. So 1 to 4 and 10. 16 I can perhaps bring up again for you your own image 17 from Friday (sic). If we put Mr Swann to one side and 18 bring up your image FI2910.16, at least to my eye the 19 points 1, 2 and possibly 10 would come very close to 20 your red area, your red V area? 21 A. Is it possible to enlarge it some more? 22 Q. Yes, it is indeed. 23 Does that assist? (Pause) 24 A. Certainly, point number 1 is right in the middle of 25 where my V is so I wouldn't go there. page 26 1 THE CHAIRMAN: 2 and 3 would be to the right of it? 2 A. I think 2 and 3, sir, yes, is to the right of it and, 3 possibly, if I'm looking at the right thing, possibly 4 4 and 10 but certainly number 1 is right where I think 5 there's a -- the ridge structure, I think, is not 6 reliable. 7 MR MOYNIHAN: Even as I look I can see a difference in at 8 least the contrast in the two images right and left, 9 what I am in fact going to go on to ask you about is the 10 points 10 and 4 as drawn by Mr Swann. Mr Swann can see 11 with sufficient clarity in QI2 features that he can mark 12 as 10 and 4. 13 Do you see that? Do you see what he has drawn? 14 A. Yes, yes. 15 Q. Looking at the comparative exercise image that you have 16 in front of you, because you have the photographic image 17 in front of you, would you agree with Mr Swann that 18 there are characteristics there that are capable of 19 being identified, that stand out? 20 A. I think I said in the comparative exercise that I 21 thought that was a continuous ridge up there but I could 22 be wrong about that. 23 Q. If I take down on the right your image and substitute 24 for that -- we will try it just in a markable form -- 25 Mr Zeelenberg AZ0061 and it is slide 152. I may have to page 27 1 try to enlarge one of these four images. It has lost 2 something of its clarity but I think we can see the 3 point. 4 If I understand the contrast between Mr Swann on the 5 one hand and the other experts, the other three experts 6 (that is Mr Zeelenberg, Mr Wertheim and Mr Grigg) have 7 been of the opinion that what Mr Swann separates out as 8 two points, point 4 and 10, they in fact would draw as 9 one continuous ridge coming to a point, a ridge ending, 10 and the ridge ending is, on the image I have on screen 11 just now, the right-hand most of the two red dots. 12 They see a clarity that admits of a continuous ridge 13 coming in from the right and ending at the red dot which 14 would correspond to Mr Swann's point 10. 15 A. Yes. 16 Q. Are you more in favour of one or other of these two 17 interpretations of that area or is yours a third 18 interpretation? 19 A. Well, looking at it it looks quite strong, the 4 and the 20 10. But, as I say, the point 1 for me is in the area 21 that I marked that I wouldn't have gone into. As I 22 said, I believe I said in the comparative exercise that 23 I thought it was continuous ridges up there. So, again, 24 it's down to the interpretation of Mr Swann and 25 Mr Wertheim. page 28 1 Q. Sorry, I think though what I had asked you was -- first 2 of all, if we take it this way. If you are seeing 3 continuous ridges up there and concentrating on points 4 4 and 10, if you are seeing continuous ridges, do I take 5 it that you would not agree with Mr Swann that there is 6 a significant break so that he can discern two different 7 ridge characteristics, 4 and 10? 8 A. Well, looking at it again and the way it's been marked 9 it looks quite strong; so, yes, you could take it as 10 that. 11 Q. You say looking at "it". Are you in fact looking at 12 your own photograph? 13 A. This (indicated). 14 Q. So you could take it as that? 15 A. Yes. 16 Q. However, what has been suggested by the others is that 17 the preferred interpretation of that area is as they 18 have drawn it, or as Mr Zeelenberg has drawn it in the 19 right-hand image, which would have a continuous ridge 20 coming to a point, a ridge ending, the right-hand red 21 dot on the image. 22 Could you see that as an interpretation? 23 A. Yes, it could be taken as a ridge ending, yes. 24 Q. I suppose 10 could be taken as a ridge ending which 25 would mean that there was no separate characteristic page 29 1 number 4. Number 4 would simply fall as an intermediate 2 point on that ridge coming round to point 10 to end? 3 A. I mean, I think it's been mentioned before how broken up 4 Miss Ross's print was, the mark. 5 Q. I suppose it simply takes us to a position we were 6 talking about on Wednesday and Thursday that such is the 7 perhaps lack of clarity in this section of Marion Ross's 8 print that the same appearances are in fact capable of a 9 variety of interpretations? 10 A. Yes and that was one of the reasons I didn't go there 11 basically. 12 MR MOYNIHAN: That would in fact take me through the points 13 that I wanted to cover on QI2 with you. 14 Sir, the point of the conversation just earlier on 15 that I had started during the impromptu fire break was 16 that the position about QI2 Asbury -- QI2 Asbury, so not 17 what we're looking at just now -- remains to some extent 18 uncertain. 19 As you know, I published previously some information 20 from the Police Service of Northern Ireland. There was 21 at the end of last week a further letter from Mr Logan 22 of the Police Service of Northern Ireland that was sent 23 to Turcan Connell at the end of last week but not sent 24 to others before last night. Therefore, I don't know if 25 anyone else has seen it. page 30 1 The arrangement is Mr Logan will give evidence on 2 Friday of this week. Images have been sent. He has 3 been asked to provide a charting in relation to the part 4 of QI2 that is assigned for Mr Asbury. The exercise I 5 have asked him to undertake is not to match QI2 with the 6 print of Mr Asbury but rather to tell me whether the 7 part identified as Mr Asbury has sufficient clarity to 8 be capable of comparison, because that's what the Danish 9 experts had disputed previously. I was trying to be 10 continuous. 11 I have not yet concluded a conversation with anyone 12 in the hall how best to address that. I myself was 13 assuming we would hear from Mr Logan first and then 14 consider how best to address that. However, 15 Mr MacPherson has kindly over the weekend, by reference 16 to the same images that were sent to Northern Ireland, 17 carried out his own charting and has that available in 18 the hall today. What I would wish now just to do is to 19 take an early mid-morning break and to discuss with 20 everyone in the hall what the fairest and most efficient 21 way is to deal with this matter. I think it is better 22 that we deal with that before any cross-examination of 23 Mr MacPherson. 24 THE CHAIRMAN: Yes. Shall I give you until 11.30? 25 MR MOYNIHAN: Yes, sir. Thank you. page 31 1 (11.14 am) 2 (A short break) 3 (11.35 am) 4 MR MOYNIHAN: Thank you, sir. What we have discussed and 5 what I am proposing to do is to let Mr MacPherson speak 6 to a charting that he has prepared relative to the part 7 of QI2 we have not previously discussed, which is the 8 part attributed to Mr Asbury. 9 He is doing this, in part, so that his evidence is 10 taken in one go. 11 THE CHAIRMAN: I think that is obviously sensible. 12 MR MOYNIHAN: Sir, Mr MacPherson, just before we do that, if 13 I can just for the benefit of all concerned give us the 14 context. I will bring up an image that we have looked 15 at in different contexts before. Just allow me a 16 second. (Pause) 17 If I could bring up on screen the image EA0029 and 18 if we could rotate that, please, anticlockwise, 19 Mr MacPherson, it just happens to be an image prepared 20 by Dr Bleay from the tin or, in fact, from the negative 21 of QI2 on the tin. Just to assist everyone in the hall, 22 I will point just very roughly with a red circle 23 (indicated). I do not intend anything that prescriptive 24 about this. I put a red circle on an area. 25 Does that broadly correspond to QI2 Marion Ross that page 32 1 we have been discussing so far? I appreciate I have 2 brought in an area in the bottom right-hand side that 3 perhaps should not be there. 4 A. Yes, that's correct, yes. 5 Q. So what we have been discussing so far is QI2, Marion 6 Ross, which broadly falls within the red oval. 7 The area that we now want to look at which the Danes 8 had questioned, the Danish experts, is it again broadly 9 in the vicinity of the green oval? 10 A. Yes. It should be turned. 11 Q. That is fine. All that I am doing is beginning with the 12 orientation as we are, in fact, familiar with it, which 13 is QI2, Marion Ross. 14 On that orientation, as you yourself have said, 15 there are other prints of Mr Asbury or other prints that 16 you identified as Mr Asbury -- was there more than one? 17 A. There was the right middle and just where the cursor 18 is ... 19 Q. So let us put it in in blue in the area. 20 A. Just that area. 21 Q. Does it begin -- 22 A. Just to the right of that area, just to the right. 23 Q. If you tell me where I should start. 24 A. Just in there, yes (indicated). 25 Q. Again very roughly, just in the area that begins around page 33 1 about the blue circle there was one Asbury print. 2 A. Yes, which fell below the current standard at the time. 3 Q. The one that is within the green oval is the one we are 4 going to discuss and that was identified as 5 Mr Asbury's ...? 6 A. Right middle fingerprint. 7 MR MOYNIHAN: If we could save that image, please, just for 8 orientation. 9 MISS BAHRAMI: That's saved as FI0311.04. 10 MR MOYNIHAN: You have, along with your colleagues, been 11 supplied with copies of QI2. First of all, have you 12 yourself seen the large print that would correspond to 13 what is on screen just now or have you just looked at 14 the small excerpt? 15 A. I believe that I've mounted or that was a small 16 photograph of it which would correspond -- 17 Q. So you have been given an original life-sized image? 18 A. Yes. 19 Q. Then you have marked it -- what I suppose I was asking 20 is whether you have seen the large version that Dr Bleay 21 produced or you simply worked on the excerpt? You 22 worked on the excerpt? 23 A. That on, on that one. (Indicated) 24 Q. If we can then, please, put on the overhead projector 25 what you yourself have been able to do. page 34 1 Sir, there seems to be an area of glare in this at 2 the top. (Pause) 3 THE CHAIRMAN: It looks as if we are getting the light above 4 also on it. 5 MR MOYNIHAN: It is whether the image is sufficiently clear 6 on this for you to work with, Mr MacPherson. 7 THE CHAIRMAN: I think we are going to try turning the light 8 off to see if that helps the bottom bit. 9 MR MOYNIHAN: Is that at all helpful, Mr MacPherson? 10 A. No, I think it's slightly better the way it was. 11 THE CHAIRMAN: With the glare? 12 MR MOYNIHAN: I am sorry, we just don't have any copies 13 other than the original. That's the difficulty. 14 A. If you keep it like that (indicated). 15 Q. That's fine, if we can keep it like that in this 16 instance. 17 A. It's possibly if it could be made a bit smaller then 18 could see all the numbers. If that's possible. If it 19 could be moved to the left a bit. 20 MR MOYNIHAN: It has been pointed out that the marking 21 that's appearing in the bottom is in fact coming from 22 the lights in the hall. 23 THE CHAIRMAN: That is what I meant before. We have it 24 covered now so it is fine. 25 MR MOYNIHAN: I think that was actually better, a bit like page 35 1 watching something in the cinema. 2 THE CHAIRMAN: Is that all right for you to work from? 3 A. Yes. 4 MR MOYNIHAN: Mr MacPherson, what I was going to do was 5 simply to give you the opportunity to speak to this. We 6 have information, as you understand, from the Police 7 Service of Northern Ireland agreeing with Danish 8 experts, Mr Rasmusson and Mr Rokkjaer, that this part of 9 QI2 they would regard not of sufficient quality to admit 10 of identification with any individual; so they have not 11 even gone beyond that to consider Mr Asbury's print. 12 I understand that what you have identified here are 13 17 characteristics that you would regard as sufficiently 14 clear on an analysis of QI2, Asbury, sufficiently clear 15 that you could then go on and effect a comparison and in 16 fact what you have done is produced an illustrative 17 match with Mr Asbury? 18 A. That's correct, yes. 19 Q. I am not going to interfere with your analysis at all. 20 I'll certainly explain to all of those concerned the 21 object of the exercise for me was simply part 1 of this: 22 namely, to enable you to demonstrate the characteristics 23 in QI2, this part of it, which would admit of 24 comparison. I wasn't myself carrying it forward into a 25 question about Mr Asbury. It was simply because the page 36 1 Danish experts, the opinion I'm checking, had stopped at 2 that stage but I am content that you, subject to 3 anything anybody else may suggest, that you simply 4 explain your own position. 5 A. Okay. 6 MR MOYNIHAN: First of all, what we have done is we have 7 given you an excerpt from the larger image. As I said, 8 it is obvious that what this image has done is taken 9 that part and rotated it back clockwise so it appears in 10 an up and down fashion, where previously it was a 11 right-left manner. 12 A. Yes. 13 Q. With that by way of explanation, if you want to proceed 14 through and give your own explanation. 15 A. Well, obviously looking at it, it's what we call an 16 ulnar loop sloping to the right. At the very core 17 itself you can see the black area. There is quite heavy 18 deposition there, either due to pressure or quite a lot 19 of sweat or -- I'm not -- this would be superglue as 20 well, presumably, because that's what -- it was on the 21 tin. 22 Do you want me just to run through what I see as the 23 characteristics 1 to 17? 24 Q. Yes, please. 25 A. Point number 1 -- page 37 1 Q. Mr MacPherson, if I just explain because I am, like 2 everyone else in the hall, just looking at this for the 3 first time so, therefore, what I want is to give you 4 simply your own opportunity to explain the reasoning and 5 we will of course have an inability to mark this 6 particular version because it is simply being projected 7 for us at the present time. 8 I will give you simply an opportunity to put forward 9 your own analysis of this part of QI2. 10 A. Okay. Characteristic number 1 is a ridge ending down. 11 Just below that to the right, there is a long island but 12 you will see when, unfortunately, we see the 13 photographic enlargement of the right middle fingerprint 14 from Mr Asbury's fingerprint form, it's unfortunately in 15 the writing. 1 and 17 I still believe though -- sorry, 16 it's the printing on the form, but 1 and 17 I still 17 believe you can see. 18 So number 1 is a ridge ending down. You follow that 19 down and you come to number 2, which is also a ridge 20 ending down. 21 We move to the left two intervening ridges and we 22 come to characteristic number 3 which is a ridge ending 23 up. You then go again a further five intervening ridges 24 to point number 4, which is a ridge ending down. 25 Below point 4, with three intervening ridges, is page 38 1 point number 5, which is a ridge ending. Again, if we 2 go down another two intervening ridges, we come to 3 point 6, which again is a ridge ending. There is, as I 4 say, at the core a blackening, a thickening of the 5 ridges but I still believe from point 6 to point 7, 6 which is a bifurcation down, we can count 1, 2, 3, 4, 5, 7 6, 7, 8, 9 -- 1, 2, 3, 4, 5, 6, 7, 8, there are 8 9 intervening ridges between point 6, which is a ridge 9 ending, and point 7, which is a bifurcation. 10 We then go further to the left of the mark and 11 there's 1, 2, 3, 4, 5 intervening ridges. I'll just 12 check that. There's 1, 2, 3, 4, 5 intervening ridges 13 and we come to characteristic number 8, which again is a 14 ridge ending. 15 To the very left of that is point number 9 which is 16 also a ridge ending. If we go back up and follow the 17 ridge, the adjacent ridge to the right, we come to point 18 number 10, which is a ridge ending. 19 Can I just say at that sort of configuration, 8, 9 20 and 10, it's quite an unusual shaped configuration and I 21 think you will be able to see that much better when you 22 look at the right middle fingerprint of Mr Asbury. 23 If we move from characteristic 10, point 10, on the 24 right-hand ridge we follow that up and we come to a 25 ridge ending point, characteristic number 11. If we page 39 1 move out to the left from characteristic number 11 we 2 have 1, 2, 3 intervening ridges and we come to 3 characteristic 12, which is a ridge ending down. 4 If we go to the right of number 12, 1, 2, 3, 4 5 intervening ridges we come to point 13 which is a 6 bifurcation down. 7 We then have to move from point 13 to point 14 and 8 we have to count 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 9 13, 14, 15, 16, 17, 18, there are 19 intervening ridges 10 to get from point 13 to point 14, which is a ridge 11 ending up. 12 If we follow the left-hand ridge adjacent to 13 point 14, if we follow that up we come to point 15, 14 which is a ridge ending down. Again, we follow that 15 ridge up and we come to point 16 which is a ridge ending 16 down. 17 You may ask why, when I counted from 13 to 14, why 18 didn't I go up above the core but I believe there's 19 movement there or there's, again, some form 20 of deposition pressure which I don't believe you can 21 count through, but you can count from 13 to 14, they are 22 in sequence, they are in agreement and there's 19 23 intervening ridges. 24 If I go back to point 16, we then move 1, 2, 3, 4 25 intervening ridges and we come to point 17, which is a page 40 1 ridge ending up, which takes us back neatly to point 2 number 1, which is the ridge ending down. 3 I don't know what else I can -- could I now go 4 through the same characteristics, only on the right-hand 5 enlargement. 6 THE CHAIRMAN: Yes, particularly the 7, 8 and 9 which you 7 said were unusual, I would like to see them on the 8 reference print. 9 A. Okay. Unfortunately, as I say, point 1, I believe you 10 can see it. There's an S, as in fingers taken and 11 there's a plain impression. I think I've looked at the 12 rolled and there is a ridge ending down. It's not very 13 easy to see, I agree, but there is a ridge ending down 14 there. 15 You follow that down and you come to number 2, which 16 is a ridge ending down. Again, two intervening ridges 17 to the left, we come to point 3. We then have five 18 intervening ridges to the ridge ending down, point 4. 19 We then have three intervening ridges to the ridge 20 ending down, point 5; two intervening ridges to the 21 ridge ending down, point 6. Then if we count from 6 to 22 7, there are 1, 2, 3, 4, 5, 6, 7, 8, 9 intervening 23 ridges between 6 and 7. Then we come to what was the 24 unusual or what looks to me quite an unusual 25 configuration. If we go from 7 and count 1, 2, 3, 4, 5 page 41 1 you come to point 8. On the left of that ridge ending 2 down is point 9 and number 10 but, as I say, there seems 3 to be a couple of kinks at the very bottom of the ridge 4 and to me it's quite unusual. 5 If we move from point 10, the adjacent ridge, follow 6 that up, we come to 11. Then there's three intervening 7 ridges from the ridge ending up, point 11, to the ridge 8 ending down, characteristic number 12. To the right of 9 12 we count five intervening ridges to the bifurcation 10 down, which is point 13. 11 Then we have a large gap going from 13 to 14, 1, 2, 12 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 13 19 intervening ridges to point 14. 14 We follow up from that ridge ending up, we follow 15 the ridge to the left and we come to point 15, which is 16 a ridge ending down. Follow that ridge again and we 17 come to point 16, which is a ridge ending down, and then 18 four intervening ridges to the last point, which is 17, 19 which is a ridge ending up and that takes us back to 20 characteristic 1, which is a ridge ending down. 21 The difficulty is, at the core, counting between the 22 characteristics on the right and the characteristics on 23 the left but I believe you can do it and from my own 24 point of view I find it quite surprising that I believe 25 the PSNI are non-numeric and how they couldn't effect an page 42 1 identification from this I don't know. 2 MR MOYNIHAN: If we could bring back up please the QI2 3 Asbury part, is there marked here on QI2, Asbury, what 4 you would see from an initial analysis or is this simply 5 the product of an initial analysis carried through, 6 comparison to final evaluation of the two side-by-side? 7 A. My initial analysis would have been made in 1997. 8 Q. I will start again, then. Looking at matters today, 9 when we looked at Y7 and QI2 we started with the fact 10 you would consider the overall pattern of the mark -- 11 A. Yes. 12 Q. -- and the overall pattern of this mark, what is the 13 overall pattern of the mark? 14 A. It's an ulnar loop to the right. 15 Q. It's a loop to the right? 16 A. Yes. 17 Q. Is that sufficiently discernible? 18 A. Definitely, yes. 19 Q. On your initial, sort of, look at this most recently for 20 us, when did you start to look at this recently? When 21 did you start to look at this mark? 22 A. Yesterday or the day before. 23 Q. Yesterday or the day before? 24 A. Yes -- for this exercise, yes. 25 Q. So when did this marking first come into existence? page 43 1 A. That would be -- I marked it myself yesterday. 2 Sorry ... or Sunday, Sunday or Monday, I'm not sure. 3 Q. When you looked at QI2, Asbury, just over the weekend, 4 what were the features that caught the eye? 5 A. As I say I've already explained the features just to the 6 right of the delta. 7 Q. So are those the -- 8 A. 8, 9 and 10. 9 Q. 8, 9 and 10? 10 A. Yes. 11 Q. Those are what caught the eye? 12 A. Yes. 13 Q. When you were, again at the weekend, carrying out your 14 work, did you carry on independently an analysis of QI2, 15 Asbury, and find these 17 points or did you mark these 16 17 points having effected a comparison between the mark 17 QI2 and Mr Asbury's right middle? 18 A. I would do what I normally do with a mark and that was I 19 would look for what I believe were genuine 20 characteristics, a starting point and then I would look 21 at the enlargement of Mr Asbury right middle. 22 Q. When we've discussed the middle and QI2, Ross, we've 23 discussed the possibility that you would start the 24 comparison with a target group or a target area. 25 A. Yes. page 44 1 Q. Was there a target area in relation to this? 2 A. Certainly the ones at the bottom left, yes, for me. 3 Q. My reason for asking this question is just to follow 4 through the same sort of methodology points, whether the 5 points that we see charted 1 to 17 are points that you 6 would, independently of any comparison with Asbury, you 7 would have said are clear, unambiguous characteristics 8 that you would note on an initial analysis of QI2. Are 9 they? 10 A. Well, not all of them, no. 11 Q. Let us go to the negative. Let us start with the 12 positive, which are the characteristics you would regard 13 as clear, unambiguous characteristics that you would see 14 on an initial analysis of this part of QI2? 15 A. Well, I would say the majority of them but if you look 16 at point 12, a very, very strong ridge ending down; 17 point 13, very, very strong bifurcation down; the 18 cluster 8, 9 and 10, I've already discussed; number 7, a 19 very strong bifurcation down; number 14, strong ridge 20 ending up; and definitely point 15 could be subject to 21 interpretation but I believe to the left of point 15 22 there is a thickening of the ridge or possibly a lake 23 but that also is pretty strong; point 17 is very strong; 24 point 3, very strong; point 2 is very strong; point 4, I 25 believe you can see, albeit it's on the periphery of the page 45 1 mark; 5 and 6 I believe you can see but, again, they are 2 on the periphery. I would say most of the 3 characteristics that I have marked are quite strong. 4 Q. If you will forgive me, Mr MacPherson, you are using a 5 phrase "quite strong"? 6 A. Yes. 7 Q. Are these characteristics that on an initial 8 identification of QI2, before any comparison, that you 9 would say stand out as unambiguous characteristics that 10 merit then being carried forward into a comparison or is 11 there an element of ambiguity about any of these points? 12 A. I would say no. I can see them, yes. 13 Q. You can see them? 14 A. Yes. 15 Q. If I read to you, this is the extent of what I know from 16 the Police Service of Northern Ireland, Mr Logan, it is 17 a letter that I think is undated but we probably 18 received on the 29th -- sorry, the date is at bottom. 19 It is on the 29th. It is a letter of the 29th. What 20 Mr Logan says is -- and I will read the whole thing and 21 then come back and break it down. It is the second page 22 I am interested in, mark number 3, QI2. I will give you 23 a chance to read it, Mr MacPherson, and give everyone in 24 the hall a chance to read it. (Pause) 25 This is written by Mr Logan who is Head of the page 46 1 Fingerprint Bureau in Northern Ireland. Apart from the 2 fact that he does discern a right loop, even he finds 3 that difficult to be certain about. You see what he 4 writes then. He regards QI2 as being very poor in 5 quality. 6 Do you agree with that? 7 A. It's not the best of marks but it's definitely 8 identifiable. The only thing that could make it not a 9 right loop was if it was very, very out to the far right 10 there was possibly a recurve and there was a twin loop 11 but I think if you look at it it's definitely a right 12 loop. He says it's difficult to ascertain because of 13 the quality of the mark. Well, I think I've said 14 there's no problem discerning that as an ulnar loop to 15 the right. 16 Q. He goes on, he says the core is not visible? 17 A. I would agree with that, yes. Sorry, the core you can 18 see the recurve but you can't discern what 19 characteristics are contained within the core. I agree 20 with that, yes. 21 Q. There has been significant movement? 22 A. No -- possibly to the top left of the core there is an 23 area, as I said before, that you can't go above the core 24 and count through because of movement or maybe a bit of 25 slippage but, yes, I would agree but I wouldn't say it page 47 1 was significant movement, no. 2 Q. He says: 3 "The movement concerned has dislocated the right 4 side of the mark from the left, to the extent that it is 5 unlikely that it would be possible to count or follow 6 ridges between the two parts." 7 A. Well, he says it's unlikely but I think I've just 8 demonstrated that you can count from the right to the 9 left and from the left back to the right. 10 Q. "There are a very limited number of ridge 11 characteristics visible ..." 12 A. Well, again I would disagree with that. 13 Q. "... even those that are visible are not clearly 14 defined." 15 A. I would disagree with that also. 16 Q. Bear in mind, as far as I can recollect, Mr Logan had 17 not at the point of writing this letter seen Mr Asbury's 18 print or the photocopy that you have. He is simply 19 looking at QI2 itself in isolation. That was why I was 20 asking you whether, to use his term, perhaps, this the 21 better way, the characteristics are visible and 22 clearly -- you would say visible and clearly defined in 23 the Asbury print, in QI2? 24 A. Yes, I believe so. 25 Q. He says: page 48 1 "In conclusion I would say that due to the poor 2 quality of the mark, the amount of movement and 3 contamination, this mark has insufficient ridge 4 characteristics for identification purposes." 5 You would disagree with that? 6 A. I would disagree with that, yes. 7 Q. With the benefit now of that brief summary, which is 8 all that I, myself, know of Mr Logan's position, we will 9 hear further detail from him later in the week, is there 10 anything you would wish to add to what you have already 11 said about QI2 by reference to your charting or 12 otherwise? 13 A. No, I don't think so, no. 14 MR MOYNIHAN: In that case, sir, that would conclude my 15 examination of Mr MacPherson. 16 THE CHAIRMAN: Mr Smith, you would I think be the first 17 appropriate person to -- 18 MR SMITH: Sir, I do have an application to make. It 19 relates to a number of topics, with the same caveat I 20 would usually apply that I will try not to cover any 21 ground that Mr Moynihan has already covered. 22 The first relates to the question of the 16-point 23 standard and to what extent it was applied in this 24 investigation. I must confess to a little confusion 25 about that myself. The second is on the quality of page 49 1 materials available to others, in particular what 2 Mr Swann had available. 3 The third relates to training and systems within 4 SCRO and the subsequent organisation -- 5 THE CHAIRMAN: Just on your second point about what Mr Swann 6 had available, we have had certain matters drawn to our 7 attention. 8 MR MOYNIHAN: Sir, there has been an e-mail that I'm afraid 9 with the activity that's concerned what we've just 10 immediately had I have not mentioned this to anyone 11 other than my learned friend, Miss Grahame. There has 12 been an e-mail received from Mr Russell that I will 13 circulate and make available to all concerned in due 14 course. 15 THE CHAIRMAN: What I suggest is if we leave that topic 16 until you have had an opportunity to see what has been 17 brought to our attention. 18 MR SMITH: Certainly, I can cover other aspects. 19 THE CHAIRMAN: So if we leave the quality of the materials 20 available to Mr Swann for the moment until you have seen 21 the matter that has been brought to my attention. 22 MR SMITH: Thank you, sir. I will certainly do that. 23 I wanted to ask about the training and systems in 24 place in SCRO and subsequent to SCRO. 25 THE CHAIRMAN: Yes. page 50 1 MR SMITH: I would like to ask some further questions 2 relating to what the response was to the knowledge of a 3 challenge being placed in the course of the trial of 4 Shirley McKie. 5 I would like to also ask some questions about the 6 relationship with Strathclyde Police and whether that 7 might have affected the way systems were operated. 8 Finally, I have a very short point to make regarding 9 QI2 and an issue raised by this witness relating to the 10 question of the application of powder that can be dealt 11 with in very short compass. 12 THE CHAIRMAN: Yes. I will give you leave to raise those 13 matters but, as I say, leaving the quality of the Swann 14 material or material available to Mr Swann until we get 15 the position clarified. 16 MISS GRAHAME: Excuse me, Mr Chairman, unfortunately our 17 LiveNote's disconnected. I've tried to disconnect and 18 reconnect but it's not working at all. (Pause) 19 THE CHAIRMAN: I gather there is a problem, Miss Grahame, 20 but you are content to go on. 21 MISS GRAHAME: We will just go on. 22 THE CHAIRMAN: I am sorry about that but I hope it will come 23 right soon. 24 Cross-examined by MR SMITH 25 Q. Mr MacPherson, I would like to just be clear, if I can, page 51 1 about your willingness to assist with the Inquiry. I 2 recall some evidence you gave last week in which you 3 said that you did not have to prove anything. You had 4 already lost your job over this matter. 5 A. That's right. 6 Q. I take it you are more than prepared to try and provide 7 such assistance as you can to the Chairman in working 8 out if something went wrong and, if it did go wrong, 9 what went wrong and how it can be prevented in the 10 future. You are content to do that I take it? 11 A. Absolutely. Since the Inquiry started I believe -- 12 somebody might prove me wrong but I believe I've tried 13 to assist the Inquiry in every option regarding phase 2, 14 the comparative exercise, doing enlargements. I've done 15 two statements, one major statement, one supplementary 16 statement which had to be done in quite a rush. I wish 17 I had been offered the opportunity that others had that 18 didn't have to submit a statement until halfway through 19 the Inquiry but I certainly have no problem in trying to 20 assist the Inquiry whatsoever. 21 Q. Thank you. I take it you will understand that, of 22 course, Shirley McKie also lost her job as a result of 23 something that happened and you appreciate that. 24 A. Yes, I appreciate that. 25 Q. And David Asbury, he, for whatever reason, lost his page 52 1 liberty and there is a suggestion at least -- well not a 2 suggestion, it is placed as their position, that it was 3 as a consequence of errors by SCRO. That's their 4 position, that they lost (a) their job and (b) liberty 5 in that order. 6 You understand that? 7 A. Absolutely, sir, yes. 8 Q. Can I ask you this: do you consider there is any 9 possibility whatsoever that your opinion on -- let's 10 deal with Y7, first of all, could be wrong, any 11 possibility? 12 A. No. 13 Q. Again, you are aware there are a number of the experts 14 who directly challenged that opinion. Dealing, for 15 example, with Mr Grigg, Mr Sheppard and, for what we 16 understand of it, Mr Ashbaugh's opinion, have you any 17 explanation as to how it is that three individuals of 18 undoubted experience and capability are able to reach a 19 direct but opposite conclusion to what you say? 20 A. Not really but unless they've taken cognisance of the 21 movement that's been discussed previously, no, I can't 22 explain it. 23 Q. Surely, three experienced experts such as they would be 24 able to identify, if there was evidence of any movement 25 they would be able to identify that. Do you not agree? page 53 1 A. Yes, I agree with that, yes. 2 Q. How far can you pitch this? Can it be suggested that if 3 they fail to observe any movement or distortion of the 4 kind that you have repeatedly described that somehow 5 that is incompetence, would you say, or is it just a 6 professional disagreement or just something that they've 7 been sloppy about? How would you place it? How obvious 8 is this movement and distortion? 9 A. I think it's obvious if you compare the mark, yes. 10 Q. Mr MacPherson, do you think it's possible at any time in 11 your professional career you have ever made a mistake? 12 A. Yes, I've made mistakes, yes. When I was training I 13 made mistakes, yes, but I've never had an allegation of 14 a mis-identification in my 36 years service, no. 15 Q. You see, I don't wish to be unfair to you but do you not 16 agree that there may be a justifiable perception that 17 you say with regards to Y7, "There is no possibility 18 that I am wrong", that it may be thought, to be some 19 extent, to be closing your eyes to something that is 20 only human, frankly, that people can sometimes make a 21 mistake? 22 A. We all make mistakes yes. 23 Q. But not in this case? 24 A. But certainly not in this case and that was another 25 reason when Terry Kent's image and Mr Swann's images page 54 1 became available I felt they were very, very clear and 2 illustrated even more of the fact that mark Y7 was made 3 by Shirley McKie's left thumbprint. 4 Q. I will come back to some questions regarding Y7 in a few 5 minutes but I would like to deal with the question of 6 the 16-point standard if I can. 7 I want to ask you just a number of questions just to 8 find out if my understanding is correct or incorrect. 9 With regard to this particular murder investigation 10 relating to the death of Marion Ross, as we know there 11 were a large number of fingerprints that were looked at 12 either for elimination purposes or, on occasion, for 13 identification purposes. 14 In respect of each and every one of the prints that 15 were capable of analysis, so forgetting about the ones 16 that you can't actually do anything with, the ones that 17 were capable of analysis, were they analysed to a 18 16-point standard? 19 A. My recollection is, yes, that they were, yes. 20 Q. Every single one? 21 A. Yes. 22 Q. Was that the usual practice with regards to 23 investigations or was this case unusual? 24 A. No. At that time I believe the 16-point standard was 25 in, if you like, per mark. I think I've spoken earlier page 55 1 about, on checks if you had ten characteristics on one 2 check of a digit of a person and the same person you had 3 ten characteristics on another check, you could move 4 that forward for evidential value. In other words, you 5 could have 16 characteristics on one check and then if 6 there was ten and above on the same series of checks 7 that was sufficient to move forward for evidential 8 value. 9 Eventually, that was moved into volume crime and 10 serious crime but my difficulty is exactly when that 11 happened but I believe in 1997 it was still per mark you 12 had to find 16 ridge characteristics. 13 When I left in 2007, or just prior to that, if you 14 identified 16 ridge characteristics for one person and 15 you had 10 characteristics and above on other articles 16 or from the same scene, then that could be included for 17 evidential purposes. Obviously with the non-numeric 18 system that was all swept away. 19 As I tried to say earlier in evidence, the 1953 20 guidelines were fluid and they changed over the years 21 and that's exactly what happened with our processes and 22 procedures in the SCRO. If somebody comes along later 23 and says to me, "Don't be stupid it was 16 for one 24 person and 10 and above for all the other marks", then I 25 would put my hands up and say I'm wrong but my page 56 1 recollection is it was per mark you had to find 16 ridge 2 characteristics in sequence and agreement. 3 Q. You see the thing is, Mr MacPherson, you have 4 described -- and I understand what you are saying that 5 there were changes in procedures at different times -- 6 A. Yes. 7 Q. -- when there was a change in procedure, let us deal 8 with SCRO for the moment rather than any other 9 organisation that we have moved on through, was there, 10 as it were, some kind of handbook or a protocol or a 11 written direction as to how fingerprints were to be 12 analysed, what the standards were, et cetera, et cetera? 13 Was there anything like that? 14 A. I think QA started in 1994 and then eventually there was 15 a procedures manual but when -- I'm struggling, I'm 16 afraid, when that exactly came in. Normally what would 17 happen is if there was any changes in procedures a memo 18 would come out from the Chief Inspector and that would 19 be held at a central reservoir, if you like, and teams, 20 people could go and look at and read up and make sure 21 that they were current with the up-to-date processes and 22 procedures. 23 Q. The next question I am going to put to you, I want you 24 to understand I am not putting as a criticism of you. I 25 want you to understand that. page 57 1 As far as the changes in procedure are concerned, 2 let us say moving from a 16-point standard to a 10 and 3 10, I take it you would agree with me that that is a 4 pretty important and fundamental change -- 5 A. No. 6 Q. -- for someone on a day-to-day basis who is carrying out 7 work in preparation for cases for the Crown? 8 A. 10 and 10's always been in. It's been in since 1970. I 9 think I showed that with the small handbook we had -- 10 Q. I recall you producing something to that effect. My 11 confusion is I thought you said there was a question of 12 10 points. You were meaning actually there may have 13 just been, what a 10 and 10 and just a 10 as being a 14 threshold at some stage? 15 A. The original interpretation of 10 and 10 was in the 16 sequence, as in 7 and 8. You have to have 10 in the 7 17 and 10 in the 8. Eventually, that evolved into it 18 didn't have to be the same digit. It was as long as you 19 had 10 characteristics, say, on one cheque and 10 20 characteristics of another digit on another cheque that 21 was enough. So it was an evolution, if you like, of the 22 10 and 10. 23 Q. Of course and really what I am asking about is where 24 there was a change in practice, it is something that 25 would at least have been helpful for those who were page 58 1 carrying out the analysis to know that there was a 2 change -- 3 A. Well, there would have been notification of that change 4 from the Chief Inspector. 5 Q. The impression I have of what you said is that it may 6 have been a memo which was available rather than 7 actually a meeting, for example, saying -- 8 A. There may have been meetings as well -- 9 Q. -- has changed, we're now adopting this approach? 10 A. There could have been meetings as well. From 1994 moves 11 were afoot to go to a non-numeric standard for the SCRO. 12 I think a Mr Lees, the Regional Procurator Fiscal in 13 Edinburgh, had started by chairing our committee and 14 from 1994 I believe SCRO -- well, I know SCRO were ready 15 to go ahead with non-numeric but with subsequent the 16 McKie case, et cetera, that was put off until 17 September 2006. 18 So, yes, there would be information passed out; 19 there would be meetings. My only difficulty is just 20 exactly when we moved from 16 per mark to 16 and 10 21 characteristics for a person. I just can't remember. 22 Q. You mentioned something about there may have been some 23 kind of manual at some stage and you did produce a 24 document the other day, a fairly slim volume if I put it 25 that way. page 59 1 A. Yes, that was just a fingerprint handbook that was given 2 out when I started, basically, in 1970. 3 Q. Of course. The kind of thing I'm imagining -- and 4 please help me if I have got this wrong -- is there 5 might have been a folder, a manual, a dynamic document 6 that would be updated, supplemented, it was available 7 for any Fingerprint Officer to pull off the shelf to 8 say: what are the protocols? What should I be doing 9 with this? How should I be approaching it? 10 Did such a document exist? 11 A. Yes, there was a procedures manual. Eventually the QA 12 officer gathered up all the memos that had been sent out 13 from the Chief Inspector, gathered them all in, they 14 were all destroyed and, basically, there was a 15 procedures manual put in place, if you like. There was 16 also an AFR manual from 1991 when the automated 17 fingerprint recognition system came in. There was a 18 manual for the use of that. There was manuals for the 19 use of LiveScan. So, yes, there was manuals in place 20 that anyone could go and look and read and, basically, 21 know if they moved from -- people are always moving from 22 sections to sections so you had to know what you were 23 basically doing. 24 Q. I am sure I must have overlooked it somewhere in the 25 morass of documents in this Inquiry but are you saying page 60 1 there was a document, an actual folder, a manual, that 2 existed in 1997? 3 A. Not in 1997, no. 4 Q. Can you tell me when this document did actually 5 materialise, when this manual did actually come to the 6 fore? 7 A. I can't remember, I'm sorry. 8 Q. We know that SCRO, as it were, changed into the Scottish 9 Fingerprint Service? 10 A. It may have been at that point. 11 Q. It may have been at that point? 12 A. Yes, but I wouldn't like to say for definite. 13 Q. By the time the Scottish Fingerprint Service became the 14 SPSA was there a manual in place then? 15 A. Yes, I would believe so, yes. 16 Q. Something known to everyone and really the Bible, if I 17 put it that way, for procedures within the office? 18 A. Yes. 19 Q. Did you consider, though, in 1997 if you had to apply 20 your, mind to it that it was an unfortunate omission 21 that there wasn't such a manual available at that time? 22 A. It wasn't a manual as such but all the procedures, if 23 you like, were there but they were a disparate, if you 24 like, they weren't in one volume, if you like. 25 Q. Right. page 61 1 A. But they were there. We were ISO accredited as well as 2 doing competency testing, et cetera. 3 Q. Sorry, what is ISO? 4 A. It's an international service agreement. People would 5 come in outwith and make sure that the management 6 procedures, et cetera, were working. A Mr Bill Woods 7 was one of the consultants I remember. He used to come 8 in and check that our processes and procedures were 9 being followed. 10 Q. Was Mr Woods somehow involved in the forensic science 11 world? 12 A. No. I believe he set up his own organisation and he 13 would come in and just check your processes and 14 procedures. 15 Q. Was that more a management consultant rather than 16 someone with experience and knowledge of a Forensic 17 Science Service? 18 A. I believe he was, yes. 19 Q. I had the impression from your evidence -- I am sure we 20 can find it if necessary -- from last week that at some 21 stage in this investigation it was made clear by you to 22 everyone that you were working to a 16-point standard in 23 this case. 24 Do you remember giving evidence along those lines 25 last week? page 62 1 A. Yes. 2 Q. Can I ask how is it that, as it were, in a given inquiry 3 there is almost a directive by someone in a reasonably 4 senior position, "Listen, now we're working the 16-point 5 standard"? Why was there any requirement to advise the 6 others in the office that there was some kind of change, 7 if change it was? 8 A. It wasn't really a change. There was nothing to stop me 9 using the 16-point standard. You could eliminate on 10 less than 16 at that time but that was available to you 11 if you wanted to use it. Normally in a murder case you 12 would have to apply the same 16-point standard to the 13 deceased and to the accused. That was normal. 14 In this case, which wasn't normal, it was like an 15 early disclosure case, if you like, all the marks that 16 were identified, all the marks that were outstanding and 17 all the marks that had been searched, et cetera, but all 18 the ones that were identified and outstanding or 19 insufficient had to be accounted for, if you like. 20 Q. Can I ask what do you mean by early disclosure? 21 A. Well, normally when you prepared a case for court all 22 that you spoke to were the marks that were identified. 23 You didn't speak to anything else. 24 Q. So at some stage in the past all you would refer to is 25 the positive identification relevant to the trial, as it page 63 1 were? 2 A. You could be asked in court what happened to the other 3 marks but, basically, when you went to court all you 4 were speaking to was the identified marks. So what we 5 were speaking to here was, basically, as far as I can 6 remember it, all the marks and how they had been dealt 7 with. 8 Q. I am reminded that Mr Geddes' evidence about the 9 16-point standard was somewhat different to yours. I 10 think it was put to him whether he was correct that all 11 the marks were identified or eliminated to the 16-point 12 standard and he said: 13 "That would surprise me, yes, if that was the case." 14 Are you able to explain how there could be a 15 divergence of view as to what actually was going on with 16 the regard to the case? 17 A. No. As I said, the case was a whodunit. Basically, 18 every mark that was identified was identified as a crime 19 scene mark against an elimination form. There was no 20 AFR idents; there were no suspect idents. Everything 21 was identified by crime scene marks against an 22 elimination fingerprint form. So there was no real 23 demarcation between what was a suspect and what was an 24 elim. 25 Also it was a whodunit. That was another reason for page 64 1 identifying things to 16. If I hadn't done that, what 2 would have happened would have been, say, in Mr Asbury's 3 case the mark was identified I would have to have phoned 4 it out, told them and then the next thing, if he went 5 from being an elim to a suspect to an accused, I would 6 then have to have revisited it and got four people to 7 basically look at the mark again. So it was basically 8 an efficient and effective way of working, basically 9 identified it to 16 at the first point, if you like. 10 Q. I wonder whether the analysis -- I know what you mean by 11 whodunit. I understand what you mean but surely it's 12 not that. All it is is, "I'm analysing this fingerprint 13 against that fingerprint to see what comes up". It is 14 not a question of we've got a whole list of potential 15 suspects. Was it Colonel Mustard in the library? You 16 know who they are, the suspects, and you have just got 17 to identify who is the best match. It's not like that 18 is it? 19 A. No, as I say, it was a whodunit and we had no idea who, 20 when we identified someone that they would move from 21 being an elim, to a suspect, to an accused. We had no 22 idea. 23 Q. But, equally, you had no idea that no-one ever moved any 24 of the -- 25 A. It may have turned out that way, yes. page 65 1 Q. It could be someone else completely, for example? 2 A. Absolutely, but it didn't turn out that way in this 3 case. 4 Q. I would like to ask about the charting enlargement 5 machine, if I can. I think we have heard a good deal of 6 evidence from those in SCRO who voiced some considerable 7 dissatisfaction with that particular machine and method 8 of analysis. 9 I take it that is something you agree with: you were 10 not happy with the quality of the product? 11 A. The only good thing about the charting enlargement was 12 you didn't have to wait two weeks for the Identification 13 Bureau to produce photographic enlargements for 14 yourself. 15 If it was a good quality mark like, say, XF, there 16 was no problem with it. The problem was with when you 17 get a compressed mark or a poor quality mark. Yes, I 18 agree the quality wasn't of the best. It worked in the 19 same, funnily enough, in the same way that the IT here 20 seems to work, that you had to basically capture a small 21 area and then it was blown up for you. 22 Q. But this was a poor quality mark. Y7 I am talking 23 about, wasn't it? 24 A. It's not the best of marks, no. 25 Q. I am not sure if you are disagreeing with me, it was page 66 1 reasonable quality or whether you are agreeing it was a 2 poor mark? 3 A. It was a complex mark. 4 Q. Is it a mark that you have, sitting here now, some 5 concerns about having used the charting enlargement 6 machine to demonstrate the points of differences -- 7 A. I don't know whether it would have made any difference 8 because I have produced for the comparative exercise 9 photographic enlargements and still some people still 10 don't agree with me, so it's maybe not a question one or 11 the other. 12 I think, as I said earlier in evidence, if you've 13 got a bloody mark on a knife it won't matter whether you 14 get photographic enlargements or a charting PC, the jury 15 would never be able to see, basically, what you 16 basically were talking about. 17 Q. Mr MacPherson, I am interested in Y7 and the charting 18 enlargement machine. 19 Are you saying it was perfectly acceptable to 20 consider that mark -- 21 A. Yes, yes. It was perfectly acceptable for Mr Graham and 22 Mr Swann, so ... 23 Q. Are you only saying that because they said it was 24 acceptable or are you saying that it was acceptable? 25 A. Well, they seem to have -- certainly Mr Graham looked at page 67 1 all our productions and agreed with the identification 2 of Y7 and QI2 so I can only presume from that there was 3 no -- he voiced no concern regarding the charting 4 enlargements so I would say he was quite happy with 5 them. 6 Q. You are happy, sitting now, with the quality of the 7 representation on the charting enlargement regarding Y7? 8 A. Yes. 9 Q. Do you agree or disagree with the suggestion that on the 10 productions prepared by the charting enlargement machine 11 that the end points of the lines don't actually 12 accurately end up on points that are said to be 13 demonstrated? Do you think that's wrong or do you think 14 that's right? 15 A. No, I believe I accurately marked where I saw the 16 characteristics, to the best of my ability. A lot of 17 people have made criticism, I know, within SCRO and 18 outwith SCRO about the use of the charting enlargements 19 but the people who were making the criticisms have never 20 used the machines so I would say it's a bit unfair. 21 Q. Did you have any concerns regarding the charting 22 enlargement machine? 23 A. I believe photographic enlargements were better but that 24 was what we had at the time. It was brought in for 25 £30,000. We were told by management to use it and page 68 1 that's what I did. The charting PC is only an 2 illustration of how the characteristics are used to come 3 to my conclusion. It's not my evidence. 4 Q. I am sorry to press you on this but do you consider was 5 it an acceptable piece of equipment for the purpose that 6 it was intended? 7 A. Yes, what I produced I believe was good enough but I 8 believe photographic enlargements are better. 9 Q. I am talking about the generality, Mr MacPherson. Do 10 you consider it was an acceptable piece of equipment for 11 the purpose that it was intended? 12 A. Well, eventually it was scrapped in 2000 so that says it 13 all. 14 Q. Well, I am not sure it does say it all. My question is 15 not a trick question. I am simply asking you if you 16 thought it was an acceptable piece of equipment which 17 was fit for the purpose that it was intended? 18 A. For good quality marks, yes. For poor quality marks, I 19 would say no. 20 Q. You see I think you will probably recall that before the 21 Justice 1 Inquiry you described the machine as being and 22 the word you used was "unacceptable"? 23 A. Okay. 24 Q. Are you saying that's reconcilable with what you have 25 just said? page 69 1 A. As I say, for poor quality marks ... 2 Q. I think Mr Stewart indicated that he considered it was 3 not fit for purpose is the phrase he used. 4 A. Okay. 5 Q. Do you see any difference between that position and your 6 position? 7 A. Well, I wouldn't quite go as far as that but you can ask 8 Mr Stewart yourself obviously. 9 Q. I certainly will ask him about it but as far as the 10 quality of representation in Y7, your view is that it 11 was absolutely acceptable for what it was intended to 12 do? 13 A. For -- yes. 14 Q. I will come back to the question of Y7 and the evidence 15 in the course of the trial in due course, but I would 16 like to ask you, if I can, a little bit more about the 17 training and systems in place within SCRO and then SFS 18 and then, indeed, in the SPSA. 19 As far as you yourself were concerned, we can see 20 from your CV and, indeed, we can see in the evidence 21 that was given to the Shirley McKie trial, something of 22 the background that you had. 23 Is it fair to summarise it that it was predominantly 24 on the job training within SCRO? 25 A. Yes. We had practical training, theoretical training, page 70 1 Scots law that related to fingerprints. But, yes, 2 probably it was on the job training, yes. 3 Q. As far as any outside testing, anyone from outside, is 4 concerned, can you just tell the Inquiry, some of it is 5 in your statement but just tell the Inquiry what 6 happened that constituted, as it were, outside review of 7 your competence? I am talking about particularly the 8 early days when you were starting off your career? 9 A. Are you talking about the collaborative testing 10 services? 11 Q. Yes. 12 A. That only came in later on. Mr Mackenzie introduced the 13 first, I believe, the first competency testing in 14 Scotland. Subsequently, the FBI reviewed that and found 15 it was too stringent a test for normal day-to-day work 16 but when I come back from being suspended in May 2002, I 17 think I sat about five competency tests between that 18 time and until my redundancy/retirement in March 2007 19 and I passed them all 100 per cent. 20 Also, as I said, the volume of work in the Glasgow 21 Bureau was such that it basically kept your expertise 22 adept. 23 Q. Would there be any justification in an impression, if 24 one was to take it, that the volume of work that was 25 being expected for you to turn round was putting page 71 1 pressure on you? Would that be fair? 2 A. I don't think pressure as such. You can only go at your 3 pace but there was a large volume of work. I'd be a 4 liar if I said that people didn't -- if you read the 5 Leishman report there was one or two people did leave 6 the job due to stress. 7 Q. Again, Mr MacPherson I am not criticising you for this. 8 You must understand that but I am imagining where you 9 are being bombarded with requests for eliminations, for 10 identifications, if all it takes is two or three murders 11 to happen in the space of two or three weeks within the 12 Strathclyde Region and then your team is going to be 13 under serious pressure. 14 Is that a fair way of looking at it? 15 A. No, I only worked on the one murder, basically, myself 16 and Mr Geddes. No, it wasn't -- you weren't pressurised 17 in that sense, I wouldn't say, no. The volume of work 18 was quite excessive and I think I've already said in 19 1997 when the LiveScan system, the electronic capture, 20 came in of fingerprints there was a change of 21 procedures, et cetera. When that came in basically 22 experts were taken away from their normal duties, if you 23 like, to work on the LiveScan and there was a backlog of 24 cases built up. 25 Q. I am not sure anyone has asked this question yet but in page 72 1 about 1997, indeed 1998, how many employees were there 2 within SCRO in total? You'd no doubt a shift pattern 3 but could we imagine there would be 20 or 40 or 100? 4 A. It would vary between -- I don't want to be exact but it 5 varied between 30 and 40. 6 Q. That is very helpful. 7 No doubt you would be working shifts, you'd have to 8 have some people on night shift and late shift and so on 9 to cover urgent examinations? 10 A. Since the introduction of the AFR in 1991 there was an 11 early shift, a late shift, some people did do night 12 shift, yes. 13 Q. I see. 14 Again, I came slightly off track with regard to the 15 question of training. You described after you came back 16 from suspension until the question of redundancy you 17 went through did you say five or seven, I can't 18 remember, tests? 19 A. It was about four or five -- five maximum, anyway. When 20 we come back from suspension we had to go through a 21 training matrix which we completed and on completion of 22 that matrix we were expecting to be returned to full 23 duties, as was mentioned in the Black report, but that 24 never, ever happened. 25 Once the Shirley McKie case was settled, we were page 73 1 continually asking to get back to court but we were told 2 that because Mr Asbury had some claim in or whatever, 3 no, basically we didn't get back to court. 4 Q. Can I ask you a bit about these four or five tests. Was 5 that just those who had been suspended that were 6 expected to go through that -- 7 A. No, no. 8 Q. -- or was it everyone in the office? 9 A. Everyone in the office. Well, as I said, when we come 10 back there was a training matrix and we were given a 11 sort of sample one, if you like, to sit which we did and 12 passed but after that they were live, everyone in the 13 office had to do them. They were live tests, if you 14 like, proficiency tests. 15 Q. Was that organised, as it were, in-house, was it? 16 A. That was by, I believe, a firm called Collaborative 17 Testing Services of -- I think they were American. No, 18 it wasn't in-house, no. 19 Q. I see. But, again, obviously they would clearly have 20 some forensic and fingerprint knowledge to be able to 21 set that test, the Collaborative Testing Services. 22 A. Yes. 23 Q. As far as this testing is concerned, was that something 24 that happened, as far as you understood it -- I know you 25 were subject to suspension during that period -- but was page 74 1 that something that had been going on annually or 2 whatever during your absence or was it just when you 3 came back there was, all of a sudden, there was this 4 everyone being tested by this organisation? 5 A. No, I think it was prior to -- again I can't remember 6 exactly when it came in but, no, it was prior to -- 7 before returning to work. 8 Q. I see. But prior to your suspension had there been 9 anything of that kind taking place? 10 A. Mr Mackenzie's test, yes. 11 Q. So that was truly, as it were, in-house testing that 12 Mr Mackenzie was organising? 13 A. Yes. 14 Q. So, in a -- 15 A. I am sorry, I believe there may have been some input 16 from Durham at one point but I'm not too sure about 17 that. I wouldn't like to say for definite. 18 Q. When you say some input, do you mean some people were 19 going to Durham or Mr Mackenzie was (... inaudible: 20 overspeaking ... ) setting the tests? 21 A. I'm not sure if there was Durham tests or whatever. I 22 honestly can't remember now. 23 Q. But in the period of 1997, 1998, 1999, in that kind of 24 period, were there ever any tests carried out where 25 individuals had to go to Durham and spend a couple of page 75 1 weeks there sitting refresher courses, exams or going to 2 the next training school or anything of that kind? Did 3 that ever happen? 4 A. I can't remember. I can speak personally. I went to a 5 bureau trainers course at Durham. You're going to ask 6 me when that was but again I can't remember. I know 7 that there was two experts I remember back in I think it 8 was the '90s qualified and the Chief Inspector at the 9 time was going to send them to Durham to basically sit I 10 think it was the advanced fingerprint course. He had a 11 look at the syllabus. He had been in touch with Durham 12 before regarding the fact that they didn't basically 13 touch on Scots law, it was all English law in respect to 14 fingerprint comparison. He looked at the syllabus, 15 contacted Durham, they had such a divergence of people 16 going to them for training that you couldn't 17 accommodate -- they basically taught English law in 18 regard to fingerprints. So it was decided that the two 19 experts who had just qualified would not go to Durham. 20 Q. But apart from that, the one occasion I understand you 21 to be talking about, you going to Durham in the '97, 22 '98, '99 period, there really was no occasion where 23 there was regular attendance at Durham Training School 24 by individual Fingerprint Examiners that could be 25 considered to be, as it were, external review of their page 76 1 work? 2 A. I can't remember when we started sending people to 3 Durham. People did go to Durham but, I'm sorry, I can't 4 remember when that was. 5 Q. Can you recall if it was after you returned from your 6 suspension? 7 A. No, it would be before. 8 Q. Before then? 9 A. Yes. 10 Q. I would like to ask you if I can now about the events 11 immediately preceding the trial of Shirley McKie. You 12 will be aware, I take it, I think you certainly have 13 been here when the evidence has been given -- I am not 14 sure if you were actually here when Sheriff Murphy gave 15 evidence? 16 A. I don't think so. 17 Q. I don't wish to misrepresent the position but what I 18 would like you to do is to look with us, please, at a 19 document I will ask to be called up which is the 20 statement of Sheriff Murphy. The reference is CO2036 on 21 page 2 which is a narration of his understanding in a 22 statement. Indeed, before this Inquiry he gave similar 23 evidence about what happened. 24 Do you see the paragraph which is the fourth 25 paragraph on that page beginning "on discussing"? page 77 1 He explains, just to be clear about it, this is 2 relating to a meeting that Mr Charles Stewart and 3 yourself had with Sheriff Murphy. Take it from me that 4 is what he referring to. This is his recollection of 5 events in this statement and I think his evidence to the 6 Inquiry was the same. He says this: 7 "On discussing Mr Wertheim's productions the two 8 experts brought out a number of criticisms regarding 9 Mr Wertheim's approach to the fingerprint. They were 10 very critical about the overlays that had been produced 11 in that they felt this was an unprofessional approach." 12 Pausing for a moment, do you remember being with 13 Sheriff Murphy and seeing the defence production number 14 2, the acetate overlay? Do you remember seeing it? 15 A. Yes. 16 Q. Do you remember whether you were critical to him about 17 the methodology, the method of presentation? Do you 18 remember voicing any concern? 19 A. It's certainly not something that I've ever used. I 20 think when I submitted the handbook to you, one of the 21 things it said in it was that fingerprints, due to the 22 flexibility of the skin, et cetera, it's not -- it 23 doesn't lend itself to mathematical precision. Just 24 because you can draw some lines on a piece of acetate, I 25 didn't find it was a very helpful measure. page 78 1 Q. But without necessarily going to it, what was 2 demonstrated, amongst other things, in the top part of 3 that acetate was at least two bifurcations opening, as 4 it were. If you run from right to left, they open. As 5 you follow from right to left, they open? 6 A. Yes. 7 Q. (Inaudible: overspeaking) I take it that since you have 8 seen it you agree that -- let us leave aside twisting 9 and distortion for the moment. It actually appears to 10 show quite clearly bifurcations opening in a particular 11 direction? 12 A. Yes. 13 Q. I take it you would agree with the suggestion that, at 14 least as far as bifurcations opening in that direction, 15 ignoring a twist right round that way, no amount of 16 pressure or squeezing or slippage could convert a 17 right-opening bifurcation into a left-opening 18 bifurcation. You would agree with that, wouldn't you? 19 A. I wouldn't think so, no. 20 Q. Sorry, you are agreeing -- 21 A. I agree with you, yes. 22 Q. I take it you understood that what was being presented 23 in that defence production was that Mr Wertheim was 24 saying there are clear differences in the top, there's a 25 bifurcation, two bifurcations opening in the wrong page 79 1 direction for this to be Shirley McKie's. That was one 2 of the things that he clearly was going to be trying to 3 represent to the jury? 4 A. I presume so. I mean, I don't believe we knew or I 5 don't recall what the challenge was, whether it was -- 6 originally it was meant to have been planting and then 7 it was meant to have been insufficient, then obviously 8 they disagreed with our viewpoint that it was an ident, 9 so ... 10 Q. But at the time you were meeting Sheriff Murphy just 11 shortly before the trial, it was made abundantly clear 12 to you that there was going to be a challenge to the 13 identification? 14 A. There was going to be a challenge of sorts, yes. 15 Q. Equally, it is pretty clear, even to someone uneducated 16 in fingerprints, that what was going to be suggested was 17 that there were differences between Mr Wertheim's 18 interpretation of Y7 as compared to his interpretation 19 of Shirley McKie's inked print. You knew that, didn't 20 you? 21 A. Well, I think as I've already said in evidence, there 22 was one point in isolation which has now become known as 23 the Rosetta characteristic and there was possibly 24 another two characteristics up at the very tip, again in 25 isolation, and I don't believe you could count from the page 80 1 Rosetta up to the two bifurcations at the top and they 2 were insufficient. For me, the top has always been 3 fragmentary and insufficient. 4 Q. All I am asking about, Mr MacPherson, is that when you 5 saw the acetate, if I can call it that, defence 6 production number 2, it was clear from what Mr Wertheim 7 was trying to represent that he was trying to show that 8 there were bifurcations all in the wrong way towards the 9 top of the print Y7. You knew that when you saw Sheriff 10 Murphy, didn't you? 11 A. I believe so, yes. 12 Q. Just reading on with the statement, it goes on to say: 13 "They also called into question the fact that it 14 appeared Mr Wertheim had damaged the mark when he had 15 physically examined the door post." 16 Do you remember suggesting anything to Sheriff 17 Murphy to that effect? 18 A. No. There was what looked like some sort of striation 19 or brush stroke or something. It wasn't the same mark, 20 basically, that we had looked at. 21 Q. Well, it was the same mark -- 22 A. Same mark but there was a mark on it -- a mark on the 23 mark, yes. 24 Q. Of course. There is no dispute, as you well understand, 25 that there is some of damage across it. page 81 1 A. Yes. 2 Q. But by the time Mr Wertheim photographed it, if I put it 3 that way, there was damage on the mark. 4 A. Okay. 5 Q. But I take it that you obviously wouldn't be able to say 6 something like that. Maybe Sheriff Murphy has picked 7 this up wrong but you would not be able to say that 8 Mr Wertheim damaged it because you do not know what 9 condition it was in when he first saw it? 10 A. No. 11 Q. Just on the question of Y7 with the damage across it, I 12 take it you were able to very quickly identify that it 13 was actually the same mark. You didn't look at the 14 damage and say, "Goodness me, I've never seen this in my 15 life before", did you? 16 A. No, I didn't put a glass on or anything like that. I 17 could see it was the same mark. 18 Q. Again, to the layman's eye, it is pretty obvious yes 19 there is a difference, especially if someone guides you 20 to it, saying, "Look, it's got a bit of rub across this, 21 something's happened" but the layman would be able to 22 identify this is the same fingerprint. Don't know whose 23 it is yet or they might know whose it is, but it's the 24 same fingerprint just with a bit of damage on it. 25 A. Well, I was certainly able to say that, yes. page 82 1 Q. Just going on now with the statement: 2 "They [that is you and Mr Stewart] questioned his 3 level of expertise in that this was a chance mark of 4 poor quality, plus Wertheim's more used to examining 5 textbook prints in his occupation in recent times and 6 the fact that Mr Wertheim was someone who hadn't the 7 same level of expertise as them in that he was a serving 8 police officer who appeared to have fallen in to the 9 role of fingerprint expert." 10 Do you recall any discussion that you had with 11 Sheriff Murphy about Mr Wertheim, his expertise, his 12 experience, et cetera, et cetera? 13 A. Yes, I do. 14 Q. Prior to meeting Sheriff Murphy, had you carried out 15 research to find if there were any articles or any 16 pieces of information relating to Mr Wertheim? 17 A. I knew nothing about Mr Wertheim. 18 Q. To the extent that this appears to record that there 19 was, let's put it frankly, some criticism of 20 Mr Wertheim's experience and his background, your 21 position I take it is that couldn't have happened 22 because you didn't know anything about it? 23 A. No, it didn't come from me. I didn't know anything 24 about him, no. 25 Q. Do you recall whether, for example, Mr Stewart had made page 83 1 any comments to that effect within your presence? 2 A. Not that I recall, no. 3 Q. He goes on to say: 4 "We discussed other matters such as an FBI 5 report/survey in 1998 regarding a mark of 6 mis-identification in the USA courts whereas this had 7 never happened in the Scottish court to date." 8 Again, do you remember any discussion about -- 9 A. Sorry, could you read that again, Mr Smith? 10 Q. Yes, of course, it's going off -- 11 A. I can't see it. 12 Q. It may be a bit difficult to read. It is the last 13 sentence in that paragraph: 14 "We discussed other matters such as an FBI 15 report/survey in 1998 regarding a mark of 16 mis-identification in USA courts, whereas this had never 17 happened in a Scottish court to date." 18 Do you remember any discussion about a 19 mis-identification in America? 20 A. In 1998? No, the only one that I recall was the Brandon 21 Mayfield case and that would be after that. 22 Q. Very well. Can we skip a paragraph and go down to the 23 next one. He goes on to say: 24 "They also told me that they would go away and 25 examine the defence productions more closely and report page 84 1 back with anything further of relevance. I can't recall 2 exactly but arrangements were made for them to have 3 access to the defence productions." 4 Do you remember whether you were given access to the 5 defence productions? 6 A. My recollection is we saw it that day at court and that 7 was basically it. That was it. 8 Q. You didn't take it away? 9 A. No. 10 Q. Did you ask if you could take it away? 11 A. I don't remember but I'm quite positive we didn't take 12 it away. 13 Q. You see, Mr MacPherson, I am sure you know that now 14 Sheriff Murphy was not only an advocate of 9 years' 15 experience, I think a solicitor before then, he's an 16 experienced prosecutor and he is now a temporary judge 17 in the High Court. 18 A. Yes. 19 Q. He seems to have a pretty clear recollection about the 20 meeting that took place which was not in any sense 21 rushed, it wasn't short, it was detailed and it was your 22 opportunity to try and give him the ammunition, as it 23 were, to destroy the defence experts. 24 Is that your understanding of why you were brought 25 in to the meeting? page 85 1 A. As I say, I think he asked me about Mr Wertheim but I 2 didn't know anything about him whatsoever so that sort 3 of stopped there and I don't recall anything about an 4 FBI case, I really don't, I'm sorry. 5 Q. But it is more the impression that one might take from 6 the actual meeting: the length of it, the detail of it, 7 the purpose of it. What did you understand the purpose 8 of meeting the prosecutor in a trial that was coming up 9 for a hearing to be? Why were you being asked to go 10 down to the High Court to see the prosecutor? 11 A. Well, eventually we found out there was going to be a 12 challenge to our evidence. 13 Q. So you were unaware of why you were being asked there 14 until you got there? 15 A. My recollection is that would be right, yes. 16 Q. I take it as soon as you got there you were made aware 17 as to why he had asked you down -- 18 A. Again, it was down to, it was either insufficient or 19 they were disagreeing with our opinion. 20 Q. I take it that was a bit of a surprise to you, to say 21 the least, was it? 22 A. Yes. 23 Q. This had never happened to you before? 24 A. Certainly -- no, not in a Scottish court, no. 25 Q. Not in any court. It had never happened to you, had it? page 86 1 A. It had never happened to me, no. 2 Q. As far as you know, it hadn't happened to any person in 3 Scotland or certainly as far as SCRO is concerned it was 4 a direct challenge to an identification by defence 5 experts in a criminal trial. It had never happened 6 before, had it? 7 A. No, that's correct. 8 Q. Just one final question before inviting that we stop for 9 lunch is this: against the background of that challenge, 10 this must have been a matter that caused you some, at 11 least, interest and at the other end of the scale some 12 concern that you were actually going to have to go into 13 court and justify why you had reached a conclusion in 14 respect of a mark? 15 A. That's why you're an expert. That's why you go into 16 court. You have to give your opinion on the mark and -- 17 Q. Of course -- 18 A. -- and the print in question. 19 Q. But this was not just a question of doing what you 20 understood you had to do. This was unique. This had 21 never happened before and no doubt it would cause you to 22 think, "Well, I'd better be in a position to present the 23 evidence so that my evidence will be accepted because 24 I'm sure it's right". 25 A. Yes. What I think we had, that's what I believed, yes. page 87 1 MR SMITH: Sir, I see the time. 2 THE CHAIRMAN: Yes, this would be a convenient time. I 3 think it should give you an opportunity then to deal 4 with the other the second matter that you wanted to 5 raise with this witness. 1.50. 6 (1.00 pm) 7 (Luncheon adjournment) 8 (1.50 pm) 9 HUGH MACPHERSON (continued) 10 MR SMITH: Mr MacPherson, before lunch I was asking you 11 questions about the build up to the trial of Shirley 12 McKie. I think the point I got to was where you 13 acknowledged that this was a unique situation, as far as 14 you were aware. You knew there was going to be a 15 direct, head-on challenge to the identification by SCRO. 16 I think you accepted that it was indeed unique? 17 A. Yes, there was lots of things about the case that was 18 unique, as in each person that was identified we had to 19 prepare 13 or 14 separate books. It was unusual also in 20 the fact that normally for court you're only require a 21 joint report and two fingerprint experts to go and speak 22 to it but in this instance all four people who were 23 involved in the case were cited to attend. 24 Q. How long prior to the trial were you aware this unusual 25 feature of all four having been cited to attend the page 88 1 trial was taking place? 2 A. I don't remember. I'm sorry, I don't remember. 3 Q. Do you know if it was before or after the meeting you 4 had with Sheriff Murphy? 5 A. I couldn't say. I don't know. 6 Q. So the scene, I suppose, we can imagine is that after 7 you meet with the Sheriff Murphy you realise there is 8 this unique situation of a challenge being brought. You 9 and Mr Stewart would return to the office and it is 10 something that you would be keen to at least advise the 11 other two signatories to the analysis of? 12 A. Again, I can't remember if we did or not, probably, as I 13 say, or maybe we didn't know at that time they were cite 14 four people. I just can't remember. 15 Q. You must have been aware, Mr MacPherson, of the 16 possibility that either all four were going to be cited 17 or indeed that, for some reason, you or Mr Stewart might 18 be available and one of the other two would have to come 19 along in your stead? 20 A. That's correct, yes. 21 Q. The information that was imparted to you by the Advocate 22 Depute, Sheriff Murphy, was of such importance that it 23 would be logical, in fact, almost an escapable logic 24 that you would then pass on the information to the 25 others within the SCRO that this unique situation was page 89 1 one that had at least arisen? 2 A. I can't remember if I did or not. I'm sorry. 3 Q. It would be astonishing if you didn't, Mr MacPherson, 4 wouldn't it? 5 A. I don't think astonishing. As I say, the expert goes 6 before the court on their own merits, basically. 7 Q. I am trying to imagine -- 8 A. The only invite Mr Murphy gave out was for two of us to 9 go down and basically speak to him so that was it. 10 Q. After you spoke to him did you think that that was your 11 involvement in that aspect of it over or did you 12 understand you were to go away and consider it and 13 communicate with him if you had a problem with it or 14 anything of the kind? 15 A. I think it was pretty near to the -- I can't remember 16 the exact time. Was it quite near the trial itself? 17 Q. My understanding is it was very near to the trial, just 18 a matter of days before? 19 A. So it may not have happened. In hindsight, yes, maybe 20 that would have been a good idea but I don't remember it 21 happening. 22 Q. Well -- 23 A. I may be contradicted regarding that. 24 Q. In particular, do you recall if you discussed it with 25 Ms McBride in the office? page 90 1 A. I don't recall. 2 Q. Might you have done? 3 A. I may have done. 4 Q. Of course, again, I'm imagining the situation and there 5 would certainly be nothing improper about that. I don't 6 think anyone would suggest it. You get back to the 7 office and you say, "Listen, there's a couple of 8 American blokes coming across and apparently they are 9 going to say this is a mis-identification by us". That 10 would be not only obvious but almost inevitable. 11 Do you not agree with that suggestion? 12 A. Well, there was a challenge to our fingerprint evidence 13 but I presume Mr Stewart and I just thought we would be 14 involved in that challenge and that was it, basically. 15 Q. It wasn't the talk of The Steamie, was it? 16 A. It wasn't the talk of The Steamie. I know that at the 17 trial the Identification Bureau had sent officers down 18 to observe because they felt there was the talk of it 19 may have been planted, et cetera, but there was no-one 20 from SCRO, no. 21 Q. So they knew about an issue over fingerprints -- 22 A. There was an issue, yes. 23 Q. -- to be concerned, that they actually sent some 24 observers down? 25 A. One observer, I think. page 91 1 Q. One observer. 2 Who was your immediate superior in SCRO? 3 A. My immediate superior ... probably Mr Dunbar or 4 Mr Mackenzie. 5 Q. You seem to be hesitant, Mr MacPherson. Did you not 6 know who your immediate superior was when you worked 7 there? 8 A. Well, that's why I'm saying that's -- I mean, you're 9 talking, I've been out the job for 3 years. You're 10 asking me to remember 12 years before. I'm sorry, I'm 11 not being obtuse or whatever but I just can't remember. 12 Q. I'm not suggesting -- 13 THE CHAIRMAN: Perhaps you could clear it, your line manager 14 would be normally the person who held what office? 15 A. My line manager would probably be Mr Dunbar, the Quality 16 Assurance Officer. 17 MR SMITH: It would be obvious that, if you were concerned 18 about something, you would report it to your line 19 manager, Mr Dunbar. 20 A. Yes. 21 Q. I take it from what you said you have no recollection 22 sitting here today as to whether you did report it to 23 Mr Dunbar or can you help us with that? 24 A. I don't think I did, no. 25 Q. Why not? page 92 1 A. Well, as I say, there was a challenge to it, we were 2 going to hopefully face that challenge and that was an 3 end to it. 4 Q. Did it ever cross your mind what the repercussions might 5 be if you -- let's just assume for the moment it was 6 viewed as being a successful challenge. Just imagine 7 that for the moment. Did you never think what the 8 repercussions might have been? 9 A. No. I mean, no-one knows why a jury comes to their 10 decision. I think at the meeting with Mr Murphy 11 after -- I think it's been referred to already in 12 SCRO -- someone at the meeting said each fingerprint 13 case is taken on its own merits. 14 Q. Mr MacPherson, if the jury accepted your evidence that 15 it was Shirley McKie's fingerprint, if they had, she was 16 not suggesting in the trial that it was planted, was 17 she, or transposed? There was no evidence to that 18 effect. It was never suggested, was it? 19 A. I thought Sheriff Murphy said in his statement that that 20 was one of the three challenges. 21 Q. I am talking about in the course of the trial? 22 A. In the course of the trial, yes. 23 Q. Just take it from me, if you will, that there was no 24 suggestion before the trial that, "Look, it's not my 25 fingerprint but if it is then it must have been page 93 1 planted". That wasn't the defence that was being run, 2 as I'm sure you will understand? 3 A. No, possibly I'm getting mixed up. Certainly the David 4 Asbury trial there was questioned -- before I went in to 5 give my evidence, the Fiscal came out from the Advocate 6 Depute to say that there may be allegations that the tin 7 had been taken down to the mortuary and Marion Ross's 8 print, right forefinger print, had been placed on it and 9 there may be allegations of planting. So I'm sorry, 10 maybe I'm getting the two mixed up. 11 Q. I'm really just interested in this question of the 12 perception of what might happen in Shirley McKie's case. 13 You say juries might come to decisions for all kinds of 14 reasons and that that may be so, but in the absence of 15 any suggestion as to how, if it was Shirley McKie's 16 print, it got where it shouldn't have been, take that 17 out of the picture, what this was was a straight 18 head-to-head. You said it's her fingerprint? 19 A. Yes. 20 Q. Absent any other explanation, if you are right about 21 that she committed perjury. That follows, doesn't it? 22 A. Yes. 23 Q. Therefore, I take it your view would be that whatever, 24 allowing for some vagary of this particular jury, 25 something they did that they were directed not to do in page 94 1 making up in a Sherlock Holmes way about something else, 2 if they followed their directions, if your evidence was 3 accepted she would have been convicted of perjury? 4 A. That's correct, yes. 5 Q. Therefore, the fact she wasn't, it's a fair assumption 6 that your evidence wasn't accepted? 7 A. Well, the assumption is there was a disagreement between 8 experts but, as I say, you don't know what was in the 9 jury's mind. 10 Q. Correct. I am not disagreeing with that. What I am 11 trying to establish is this: knowing you were going into 12 a trial where there was a direct head-to-head challenge, 13 if she was not convicted that would undoubtedly have had 14 serious repercussions for fingerprints and for you and 15 for SCRO? 16 A. Well, that wasn't the opinion of whoever was at the 17 meeting with Mr Murphy. I think it was Mr Crowe. It 18 was said that each fingerprint case had to be taken on 19 its own own merits. 20 Q. I am imagining the position before the trial. I am not 21 asking about what Mr Crowe said or what Mr Murphy may or 22 may not have said afterwards. I think there was a bit 23 of a discussion about what might have been said. I am 24 imagining you going back to the office after 25 having spoken with the Advocate Depute about page 95 1 fingerprints, knowing there is a challenge and then you 2 think to yourself, "Well, if there is, in shorthand, a 3 successful challenge, this is going to be a problem for 4 someone". 5 That would be a fair assumption; would you agree 6 with me? 7 A. Yes. 8 Q. In light of that, what I don't understand is why you 9 wouldn't go to Mr Dunbar and say, "Listen, you're my 10 line manager. We have, at the very least, an 11 interesting issue in this case. There is going to be a 12 challenge. We're going to have the opportunity of 13 seeing foreign experts giving evidence in what I think 14 is a strange but an unusual way", it must have been 15 something that people were interested in in the office, 16 was it not? 17 A. Well, again, in hindsight, maybe it should have been 18 flagged up but I certainly didn't do it, no. 19 Q. So the evidence in the case, as I understand it, there 20 were three SCRO experts who gave evidence? 21 A. I know Mr Stewart had communication with the Fiscal and 22 I believe there was a book prepared, as I said, earlier 23 it was like an early disclosure. Everything that was 24 insufficient, everything that was outstanding, 25 everything that was identified had to be accounted for. page 96 1 I think Mr Stewart was in the box for two days, 2 Ms McBride followed some time after and was in for a day 3 and I went in on a Friday afternoon for half a day, as 4 far as I remember. 5 Q. As far as you recall, was it in that order you have 6 given: Mr Stewart, Ms McBride, then yourself? 7 A. Yes. 8 Q. I take it, in accordance with ordinary practice, you 9 wouldn't discuss with them their evidence after they had 10 given it but before you had given your evidence? 11 A. Absolutely not. 12 Q. There is one matter I wanted to ask about and it's just 13 some questions of procedure and training and so on and 14 so forth. 15 At that time, were you aware of any duty on an 16 expert witness to disclose anything that helped, as it 17 were, the other side or defeated or damaged the prospect 18 of a prosecution? Had you received any training on 19 issues of disclosure? 20 A. There was a Code of Ethics but I don't know what exactly 21 you're referring to. 22 Q. Maybe I can ask you this: even since then have you 23 received any specific training on what the law in 24 Scotland requires regarding disclosure? 25 A. Disclosure? I don't believe so, no. page 97 1 Q. If I tell you -- and I stand to be corrected on this if 2 I get it wrong -- my understanding of the law on 3 disclosure, which has been around for an awful long time 4 actually, but are very, very focused which is to the 5 effect that it is the duty of, effectively, the 6 prosecution -- but they can only act on information they 7 get -- the duty of the prosecution to disclose any fact 8 that either damages or could damage the prosecution case 9 or it helps the defence case. That is it in broad 10 measure. 11 A. We're talking about disclosure here where the 12 prosecution always had to disclose, as you say, all 13 material facts. I don't know if it's been brought in 14 line now that the defence also has to disclose all 15 material facts before a trial. Is that what you're 16 referring to? 17 Q. I am talking about the prosecution. I think, I don't 18 wish to get too deep into the law, but as a matter of 19 law the defence are not under the same duty of 20 disclosure as the prosecution. 21 A. No, that was correct. But I thought maybe that had 22 changed but I don't know. 23 Q. No, I am interested though in what training, if any, 24 first of all, SCRO, then SFS and then SPSA had to direct 25 individuals as to what they had to disclose when they page 98 1 were working on a case. Do you recall -- again not 2 criticising you, you must understand that, I am 3 interested in the system that was in place. 4 A. I couldn't speak for SPSA, Mr Smith, because I ended on 5 31st March 2007 and SPSA came into being on 6 1st April 2007. Certainly SCRO and SFS, no, I don't 7 recall any training in that aspect. 8 Q. You understand why it's important, don't you, that these 9 things are disclosed? That if there is something let's 10 say in your office, an extreme example, I'm not putting 11 it to this case, someone in the office said, "I flatly 12 disagree with that examination", but three people said, 13 "No, it's definitely a match". You understand why it's 14 important that at least the prosecution should be told 15 that and what they do with it is up to them? 16 A. Yes. Well, I can think of an example of that, before I 17 was suspended, I think it was June 2000, Ms McBride 18 brought a case to me. It had been signed by -- I can't 19 remember the exact details but the case was brought to 20 me anyway and basically my opinion on the mark was that 21 it was insufficient, couldn't tell if it was a 22 mis-identification or not because there was not detail 23 contained within the mark to say definitively who the 24 donor was. So I remember that case. That was my only 25 involvement in the case. That was intimated to the page 99 1 Procurator Fiscal. What happened to it after that, I 2 don't know. I don't know whether the case went ahead or 3 whether the case was made insufficient or whatever. So 4 I know an exact instance where the Prosecution Service 5 has been told there's a disagreement, basically. 6 Q. Absolutely. Was that done as a result of any training 7 you had received or was that just intuitive on your part 8 that, "No, we really need to" -- 9 A. No, we flagged that up. Any disagreement like that we 10 flagged up to the Chief Inspector. 11 Q. I would like to ask you about the particular method of 12 comparison and particularly in this case when you were 13 looking at Y7 how one went about it. The comparator 14 machine, as I understand it, is a system -- forgive me, 15 I wasn't here when the demonstration was done -- but a 16 system where it is open to an individual to mark the 17 points on, let's say, a latent. These dots then remain. 18 The next person can look at it and see what has been 19 marked up but they have the opportunity of wiping them 20 out and rejigging them, that kind of thing. 21 Have I got that right that that system could -- 22 A. Well, again, I have slight difficulty in there was, 23 again, as I've tried to explain the procedures and 24 processes were in a state of flux. There was a point in 25 time when someone would mark up the screen with the page 100 1 characteristics and they would be left on for the next 2 person. That then stopped and you basically left the 3 screen clear but with your initials on it. 4 When that exactly changed, again, I don't recall but 5 what you describe is accurate. 6 Q. As far as Y7 is concerned and again recalling your 7 evidence earlier in the Inquiry you have used the same 8 phrase, interestingly enough, in SCRO this was on 9 page 36 for those who have got access to LiveNote on 10 Tuesday 27th October, the morning session, what you said 11 was, as to Y7 you said: 12 "I may have probably left the points on. In SCRO we 13 are in a constant state of flux and at that time with 14 changes, et cetera, at that time I believe that I left 15 them on but that didn't preclude anyone from just 16 basically going and looking at those characteristics. 17 They would probably wipe them off and start again and so 18 on and so forth." 19 So as I understand it your belief is that you did 20 actually leave them on in Y7? 21 A. Yes, but I could be mistaken about that, yes. 22 Q. You understand the practical difficulty. We have heard 23 much evidence about it now, it's almost an implied 24 suggestion that there is something there, you realise 25 that could be problematic? page 101 1 A. Yes. 2 Q. What I would like to do is ask you to look at a 3 document, if you can, to see how that fits in with the 4 evidence that you gave in the trial and see if you can 5 help me with reconciling what might be thought to be a 6 slight difference of emphasis at least. 7 Can we look at document SG0529 on the database 8 page 53, please. 9 This is your evidence, as I understand it, in the 10 Shirley McKie trial and you were being cross-examined by 11 Mr Findlay who represented Shirley. From line 15, I 12 will just read through this, if I can, to give you the 13 context as much as possible. He says: 14 "You then said something I would like you to help us 15 with. You said basically that you tell the next person 16 nothing. What do you mean by 'basically' and 17 'nothing'?" 18 You say: "We pass the photograph and the form to 19 the next person." 20 He asks: "The photograph of what?" 21 "A. Of the impression from the scene. 22 "Q. So you pass the photograph of the mark and 23 the form to the expert? 24 "A. Yes. 25 "Q. And you tell them nothing? page 102 1 "A. No, that is correct." 2 Going on to page 54 of the database at line 10: 3 "Mr Stewart's method in fact, not Mr Stewart's 4 method but the SCRO method as Mr Stewart understood it 5 would be to pass on the mark and say look at the right 6 index finger. Check that. 7 "A. Yes, sir that's correct. 8 "Q. Well, that's hardly nothing. That is 9 something quite specific, is it not? 10 "A. Well, you would make out the paperwork and 11 pass it on. So, that would be on the paperwork. 12 "Q. So it's not the case of telling the experts 13 nothing. You tell the experts which digit you believe 14 it is or isn't? 15 "A. That is correct. When I say nothing, I mean 16 what the characteristics contain within the impression 17 you have seen. 18 "Q. But that is not nothing now, is it, 19 Mr MacPherson? 20 "A. You are actually telling the next person what 21 digit you believe it is or isn't.(sic) 22 "A. Yes, on occasion. 23 "Q. Well, on virtually every occasion. 24 "A. Sometimes we uses comparators within SCRO and 25 these comparators which are simply magnifying the page 103 1 impression, all you have on these comparators is the 2 photograph and the impression, nothing else. 3 "Q. Well, that is just one on one. 4 "A. Yes. 5 "Q. But when you pass on the form as we are 6 concerned with this case and the mark, the crime scene 7 mark, you will say to the next person check left thumb. 8 "A. Yes. 9 "Q. So what you are in fact telling the next 10 person is you have formed a view of the left thumb. 11 "A. Yes. 12 "Q. That is hardly telling them nothing, is it? 13 "A. Well, as I say, you are not telling them what 14 you have seen or are content within the impression. 15 "Q. Wait a minute, please. Stick to the facts. 16 You are actually telling the next person that you have 17 formed a view of the left thumb, yes or no? 18 "A. Yes, indirectly. 19 "Q. Well, very directly, Mr MacPherson. It's 20 obvious it is very directly. That is what you are 21 telling them. 22 "A. Everyone looks at the impression in their own 23 way and brings to the impression their own fingerprint 24 experience, their own comparison and their own 25 judgment." page 104 1 He says: "I know you want to toe the party line but 2 nevertheless the fact of the matter is that you are 3 actually telling the next person you have formed a view 4 on a particular digit, yes or no . 5 "A. Yes." 6 I would just like to be clear about it, the 7 description of events there in the course of the 8 evidence seems to suggest a good deal of information has 9 actually been passed on over to the next person to look 10 at. 11 Does the evidence that you gave in the course of the 12 trial, does that accord with your position sitting here 13 today? Does it refresh your memory as to what the 14 system might have been? 15 A. That would be two years after I made the ident so I 16 would rather rely on that rather than a statement I gave 17 12, nearly 13 years down the line. 18 Could I just say normally in cases that's what you 19 do. You are passing on the photograph and the 20 fingerprint form. I think in the Marion Ross case I 21 don't know because I haven't seen them all but we may 22 have put two or three impressions on the comparator, two 23 or three of the hundreds that were identified. In 24 general, what I am talking there is you pass on the 25 photograph, you pass on the form, as I said in my page 105 1 statement, yes, on the photograph would probably be the 2 digit that you're interested in but the majority of the 3 comparisons that you have passed on you don't 4 tell anyone what characteristics you have used, it's 5 down to themselves, as I said, at the end, their own 6 personal judgment of which characteristics to use. 7 Q. You see, I am wondering though, if it was the case that 8 on the comparator machine the dots were left on for the 9 next person, if that happened that would be a different 10 situation to the situation described in the evidence in 11 the Shirley McKie case. We are agreed about that much, 12 I take it? 13 A. Yes. 14 Q. I take it from what you have said your position 15 is that, actually, what you told Mr Findlay is more 16 likely, in this remove, to be an accurate representation 17 of what happened; have I understood that correctly? 18 A. Yes. 19 Q. When you were being asked in court -- I don't need to go 20 to the particular passage -- but asked about the 21 identification, when Mr Findlay was cross-examining you 22 about the various issues and asking you about the 23 charting enlargement production, the pictures, if you 24 take it from me there's no indication anywhere in your 25 evidence, even under questioning from the Advocate page 106 1 Depute or Mr Findlay, that there was something not quite 2 satisfactory about the charting enlargement machine. 3 There's no issue of that raised at all. 4 Are you able to explain why you wouldn't have said, 5 when he's pressing you for an analysis why you wouldn't 6 just say, "Look, Mr Findlay, I'm comfortable with this 7 but the machine is not the best. It's actually -- 8 there's a view it's not fit for purpose", or something 9 like that? Why wouldn't you tell him that in the course 10 of your evidence? 11 A. Because as I say, it was only an illustration. You 12 don't have the enlargements anymore. At least what we 13 produced then I believe was accurate but from July 2006 14 they don't have any enlargements so ... 15 Q. Can I just deal with this question of illustration, 16 illustrating what? 17 A. The characteristics that I used to bring about my 18 identification. 19 Q. Would you agree with the suggestion that in any proper 20 presentation to the jury what must be illustrated is 21 something the jury can see? 22 A. Well, you try but they will not be able, as I think I've 23 gone through this, you can't make the jury instant 24 experts. They may see some of the characteristics; they 25 may not. The evidence is myself, the joint report and page 107 1 the photograph in the book and that's what any 2 independent expert coming along would look at. 3 Q. I am trying to imagine though how it is that an accused 4 person is supposed to effectively try and challenge a 5 witness in the witness box who says, "I'm an expert. I 6 can see that. You might not be able to see it but I can 7 see it". 8 Would you not agree that there's a difficulty? 9 A. I would say there's more of a difficulty now since 10 they've gone non-numeric. They don't produce 11 enlargements. The training has been reduced from 7 to 5 12 to 2 years. I would say that's more of a problem now 13 than it ever was. 14 Q. The training is much less now, is it? 15 A. I believe but I don't know. I can't say for definite 16 but I believe it's, basically, if you show that you're 17 adept at the training, you can qualify, through modular 18 means, must sooner than was done previously with 5 years 19 or 7 years. 20 The only problem -- this is just a personal point of 21 view -- I believe you have to have the casework under 22 your belt to basically make you adept at being an 23 expert, a fingerprint expert. 24 Q. That is very helpful. Obviously, Ms Jones from the 25 SPSA, if you've got something wrong in training, she page 108 1 will no doubt correct it but -- 2 A. Sorry, again, I can't speak to the SPSA. I wasn't in 3 the SPSA. 4 Q. I understand that but just on the question of the 5 training if it's been reduced, no doubt we can hear -- 6 A. Yes, that's fine. 7 Q. No-one can criticise you for not knowing the detail of 8 an organisation you no longer work for. 9 A. Okay. 10 Q. I fully understand that. 11 But on the question of actual presentation of 12 evidence, what I am interested in is the idea that in 13 present day times there are no enlargements produced as 14 you have explained. 15 A. Yes. 16 Q. Suppose I was acting for an accused person and I wasn't 17 comfortable with just a report being produced saying 18 there's a match between these two fingerprints, "From my 19 experience, these two match", and I was to say, "I want 20 to see your working documents. I want to see 21 photographs. I want to see how you've gone about it". 22 A. Yes. 23 Q. At the time you continued to work prior to your 24 retirement, is that something you would have then been 25 able to produce if either the prosecution or the defence page 109 1 said, "No, I want to see how you have reached this 2 conclusion"? 3 A. Yes, if a defence -- I presume you mean if a defence 4 looked at out productions and wasn't happy with what he 5 saw, presumably he could then ask the Fiscal, "I would 6 prefer it if more enlargements were prepared or ..." I 7 don't know if that's what you mean. 8 Q. Yes, but it was more the method by which you reached 9 your conclusion, what you could then do, I take it, is 10 prepare a supplementary report with lines and so on, 11 saying this is a very unusual feature, very much the 12 same way as you have been attempting to do to assist 13 the Inquiry. I take it that is something that would be 14 capable of proof, if you were actually called upon to 15 establish it? 16 A. I suppose it could be done, yes. 17 Q. It would have to be done, Mr MacPherson, wouldn't it, 18 otherwise all you are saying is, "I'm an expert. You 19 just have to take my word for it. I don't have to 20 justify it to you"? 21 A. Yes. Well, that is a problem we've got today and a 22 problem that I would say, I think I said in evidence 23 before, the Glasgow Fingerprint Bureau was the only 24 Bureau in Britain, as far as I recall, who produced 25 case-specific enlargements. Other people would produce page 110 1 generic enlargements, et cetera. But we were the only 2 ones who actually produced case-specific enlargements. 3 Sometimes the Fiscal, if it was a bloody mark on a 4 knife, sometimes the Fiscal would request, "I want that 5 specific mark, say mark A. I want that mark enlarged", 6 and I think as I've said before sometimes when you get a 7 watery bloody mark combining sweat and blood, no matter 8 what method you use, whether it was charting PC, 9 photographic enlargements, the jury, I'm afraid, would 10 never see it. 11 Q. I would like to just ask you a few general questions 12 about Y7. Obviously the charting enlargement 13 reproductions, it is the bottom area of Y7 that's been 14 reproduced. 15 Can I ask you this question, first of all: as far as 16 the bottom section of Y7, the bit that's actually in the 17 charting enlargement, from that alone, is there any 18 evidence to you of movement or distortion without then 19 comparing it with the inked print, just looking at it 20 itself, the bit's that's reproduced in the charting 21 enlargement, is there any evidence of movement, 22 distortion, twisting, pressure? 23 A. I think I said before one of the ridges down the way, I 24 can't remember which one, there is a slight bowing out 25 of the ridge, yes. page 111 1 Q. So there's a little bit -- 2 A. A little bit but nothing as compared to the top of the 3 mark. 4 Q. Were you here when Mr Leadbetter gave evidence to the 5 Inquiry? 6 A. I was here for some of it, yes. 7 Q. Were you here when he was asked to do the ridge count in 8 the bottom section? 9 A. Indeed, yes. 10 Q. Just to put it in short measure, as I understand it, his 11 explanation for a difference in ridge count of maybe 9 12 or 10 ridges between the inked print and Y7 was that 13 there was evidence of it must have been caused by some 14 kind of movement or distortion or something of that kind 15 to obliterate these ridges. 16 Do you consider that's a reasonable explanation? 17 A. It's not one with which I accord, no. 18 Q. It is really the question of reasonable. We're talking 19 about the loss of nine or ten ridges and I think you 20 acknowledged that this must be quite severe distortion 21 of some kind to justify a large chunk of ridges 22 disappearing. 23 A. Okay. 24 Q. You don't agree with it -- 25 A. No. page 112 1 Q. -- but would you agree with me to lose all these ridges 2 it would have to be quite severe. 3 A. Absolutely, yes. 4 Q. On the basis that you and your colleagues used the 5 bottom section of the print, you must actually say that 6 is just wrong to suggest that there was any severe 7 movement otherwise you would have seen it -- 8 A. Yes. 9 Q. -- and you wouldn't do your ridge counts in that area. 10 A. That's correct. No, I don't agree with that; that's 11 right. 12 Q. Equally, as far as the top part of the print is 13 concerned, he has used the top part but, as I understand 14 it, you say, "Well, we didn't because there was a lot of 15 distortion, movement, et cetera, et cetera". So you are 16 actually in the opposite -- 17 A. Yes, it would appear so, yes. 18 Q. -- end of the telescope from Mr Leadbetter. 19 Dealing with the top section of the print, do you 20 recall in the course of the trial, or indeed at any 21 other time, in particular when you met with Mr Murphy, 22 you said, "Listen, top section of the print there is 23 some kind of distortion, these bifurcations go the wrong 24 way, there's some twisting or movement or distortion"? 25 Did you ever explain that as being the reason? page 113 1 A. Maybe you're going to show me what I said at the trial. 2 I don't know. 3 Q. If you take it from me there was no suggestion, as I 4 recall it, certainly not any detailed explanation. I am 5 not trying to trick you, Mr MacPherson -- 6 A. Well, my recollection is then that I've always said -- I 7 think I've already said in evidence -- that the top of 8 the print, mark Y7, for me was fragmentary and 9 insufficient. I don't know what else to say. I've said 10 it about three times. I was sure that I did say it in 11 the trial but maybe I didn't. I haven't read the 12 transcripts for many a year or for a while anyway. 13 Q. I think, in fairness to you, an indication was given you 14 thought something had caused, certainly as regards the 15 two halves of it, if I put it that way, that there was 16 some problem in using the top section of the print -- 17 A. Good. 18 Q. But what you had at the time you met Sheriff Murphy was 19 you had a bifurcation going the wrong way, apparently, 20 as compared between Y7 and the inked print, the two 21 bifurcations at the top -- 22 A. I don't recall they were going the wrong way, no. 23 Q. It was really about questions earlier to you about the 24 acetates, that what we could see is that Mr Wertheim had 25 drawn in bifurcations pointing in the opposite direction page 114 1 to bifurcations that were in Shirley McKie's inked 2 print. Do you remember -- 3 A. I remember the right to left, you said, which was fair 4 enough. 5 Q. But of course they flow the other way on the inked print 6 of Shirley McKie. We know that, don't we? 7 A. I don't think you're comparing like with like, possibly. 8 Q. What I am interested in is as far as the bifurcations 9 Mr Wertheim identified at the top section of the print? 10 A. As far as I remember, they don't show because we used 11 the plain impression. 12 Q. I see, so you're saying there are bifurcations in that 13 direction which are, as it were, off the inked? 14 A. They would be off the inked but, as I said one 15 characteristic in isolation you can't count through to 16 another two in isolation. For me, it was fragmentary 17 and insufficient. 18 Q. Did you suggest to Sheriff Murphy that the rolled inked 19 impression should be obtained to identify the area being 20 off message, if I can put it that way, that Mr Wertheim 21 was relying on? 22 A. No, because obviously we had identified the bottom of 23 the mark Y7 and there was a minimum of 16. I think now 24 you have seen, hopefully, that you've looked at the 25 Terry Kent image and Mr Swann's image, there's actually page 115 1 more than 16 but it's not a numbers game. I could see 2 more than 16 originally and I think there's more in it 3 now. 4 Q. I just wondering though about methodology, suppose you 5 were analysing a fingerprint and you start comparing the 6 latent with the inked and the first thing you spot is a 7 difference. You say, "Oops, there's a bifurcation going 8 the wrong way", can't see any explanation for it. Do 9 you stop? 10 A. Well, in this instance, obviously, I could see that 11 there was movement in the mark. I mean, there's many, 12 many times you'll identify a mark that's -- I think 13 Mr Leadbetter showed one in particular where it was half 14 down the middle and you had basically enough to 15 identify a mark on the left-hand side but it wasn't in 16 sequence and agreement with what was on the right-hand 17 side. It was actually two different people. 18 You would have to take cognisance of everything 19 until -- within the area that we identified the 16 ridge 20 characteristics there were no differences. 21 Q. I'm really just interested in this methodology. You 22 see, the first thing you see or the second thing you see 23 is a difference, an obvious difference? 24 A. Yes. 25 Q. Do you stop? page 116 1 A. If there had been an obvious disagreement within the 2 bottom half of the mark, if there was something really 3 wrong with it, then, yes, it would stop but there was no 4 differences in the bottom half of the mark. 5 The problem now with LiveScan, you get these rogue 6 characteristics. How they appear I don't know but the 7 problem with that is if you put a crime scene mark in to 8 search against what is on the AFR database and there may 9 be rogue characteristics in it, what do you do? Do you 10 say the identification stops, you may have 16 ridge 11 characteristics in sequence and agreement but -- well, 12 you don't need 16 now -- but say to the left there's an 13 obvious discrepancy which you can't explain. 14 Q. Mr MacPherson, I understand that in Y7 you were seeing 15 what you tell us you saw were similarities. I 16 understand that. 17 A. Yes. 18 Q. But as far as the differences are concerned, let us 19 think in a hypothetical for the moment. From what you 20 have said, there was a clear difference, one you come 21 across straight away, you can't explain, no evidence of 22 movement, nothing like that, you then stop. I take it 23 you say, "Well, this can't be common authorship"? 24 A. Yes. 25 Q. Thank you. So, if it is clear, then one difference is page 117 1 enough to, unexplained difference, is enough to say it 2 can't be the same? 3 A. Well, I've tried to explain that there may be -- the 4 ten-print itself may have rogue characteristics in it 5 but I would say, yes, if it's a definite, definite 6 difference -- but if you have 16 ridge characteristics 7 in sequence and agreement it has to be an ident. 8 Q. I would like to ask you if I can a couple of questions 9 regarding the theory I think Mr Berry came up with, the 10 66-degree movement theory. 11 Do you understand what he and Mr Swann and 12 Mr Leadbetter mean by that, what the mechanics are of 13 the movement they are describing? Do you understand 14 what they mean? 15 A. Well, I tried to explain my interpretation of the 16 movement earlier on. 17 Q. Forgive me, it's a slightly different question. I 18 understand you have your own view about it. I follow 19 that. But as far as the 66-degree movement and the 20 Rosetta point and so on and so forth, is that something, 21 do you agree with all they say, with some of they say or 22 just the generality? How would you put it? 23 A. I would agree that, yes, the movement is consistent with 24 what I tried to illustrate earlier on in my evidence. 25 Q. Can I ask when it was that you actually came to the page 118 1 conclusion that any difference in the top part of the 2 print could be explained by movement and distortion or 3 twisting of the kind you've described? Was that 4 immediately or was it after the trial, before the trial? 5 A. Again, I think I said earlier in evidence that I wasn't 6 sure when I saw what is the Rosetta characteristic. I 7 may have seen it at the time. I just can't remember. 8 Q. The Rosetta characteristic has been referred to on many 9 occasions. 10 A. Yes. 11 Q. As far as your understanding is concerned, are you 12 saying that the Rosetta remains constant in the same 13 place or it actually moves in this twist? 14 A. No, it's moved. 15 Q. It has moved? 16 A. It's moved and it's moved either one or two ridges up 17 and to the left and I think, again in evidence that I 18 gave, I believe that it had been put on, lifted very, 19 very slightly and that's why the ridges are thin round 20 about the area of the Rosetta characteristic and it's 21 been placed back down again with very, very heavy 22 pressure towards the middle, which is called the blob 23 and to the tip where the two characteristics that you 24 have referred to are. That's why I did my own sort of 25 illustration of the movement to try and explain it. page 119 1 Q. I would like to ask you some questions now about the 2 relationship with Strathclyde Police in the time of 3 1996, '97, '98, '99, about that period of time. 4 As I understand the position, SCRO operated at some 5 stage within the same building in Pitt Street as 6 Strathclyde Police, their headquarters were based. 7 Do you recall when it was that they stopped doing so 8 and moved to their own premises? 9 A. Can I say when I began? 10 Q. Of course. 11 A. When I started it was at St Andrew's Square at Glasgow 12 Cross and it was the GCRO -- sorry, it was the SCRO had 13 come into being in 1960. Prior to that it was the GCRO 14 which had come into being after the Robert Hamilton case 15 that I mentioned in 1933. 16 From 1970 to 1975 there then was the regionalisation 17 of Strathclyde and we moved to Strathclyde Police 18 Headquarters in 1975. I don't know, are you referring 19 to the Identification Bureau? They were through -- on 20 the same floor as ourselves but they were through in 21 another part of the building. 22 From 1975 we were then decanted to what was called 23 Pegusus House, I can't remember the exact timing of 24 that, in preparation for moving to new premises at 25 Pacific Quay. page 120 1 I believe they moved to Pacific Quay when myself and 2 my three colleagues were suspended in 2001. So, 3 basically, from there -- there were other departments 4 within Pacific Quay, I can't remember who they were but 5 ... oh, the IT departments, there wasn't -- some were 6 based at Strathclyde Police. I think the Records 7 Office, et cetera. 8 Q. Again, I am not in any sense trying to criticise you but 9 when you worked in the same premises as the police I 10 take it there would be, and it would only be natural, 11 there would be an exchange of information occasionally, 12 even informally with police officers that might pop down 13 to your office and say, "Listen, we are struggling a 14 little bit", or, "Can you speed that one up". 15 Is that something that occasionally took place? 16 A. Well, I mean -- the Strathclyde Police Headquarters is 17 not -- I mean, you're talking about -- personally, the 18 Team 4 that I dealt with, RUX Division of Strathclyde 19 Police and I think Grampian. I mean, it wasn't often 20 that officers would come in, if you like, from R, U and 21 X. No, we would have officers who sometimes were based 22 in the headquarters would come in but they weren't 23 always operational officers. Mainly the operational 24 officers were all out at division, et cetera. So they 25 would come in occasionally, yes, but that was about it, page 121 1 really. 2 Q. What about the Identification Branch? They were in the 3 same building at one stage. 4 A. Yes. 5 Q. Would they ever pop in and have a chat with you about 6 something that they concerned about? 7 A. Sometimes they would, yes. 8 Can I just say, people seem to have the impression 9 that we went and examined loci. That wasn't our job. 10 We were totally office-bound. At the earlier stage in 11 my career you used to go to mock-ups of murders, et 12 cetera, you would print prisoners -- well, we couldn't 13 prisoners because it was up to the police to do that 14 under authorship of the Chief Constable but we'd help 15 with the printing of prisoners, taking prints off 16 cadavers at the mortuary -- sorry, I've lost my ... 17 Q. Not at all. I just wanted to understand something about 18 the system that was operating but I think you have 19 confirmed to me, I suppose since the SCRO originally was 20 actually kind of a police organisation that it kind of 21 stayed in that mode for quite a while until it was 22 mostly civilians working for it. It's only natural -- 23 A. Well, the civilianisation programme started about 24 1966/67. I think you had -- most of the chief 25 inspectors -- or the people that trained me, basically, page 122 1 were all police officers but they were all steeped in 2 fingerprints, basically. They were all fingerprint men 3 but that eventually changed and we would have chief 4 inspectors who came in who were just basically 5 management, the same with the superintendents, chief 6 superintendents. When I started they were all 7 fingerprint men but eventually it became a fact that 8 they were just managers. 9 Q. I think, though, in this particular case, if I have the 10 evidence right, that may come in due course from 11 Mr Stewart, there were always daily briefings by 12 Mr McAllister about the progress of the investigation. 13 Is that something you were aware of? 14 A. A daily briefing, no, not that I'm aware of. Yes, I 15 phoned Mr McAllister regarding identifications, 16 et cetera. If you couldn't get him -- he was the sort 17 of liaison person. If you couldn't get him you would be 18 phoning the incident room but certainly not daily 19 briefings, no. That didn't happen, not that I recall. 20 Q. I would like to ask you, if I can, just one question 21 really about QI2 that we've seen a lot of information 22 on. If you give me a moment I'll get the number. 23 Maybe we could just have FI0311.02 up. I think 24 there is some annotation by yourself on it but it does 25 not particularly matter. page 123 1 What I am interested in is actually not so much QI2 2 but the impression to the right of that screen. I 3 can't, of course, see the numbers on it but I am 4 interested in the bifurcation which is to the right of 5 the core. If you go from the core I think what has been 6 described as a chilli pepper right in the middle and 7 then you go one ridge to the right, then another ridge 8 to the right and then we can see a bifurcation 9 downwards. 10 Do you see that? 11 A. Yes. 12 Q. I think it is SCRO point 2 for the record. 13 We are agreed, I think, that it is relatively plain 14 from that impression that was taken that on the image 15 the right-hand leg is thicker in appearance to the 16 left-hand leg. We are agreed it looks that way, even to 17 the untrained eye? 18 A. Slightly, yes. 19 Q. Is it not about twice the width, if you take the point 20 just below the actual junction between the two? Is 21 there not a significant difference in thickness? 22 A. No, I would say not, no. 23 Q. As you will, but if we take the SCRO point 2 on the 24 other side we can see it appears that both legs are of 25 roughly equivalent thickness. Do you see that? page 124 1 A. Yes. 2 Q. You will understand, as it was put to you by Mr Moynihan 3 in a good deal of detail, that the explanation by the 4 experts to say this is not a similarity this is a 5 difference because the thickness of the left-hand leg is 6 different as between one image and the other. 7 You understand that is being suggested? 8 A. Yes. I think I have already said that if you look at 11 9 and 12 on Marion Ross's print, if you look at 11 and 12 10 on the mark, there's a difference in thickness. It just 11 depends on the process used. 12 Q. I just want to be clear about how one might account for 13 this. You have explained to us that, in fact, rather 14 than an inked impression taken from the late Marion Ross 15 this was the application of some powder? 16 A. Yes, that's correct. 17 Q. Which would then be pressed, was it, on to tape? 18 A. On to white tape, yes. 19 Q. And then lifted and then it could be analysed at 20 leisure. Have I got that right? 21 A. Yes, the fingers would be dusted with black powder, 22 white tape is applied to it and you turn it like so 23 (indicated) and then an acetate is placed on top of it 24 to preserve the impression. 25 Q. I see. What I am interested in though is if we look page 125 1 again at the right-hand image, the impression taken from 2 Marion Ross, if we look at the bifurcation I mentioned, 3 you can see that the right-hand leg is, relative 4 speaking to the left-hand leg, quite thick. If we go to 5 the next ridge we can see, again, as it were, there's a 6 thickness about the ridge and then we've got the chilli 7 pepper and then the one next to it which looks -- these 8 all look to be roughly the same thickness or quality as 9 the right-hand leg of the downward opening bifurcation. 10 Would you agree with that as a general comment? 11 A. As general comment, yes. 12 Q. What I have difficulty understanding, Mr MacPherson, is 13 this: if the apparent thinness of the ridge as you 14 indicated earlier is caused by a lack of application of 15 powder or different pressure on pressing the white tape 16 against her finger, then how can it be that the powder 17 has either jumped a ridge, not adhered properly to the 18 thin ridge but managed to stick properly to the ridges 19 either side of that? Can you explain how that could 20 possibly have been achieved? 21 A. Obviously, there's not an exudation of sweat running 22 along the ridge. I can't explain it. It's just 23 possibly that there's not been an application of powder 24 in that very specific area. But to me the thickness and 25 thinness of the ridge is not what I would term a page 126 1 difference. 2 Q. I understand that is, for better or worse, at variance 3 with the testimony of other people. I think Mr Grigg 4 and Mr Sheppard both said that that is important. 5 A. Okay. 6 Q. But what again I just don't understand is the likelihood 7 of the possibility of powder being applied to Marion 8 Ross's finger, to the powder adhering to ridges either 9 side without any difficulty, with the tape being applied 10 and lifting the appropriate amount of powder from either 11 side but we've still got this rogue one in the middle 12 that appears to be thinner than the others? 13 A. Well, it could be that the tape just wasn't applied with 14 even pressure and it's not quite lifted the ridge in its 15 entirety. 16 Q. But we must be dealing with tolerances that are tiny 17 here, the difference in measurement between these ridges 18 must be less than a millimetre when -- 19 A. Yes. 20 Q. But you say that it could be accounted for by the 21 process rather than anything else? 22 A. Process, yes, I believe so, yes. 23 Q. What if it isn't accountable by the process? What if it 24 is actually thinner than the one next to it? Would you 25 be prepared to agree that was a difference then? page 127 1 A. I honestly can't see that there is much difference in 2 the thinness between the left-hand leg coming down here 3 and the left-hand leg coming down (indicated) -- sorry, 4 are we talking about ...? 5 Q. Point 2, SCRO point 2. 6 A. Point 2, I don't see there being such a massive 7 difference between the left leg in the mark and the left 8 leg in the print. 9 Q. Very well. Just while we have that image before us, you 10 helpfully drew on the colours and, as I understand it, 11 what it is bearing to represent is that the left-hand 12 image is showing the same things as in the right-hand 13 image; have I got that correct? 14 A. Well, very roughly, yes. 15 Q. I understand it is not easy using the mouse but can I 16 ask this: if I look at the right-hand image, and you can 17 see the yellow V shape, V on its side, now the top line 18 in that, if I follow the ridge down -- I beg your 19 pardon, the bottom ridge, if we follow that down, can we 20 follow a ridge that goes the whole way down relatively 21 clearly -- I am sorry, it's not where the cursor is. I 22 wonder if it would be better if I just used another 23 mouse. Forgive me just one moment. 24 If you can let me just use the mouse for myself, 25 please. page 128 1 You see where the cursor is just now, just the top 2 part. I'll try to get an arrow it will make it easier. 3 You see the part I'm pointing to (indicated) which is 4 just at the end of your yellow line? 5 A. Yes. 6 Q. If one was to follow the ridge down, can you see a ridge 7 in the line I'm drawing which effectively joins up with 8 the end of the orange? 9 A. Yes. 10 Q. Do you agree with that? 11 A. Yes. 12 Q. If we try and do the same exercise on QI2 do we see that 13 any ridge flow misses the orange completely? 14 A. Yes. 15 Q. Against that background, is it not relatively clear that 16 that's a significant difference between QI2 and Marion 17 Ross's digit? 18 A. Well, I think you can start from here, count up to here 19 and across. Yes, there is some damage, some movement in 20 here and that would account for the fact that it's not 21 quite in alignment but it's still in sequence and 22 agreement if you follow the green line up. 23 Q. If you follow the green line up? 24 A. If you follow the green line up, yes. 25 Q. Up to where? page 129 1 A. Up to the bifurcation to the left with the ridge ending 2 just above it. 3 Q. Sorry, you see where my cursor is just now? (Indicated) 4 A. Yes. 5 Q. If I count the ridge flow, that would be 1, 2, 3, 4. Is 6 that the kind of exercise? 7 A. Between the ridge ending and the bifurcation there are 8 two intervening ridges. 9 Q. I see. Down this way -- 10 A. Down where the cursor is there is definite damage of 11 some sort in there and that for me would account as to 12 why, when you have traced done to the yellow, down to 13 the orange bifurcation, it doesn't quite fit in. 14 Q. You see the problem, Mr MacPherson, is it not, if you go 15 to the green line and you see how many images are 16 between that and the end of the orange. So we say 17 there's, 1, 2, 3, maybe 4? 18 A. There's 3. 19 Q. 3, I stand corrected, we don't count the first one, 1, 20 2, 3 in between. 21 Then we do the same exercise over here and on this 22 we get, what is it, if we go down here we can count 3, 23 1, 2, 3 in between? 24 A. Yes. 25 Q. So it would appear that the green line and the orange page 130 1 lines are not distorted by movement as between the two 2 of them. 3 A. No, it's clear. 4 Q. It's clear. But if we stick with the green line and 5 come up and then do the same exercise and we get two in 6 between and two on the bottom, yes? 7 A. That's why I stopped where I did. There's definite 8 movement in here of some kind or other, superimposition 9 of some kind. 10 Q. Yes, but if we stick with the point, that if we look at 11 the green on QI2 -- 12 A. Yes. 13 Q. Between the green line and the yellow lines are the 14 Y-shaped yellow lines. We have 1, 2, 3 really, 3 15 ridges? 16 A. There's 2. 17 Q. There's 2? 18 A. Yes. So just below where I've stopped the yellow, I 19 don't know what it is, there's some sort of shape of 20 something coming in. I don't know whether it's another 21 mark, another print but I did say in phase 2 of the 22 comparative exercise that mark QI2 did suffer on the 23 periphery from other marks superimposing themselves on 24 it. 25 Q. I understand that, Mr MacPherson. The problem I've got page 131 1 is we have a reference point in the green line. At the 2 top of the green line we can count up and it works. At 3 the bottom of the green line we can count up and it 4 works. 5 A. Yes. 6 Q. If you try and join orange lines the yellow lines then 7 they don't work at all? 8 A. That's just the nature of crime scene marks. That's 9 just the nature of a chance impression from a scene of 10 crime. 11 Q. But I am trying to imagine, Mr MacPherson, the mechanism 12 by which the bottom section and the top section can 13 work but the top section in yellow and the bottom 14 section in orange we can't fit together. How can you 15 have movement or distortion in that area between the 16 two? 17 A. Well, I think there's some sort of form of 18 superimposition, some sort of damage. It was the same 19 as I tried to explain with mark QI2, the number 3 of 20 Mr Asbury. I couldn't go up and round over the top of 21 the core because of either movement, slippage, pressure, 22 whatever, and that to me is the exact same replication 23 here. But it's just the nature of the work, I'm afraid. 24 MR SMITH: Can you give me one moment to see if there are 25 any further questions I have. (Pause) page 132 1 Thank you very much. 2 Sir, should say that there are a couple of matters, 3 I am not sure if I am expected to deal with the question 4 of the e-mail that came in just now. I could try and 5 deal with that actually. 6 THE CHAIRMAN: I think at the moment what we hope to do is 7 to get some more information which might be of 8 assistance. I think your instructing solicitors were 9 being asked about that, which might make it easier. I 10 am not sure if this witness can really deal with what 11 Mr Swann had before him. 12 MR SMITH: That may be so. 13 Sir, the other matter is the presentation that was 14 produced this morning. I've explained to Mr Moynihan 15 that -- obviously, I haven't had time to give it any 16 detailed consideration and I know that it is something 17 that it is felt is possible that Mr MacPherson may be 18 asked to come back into the witness box, if he is able 19 to do so, depending upon the views of others. So if I 20 can reserve that matter -- 21 THE CHAIRMAN: I am sure if it becomes necessary he, 22 reluctantly, I am sure will do so. 23 A. Can I just say not next week, sir, because it's my 30th 24 wedding anniversary. 25 THE CHAIRMAN: That is all right. We would have to study page 133 1 your convenience, if that arose. 2 Miss Grahame, just before we come to the break have 3 you ...? 4 MISS GRAHAME: I have no questions, thank you. 5 THE CHAIRMAN: I assume, Miss Jones, you have nothing or 6 have you? 7 MS JONES: Just very briefly, sir, on the training point. 8 THE CHAIRMAN: Yes, if you would like to deal with that. 9 MS JONES: I will be very brief, sir. 10 Cross-examined by MS JONES 11 Q. Mr MacPherson, you made some comment about training of 12 experts just now. Can I take it from your evidence you 13 have not read the statement of Alec McGinnies who is 14 currently responsible for training at SPSA? 15 A. No, I haven't, no. 16 Q. Would you accept he would be best placed to give 17 evidence on that? 18 A. Yes, absolutely. 19 THE CHAIRMAN: Before is ask you, Mr Holmes, should we take 20 the short break? I presume you have matters you want to 21 raise? 22 MR HOLMES: I have some, sir. It should be relatively brief 23 but I do have some matters. 24 THE CHAIRMAN: Shall we take that at 3.05 then. 25 (2.55 pm) page 134 1 (A short break) 2 (3.06 pm) 3 MR HOLMES: Sir, there are only three matters that I would 4 like to cover with Mr MacPherson. The first relates to 5 the use of enlargements in explaining identifications. 6 THE CHAIRMAN: Yes. 7 MR HOLMES: The second relates to QI2, that is the portion 8 of QI2 that has been identified as belonging to 9 Mr Asbury not the portion belonging to Miss Ross. 10 THE CHAIRMAN: Yes. 11 MR HOLMES: The third relates to a question that was asked 12 by my learned friend, Mr Smith, about whether or not 13 Mr MacPherson accepts that the identification of Y7 14 could be a mistake. 15 THE CHAIRMAN: Yes. Very good. 16 Cross-examined by MR HOLMES 17 Q. Mr MacPherson, the first matter I would like to cover 18 with you relates to the use of enlargements. It was put 19 to you several times last week by Inquiry Counsel that 20 when you give evidence about characteristics you observe 21 in a mark, not your interpretation of the 22 characteristics but when you give evidence about what 23 you can actually see, that you are making a bald 24 assertion to the jury that a particular characteristic 25 is there, if it is not obvious on a photograph to a lay page 135 1 person. 2 Do you consider that the description of what you are 3 doing when you are giving evidence like that, that you 4 are making a bald assertion that a particular 5 characteristic is there, do you consider that to be a 6 fair assessment of what you are doing? 7 A. I can only mark what I believe that I see in the mark, 8 in the impression, and that's what I was doing. 9 Q. It was put to you by my learned friend, Mr Smith, that 10 it would be proper to point out characteristics, so far 11 as you can, to a jury on an enlargement but if you are 12 giving evidence of what you can see, is that all that 13 you can do? Is that what you are saying? 14 A. Yes, I would say so, yes. 15 Q. In common with any other expert, you will have to speak 16 to the facts on which you base your opinion; is that 17 right? 18 A. That's right, yes. 19 Q. Whether you do so by reference to a photograph or 20 whether you do so by reference to some other means of 21 illustration or whether you just speak to what you have 22 seen, it makes no difference to the evidence that you 23 are giving, does it? 24 A. No, that's right. 25 Q. As you have said already, experts speaking to page 136 1 identifications now do so without reference to 2 case-specific enlargements? 3 A. That's correct, yes. 4 Q. If I can ask you a couple of questions about QI2 -- that 5 is the portion of QI2 that has been identified as 6 belonging to Mr Asbury -- it was put to you earlier 7 today that the Danes regarded QI2 as not sufficient for 8 comparison. I wonder if I could show you the portion of 9 their report that relates to this. It is CO0030 and it 10 is page 3 of the report, please. You will see in the 11 centre there is a paragraph relating to QI2. It says 12 that: 13 "Because of the said lack of special light, as well 14 as the poor quality of the photograph, it was not 15 possible to make a comparison between the impression and 16 David Asbury's fingerprints." 17 Is that the same as saying that QI2 is not 18 sufficient for comparison? 19 A. Well, they are not being able to make any comparison 20 whatsoever which is strange because just to the right of 21 Mr Asbury's right middle i's Marion Ross right 22 forefinger. So I think they pronounced on it but they 23 don't seem to have been able to pronounce on this 24 impression. 25 Q. Indeed, and the reason that they give for not being able page 137 1 to give any opinion on this impression is a lack of a 2 special light and the poor quality of the particular 3 photograph that they have given. Is that the same thing 4 as saying the mark itself is not of sufficient quality 5 to compare? 6 A. I wouldn't think so because you've not really looked at 7 it, if you like. To make a fingerprint comparison you 8 have to have ideal conditions of lighting, peace and 9 quiet and I would have thought before carrying out any 10 sort of or making a report, they would have made sure 11 they had the right conditions to make an assessment. 12 Q. In any event, yourself and the other individuals who 13 examined QI2 within SCRO and the individuals who signed 14 the report were all content that QI2 was an 15 identification. Is that correct? 16 A. That's correct. 17 Q. And that was identified to 16? 18 A. Yes. 19 Q. You were asked earlier on by my learned friend Mr Smith 20 whether you would concede that there was a possibility 21 that a mistake had been made in the identification of 22 Y7. 23 A. Yes. 24 Q. You have not been accused of making a mistake by those 25 who disagree with the identification, have you? page 138 1 A. No, it seems to have been extrapolated from a 2 fingerprint comparison that I've in some way been 3 criminal, et cetera. 4 Q. If I can put to you some of the things that have been 5 said, do you recall Mr Zeelenberg stating that the 6 examination of Y7 was either bad practice or 7 malpractice? 8 A. I think he said it at Justice 1 and I've seen it on the 9 screen before me, yes. 10 Q. Do you take from that an accusation of something more 11 than a mistake? 12 A. Yes. 13 Q. Do you recall accusations from Mr Wertheim that any 14 honest expert should have halted their examination? 15 A. I was here when he said it, yes. 16 Q. Again, do you take from that something more than a 17 mistake? 18 A. Yes. 19 Q. Are you aware of the statements that have been made by 20 Mr Bayle and Mr Dempster on television? 21 A. I don't know if I already said about this but a few days 22 before myself and my colleagues -- the SCRO Four, if you 23 like -- were due to give evidence at the Justice 1 24 Committee, there was a call that there had been another 25 mis-identification. I don't want to use the name page 139 1 because I see it was redacted but if I say AN Other, 2 Mr AN Other. There was a mistake, a mis-identification, 3 in this case not made by myself or my colleagues but a 4 lady who had come to us from Northern Ireland, a 5 gentleman who had come to us from Wales and Mr Geddes. 6 So it was three people who were basically being accused 7 of having made another mis-identification. 8 Mr Bayle went on Newsnight that Thursday night, I 9 think it was, saying how basically the place should be 10 closed down, that it was a byword for incompetence. 11 That was also reported in, I think, the Glasgow Herald. 12 But there was no way to repudiate what had been said 13 before myself and my colleagues gave evidence at 14 Justice 1 on 30th May 2006. 15 Mr Alec Newall(?), who was a supporter of the 16 McKies, brought this up at Justice 1 saying, "There you 17 are, there's been another mis-identification, shut the 18 place down". Well, I think it was Mr Bayle said, "Shut 19 the bloody place down. It's a byword for incompetence". 20 The mark itself was sent to the Metropolitan Police 21 and they agreed it was a palmar mark. I had never seen 22 it before but apparently it was a mark that a trainee 23 should be able to identify. There was many, many 24 characteristics but I can't speak to that because I 25 don't believe I've seen it. So as I say a palm mark and page 140 1 it was just a few days before we were due to give 2 evidence at Justice 1. 3 Subsequently, the Metropolitan Police decided that 4 it was not a mis-identification and I think on Newsnight 5 Mr Bayle had said that he had the backing of Mr John 6 MacLeod and an officer from Aberdeen Fingerprint Bureau 7 and it later transpired it was Gary Dempster, who had 8 given his backing to basically Mr Bayle and Mr MacLeod 9 that it was a mis-identification and it wasn't. So if 10 that's the case ... 11 Q. Is there any truth to any of the allegations that these 12 individuals and others have levelled at you and your 13 colleagues? 14 A. No, there's not. 15 MR HOLMES: Thank you very much, Mr MacPherson. 16 Re-examined by MR MOYNIHAN 17 MR MOYNIHAN: Mr MacPherson, I just want to tidy up two 18 particular points of detail arising from today. 19 Earlier on my learned friend Mr Smith was asking you 20 about the charted enlargements that you produced in 21 court. We have already asked you about the accuracy or 22 inaccuracy of those charting enlargements and, in 23 particular, the accuracy or inaccuracy of the charting 24 PC. 25 At one point you mentioned Mr Malcolm Graham. page 141 1 A. Yes, that's right. 2 Q. You said that Mr Graham seemed to be satisfied with the 3 charted enlargements; is that correct? 4 A. I'm only taking that from the understanding that I 5 believe he looked at all the productions in the Asbury 6 case and there was no difficulty regarding the charted 7 enlargements. 8 Q. This is what I want you to address. The reasoning, if I 9 understand it, on page 64 of today's transcript was that 10 you presume Mr Graham had no difficulty with the charted 11 enlargements because he agreed with your identification. 12 A. Yes, that was my assumption, yes. 13 Q. But do you know anything about the evidence that 14 Mr Graham gave? 15 A. No, I don't. In fact, I was surprised. I didn't know 16 he had actually given evidence. It wasn't until -- I 17 can't remember exactly when but it was many months or 18 maybe many years after the fact. I didn't know he had 19 given evidence in the Asbury trial. 20 Q. Let there be no doubt. One of the reasons that I am 21 asking you questions and Miss Carmichael asked you 22 questions about the charting PC was that we at least had 23 a perception that some Scottish Criminal Record Office 24 officers would say that one of the difficulties that 25 happened in the McKie trial had been the chartings page 142 1 produced by the charting PC were discovered to be 2 inaccurate; in other words, not correctly pointing to 3 the points that you relied upon. 4 I understand your position is you were satisfied 5 that they were accurate? 6 A. Yes. 7 Q. If I can bring up on screen then, please, the written 8 statement of Mr Graham which is FI0089 and look at 9 page 9, paragraph 41. I will give you a chance to read 10 that. (Pause) 11 Do you see that? 12 A. Yes. I definitely disagree with the very last sentence 13 in particular. I've never prepared any production that 14 I was going to speak to in court in a lackadaisical 15 manner: never. 16 Q. That maybe just his rationalisation but what is of 17 interest to me is he says that: 18 "The enlargement prepared by SCRO were of very poor 19 quality." 20 He is speaking generally, he is not just speaking of 21 the McKie trial: 22 "The enlargements prepared by SCRO were very poor 23 quality. The SCRO enlargements that I saw from time to 24 time in my work were of shocking quality." 25 A. I don't agree with that. I'm sorry. page 143 1 Q. When he gave evidence on 9th July at page 91 of the 2 transcript, he said the enlargements from SCRO were 3 always exceptionally bad. 4 A. Well, I'd have to disagree with him. I think even if 5 you look at my enlargements that I've just prepared for 6 QI2 number 3 Mr David Asbury, that's the sort of 7 standard I would expect from or would send out from 8 SCRO. 9 I don't know if he's -- is he talking specifically 10 about charted enlargements or is he talking about 11 photographic enlargements as well? 12 Q. I can only show you what he says. 13 A. I'm sorry, I don't agree with that at all, no. 14 Q. We are interested insofar as he says: 15 "As an example, lines would mark features that were 16 not present." 17 A. Again, I don't agree with that. 18 Q. If I give you just an example, if we look -- and it 19 happens to be because we are looking at QI2 Marion 20 Ross -- if you could be shown peace production 99. 21 (Handed) 22 If we bring up CO0207 and proceed through, please, 23 on this particular copy and see if we can have it high 24 resolution. Proceed through to the charting. I will 25 try to highlight part of the charting. It is a little page 144 1 difficult to do on this particular example brought up on 2 screen but you have the photocopy in front of you that 3 is clear enough. 4 We are now all familiar with points 1, 10 and 16 in 5 the heart of QI2. Number 10, number 1 a bifurcation? 6 A. Yes. 7 Q. Number 16 a short ridge ending forming part of that 8 bifurcation, a spur, and number 10 is the ridge ending 9 beneath it. 10 As you look at the document in front of you -- this 11 is just a poor copy up here, you look at the one in 12 front of you -- does point number 16 in fact point to 13 the tip of the spur? The one on the screen is very 14 poor. Does the booklet in front of you, the point 15 number 16, point to the tip of the spur or in fact to 16 the part of the ridge to the left of if? 17 A. It should be. I admit it should be further up. 18 Q. Mr MacPherson, I did not ask what it should be. You 19 agree with me that on the production in front of you 20 point number 16 does not identify the tip of the spur, 21 but rather identifies a ridge to the left of it. 22 A. Slightly lower, yes. I agree with that, yes. 23 Q. That is just an example. Do you still adhere to the 24 position that the enlargements that you produced, 25 illustrative no doubt, did accurately pinpoint the page 145 1 points that you intended to identify? 2 A. Yes. I was trying to show that that was a ridge ending 3 but obviously it's not quite landed where it should 4 have. 5 Q. Can I tell you that where it has landed perhaps, if I 6 bring up something that is on Mr Mackenzie, if you allow 7 me just a moment ... 8 If I could bring up CO2005H and if we could proceed 9 through. Just stop. Just stop there. If you look on 10 screen just now at the area that is beneath -- that is 11 in the core, the area that you would have as 1, 10, 16, 12 so far as point number 10 is concerned, your point 13 number 10 would seem to coincide with Mr Mackenzie's 14 point number 16? 15 A. Yes, I think so. 16 Q. I find it just a little difficult to see the number of 17 the point that's the one immediately above it but it 18 would seem to be number 13. Is that right? If you 19 allow me just a second. 20 A. It looks like number 12 possibly but it's hard to see. 21 (Pause) 22 Q. I have given you the photographic original. Having 23 passed my eye over it it seems to be, as you say, point 24 number 12? 25 A. 12, yes. page 146 1 Q. Would you agree with me that what he has identified as 2 point number 12 is not the spur to the right but in fact 3 the top of the piece of ridge to the left of the spur? 4 A. What it looks like to me is he's identified the 5 bifurcation down, which is our point number . 6 Q. In fact, if you look, please, to the back of the book 7 where there's the legend and look at what he describes 8 as point number 12? 9 A. Bifurcation downward. 10 Q. Can we look at the last page, please, the bifurcation 11 down. So that he has not -- can you go back, please? 12 He has in fact marked the bifurcation down? 13 A. Yes. 14 Q. In A position which would on your production, the Crown 15 production 99, correspond to what in fact you were 16 indicating was the spur to the right? 17 A. Yes, A bifurcation with a ridge ending or sloping in a 18 short distance, yes. 19 Q. Perhaps all taken up by this sort of technical detail is 20 whether by comparing these productions we can see, in 21 particular looking at your production 99, the fact that 22 the charting PC had not correctly identified the spur, 23 had identified another piece of ridge, that you can see 24 the sort of difficulty that was occurring? 25 A. Yes. page 147 1 Q. If we leave that point there, the second point I wanted 2 to ask you about was when my learned friend, again 3 Mr Smith, was asking you about the image FI0311.02. 4 This is the illustration you prepared for me earlier 5 today that has the two bifurcations, one in yellow at 6 the top and the other one that is in amber or whatever 7 colour lower down? 8 A. Yes. 9 Q. Mr Smith was putting to you that there seems to be a 10 discontinuity in the ridge flow between the two 11 bifurcations and you would agree with that? 12 A. Yes. 13 Q. In the transcript at page 122 you said "there's movement 14 in here" but in fact there is no record of the area of 15 movement. Can you actually just mark for me, please, 16 the area of movement that you observed. Presumably it 17 is in QI2 on the left? 18 A. On the left, yes. Something just in that area -- like 19 so (indicated). 20 Q. I simply wanted a record of the area of movement so if 21 we could save that, please. 22 MISS BAHRAMI: That's saved as FI0311.05. 23 MR MOYNIHAN: Thank you, sir. I have no further questions. 24 Thank you, Mr MacPherson. 25 THE CHAIRMAN: If I could ask you about one particular page 148 1 matter first, QI2 and the bifurcation that was being 2 drawn to your attention by Mr Smith, that is the one 3 with a what appeared one thin leg and one thicker one. 4 A. Yes. 5 THE CHAIRMAN: I understand your explanation about that 6 would be because it was taken from somebody who was dead 7 at the time that it was taken and, therefore, the 8 procedure would be quite different. 9 A. It's different, yes. 10 THE CHAIRMAN: If you saw a difference like that in the 11 reference mark made in respect of somebody who was 12 living by a standard method, would it cause you any 13 concern then? 14 A. I don't believe it would, sir. Again, it may be just a 15 lack of application of ink or with LiveScan you don't 16 use any ink at all. Maybe the fingers haven't been 17 properly cleaned or whatever when they are put on the 18 platen, the glass, and they are recorded electronically. 19 Personally, no, it wouldn't cause me any difficulty. 20 THE CHAIRMAN: So really the width of ridges is not 21 generally significant? 22 A. I would say not. I mean, in this instance I think 23 there's an explanation for it. 24 THE CHAIRMAN: Yes. It is always there is an explanation. 25 A. Then you accept it. page 149 1 THE CHAIRMAN: On a more general question, as I understand 2 it, among fingerprint experts you are expected to be 3 100 per cent certain when you arrive at a conclusion and 4 any opinion that one has which is 100 per cent certain 5 is not always open to persuasion that you may be wrong. 6 A. Yes, that's correct. 7 THE CHAIRMAN: I am not blaming you, but I am just saying 8 that's the way it seems to be. I got the impression, I 9 hope correctly, that there was almost a sense of 10 irritation when the police asked for Y7 to be checked 11 again because if you and your colleagues were 12 100 per cent sure, there was no need to check it again. 13 A. Well, that's right, sir. I mean, back then, once four 14 people had basically signed a mark and a print up to 15 16-point standard, that normally was the end of it. 16 I've never known -- if you're talking about the blind 17 test, I've never known an exercise like that to have 18 been carried out for an accused person or for anyone 19 else for that matter. 20 THE CHAIRMAN: Yes. 21 A. It was an ad hoc decision that was taken by management 22 and I don't think it's ever been used since. 23 THE CHAIRMAN: No, but I can see that if you are 24 100 per cent sure, then you don't need to be 25 100 per cent sure twice over. page 150 1 A. I think maybe you're feel you're slightly you irked that 2 your professionalism has been called into question, but 3 that was a thing put in place by management and I just 4 had to live with it. 5 THE CHAIRMAN: That really leads me on to what Mr Smith was 6 asking you. When you heard there was going to be a 7 challenge and these two other experts were probably 8 going to come to a different conclusion -- and I'm not 9 being critical, I'm just trying to discover -- would 10 your view be, "Well, look, I'm 100 per cent sure and I 11 don't really need to look at why they say I'm wrong 12 because I know I'm right". 13 Is that unfair or would you be curious to see why 14 they were questioning your opinion? 15 A. No, I think that would be a fair assessment. 16 THE CHAIRMAN: What the first? 17 A. Yes. 18 THE CHAIRMAN: Because you know 100 per cent right? 19 A. 100 per cent certain, yes. 20 THE CHAIRMAN: There was no room for others to question it, 21 they couldn't be right? 22 A. Because if you're willing to -- as I said maybe earlier, 23 any comparison you make, whether it's elim, AFR, suspect 24 you have to always remember at the back of your mind 25 that you may end up in court with this comparison. You page 151 1 are dealing with -- we were always taught early on in 2 training you are dealing with the liberty of the 3 individual and you have to be correct. 4 THE CHAIRMAN: The other matter I would like your help with 5 is, in your very considerable experience, how often 6 would you be exposed, if that is the word, to the views 7 of the way other laboratories worked? 8 What I have in mind and I realise that Holland may 9 be quite different and, indeed, Evett & Williams might 10 suggest that, but I can see people wanting or requiring 11 to be 100 per cent sure but some people needing more 12 before they would be 100 per cent sure than others 13 because they would want, like everything in life, people 14 who would want it just so before they can be absolutely 15 satisfied. 16 What I am interested to know is in the long time 17 that you served in this role, would you ever have been 18 exposed to seeing the work of other laboratories and how 19 they came to their conclusions? 20 A. I am trying to think, but basically only in Britain. We 21 had Steve Meager came over and gave us a ridgeology 22 course, a seminar, if you like, but, no, I mean, a busy 23 working bureau, no. 24 One thing that maybe, I don't know, that might come 25 out of the Inquiry, I always felt before we went page 152 1 non-numeric that there should be a level playing field 2 with regards what constitutes counting characteristics 3 for court. I could be wrong but I think other places 4 have, say, a standard of 10 but the 10 that they speak 5 about are not like-for-like with the 16 that we were 6 talking about, the ridge ending or the bifurcation. 7 They may have 10 lakes, islands, spurs which would 8 constitute 12 -- sorry, constitute 20 counting 9 characteristics for court and I always felt before we 10 went non-numeric that even, specifically in Europe, 11 there should be a level playing field of what is a 12 counting characteristic. 13 In 1960 SCRO, when it was set up, had a 14 interpretation that basically ridge unit is unique, so 15 to count for court a bifurcation or a ridge ending was 16 sufficient. 16 may seem a very high threshold and I 17 think, as I said before, other bureaux or people have 18 said, "Well, you would never have identified, say, the 19 Deptford murder, there's only 11 characteristics in 20 that", but when you actually look at that mark there's 21 maybe about 20 characteristics the way we interpret it. 22 23 So I just feel that there should be some form of 24 level playing field. I could be wrong about that. I 25 don't know if people still do count lakes, islands and page 153 1 spurs, the Galton details, as one characteristic whereas 2 we would count it as two. I could be wrong about that. 3 As I say, I've been out of the job for a few years now 4 so I don't know but I think there should be a level 5 playing field. 6 16 seems a high numerical number but it's quite a 7 low threshold when you come to identifying someone and I 8 know that some practitioners were not happy with moving 9 away from the 16-point standard because they felt they 10 were at a low enough threshold; whereas other systems, 11 10 Galton details, it's like a fail-safe system, if you 12 like. It's not a gung ho attitude that I'm talking 13 about, it's just basically I think there should be 14 like-for-like. 15 THE CHAIRMAN: But that conformity would be one of the 16 changes you would have, looking back on your own time, 17 that is a change you would have -- 18 A. Yes. I think -- that is something that never, ever 19 happened. It may have happened now. I could be wrong 20 but I think it's something that should be looked at, 21 basically. 22 THE CHAIRMAN: Thank you very much. I am afraid you have 23 had a very long period and I hope we will not have to 24 bother you but we certainly will not bother you next 25 week and thank you for being so patient and for your page 154 1 assistance. 2 A. Can I just say, sir, I'd like to thank the Inquiry for 3 giving me the opportunity but can I hand over these? 4 These are my originals for Terry Kent's image and Peter 5 Swann's. (Handed) 6 THE CHAIRMAN: Thank you very much indeed. 7 (The witness withdrew) 8 MR MOYNIHAN: I also think somewhere in the hall there is 9 the original from the charting from today that we will 10 collect. Thank you very much. 11 (The witness withdrew) ^^ 12 THE CHAIRMAN: If Mr McGinnies doesn't mind starting ... 13 ALEXANDER CHARLES MCGINNIES, affirmed 14 THE CHAIRMAN: Could we have your full names, please. 15 A. My full name is Alexander Charles McGinnies. 16 THE CHAIRMAN: Take a seat, please, Mr McGinnies. 17 Examined by MISS CARMICHAEL 18 Q. Good afternoon, Mr McGinnies. I am afraid you have had 19 a long time waiting today. 20 A. That's okay. 21 Q. I think you have provided a signed statement for the 22 Inquiry already. 23 A. That's correct, yes. 24 Q. Subject to any additions or alterations that you want to 25 make today, are you happy to adopt that as part of your page 155 1 evidence? 2 A. Yes, I am, thank you. 3 Q. I would like to go straight in your statement to 4 paragraph 94. This is FI0193 at page 24. 5 You tell us in your statement that your role is in 6 training. Can we take it that one of the points of 7 training for Fingerprint Examiners is to make sure that 8 they don't miss any identifications that they should be 9 making? 10 A. That would be correct. 11 Q. But it is also important, is it not, to try to make sure 12 that they don't make any identifications that they 13 should not be making? 14 A. That's certainly correct, yes. 15 Q. What you tell us, starting with the passage we have 16 here, is that ACE-V and training in ACE-V is something 17 that you regard as key to that part of the training 18 function? 19 A. Certainly, yes. 20 Q. That is really what I would like to start by asking you 21 about, Mr McGinnies, about how the trainees are trained 22 in analysis, comparison, evaluation and then eventually 23 in relation to verification and what current best 24 practice within SPSA is? 25 A. Certainly. page 156 1 Q. If we could start with the analysis component of ACE-V, 2 could you tell the Chairman, please, just exactly how 3 trainees are taught to do this? 4 A. The analysis part of a print would be when you are 5 dealing with the unknown crime scene mark. The analysis 6 part, we actually use for trainees, we use an ACE-V 7 sheet when they first come into the Bureau. I think I 8 may have examples of those. 9 Q. I think we can bring one up, in fact, at PS0375. 10 I think what we see there is the first page of that. 11 If it helps you to explain to the Chairman how it works, 12 we can perhaps go through that form. 13 A. When a trainee first comes down to the Bureau they are 14 taught regarding the ACE-V process, the methodology we 15 use for taking over prints. The ACE part of it is the 16 analysis of the unknown crime scene mark. This form is 17 something that they fill out right at very start of 18 their training and it helps them to get into the mindset 19 and process of using the same methodology every time, on 20 every occasion they look at a mark. They look at the 21 deposition factors; what surface the mark's left on; 22 what the substance composition is; is it made up of 23 sweat; is it made up of blood; is it left if a surface 24 is glass; what development method has been used to make 25 the mark visible; is it ninhydron on paper; the page 157 1 deposition pressure that's involved when actually the 2 fingerprint impression has been left. This would help 3 them decide on whether there's any movements or 4 explaining any possible differences in the marks because 5 of deposition pressure. Movement: if there's any 6 movement in the mark, again caused by possibly if it's a 7 sweat mark on glass there might be slippage. 8 The size and orientation of the print should help 9 them -- getting the print the right way up would help 10 them realise what size the print is, if it may be a bit 11 of palm, and again would help them with their digit 12 determination. Again, with pattern and ridge flow this 13 would help them with digit determination and looking at 14 levels of detail. 15 Q. If I can stop you there just at the pattern and ridge 16 flow, what sort of -- it's perhaps slightly hard to read 17 on this copy just what this trainee has written but can 18 you give us some idea, if you can from that, what sort 19 of information they are recording there? 20 A. Actually from that I can't make it out but in pattern 21 and ridge flow they would be looking at -- the first 22 thing you would look at on a mark is to see there is any 23 ridge detail present. That may be the fact that it's 24 been submitted from the scene of mark in a mark 25 enhancement lab and it maybe is a glove mark, it may be page 158 1 just a smudge, there may be no ridge detail to compare. 2 Once they realise there's ridge detail to compare, 3 though we use a holistic approach they will still look 4 at the three levels of detail and the first level of 5 detail would be pattern type and ridge flow, so they'd 6 look to see if they had a pattern. 7 This would assist them in earlier identification or 8 elimination because say if, for instance, the scene of 9 crime mark is clearly a whorl and they had the 10 fingerprint form of a suspect or the elimination form 11 had all arches or all loops they wouldn't want to go any 12 further than that, so the ridge flow and the pattern 13 type would be very important to them at that time. 14 The ridge flow or pattern type would also help them 15 with the next part, which is the finger or palm choice, 16 help them decide where they are going to start looking 17 when they come to doing their comparison stage. 18 The next part we have is anatomical features where 19 we'd look to see if there are creases present, which 20 again would help with the orientation or digit 21 determination; if there are incipient ridges present, 22 which again are part of the holistic approach to using 23 all the information that's within the print; and, again, 24 with scars; and then they have other -- if they had 25 anything, anything unusual happening within the print page 159 1 they may put it there just to help them with their 2 guidance. 3 Detailed observations would -- sorry, the detail's 4 observed next would be any features that are present. 5 Q. What sort of level of detail would one be looking at or 6 should the trainee be looking for at this stage in the 7 analysis? 8 A. Features would go on to -- which is on the reverse of 9 the sheet, was where they start looking at target areas, 10 if they start looking at specific ridge path, ridge 11 endings, bifurcations. 12 The next thing in detail observed would be the 13 tolerance or the clarity. This again ties back to the 14 deposition pressure or any movement they see in the 15 print which would then help them when they come to doing 16 their comparison part and again from that any warnings 17 of disturbances would be in there, if there were any 18 movement through the print, if there were any double 19 touches they would put that there. 20 The whole thing is geared towards them going through 21 a methodical process so they analyse everything in the 22 print before they move on to the next stage of 23 comparison. 24 Q. So if the trainee has thought about all of the matters 25 that we see in the left-hand column there as he or she page 160 1 goes through the analysis, can we take it that he or she 2 will have considered all the things that they should 3 have done in analysing the mark? 4 A. Yes. 5 Q. You wanted to go on to the next page, I think. 6 A. Yes, on the reverse of the ACE-V analysis sheet. 7 Q. Now at the top we see two boxes: target area 1 and 8 target area 2. 9 Can you tell us what these are? 10 A. When the person is doing his analysis, they will next 11 look at specific ridge path, ridge endings and 12 bifurcations. They will draw areas that the eye is 13 naturally drawn to and any unusual features, ridge 14 endings next to bifurcations, lakes and they will draw 15 those on those target areas. These are the areas that, 16 when they come to do their comparison, they are going to 17 look for and again, as I say, it's where the eye is 18 naturally drawn to. 19 Q. So that might be, for example, a relatively limited 20 number of Level 2 Details? 21 A. That's correct. The next part would be the comparison 22 results. So they've done their analysis and they then 23 move on to their comparison. 24 Q. So this is a trainee who is at the stage of looking at 25 prints as well as unknown marks? page 161 1 A. That's correct, yes. 2 Q. If we can stay for the moment simply on the analysis 3 rather than moving on to the comparison stage, there has 4 been some suggestion that when analysing a mark what one 5 might do is take the unknown mark and go through it and 6 in some way mark every, say, Level 2 Detail that one 7 might think one could come to rely on at a later stage 8 before going on to consider known prints or a series of 9 known prints. 10 If I understand the process that we've seen 11 described here, the person carrying out this exercise is 12 not going that far. They are concentrating on a 13 relatively small possible target area of points that 14 spring to the eye immediately? 15 A. Yes. They are taking into consideration all the 16 information that's in the print. As I say, it's almost 17 like starting from a helicopter view and working further 18 and further in until they are actually looking, putting 19 a glass on it and looking for target areas. 20 It's possible that at any one of these stages they 21 will be able to eliminate the print that they are 22 looking at. They will be able to, sorry, discount the 23 print they are looking at, since they may have, as I 24 stated earlier, they may have a whorl and if they are 25 going to compare it and he only has loops that would be page 162 1 enough to end the comparison. 2 If they have -- if it's, for instance, an ulnar 3 loop, they may look and see that the ridge count (that's 4 the number of ridges between the core and the delta) may 5 be four or five on the scene of crime mark but when they 6 look at the responding finger that they are going to 7 compare it may be 15 or 16, so that would end it. 8 So they are working further and further into the 9 mark until they come to, as you say, they put their 10 target area down and then they will start actually with 11 their comparison. 12 Q. The reason I ask you about perhaps more extensive 13 annotation at the analysis stage comes from my 14 reading -- and you will no doubt put me right if it is a 15 wrong reading -- of one of the recommendations in the US 16 Government's OIG report into the Brandon Mayfield affair 17 and that's something you refer to in slightly more than 18 passing, I think, at a later stage in your statement. 19 A. Yes. 20 Q. I think we have chapter 5, the recommendations chapter, 21 on the system at AP0006. I wonder if we could go to 22 page 9 of the pdf which should be 203 as numbered at the 23 bottom. I wonder if we could home in on recommendation 24 11. Sorry, it is a slightly lengthy passage, 25 Mr McGinnies, but I would like to have your comment on page 163 1 it. What it says is: 2 "The OIG recommends that the FBI laboratory consider 3 a refinement of the proposed changes to the 4 documentation requirements in the SOPs [I think we can 5 take that as standard operating procedures]. Although 6 the proposals regarding documentation would require 7 identification of the level 1, 2 and 3 features that 8 contributed to the examiner's conclusion, they do not 9 appear to require any documentation of the analysis 10 phase. Documentation of the features and red flags 11 observed during the analysis phase will help prevent 12 circular reasoning in which features in the known prints 13 can influence an examiner to find such features in the 14 latent print, even though they may not be there." 15 If I can stop there, I take it that that is a danger 16 that you recognise in looking at known prints and 17 reasoning back? 18 A. Yes. 19 Q. If I can carry on: 20 "Where feasible a record should be made of analysis 21 phase of the examination, including recording the 22 location and type (if known) of the features perceived 23 at that phase. Ashbaugh specifically recommends such 24 documentation of the analysis phase, at least for 25 certain complex latent prints. Creation of such a page 164 1 record will help assure that the examiner assigns lesser 2 individualising weight to any features in the latent 3 print that are not discovered until after the exemplar 4 prints are compared, and lesser individualising weight 5 to a Level 2 Detail found in agreement when the examiner 6 cannot determine whether it is a bifurcation or an 7 ending ridge until after he sees the exemplar print." 8 So there seem to be two factors there. There is a 9 suggestion that it would be a good idea to have a 10 documentation of, if I can put it this way, events in 11 the mark to ensure that those events are not reasoned 12 back from the known print and that it would also be a 13 good idea to have documentation of the extent to which 14 the examiner has been able to identify an event in the 15 mark as a bifurcation or a ridge ending before he or she 16 has looked to the known print. 17 Does that make sense to you -- 18 A. Yes, it does. That's my reading of it as well, yes. 19 Q. -- that passage. 20 Analysis, certainly as we see it in the process that 21 your trainees are following doesn't seem, if I have 22 understood correctly, to extend as far as either the 23 process or the recommendation for documentation that we 24 see from the OIG here. 25 I wonder if you have any comment on that? page 165 1 A. To the extent of writing -- well, I mean, if we look at 2 the target area drawings, those target area drawings are 3 quite extensive and they might write what area of the 4 print is in, given an orientation through the clock. 5 They don't take extensive notes on recording whether 6 it's a ridge ending or a bifurcation. I feel that what 7 they do gives them a target area enough to go and start 8 looking. I think to take that further and to write it 9 out before looking at the exemplar mark would take time 10 that possibly, as I say, if we do all that for a loop 11 and spend the time doing all of that for a loop and then 12 we look and see its an arch or a whorl then we could 13 have already dispensed with that part of the 14 examination. 15 I think what we do for the ACE-V analysis sheets is 16 certainly what we use in the national model. This is 17 something that the NPIA and ourselves work, in fact, it 18 the national model for the whole of the UK working to 19 the ACE-V methodology in this way. For that being a 20 recommendation from the OIG, I don't know that anywhere 21 has taken it up to that extent. 22 Q. If we take down that particular highlight and perhaps 23 move on to the next passage, perhaps picking up on what 24 I think you are hinting at regarding some of the 25 practicalities, I think something of the nature of this page 166 1 nature was recognised by the OIG and they go on again, 2 if I might read it out: 3 "However, we recognise that creation of a record of 4 the analysis phase could be burdensome and potentially 5 wasteful in the case of [I think this is an acronym for 6 an automated fingerprint search system] IAFIS"? 7 A. Yes. 8 Q. -- "that do not result in identifications, which is a 9 common occurrence. We recommend the following potential 10 solution for this problem: in the case of IAFIS 11 searches, the requirement to fully document the analysis 12 could be postponed until the examiner determines, based 13 on a preliminary non-exhaustive initial comparison, that 14 one of the candidate's exemplars is sufficiently similar 15 to the latent print to warrant a more rigorous 16 comprehensive comparison. At that point, the standard 17 operating procedure would require the examiner to put 18 the exemplar aside and complete the documentation of his 19 analysis of the latent print before proceeding to the 20 comparison and evaluation phases of the examination." 21 A. That certainly puts it far more eloquently than I did. 22 Yes, that's exactly what we do to the extent of ACE-V 23 sheet, yes. 24 Q. Is there ever a stage though when the exemplar (as I 25 think we'd say in this country more, the known print) is page 167 1 put aside and there's then a complete documentation of 2 the analysis phase where all the features that seem to 3 be discernible from the mark on its own are documented 4 and recognised and recorded in some way? 5 A. In early training they are -- the first marks that they 6 are given in early training are marks that are not marks 7 that they mark up on their ACE-V analysis to compare 8 with anything. So what we ask them to do in their 9 earliest training stages is just to say what you see and 10 to put everything down. 11 However, when they go on to making comparisons we 12 revert to this ACE-V analysis and certainly for 13 day-to-day comparisons, no, there's no facility for 14 doing complete comparisons on a mark independent before 15 you look at it against a mark. 16 Q. You are talking really about three separate things 17 there: at a very early stage when trainees are only 18 analysing marks, they may be marking up an unknown mark 19 very fully? 20 A. Yes. 21 Q. When they come to doing comparisons in the way that we 22 have seen with the ACE-V sheet the documentation is 23 about the target group? 24 A. That's correct, yes. 25 Q. But when they move into practice there isn't any page 168 1 documentation, even of the level of detail that we see 2 in the target group drawing on the ACE-V sheet? 3 A. No, that's correct. 4 THE CHAIRMAN: I think we are going to have to interrupt the 5 evidence, Mr McGinnies, until tomorrow to meet at 10.00. 6 (4.05 pm) 7 (Adjourned until 10.00 am the following morning) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25