page   1
 1                                   Wednesday, 4th November 2009
 2   (10.00 am)
 3                   ALEXANDER CHARLES MCGINNIES
 4             Examined by MISS CARMICHAEL (continued)
 5   Q.  Good morning, Mr McGinnies.
 6   A.  Good morning.
 7   Q.  Yesterday afternoon we were talking about analysis and
 8       current training and practice, that was in SPSA.
 9           I used the language of an event in a mark with you
10       yesterday and I would like to explore that a little
11       further at this point.
12           Would it be fair to say that an event could be a
13       ridge characteristic?
14   A.  Yes.
15   Q.  It may be that you don't know when you first view a mark
16       what that ridge characteristic is, whether it is a
17       bifurcation or a ridge ending?
18   A.  That would be correct.
19   Q.  Would you agree also that an event in a mark might be
20       something else, dirt or some other artefact, that you
21       can't tell what it is?
22   A.  I would say that, yes.
23   Q.  When you come to the point that you are looking at the
24       known print, is it only those events that would be ridge
25       characteristics that you would be seeking to compare to
page   2
 1       the known print or might you also be looking to see
 2       whether something else that may or may not be a ridge
 3       characteristic, that may for example be dirt or an
 4       artefact has some explanation in the known print?
 5   A.  That's correct.  It may be a scar; there may be movement
 6       in the crime scene mark that obviously wouldn't be
 7       present in the known print if it was taken under
 8       controlled circumstances, rolled (inaudible) the edge
 9       with even pressure.
10           It also may be something like a ridge break or a
11       crease that you are looking to understand why it looks
12       like that on the unknown print and when you go to the
13       known print that will give you more information on why
14       it looks like it does.
15   Q.  So you may have something that looks, at first sight,
16       simply as an event as something that is there but you
17       can't determine what it is, whether it is truly part of
18       the finger-mark at all?
19   A.  That's correct.
20   Q.  When you go to the known print, you will be looking,
21       amongst other things, for a potential explanation for
22       that in terms of some sort of feature, whether that be a
23       ridge characteristic or a scar, something of that
24       nature?
25   A.  Yes, I would say that.
page   3
 1   Q.  Yesterday I asked you some questions about the Mayfield
 2       report and the marking-up, what seemed to be a
 3       recommendation for quite substantial marking-up and
 4       note-taking of the analysis stage down to the point of
 5       noting ridge characteristics at that stage.
 6   A.  Yes.
 7   Q.  The Inquiry has also heard evidence about work done by
 8       Mr Glen Langenburg as to annotation of the analysis
 9       stage involving marking up particular ridge
10       characteristics with different colours to indicate the
11       level of confidence that the examiner has in a
12       particular characteristic that he or she has observed in
13       the mark.
14           Do you have any comment on that as a way of
15       proceeding?
16   A.  Would that be before you even look at the -- any
17       comparison stage?  Would that be marking-up totally
18       before we do any further comparison?
19   Q.  That's my understanding, Mr McGinnies.  We may hear
20       further about it from another witness later.
21   A.  I take it this would be done electronically.
22   Q.  Yes, that's my understanding also but, as a matter of
23       principle, can I suggest to you it wouldn't necessarily
24       have to be.  One might take, I suppose, a photograph and
25       different coloured pens and do something similar and one
page   4
 1       would have a similar record to marking it on a digital
 2       image electronically?
 3   A.  Would that be proposed to do that for every single scene
 4       of crime mark that comes in prior to looking at
 5       any ...?  That would be really time consuming and not
 6       practical, I don't think.
 7   Q.  I think I perhaps have your response in the form of the
 8       question you have just put that if one did that for
 9       every single mark that would be very time consuming.
10   A.  Certainly.
11   Q.  Let us suppose then that one confines that to serious
12       crime.  What would be your comment if that was the
13       situation?
14   A.  Again, in serious crime -- actually, in more serious
15       crime you would be more likely to have more impressions
16       received in at the office.  You may have 200 or 300
17       photographic lifts to start doing that for every single
18       mark before you do any comparison would be time
19       consuming and I don't think that it would be a
20       worthwhile exercise in that, again, as I said yesterday,
21       if you've one suspect to compare and he has only loops
22       and this is definitely a whorl pattern then by the time
23       you have marked up all these 200 photographs with what
24       you think are characteristics and then look at what
25       you're comparing it against and it can't be a match
page   5
 1       you'd waste a lot of time and energy on something that
 2       you didn't really need to do.
 3   Q.  Let me narrow this further, perhaps in a similar way to
 4       the recommendation 11 that we looked at yesterday in the
 5       Mayfield report.  Let us suppose we narrow that to a
 6       situation where one has a complex latent print and
 7       following perhaps an initial comparison that seems to
 8       indicate there may be some similarity, one then puts the
 9       known print aside, as the OIG recommended, goes back to
10       the mark and then starts to mark it up in the way I am
11       suggesting with confidence levels designated by
12       different colours.
13           What would be your comment on the practicality of
14       that as a suggestion?
15   A.  I think that it's something that experts do without
16       actually colouring in on a mark.  I think they would
17       look at target areas, they would look at what they see
18       in the mark mentally, sometimes people even still will
19       draw target areas as we'd seen yesterday on the ACE-V
20       sheet, which they then would look to take in the
21       comparison, they would be looking for unusual
22       characteristic groups, they would be looking at maybe
23       some of the movement or the features that you mentioned
24       earlier, scars or creases that are quite prevalent next
25       to strong features or groups that make up the target
page   6
 1       area.  They would then use that in their comparison.
 2           To any benefit of it for every single case
 3       marking-up on acetate or a colour chart or anything
 4       before they actually undertake that I don't know what
 5       the benefit would be.  In an ideal world it may be
 6       something that could be looked at and tried, obviously
 7       Mr Langenburg has tried it and advocates it but I don't
 8       know whether it would be practical on a day-to-day basis
 9       with the amount of work that a bureau has to undertake.
10   Q.  Just touching on what you said about the target group,
11       would we understand rightly that normally the target
12       group is something that the examiner will hold in his
13       head in his memory as he goes to look at the known
14       print?
15   A.  That's correct.
16   Q.  What we saw yesterday on the ACE-V sheet was the work of
17       a trainee noting a target area?
18   A.  That's correct.
19   Q.  But it wouldn't, again if I understand you rightly
20       yesterday, be not day-to-day practice in examination to
21       note down the target area in the way that we saw the
22       trainee doing yesterday?
23   A.  No.
24   Q.  Can I make this suggestion to you perhaps, that
25       annotating a mark at the analysis stage, particularly if
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 1       one is dealing with a difficult print, with a complex
 2       print, might have the advantage that one would be able
 3       to go back and tell what features, if any, had been
 4       added by virtue of the comparison, by virtue of what one
 5       had been able to discern by looking at the known print
 6       as opposed to the mark.
 7           Would you have any comment upon that suggestion?
 8   A.  Yes, I could see where that would be of benefit and when
 9       people mark things possibly on a comparator they would
10       obviously be marking up the unknown -- it's possible
11       they would mark up the unknown print first with these
12       strong features that they see before they look as
13       before, as you said correctly, that they do it mentally
14       on a comparator, they may do it by actually marking up
15       and then looking at the unknown to carry over the
16       comparison to see what explanations there are for these
17       features that they're seeing.
18   Q.  Just taking that a little further, some analysis would
19       be done with an individual glass looking at a mark?
20   A.  That's correct, yes.
21   Q.  Are you indicating then that some of the analysis by
22       some examiners might be done on a comparator?
23   A.  A comparator is just another tool.  It's another way of
24       making a comparison.  Some experts may take more complex
25       marks to a comparator to enlarge it and let them carry
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 1       out the comparison further, with further detail on the
 2       comparator, yes.
 3   Q.  Might they go to the comparator before they had looked
 4       at the known print at all?
 5   A.  They could but it's not usual practice, no.
 6   Q.  I would like to ask you a little bit about a document
 7       MM0065 which has an extract from the NPIA training
 8       manual.  We have here section 6 from that.
 9           I wonder if you could tell the Inquiry a little bit
10       about this manual and how it's used in the training
11       process?
12   A.  Certainly.  This is section 6 of the National Policing
13       Improvement Agency.  If you like, it's almost like the
14       sort of training manual for the UK.  It's what trainees
15       use to go through the training.  It's like the phrase
16       yesterday: the Bible for trainees.  It breaks down all
17       the various processes they would go through from history
18       of fingerprints, through to taking fingerprints, going
19       to court, the identification process, ACE-V.  They use
20       that throughout their training almost on a daily basis
21       to support them, the work that they're doing on their
22       modules and to support, to give them more underpinning
23       knowledge across the whole of their fingerprint career.
24           This section is a section, 6, which takes you
25       through the identification process.
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 1   Q.  This is a section, I think, that deals with ACE-V?
 2   A.  That's correct.
 3   Q.  We see at the third bullet point there:
 4           "What is meant by ACE-V".
 5           If we move on to the next page we see a discussion
 6       and in the third paragraph a passage:
 7           "Friction ridge identification applies equally to
 8       fingerprints, palm prints, toe prints and plantar
 9       prints.  Identification is based upon on the unique
10       agreement between the mark and the print by careful
11       analysis, comparison and evaluation of all disclosed
12       features held within First, Second and Third Level
13       Detail whilst establishing that any apparent differences
14       can be accounted for."
15           So this is, I suppose, the summary account in the
16       Bible for trainees.  Would I be right in saying also
17       that there may be some reference to the training manual
18       in some of the developing standard operating procedures
19       within your own organisation?
20   A.  That's correct, yes.
21   Q.  We can take that passage down.
22           If we look at the paragraph starting, "The mark is
23       initially analysed", what we see here is:
24           "The mark is initially analysed in order to
25       ascertain and establish the amount of friction ridge
page  10
 1       detail that is present.  Because fingerprints are found
 2       in varying degrees of clarity, the quantity of detail
 3       present for comparison and evaluation is variable,
 4       resulting in various levels of increasing detail that
 5       can be used in the identification process.  Clarity also
 6       has significant repercussions on the amount of tolerance
 7       for discrepancies when comparing the mark to a print."
 8           Again, this is what the trainees are told about the
 9       analysis process and what they should be looking for?
10   A.  That's right.
11   Q.  Looking to the next paragraph, we see:
12           "As an area of the unknown mark is viewed, the brain
13       stores that detail in memory.  When the print is
14       examined, the stored information is compared with the
15       information from the unknown mark.  It is important that
16       comparison occurs by viewing the unknown mark prior to
17       the known print in order to avoid preconceived thoughts
18       or expectations from influencing the comparison and
19       identification."
20           Essentially, from day 1, it is received wisdom --
21   A.  That is day 1 training, yes.
22   Q.  -- for the trainee that there is a risk involved in
23       going from the known print to the mark?
24   A.  Yes.
25   Q.  And that is something to be avoided?
page  11
 1   A.  Definitely.
 2   Q.  We can take that down as well.  We should look at the
 3       last paragraph there, moving on to the next page if we
 4       can, please.  We read next:
 5           "Before the mark is examined, it is orientated such
 6       that the skin area or digit that created the mark can be
 7       decided.  When found in a group, this is quite easily
 8       determined by using the relative position of the marks.
 9       Pattern types and their frequency of occurrence on the
10       digit in question also helps in determining which finger
11       made a mark.  Palm prints are determined by ridge flow,
12       patterns disclosed, size and the position of flexion
13       creases.  This is referred to as digit/palmer
14       determination."
15           Again, we are still on a description of what we
16       discussed yesterday as part of the analysis process, the
17       process of determining which digit may be involved,
18       whether the impression is a palmar impression?
19   A.  That's right, yes.
20   Q.  If we can take that down, we next see a section headed
21       "Holistic approach", and what we see there is a passage
22       that starts:
23           "When the mark has been orientated, features of both
24       the unknown mark and known print are compared
25       systematically to determine if they are similar.  The
page  12
 1       overall fingerprint pattern does not have sufficient
 2       uniqueness to individualise.  However, recognising the
 3       pattern will narrow the number of possibilities of
 4       donors when searching through collections of
 5       fingerprints."
 6           Should we take it from the mention there of
 7       "systematic comparison", that we have moved here in
 8       description from the analysis phase to the comparison
 9       phase of the exercise?
10   A.  It's talking about the highest level of detail.  So it's
11       talking about pattern types and subdivision of the
12       pattern types, loop, arch and whorl.  At that stage, it
13       is easy to do a comparison to determine whether or not
14       you have a pattern match.  As I was saying earlier, if
15       you're comparing something that is a whorl and you're
16       comparing it against a loop then you don't need to go
17       any further than that first level of detail or within --
18       if you have a loop, for instance, if it's an ulnar loop
19       to the left and you have a ridge count, that is the
20       number of ridges between the delta and the core, of
21       three and you're comparing against a loop that has a
22       ridge count of, say, 20, again you can quickly close
23       that comparison off.  Then you would go back to your
24       analysis if you have to go further into the print.
25   Q.  Would I be understanding rightly that there may not be,
page  13
 1       in practice, a very bright line between the end of
 2       analysis and the beginning of comparison?
 3   A.  Yes, that would be correct, that you can take part of
 4       the analysis at an early stage and then you go back to
 5       further comparison.
 6   Q.  I wonder if we could take that down.
 7   A.  Sorry, that was the wrong way round.  You start with --
 8       you're doing your analysis, you do an early comparison
 9       and then go back to your analysis if you have a whorl
10       and you are matching it with a similar familial pattern
11       whorl then you would need to go to the next stage of
12       analysis, yes.
13   Q.  Let us perhaps run with that a little further,
14       Mr McGinnies.  We're not in a situation where we are
15       discarding something because it is obviously an arch
16       where what you have in the mark is a whorl.  You have
17       found another whorl and you want to look more closely at
18       it.  You say at that stage you return to the analysis.
19           What do you actually do in practice at that stage
20       where you have your two whorls?
21   A.  That is the stage you would then look out for target
22       areas.  Considering you have carried out the rest of
23       your analysis on the mark, as we looked through, as we
24       went through yesterday, what it's made on, what it's
25       made with, what it's developed with, what pressures
page  14
 1       there are, are there any reg flag areas, any movement.
 2           You would then look for your target area.  You would
 3       start to look at areas that naturally draw the eye,
 4       areas that you are going to then look to compare with,
 5       taking this, as I said, this mental note across with you
 6       to start looking on a one-to-one comparison stage.
 7   Q.  I understood yesterday -- and I may have been wrong --
 8       that you may in fact identify a target group, something
 9       that catches your eye, at the stage that you look at the
10       mark before you have looked at any of the known prints.
11   A.  That would be correct, yes.
12   Q.  Let us suppose you have got to the stage -- can we take
13       it just at the moment, after you have looked at a mark
14       only there's something that's caught your eye and you do
15       have a target group.  What do you do then?
16   A.  In a physical comparison?
17   Q.  Yes.
18   A.  You would have the scene of crime mark on your left-hand
19       side.  You would have your glass over that.  Different
20       people compare in different ways using different types
21       of glasses, different numbers of glasses but you would
22       compare the unknown to the known.  So we would take that
23       target area, with your orientation of the print say, for
24       instance, it's in roughly the, sort of, 3 o'clock
25       position in the orientated print and you would take that
page  15
 1       across to your known mark and look in that same area for
 2       similar characteristics that would be in sequence and
 3       agreement.
 4   Q.  We have heard in evidence in the last week from
 5       Mr MacPherson who described a process where he was
 6       looking simultaneously at a mark and a print using, as I
 7       understood it, both his eyes through two linen glasses.
 8       He said that this was a skill that he had gained through
 9       experience and training.
10           Is this a skill in which you instruct the current
11       trainees?
12   A.  Actually, sir, if I may be permitted, I have two
13       fingerprint glasses here and I can demonstrate.  Would
14       that be ...?
15   THE CHAIRMAN:  Yes.
16   MISS CARMICHAEL:  Please do.  This might be an occasion when
17       people may want to stand up to see more clearly what
18       Mr McGinnies was doing or if there's some better way we
19       could lay things out for him --
20   THE CHAIRMAN:  Well, he could always leave them for
21       inspection at the break.
22   A.  Yes, I don't mind leaving them for the course of the
23       Inquiry if anyone wants to ...
24           As I say, there are different types of glasses.
25       Neither of these are a linen tester.  A linen tester is
page  16
 1       a small square one with a square on that flips out.
 2   Q.  Just so I can get this into the record, in your right
 3       hand you are holding a black glass that appears to be on
 4       a little stand.  Can you tell us what that is?
 5   A.  This is a fingerprint glass that is adjustable for eye
 6       relief.
 7   Q.  So you are indicating you can move it up and down from
 8       the stand?
 9   A.  That's correct, yes, and it locks off with a wheel.
10           The other ones are fixed position, brass, of the
11       brass type.  Unfortunately, I didn't have any linen
12       testers but they are small square ones which fold out.
13       What would happen is you would place -- the way we
14       instruct trainees is we place one of the fingerprint
15       glasses over the unknown mark, over the scene of crime
16       mark, and one of the fingerprint glasses over the
17       corresponding fingerprint that we were looking at or the
18       area of friction ridge, sorry, that we were looking at
19       and they would go between the two.
20           What Mr MacPherson, I believe, was saying is that
21       his technique was to put them over both and, at a
22       distance, look between the two.  Some people use it by
23       putting them right against their eye, closing one eye
24       and looking.  Some people use one glass and go between
25       one and the other.
page  17
 1           When we are instructing trainees early in their
 2       career I would give them two glasses, always instruct
 3       them to work from unknown to known but through time and
 4       through their experience and using different glasses
 5       they would find what eye relief was best for them, which
 6       way of comparison was best for them and even which type
 7       of glass that they use was best for them.
 8           As long as the results were consistent, then that's
 9       something that would be up to each individual examiner
10       on how they use the glasses.  I would never say to
11       anyone, "That's not how you use a glass".  I would say,
12       "If it works for you, then that's what you do".
13   Q.  What I am wondering about is if we have a description of
14       looking at a known print and an unknown mark
15       simultaneously, how that squares with the idea of going
16       from the unknown to the known.
17   A.  I don't understand what ... I don't know that you can
18       look at two things at the one time, look at one thing
19       with your left eye and look at one thing with your right
20       eye and ...
21   Q.  If that is simply something that you don't understand
22       then that's perhaps the answer to the question,
23       Mr McGinnies.  I think when you were indicating what you
24       were doing you were, in fact, moving your head somewhat
25       from one to the other?
page  18
 1   A.  That's the way -- the way I would look is keep both eyes
 2       open and I would move my focus from one mark to the
 3       other.  Some people close one eye; some people use one
 4       glass.  As I say, unless a trainee was having a problem
 5       very early on -- and this would happen very -- unless
 6       they were having problems making comparisons one of the
 7       things I would look at is the type of glass, try them
 8       with a different glass, try them with a different eye
 9       relief or the way they are looking at things but that
10       would be done very early on.  People get into their
11       comfort zone quite early.
12   Q.  I wonder if you can perhaps have document CO4118.5.
13       This is a presentation which I think you prepared and
14       gave for Advocate Deputes earlier in the year, back in
15       June?
16   A.  That's correct.
17   Q.  If we start at page 1 just so we can see what it is.  We
18       will see it is your seminar for Crown Counsel.  I wonder
19       if we could go to page 5, please.
20   A.  That actually demonstrates someone using pointers and
21       looking at an unknown mark to a mark on a fingerprint --
22       an impression on a fingerprint form, yes.
23   Q.  On the left the person is holding a pointer apparently
24       over a photograph, that would be an actual size
25       photograph of an unknown mark?
page  19
 1   A.  Yes.
 2   Q.  And on the right-hand side he's looking at something on
 3       a ten-print form?
 4   A.  Yes, that's correct.  For that photograph I would say
 5       that possibly his eye relief is for the photograph so
 6       that he's not that close to -- normally, I don't think
 7       he would be -- in fact, I know who it is so he wouldn't
 8       be looking at it from that distance.  I think that's
 9       probably for the photograph.
10   Q.  So would he be looking at it more closely --
11   A.  Yes.
12   Q.  -- in terms of how close he was to the glasses?
13   A.  Yes.  Actually, in practice if you look from that
14       distance at something through this, because of the way
15       that it's set for focus, if you look at something at
16       that distance it's out of focus.  You actually need to
17       have your eye relief closer to it.
18   Q.  So you would need to be nearer than the man in the
19       photograph is?
20   A.  Yes.
21   Q.  But that should give us a general idea of the sort of
22       working position you described?
23   A.  Yes, that's correct.
24   Q.  I wonder if we can simply run through some of the slides
25       that you prepared for the Advocate Deputes.  Can we move
page  20
 1       on to the next one, please.  You are explaining there
 2       the basis of fingerprint identification, I will not
 3       dwell on this, telling the Deputes about the way that
 4       fingerprints were formed and about the persistence of
 5       features in fingerprints.
 6   A.  That's right.
 7   Q.  Move on to the next one please.
 8           Again, we are on the same scene here.
 9   THE CHAIRMAN:  We need to pause just for a few seconds.
10   MISS CARMICHAEL:  Have we got a technological difficulty?
11   THE CHAIRMAN:  We have a technical problem with the
12       transcript for a moment.  (Pause)
13           We can proceed.
14   MISS CARMICHAEL:  Thank you, Mr McGinnies.  In fact, we can
15       perhaps jump forward to page 14 of this PDF where your
16       presentation moves from perhaps the underlying aspects
17       of fingerprint identification, how fingerprints are
18       developed in the womb and so on, to the methodology that
19       we have been talking about and here we see you setting
20       out the ACE-V.
21   A.  Yes.
22   Q.  If we can move on to the next slide, please.  In this
23       slide we are dealing with the part of the analysis you
24       told us about, what surface is the mark on.
25           Move on to the next slide, please.  What does the
page  21
 1       latent mark consist of.  Again, we saw the example
 2       yesterday on the sheet where the mark was deposited by
 3       sweat.
 4           If we can move on to the next slide, please, again
 5       we are still on the analysis phase, what is the latent
 6       developed with.  Then if we can pause a little at the
 7       next slide, where you come to comparison.  You say there
 8       are visual comparative measurements, sequential and
 9       spatial in nature.
10           Can you put that in ordinary language for us,
11       please?
12   A.  The visual comparative measurements are, again we're
13       looking for -- and the sequential and spatial nature --
14       we're looking for features in sequence and agreement
15       with none in disagreement in order to help us come to
16       the next part which is evaluation of the print.  So
17       we're looking, as I just said, whether we're using
18       glasses or it's on a computer screen through an AFR
19       system or whether it's on enlargements or whatever the
20       medium is, we're looking at comparing these with our
21       eyes and looking for characteristics or features in
22       sequence and agreement with none in disagreement in
23       order to come to help us come to a conclusion.
24   Q.  I think we have already touched on the idea that
25       pre-conceived thoughts and expectations should not be
page  22
 1       part of the process.  I'd like to ask about the third
 2       bullet point here where you say others must be able to
 3       see what you see.
 4           Who do you have in mind by way of "others" in this
 5       context?
 6   A.  Anyone else who looks at the mark with the same
 7       qualifications, training and expertise.  In other words,
 8       what you have to guard against is a mindset of saying,
 9       "Yes, it's in there.  Can't you see it?  I'm telling you
10       it's there", type of thing.  It needs to be -- you need
11       to be able to demonstrate when asked what it is that you
12       have actually used as a feature in your comparison.
13   Q.  What you said there was that you needed to demonstrate
14       it to other people with similar qualifications and
15       experience.  I would like to take this theme a little
16       bit further with you if we can think in the first
17       instance perhaps about lawyers who might be interested
18       in the case, whether Crown lawyers or defence lawyers.
19       Must they also be able to see what you see in the mark
20       and the print?
21   A.  I think I hear the phrase recently it's hard to make
22       experts of people who aren't experts.  It takes a
23       certain period of time to be able to compare marks,
24       et cetera, and to qualify.  Sometimes I would say it's
25       very difficult to make ... how to put it.  Sometimes
page  23
 1       it's very difficult to be able to demonstrate some of
 2       the characteristics or features in the way you see them.
 3       However, they can't be explained away, you can't say,
 4       "I'm telling you it's there.  I'm an expert, believe
 5       me".  You must be able to demonstrate it.
 6   Q.  I am thinking there are perhaps two stages to this,
 7       Mr McGinnies.  In the first instance if a case goes to
 8       court and fingerprint evidence is being relied on,
 9       perhaps the first thing that you would have to persuade
10       a lawyer or a member of the jury of or a single judge, I
11       suppose, in the Sheriff Court is there is actually a
12       feature there where you say there is feature, perhaps
13       particularly on an unknown mark where things may be less
14       clear than on a known print?
15   A.  Yes.
16   Q.  What is your position on this?  Should, once you have
17       pointed to what you see, that lawyer or juror be able to
18       see, "Yes, there is something there and I can see that
19       it's the ridge ending that Mr McGinnies is telling me
20       about"?
21   A.  Yes, you should be able to explain what it is that you
22       see, if you think it's movement or you think it looks
23       the way it does because of deposition pressure or
24       fill-in from powders or whatever, you must be able to
25       explain what it is that you see.  There must be
page  24
 1       something there for you to be able to explain.  You need
 2       to have an answer for why it looks as it does, whether
 3       you're saying it's a ridge ending and someone else is
 4       saying it's a bifurcation or you've marked it as a ridge
 5       ending or there's movement or whether it's in a dark
 6       area, you must be able to explain your findings.
 7   Q.  If I can take an example perhaps where to the lay eye
 8       one sees a black line but there is an interpretation of
 9       that line by an examiner to the effect that we shouldn't
10       see that as a continuous ridge for some reason.  Might
11       it be that the viewer, the juror, the lawyer, should be
12       accepting that explanation, even though they can see
13       nothing themselves but a continuous ridge?
14   A.  Fingerprint Examiners are that, they are Fingerprint
15       Examiners.  They are only experts when they're in court.
16       It's up to the Fingerprint Examiner to be accepted by
17       the court as an expert.  It's up to the court to
18       accepted by the court as an expert.  It's up to the
19       court to accept that as expert opinion, evidence.  So,
20       therefore, he needs to be able to demonstrate what it is
21       he is seeing.  He needs to be able to explain his
22       training, his qualifications.  He needs to be able to
23       explain about the formation and structure of the skin.
24       He needs to be able to explain why it would look like it
25       would, if it's not a clear ridge ending comparable with
page  25
 1       a ridge ending, if he has some other explanation why it
 2       looks as it does, he must be able to explain that and
 3       the jury must be able to accept his expert opinion.
 4       No-one should be able to say, "I'm an expert.  I see it
 5       as a ridge ending so therefore take my word for it.
 6       It's a ridge ending".  He's only acceptable as an
 7       expert, his opinion is only acceptable if he can explain
 8       his findings to the satisfaction of the jury or whoever
 9       he is explaining it to.
10   Q.  If I can perhaps take what may seem like a silly and
11       extreme example, Mr McGinnies, if you will forgive me,
12       if we have quite a large area of white in the middle of
13       a mark, the juror may simply say, "I cannot accept that
14       there's anything there for me to see or to understand,
15       whatever explanation I hear for it".  There may just be
16       that situation where there's just nothing to see for the
17       lay person before one even gets to an explanation of why
18       that might be.
19           Would you accept at that point the juror might be
20       justified in stopping and saying, "I'm not really very
21       interested in hearing any more about this.  I just can't
22       see anything"?
23   A.  Again, we're talking hypothetically, so I wouldn't know
24       of the situation you're talking about.  I think that,
25       again, as I say, the examiner has to be able to explain
page  26
 1       his findings to the decision-makers.  He's there to put
 2       his facts, if you like, forward and have it scrutinised
 3       and believed.  He would need to explain his findings in
 4       order for the jury to believe it, the person he's
 5       explaining it to to believe it.  I think there shouldn't
 6       be the case of, "Accept what I'm saying because I am an
 7       expert".
 8   Q.  You said at the beginning of this passage of your
 9       evidence that you couldn't make experts out of people
10       that weren't experts.
11   A.  That's correct.
12   Q.  Are there ever going to be situations where the lay
13       person who is hearing evidence could legitimately be
14       left in a position where the examiner is saying, "Well,
15       I can see this because I have experience.  I have
16       training.  If you cannot see it, well, that may be
17       unfortunate but I'm here and I'm giving my explanation
18       and I'm asking you to accept it"?
19   A.  Yes.  Sorry, I thought -- I should maybe be clearer on
20       that, that if they are accepting his testimony as an
21       expert, then they've got to believe what it is that he's
22       saying, if he has an explanation for it.
23   Q.  But can I take it then there might have to be, I
24       suppose, leaps of faith at more than one stage.  There
25       might have to be a leap of faith as to accepting that
page  27
 1       there is a characteristic where the expert examiner says
 2       there is one?
 3   A.  Yes.
 4   Q.  There might also have to be a leap of faith then as to
 5       the interpretation to be placed on that characteristic.
 6       For example, we have heard in evidence that because of
 7       differences in the way that impressions are deposited
 8       what may appear on one as a ridge ending may have at
 9       least the appearance of a bifurcation on another.  So
10       there has to be an acceptance not just that there is
11       something there but sometimes as to what it is?
12   A.  That's correct.
13   Q.  It may be that that is something that is simply not
14       apparent at either one of those two stages to someone
15       who is not a fingerprint expert?
16   A.  That would be correct, yes.
17   THE CHAIRMAN:  If you are leaving that area, can I just ask
18       when you are demonstrating to a jury, for example, would
19       you use the print first and then move to the mark as
20       opposed to the way you would as an examiner, go to the
21       mark first and then the print?
22           I am asking that because I think, to the layman, it
23       is much easier if you go to the print and you see what
24       it is you are supposed to be seeing in the mark.
25       However, there are certain dangers about that, I
page  28
 1       appreciate.  I am just wondering what would be your way
 2       of going about it, if you were demonstrating to the
 3       jury, to which would you go first?
 4   A.  If I was demonstrating to the jury I would probably,
 5       after going through my explanation of the mark -- bear
 6       in mind this is not a thing that we do practice in
 7       Scotland now on every case, we don't prepare marked-up
 8       enlargements for every case now -- I would have them
 9       side-by-side.  Though explaining that that's not the way
10       I would carry out my examination, I would have them be
11       able to work between the two and be able to look and see
12       if that helped them to understand what it is I'm looking
13       at here.  Yes, sir, I definitely agree it would be much
14       easier to see it on the controlled print that's been
15       rolled evenly and then work across the way.  For them
16       that would be easier to see what I'm seeing and I would
17       use that to help with my explanation but I would
18       certainly let them understand that that's not the way
19       that I -- there was no reverse reasoning in the way I
20       came at my conclusions, no.
21   MISS CARMICHAEL:  Thank you, sir.
22           I wonder if we could move on to the next of your
23       slides here.  You are describing here analysing the
24       basic shape of the ridge flow.  If we can move on to the
25       next one, please, there you have marked in with yellow
page  29
 1       an arch pattern.
 2   A.  Correct, yes.
 3   Q.  Move on to the next one, please.  You are explaining
 4       there that the pattern is compared against the
 5       fingerprints of possible candidates.
 6   A.  Yes.
 7   Q.  We have, I suppose, a more graphic description of what
 8       you have already told us about looking to pattern, in
 9       the first instance, to eliminate?
10   A.  Yes.
11   Q.  If we can go on to the next slide, please.
12           You have given us here a scene of crime impression
13       and a fingerprint form at page 22 of the pdf.
14   A.  Yes.
15   Q.  I wonder if we can start to move through to the next
16       slide, please.
17           What you are demonstrating here is on the scene of
18       crime impression finding your first characteristic and
19       you have marked a yellow dot?
20   A.  Yes.
21   Q.  I think you had originally done this perhaps as a
22       PowerPoint?
23   A.  Yes, it was, yes.
24   Q.  If we can move on to the next slide, please.
25           What you are describing is finding the corresponding
page  30
 1       characteristic on the form.  Should we take it that this
 2       is a fairly realistic depiction of the way that you
 3       actually work?
 4   A.  Yes.  I use this to demonstrate to them how we go from
 5       the unknown to the known, how we look for target areas
 6       and how we build up coincident sequence.
 7   Q.  If we can perhaps just move through these slides.
 8           Again we have found another characteristic on the
 9       left-hand -- and next one, please -- again, we move to
10       the right one and find a corresponding characteristic.
11       We are now on to page 28 and we have a third
12       characteristic now on the left-hand side and on 29 a
13       third characteristic on the right-hand side?
14   A.  Yes.
15   Q.  I will not go through the enquire sequence but it would
16       be fair to say it goes left to right, left to right on
17       each occasion adding another characteristic?
18   A.  That's correct, yes.
19   Q.  When one is at this stage and accepting that one is
20       working from the left to the right, where is the guard
21       in this process against carrying information from the
22       right-hand back to the left-hand as you go?
23   A.  You do.  You don't use that as your starting point.  If
24       I'm looking at an area, and this is particularly where
25       Third Level Detail sometimes comes in, if you look at
page  31
 1       the point that's extremely in the uppermost there of
 2       the --
 3   Q.  What we are looking at at the moment is page 30 of the
 4       pdf which has four yellow dots on each side.
 5   A.  Yes, if we look at the yellow dot that's closest to the
 6       centre of the print, the very top yellow dot, when I'm
 7       going from left to right over there I may look at the
 8       right-hand print and what actually draws my eye there is
 9       that little, it's almost like an incipient ridge or
10       something just below that yellow dot, I may carry that
11       back over to the left-hand side and use that.  If I find
12       that there I may use that as a sort of further check.
13       So you do sometimes, when you go from left to right you
14       will see, okay, I've gone from left to right but right
15       next to that is a bifurcation and when you go over
16       there, that's there.
17           You would then, after having used that for
18       confirmation, I would still say you then work from left
19       to right again.  You would go from that bifurcation and
20       work out the way again on the left-hand print and take
21       it over to the known mark.
22   Q.  But what you are describing is that you see an incipient
23       ridge on the right and you will go back to the left and
24       look for it there?
25   A.  Yes.  What you wouldn't do then is fall into the trap of
page  32
 1       going back over to the right and looking for something
 2       else and trying to work back the way.  You again go from
 3       unknown to known but if your eye is naturally drawn to
 4       something when you're looking at the known print, when
 5       you go back you would use that in the unknown.
 6   Q.  So, if I have this right, you might spot something on
 7       the known and go back to the unknown to look for it but
 8       you would then go from left to right, again?
 9   A.  I would say that you're next --
10   Q.  You don't immediately go back to the right?
11   A.  No, the next set of ridge counting or features that you
12       look for would again be taking it from the unknown
13       across to the known.
14   Q.  But it is not, to be fair, altogether a process that
15       goes in one direction only?
16   A.  No.
17   Q.  Just dwelling for a moment on this particular process
18       and how you do it one of my colleagues has kindly
19       brought me some examples of pointers and I think when we
20       looked at page 5 of this presentation, in fact, we saw
21       the gentleman using some pointers.
22   A.  That's correct.
23   Q.  It may be helpful at this point to go back to that shot
24       at page 5.  I think we can see quite clearly in his left
25       hand he has one of the pointers and we can just see in
page  33
 1       his right hand he has one of the pointers as well?
 2   A.  Yes.
 3   Q.  Can you describe how the pointers are used in this left
 4       to right process?
 5   A.  Certainly.  Again, this is a tool that not everyone uses
 6       pointers.  This gentleman is using pointers.  He will do
 7       that left to right comparison.  He will look for his
 8       target area and he may put his pointer on a bifurcation.
 9       If you like, he's keeping his place, if you like.  He's
10       going over to the right-hand side and he will look for
11       the corresponding feature on the unknown, then he'll go
12       back over and use the pointer.  As you will see they are
13       very sharp and have a very fine point.  He can use that
14       on the actual ridges to count, say he counts three
15       ridges out and there's a ridge ending, he'll go over and
16       count the same three ridges and, as I say, it's a
17       marker.  Some people can do it mentally, go back over
18       and be able to keep their place.  He's using that, if
19       you like, to keep his place in the print.
20           It's good, especially for trainees, because it helps
21       them to be able to find their place.  They don't
22       suddenly miscount ridges or start moving out, "Where was
23       I", and short of using the comparator to actually mark
24       the points it's a good way of them keeping their place
25       when they're training.
page  34
 1   Q.  I would like to ask you a little about the training on
 2       verification, what that involves and at what stage
 3       training occurs.
 4   A.  Verification takes part of the -- again on the national
 5       training programme they have three modules that they go
 6       through.  One of the modules is ACE, the module where
 7       they look at the analysis, comparison, evaluation.  The
 8       V part of that is left until later on in their career
 9       and they carry that out with the verification, preparing
10       and presenting of court evidence.  It is actually in one
11       of the modules and we will have examples within the --
12   Q.  I think what you have helpfully given us are a couple of
13       examples of a student's verification case study as well?
14   A.  That's right.  What the modules have the students do is
15       put themselves in the place of a qualified expert.  All
16       the modular training now is work-based.  If you like,
17       they have the underpinning knowledge from the Durham
18       notes and the inputs provided by SPSA training and they
19       use that underpinning knowledge to then do reports and
20       research on how they actually do things within the
21       workplace.  So there's my understanding of the black and
22       white of it, here's how it actually worked in experience
23       and they write reports on how that intellectual
24       framework fits into everyday work, and those two
25       verification reports are examples of someone's work in
page  35
 1       that area.  So they put themselves in the place of an
 2       expert and set into the verification side of the
 3       process.
 4   Q.  I would like to look, probably quite briefly, at PS0411.
 5       This is one of those verification case studies.  What we
 6       have is the trainee describing that she'd selected the
 7       case from the idents for second check tray in the team
 8       cupboard.  So in doing that is she doing what somebody
 9       doing a real verification, if I can put it that way --
10   A.  Yes, she's reflecting local work instructions.  She's
11       reflecting -- she'll have the underpinning knowledge of
12       what verification of a case is.  Then she'll go and say,
13       "That's my understanding of what verification is.  This
14       is how I actually apply it in the workplace", and as you
15       say correctly that's her understanding of where she sits
16       in that if she was doing a proper verification.
17   Q.  If I can move to the last sentence of the first
18       paragraph there, what she writes is:
19           "Before I began my verification I confirmed that all
20       the paperwork was with the case; all photographs,
21       fingerprint forms, disposition sheet, diary page and
22       Locard sheet."
23           I only want to trouble you about the Locard sheet
24       because it was something I wasn't sure I recognised from
25       any of the paperwork I had seen and I wondered if you
page  36
 1       could tell me more about that?
 2   A.  Isn't there an example of a Locard sheet in that case?
 3       Possibly not.
 4   Q.  We can run forward and you may be able to tell me.
 5   A.  What the Locard sheet would be would be a list of
 6       everything that they received from the scene of crime.
 7       It's a generated form from the Locard system, from our
 8       mark enhancement lab, scene of crime, so that would come
 9       over with the details of the case so she would just
10       check that the Locard's sheet's there and it's all
11       correct.  This is almost part of the analysis.  The
12       first stage of analysis is making sure all the paperwork
13       and the photographs are all in order.
14   Q.  I will not trouble you further about that but it is a
15       piece of internal paperwork.  I think I was perhaps
16       deceived by the name Locard, which we have heard about
17       in the historical context and I thought perhaps it had
18       more significance than that.
19   A.  Again, I would actually draw your attention, possibly,
20       to the last line in the first -- sorry in the second
21       paragraph there.
22   Q.  Yes, please, do.
23   A.  That's it.
24           "Although these stickers mark the previous
25       examiner's findings I carried out my own ACE analysis of
page  37
 1       each mark to reach my own conclusions."
 2           That's part of the verification process that the
 3       trainee wouldn't normally sit in because they would have
 4       the case first.  So they would be the first person to
 5       look at it.  So that's one of the things she's drawn
 6       from this is the fact she has now second in the chain
 7       and she has no preconception, although she's reading
 8       what the findings are, she's no preconception about her
 9       own conclusions.  She has to carry out her own ACE-V,
10       her own ACE analysis of the mark.
11   Q.  In fact, I had been going to go to another example of
12       this but we should perhaps touch on it using this
13       example.  We see a mention of stickers marking previous
14       examiner's findings and I wondered if you could tell us
15       what those are.
16   A.  Within -- I believe this is -- yes, it is.  It's been an
17       identification so you can see the next bit says this
18       mark has been identified 6, 7, 8, 9, 9.  There would be
19       actually adhesive stickers placed below these
20       impressions on the photograph to indicate the findings
21       of the previous person that, for instance, if it had
22       been a trainee would be the trainee would put those on.
23       So the next person coming along to do the verification
24       process would carry out the whole ACE process again
25       independently and on their own so the stickers are
page  38
 1       there, as she says:
 2           "Though the stickers mark the previous examiner's
 3       findings I carry out my own ACE analysis of each mark to
 4       reach my own conclusions."
 5   Q.  But where we have these stickers the numbers that we
 6       see, we should take as the numbers of the digits?
 7   A.  That's right, sorry, yes.
 8   Q.  So the person doing the verification knows from the
 9       stickers which digits have been identified by the first
10       examiner?
11   A.  That's correct.
12   Q.  When this trainee is referring to carrying out her own
13       ACE analysis of each mark, is she doing that by
14       reference only to the identified digits or on some other
15       basis?
16   A.  No, she'll take the whole case from beginning as if she
17       was the first to look at it and carry the whole process
18       through from beginning to end.
19   Q.  So she would not be in any way guided by even the digit
20       numbers here?
21   A.  Obviously, if it has a number 6 under it she's going to
22       be carrying out her own analysis of the mark, her
23       own comparison, but she's going to use -- she's going to
24       go to that impression and compare that impression.
25   Q.  I am sorry, it's probably my fault.  I am still not
page  39
 1       quite clear about that.  She is examining the impression
 2       against the number 6 of the suspect or against --
 3   A.  Yes -- she wouldn't only verify the identified marks.
 4       It's not just a verification.  She's actually doing the
 5       whole case again and that way she's checking anything
 6       that hasn't been identified, anything that's been
 7       eliminated, anything that remains outstanding or even
 8       has been marked as insufficient.
 9   Q.  If we can take that stage by stage, she would check the
10       marks that were designated as fragmentary or
11       insufficient?
12   A.  Correct.
13   Q.  And check whether she agreed with that conclusion.
14           If we take out of this, perhaps, the potential
15       conclusion that there are a number of digits identified
16       and we imagine that we only perhaps have the mark
17       identified as number 6 --
18   A.  Right.
19   Q.  -- when she comes to check that identification, does she
20       check it only against the number 6 of the suspect?
21   A.  She would actually compare it against that impression
22       first.  What she wouldn't do, if there were four
23       suspects, she wouldn't ignore that and go to the first
24       suspect, she would compare it against that impression
25       first, yes.
page  40
 1   Q.  If she agrees with that presumably she looks no more
 2       widely in the case?
 3   A.  Correct, yes.
 4   Q.  I would like to take this one down and go to, I think,
 5       another example you have given us of similar work at
 6       PS0412.
 7           Again, in the second paragraph we have a passage
 8       similar to the one you pointed out about the photographs
 9       being marked with numerical stickers but nonetheless the
10       student carrying out her own ACE analysis of each work.
11           If we take this page down and move on to the next
12       page, please, her conclusions where she sets out some of
13       her own thinking here and I wonder if I might simply
14       read this out for your comment, Mr McGinnies, the
15       student has written:
16           "I found the process of verification unusual because
17       this was the first time that I had looked at a case on
18       which conclusions had already been reached.  Although I
19       believe it is possible to put out of your mind the
20       previous checker and the findings they have reached
21       while you carry out the actual comparison work, I feel
22       it must be very difficult not to be affected, even
23       slightly, by the knowledge of what has been identified
24       previously.  The fact that the photographs have been
25       labelled indicating idents means there is no way of not
page  41
 1       being aware of this and I am unsure of the effect this
 2       could have on carrying out the work.  It seems to me
 3       that the ideal solution would be to have the second
 4       checks carried out on unmarked photos.  However, this
 5       would be considerably more time consuming, particularly
 6       on a large case, and given the current workload of the
 7       Department I don't think this could be managed."
 8           Simply looking at this paragraph, do you have any
 9       comment on that, Mr McGinnies?
10   A.  She's instructed in the verification process and then
11       students are encouraged to go and take that underpinning
12       knowledge and apply it to the work processes that are
13       working within the Bureau and then write their findings
14       and their conclusions.  That is this student's
15       conclusions on how she felt that to be, but then she
16       rounds herself round to coming to, "However this would
17       be considerably more time consuming, particularly in
18       large cases."  So she actually gets to the reason why
19       it's carried out like that and she says it again further
20       when she's talking about marking up --
21   Q.  In fact, it may be helpful to move immediately to the
22       next paragraph there.  She writes:
23           "Before carrying out these verifications I was of
24       the opinion that for best practice the photographs
25       should not be labelled as identifications before being
page  42
 1       checked.  However, carrying out this work has made me
 2       aware of the time involved, even in simply checking
 3       labelled findings.  If the case was to be carried out
 4       again from the start with no indication of findings this
 5       process would be even longer.  Similarly, I am of mixed
 6       feelings about the current practice of marking up a
 7       piece of palm."
 8           What would she be referring to there in terms of
 9       marking up palm?  We have heard about stickers that tell
10       you the digit number.  How would it work with palms?
11   A.  Again, if you have a large piece of palm, the previous
12       person may mark up a starting point, if you like, or
13       they may mark up some features on the photograph to
14       assist the next person with seeing their findings, if
15       you like.  Again, as she says, she had mixed feelings
16       about this at the start.  This is what we encourage
17       students to do, is to think their way through the
18       process and she said she felt there would be no need to
19       mark up a piece of palm but then she realised that the
20       process had been made much faster by being given a
21       starting point.  So she realises that there is no
22       problem with it.  She is still doing her ACE-V on it.
23       She's not just saying, "This person has said it's number
24       6.  This person said that's a piece of palm", she still
25       has to satisfy herself to her own analysis, comparison
page  43
 1       and evaluation of the subject matter.
 2   Q.  But we should take it from this that the labels, whether
 3       they are digit number labels or whether they are labels
 4       on a palm indicating a starting point, are there to
 5       direct the subsequent examiner in a particular direction
 6       for speed so that in the case of a palm they start at
 7       the same place and in the case of a digit look at the
 8       digit first that has been previously identified?
 9   A.  That's correct.
10   Q.  The student goes on after seeing the process is being
11       made much faster by being given a starting point:
12           "A possible negative of this, however, is if the
13       mark is of poor quality it might be possible that
14       following examiners using the points marked by the first
15       examiner could fall into the same error without
16       realising it.  I do believe that this is a highly
17       unlikely scenario but the argument must be there that it
18       could happen as I do not know of any research that has
19       been carried out to discover if this does occur or not."
20           Again, I would like your comment on what the student
21       is thinking there?
22   A.  I think what she then goes on to say is, "Having carried
23       out the verification process, I do not believe the
24       findings of another expert would influence me simply to
25       sign something as an ident if I was not happy with that
page  44
 1       conclusion."
 2           So, again, she goes through the whole thought
 3       process and realises that it wouldn't -- this is part of
 4       letting them do that, that stage of verification, that
 5       they realise they are not going to be influenced by peer
 6       pressure, realise they are not going to be influenced by
 7       someone writing number 6 on a photograph, that they are
 8       actually going to carry out their own analysis,
 9       comparison and evaluation of every mark.
10   Q.  Would it be fair to say that in the final paragraph the
11       trainee is picking up on two things.  One of them is, I
12       suppose, her own integrity that she wouldn't want to
13       sign if she wasn't happy with the conclusion and,
14       secondly, she has the knowledge that she might be asked
15       about the matter in court, which would also be something
16       significant for her.
17           Would you agree with that?
18   A.  Yes.
19   Q.  If we go back to the previous paragraph, I would suggest
20       to you that perhaps what she is recognising is that
21       there is at least a possibility, even for somebody with
22       integrity and working in a proper way, of falling into
23       some sort of error because they have been directed in a
24       particular way in a scenario where there's a mark of
25       poor quality and really leaving aside the very important
page  45
 1       checks that she recognises in the final paragraph, what
 2       your comment on the first paragraph there is?
 3   A.  I would say that's why we have the checks in place that
 4       we have, that even though she recognises she would be
 5       starting at the same point she has come round to
 6       thinking of realising that because somebody's marked it
 7       up doesn't mean to say that's where I'm going to start.
 8       I think she realises that it's a highly unlikely
 9       scenario.  She does say the argument has been there.
10       She doesn't know of any research but dip sampling and
11       the quality assurance process and the three verification
12       or four verification of a trainee checks of marks help
13       to prevent this from occurring.
14   Q.  You see she does not know of any research.  Can you help
15       us with the question of whether there is any research on
16       any error occurring in the way she speculates about
17       here?
18   A.  Not to picking up from someone else on a previously
19       marked impression up, no.  I can only say, as I say, the
20       third verification process, I know of no instances where
21       it's got to the third verification and anyone has gone,
22       "Actually, do you know the first two have got it wrong",
23       and gone back and looked at it and saying, "They got it
24       wrong and did you just follow them", I know of no
25       instances of that happening and certainly dip sampling
page  46
 1       and the three checking and the procedures that are in
 2       place would prevent that from happening or certainly
 3       would highlight it if it happened.
 4   Q.  Are you aware in the first instance of dip sampling
 5       highlighting anything of that sort happening?
 6   A.  No.
 7   Q.  When you say "three checking", are you referring to
 8       something other than the ordinary verification process
 9       there?
10   A.  No, sorry, that is the verification process, yes.
11   Q.  Having spoken a little about ACE-V here, I would like to
12       ask you about the way in which you train people to
13       express their conclusions.  We have heard evidence about
14       the standard of certainty that Fingerprint Examiners use
15       to express themselves in.  We have heard witnesses say
16       that they must be 100 per cent certain themselves as to
17       identity and we have heard suggestions that one would be
18       perhaps 100 per cent certain that another examiner would
19       reach the same conclusion?
20   A.  Yes.
21   Q.  What do you teach trainees as to what their standard of
22       certainty should be if they are saying that a mark is
23       individualised to a particular human being?
24   A.  We train them that if we take the empirical fact that
25       friction ridge skin is unique and permanent, we take it
page  47
 1       that that empirical fact is based on scientific
 2       research.  Then we train them that anyone who has
 3       undergone the training, qualifications and experience
 4       that when they draw their conclusions that they can be
 5       100 per cent certain that anyone with that same
 6       training, qualifications and experience, a qualified
 7       examiner, would come to the same conclusions.  So it
 8       would be 100 per cent certain that anyone would come to
 9       the same findings that they have.
10   Q.  I would like to explore that a little further because to
11       the lay mind it might seem that there are a number of
12       possible areas of uncertainty in the identification
13       process.  We have heard that there can be differences
14       between impressions from the same finger and you would
15       agree with that?
16   A.  Oh, yes -- dependent on pressure or --
17   Q.  It could depend on pressure, it could depend on the
18       amount of sweat on a finger, it could depend on the
19       amount of grease on a finger --
20   A.  Yes.
21   Q.  It could depend on the amount of ink on a finger?
22   A.  Yes, the whole analysis part of the --
23   Q.  It could depend on the skill of somebody operating
24       either inked printing or LiveScans?
25   A.  Correct, yes.
page  48
 1   Q.  There may also be differences in appearance that emerge
 2       because different development media have been used?
 3   A.  Yes.
 4   Q.  Those are all areas which, on the face of it, would
 5       introduce some degree of uncertainty because one has the
 6       knowledge that impressions will differ even as between
 7       the same finger?
 8   A.  Yes.
 9   Q.  We have also heard that there may be differences in
10       appearance as between something that might be on one
11       print a ridge ending, on another (even from the same
12       finger) a bifurcation?
13   A.  Yes.
14   Q.  When one has an unknown print and a known print and one
15       sees on the known print, for example, a bifurcation that
16       seems to be quite a clear bifurcation and one sees on
17       the unknown mark a ridge characteristic which might be a
18       ridge ending or it might be a bifurcation and one has
19       then to decide, if it looks like a ridge ending, which
20       direction it is going in if it is truly a bifurcation.
21       Again, that process of interpretation seems to involve
22       judgment and, of necessity, the conclusion that one is
23       in an area of less than 100 per cent certainty.
24           Would you agree with that?
25   A.  Yes.  They would need to be able to look at that
page  49
 1       individual mark and have an explanation for why it looks
 2       different from one and the other.  It can't be a case of
 3       "and there's an event happening there, we'll take it as
 4       an event", you have to have some sort of reason why; is
 5       it pressure that's made the ridge end gone on away, is
 6       there movement through the print, is there something in
 7       the substrate, is there something to do with the
 8       development process?  They need to have an explanation
 9       for why and that explanation, as we examined earlier,
10       has to be -- you have to be able to explain that to
11       anyone who is coming behind you to look at the same
12       comparison.
13   Q.  The very fact that one is making a judgment,
14       Mr McGinnies, I would suggest to you introduces the
15       possibility that another person might make a different
16       judgment?
17   A.  Yes.
18   Q.  To that extent, one cannot have 100 per cent certainty
19       as to the conclusion that is reached?
20   A.  I would say again that the person -- we train our
21       trainees that when they are reaching that conclusion,
22       when they're signing that off as A1 belongs to number 7
23       of Joe Bloggs, they are 100 per cent certain that anyone
24       who comes behind them with the same training,
25       qualifications and experience would come to the same
page  50
 1       conclusion.  That's the degree of certainty that they
 2       are putting on that because what they are saying is when
 3       they're signing that, when they sign that's an
 4       identification, that they could -- again, it's stressing
 5       that that identification may be presented as evidence in
 6       court and someone's liberty may be affected by it.  So
 7       that is the degree of certainty they are putting on it,
 8       100 per cent of that opinion.
 9   Q.  When you say that they are 100 per cent certain that
10       someone else would reach the same conclusion, would that
11       be on the conclusion overall on the identification or
12       would it be on the level of agreeing with them that,
13       taking my example, one could conclude that the apparent
14       ridge ending bifurcates in one direction rather than the
15       other?
16   A.  Again, the trainees are taught that they've got to be
17       able to review their findings in light of new evidence
18       or new findings.  So if someone comes back and says,
19       "Actually, you have marked that as a ridge ending or a
20       bifurcation.  I actually see it as that", but, again,
21       there would need to be a comparison of that mark to
22       establish their opinion to 100 per cent that we're going
23       to conclude it was made by that person, that area of
24       friction ridge skin and, therefore, that person and they
25       must be able to have an explanation for why they've come
page  51
 1       to that conclusion and that would include any features
 2       that they see within that mark.
 3   Q.  Just following up on that, how would it be that anybody
 4       would come back and say that they had marked something
 5       as a bifurcation or a ridge ending, because I'd
 6       understood myself that there wasn't any marking of that
 7       sort?
 8   A.  Sorry, no, if someone was asked to come back, for
 9       instance, in the second person brought -- the person who
10       was second checking the case bought it back and said,
11       "Actually, you've marked that as an identification.  I'm
12       having difficulty with that area.  Can you demonstrate
13       to me what it is that you see.  I wouldn't be happy to
14       sign that.  I wouldn't be happy to -- I've not been able
15       to work through that area.  Could you show me what it is
16       that you see there".  I think that would be a case where
17       they may mark it up on a comparator and take that person
18       through their findings.
19   Q.  Is that something that happens in practice on a
20       day-to-day level?
21   A.  Yes.  There's very open forum for discussion on that
22       that it's not a case of marking or -- I say marking
23       something up.  It's not a case of signing something off
24       and saying, "That's my findings".  If someone wants
25       somebody to demonstrate something, particularly trainees
page  52
 1       at early stages where it may be a complex mark or it may
 2       be something that they are unable to at that time work
 3       through or explain that would be for their coach or
 4       mentor or myself to take them through that and explain,
 5       "You said you can't get through that area.  Here's my
 6       explanation of why there's movement.  It's a double
 7       touch.  It was pressure.  It's reversal of colour", and
 8       that helps build them and I would put forward that every
 9       examiner -- every day is a school day.  It's an
10       experience thing that you are always looking at marks.
11       Because of the very nature of the difference of crime
12       scene marks there are always things that you are having
13       to revisit and have a look at and look at other people's
14       explanations for with an open mind to see what they see.
15   Q.  You have explained that this is something that would
16       happen particularly with trainees.  If you can help us
17       with how something like that might work in practice,
18       Mr McGinnies, how it might arise that one examiner was
19       going back to another to discuss an area of difficulty.
20           For the purposes of this question, if we can leave
21       aside the trainees which you have told us about going to
22       their mentors, if you could help us with practice, how
23       it would come about that somebody came to another
24       examiner saying, "I'm having a bit of difficulty with
25       this area of the mark.  I see you've reached a
page  53
 1       identification", first, how that would come about and,
 2       secondly, how it would play out in practice?
 3   A.  It may be the second person goes to their examination in
 4       the case, they go through their ACE analysis and the
 5       first person has marked number 6 as, sorry, impression A
 6       as number 6 of Joe Bloggs.  That person maybe thinks
 7       there may be movement in it or there's maybe not sort of
 8       sufficient quantity and quality of characteristics or
 9       features to make them certain that it's an
10       identification.  So they may take it back to the first
11       person and say, "I'm having a bit of difficulty with
12       this", and it would be just a case of saying, "I'm
13       having a bit of difficulty with this.  Could you maybe
14       explain what it is that you have, you have looked at",
15       and it may be a case of them marking it up on a
16       comparator for them to let them see the area they've
17       looked through, what their explanations are in that
18       case.
19   Q.  Is this something that happens quite informally outside
20       of any questioned identification procedures or anything
21       of that sort?
22   A.  Yes.  It's a very -- yes, it's very open and you would
23       expect -- you should be able at any stage and ready at
24       any stage to explain your findings.
25   Q.  What happens at the end of these sorts of discussions,
page  54
 1       Mr McGinnies?
 2   A.  It may be a case that the person just hasn't thought of
 3       the explanation.  It may be the fact it is a double
 4       touch.  It may be the fact there is some pressure that
 5       they haven't taken cognisance of.  They may look at it
 6       and say, "Okay, I'll take those marks that you have
 7       marked for me and I'll work through that area with that
 8       new information, review of my findings, something that
 9       you've brought to my attention that possibly I hadn't
10       thought of, the fact that I do now see that there's a
11       double touch and there is something underlying", and
12       they may work through that themselves and say, "Yes, I'm
13       now quite happy to include that identification with that
14       explanation".
15   Q.  So you are describing the second person having the
16       discussion with the first person, the first person
17       perhaps marking things up on a comparator, a discussion
18       taking place and the second person becoming persuaded
19       that the first person was correct?
20   A.  I wouldn't say they're persuaded.  I don't think you're
21       trying to say, "This is what I see so, therefore, you
22       must be able to see it".  They are only putting forward
23       their hypothesis of how the mark looks as it is.  It may
24       be a case the second person says, "I'm still not happy
25       to work through that area, however, now you have pointed
page  55
 1       out another area I'll work through that".  It's not a
 2       case of persuading.  You're not trying to win that
 3       person over.  You are only putting forward your
 4       explanation of how the impression looks as it does.
 5   Q.  I perhaps used the wrong word but would it be fair to
 6       say that they come to a conclusion in the light of the
 7       further information that the first person has given
 8       them?
 9   A.  Yes.
10   Q.  That the first person was right?
11   A.  Yes.
12   Q.  Does it ever happen in practice that the first person
13       listens to the second person and thinks, "Hmm, now you
14       mention it, there is a bit of a problem here.  I'm not
15       so sure about my identification"?
16   A.  That's where the -- I think it's actually part of the
17       job description or role profile that you must be able to
18       revisit your findings, have an open mind to looking at
19       some other piece of information that comes along.
20       Certainly if the second person had said to them --
21       obviously, they put that forward as 100 per cent certain
22       they made that identification.  They may highlight
23       something that they hadn't thought of and they may or
24       may not change their mind but I would say that second
25       person's opinion would certainly be listened to and
page  56
 1       taken cognisance of.
 2   Q.  I think you have touched on something that I was about
 3       to come to with you, Mr McGinnies.  If one has carried
 4       out one's examination in good conscience and has
 5       concluded to the 100 per cent standard that you are
 6       describing, it might strike the outsider as very
 7       difficult to have a discussion with somebody who is
 8       convinced to the standard of 100 per cent that they have
 9       reached the right conclusion and I wonder if you could
10       comment on that?
11   A.  What would normally happen in a case like that, if I had
12       made my identification, marked up my identification,
13       when I say "marked up" I mean recorded my identification
14       and put it forward and the second person says,
15       "Actually, I'm not convinced with that, that area", for
16       instance, as we spoke about then.  That may go to a
17       facilitated discussion.  In other words, one person
18       would be saying, "I think there's enough on it to
19       identify".  The second person may be saying, "I'm not
20       happy with a certain area", and that would then go to a
21       verification team who would hold a facilitated
22       discussion with the two individuals, letting them put
23       forward their views on the process.
24   Q.  So at that stage one moves into a formal procedure?
25   A.  Yes.
page  57
 1   THE CHAIRMAN:  I am not sure that I have understood.  Is the
 2       second person the verifier or just a person you consult?
 3       When you speak of the second person to whom were you
 4       referring?
 5   A.  In this instance I was referring to it being the second
 6       person to check the case, so the next person has taken
 7       the case and is verifying -- is doing their --
 8   THE CHAIRMAN:  So the second person is the verifier?
 9   A.  Yes.
10   THE CHAIRMAN:  Then the verification team, you say there is
11       somebody beyond that, again, if there's a difference of
12       opinion between the verifier and the preliminary
13       examiner?
14   A.  Yes.
15   MISS CARMICHAEL:  Are you aware of any situations where the
16       content of the verifier's doubts, if I can put it that
17       way, have caused the first examiner to change his or her
18       opinion without the matter moving to a formal process?
19   A.  Not, that I can -- I would need to ... no, not that I
20       can recall of it happening because that would then be --
21       if that was formally recorded that would be a
22       mis-identification because the first person says no --
23       sorry, the first person says, "Actually, no, I've
24       changed my mind".  They may then say they are unhappy
25       to ... not unhappy, they are no longer satisfied with
page  58
 1       the conclusion.  In other words, they are saying, "I'm
 2       not happy to put that forward as an identification".  I
 3       can't recall any instance of that, no.
 4   Q.  We came to this discussion through a series of questions
 5       about 100 per cent certainty.  Is the way that this is
 6       expressed, for example, by an examiner giving evidence
 7       as to his standard of certainty, is this something that
 8       comes up for discussion at all in court skills training
 9       that takes place for examiners?
10   A.  Yes, it would come up in questions similar to this
11       actually.  If it's the examiner's court skills courses
12       that are run by ourselves and the Crown Office and
13       Procurator Fiscal Service then certainly the fiscals
14       that are taking part would be free and certainly would
15       ask questions exactly along these lines, whether it be
16       of Scene Examiners, Fingerprint Officers or anyone else
17       who was undertaking the Court Skills Course, yes.
18   Q.  Tell me if I am wrong about this but my understanding of
19       the court skills training is that both qualified and
20       trainee examiners are put through their court paces by
21       questions from Procurator Fiscals Depute?
22   A.  That's correct, yes.
23   Q.  The questions that are asked by the Fiscals in the
24       course of this training, is there ever any challenge to
25       the idea of certainty of conclusion?
page  59
 1   A.  It's a question that they may ask in the course of the
 2       court skills, as may be asked in any court.  Court
 3       Skills Courses very closely match an experience of being
 4       in court, as far as we're using Procurator Fiscals
 5       Depute and we use the court skills court room up at
 6       Tulliallan.  So it's very much set up like that.  So the
 7       instances of that may arise, that they are asked
 8       anything they may be asked in a normal court and,
 9       therefore, the examiners answer as they would in court.
10           What would happen then possibly in feedback or
11       workshops, they would through the other observers that
12       have taken part in the workshops and the Fiscals that
13       have taken place in the exercise would then ask to
14       discuss any of the answers that they've given in their
15       mock trials.
16   Q.  As to what the Fiscals do in the court skills training,
17       are they experts only giving, if I can put it this way,
18       evidence-in-chief in the way they would normally be led
19       by the Crown or are they also cross-examined by the
20       Fiscals, as it were, in the role of defence agents?
21   A.  Yes, they are cross-examined.  It's very much like the
22       whole court experience.  What we do with anyone who's
23       been to court, we have a court debrief form.  So anyone
24       who attends court, they would fill in one of these court
25       debrief forms.  We use that, we summarise those monthly
page  60
 1       to let us see the sort of areas that are being brought
 2       up in courts.  We would then feed those to the Fiscals,
 3       in a summarised redacted state, to let them see the sort
 4       of questions that are current and they would use those
 5       in their scenarios.
 6   Q.  I see.  So anybody who goes to court in real life will
 7       fill in a court debrief form, a record is kept of that
 8       and passed to the Fiscal and informs what the training
 9       comes to be in the mock court situation?
10   A.  Yes.
11   Q.  You answered some of my earlier questions about this in
12       the form of how things would be done.  Do you know --
13       and if the answer is no, that's fine but do you know
14       whether the question of certainty, of 100 per cent
15       certainty, has been explored in the mock court
16       situation?
17   A.  I would need to read the summarised statements from the
18       last year to look.  So sorry I can't ...
19   Q.  If you can't answer that, that is fine.
20   A.  No.
21   THE CHAIRMAN:  I imagine an experience in the courts,
22       defence counsel will often ask how confident are you or
23       how sure are you that your opinion is correct?
24   A.  Yes.  One of the things that normally runs off the
25       examination-in-chief is can you read from your statement
page  61
 1       your findings and the response to the end bit is
 2       usually, "Are you 100 per cent sure of your findings",
 3       and that is usually yes.  So that opens it up.  To my
 4       knowledge I don't recall any defence attacking anyone
 5       over the last year on their 100 per cent certainty.
 6   THE CHAIRMAN:  The lawyers brought this in, this
 7       100 per cent certainty then ...
 8   A.  Well, as I say, in the summaries, if there are one, it
 9       will be there.
10   THE CHAIRMAN:  I think it is time we took the break now.  We
11       will sit, again at just after 11.50.
12   (11.33 am)
13                         (A short break)
14   (11.53 am)
15   MISS CARMICHAEL:  Mr McGinnies, still staying broadly with
16       the theme of certainty, in the course of the Inquiry we
17       have heard witnesses say, although they have been
18       talking largely about a time when they were working to
19       the numeric standard, that once one had a certain number
20       of points in sequence and agreement then any difference
21       that was observed elsewhere as between mark and the
22       print was effectively irrelevant because, given the
23       volume of agreement, the two really had to come from the
24       same source.
25           What is your view on that?
page  62
 1   A.  The answer with -- it's one of these things, when we're
 2       about any impression, it would need to be show me the
 3       mark.  We need to look at what it is we're talking
 4       about.  Is it an explainable difference because of
 5       movement?  Is it something that may be an erroneous
 6       ridge that's been created by LiveScan?  What would the
 7       circumstances be?
 8   Q.  If I can put it this way: in your own practice and in
 9       what you teach trainees, is there any number of points
10       that when one reaches it you can feel safe in saying,
11       well, okay, I don't know what the explanation for the
12       difference is, but there must be some proper explanation
13       because I have all this other information that points me
14       in the direction of an identification?
15   A.  We were talking about the number of points.  We're
16       trying to put a quantitative number on what has to be a
17       qualitative analysis so we need to look at the
18       information that's there.  If there's a full print of a
19       left thumb on a rear view mirror, very clear print, it's
20       been swept, it's been developed, it's on smooth glass on
21       a smooth service and we have, for instance, this is just
22       using a number for example, we have pattern, ridge flow,
23       creases, maybe a scar, 30 or 40 characteristics, but we
24       have one, are you talking about, maybe have one
25       characteristic that's a bifurcation that we can't really
page  63
 1       explain with the rest of the information that's there,
 2       we still reach the conclusion that's a difference that
 3       we don't have a -- yes, it's because of movement but we
 4       can still make an identification.
 5   Q.  I am sorry, I perhaps didn't catch the last thing that
 6       you said.
 7           Are you positing this as an example where you would
 8       be saying, yes, this a bifurcation must be a result of
 9       movement but --
10   A.  Yes.  You do have instances where there's so much
11       information there that it can only be made by that area
12       of friction ridge skin and, therefore, that person.  It
13       would need to be marked down as an unexplainable
14       difference but you would need to explain in court the
15       formation structure of the skin, I would be looking to
16       explain how I carry out my analysis, I would be looking
17       to explain what I did in that case and the wealth and
18       the amount of features that are in sequence and
19       agreement with none in disagreement was enough to make
20       me sure that that was an identification and that was a
21       difference that had to be explained through movement or
22       a double touch then, yes, it is possible to make that
23       identification, yes.
24   Q.  Might you do that even in a situation where you could
25       not be sure as to what the explanation for the
page  64
 1       bifurcation actually was?
 2   A.  Again, it's very difficult to think hypothetically
 3       because you would need to look at the mark and find out
 4       what it was on, what it was developed with.  Sometimes
 5       in a print or an impression, for instance, if it's on a
 6       piece of plastic cowling you can have parts of the
 7       impression when developed with -- sorry, when developed
 8       with superglue, will go from being correct for direction
 9       for colour, in other words, the pressure shows in the
10       ridges as white lines and the furrows as black lines, to
11       something being reversed for colour so the pressure has
12       made the ridges look black in cyano acrylate or in
13       superglue and the furrows look white.  In other words,
14       within one print you have the two so you need to look at
15       each impression, what it was developed on, what it was
16       developed with and what pressures were -- you need to do
17       your whole analysis to be able to explain why that could
18       be there.
19   Q.  If we go back -- and I appreciate it is difficult with
20       hypothetical examples -- but to the example that you
21       gave where you have the fingerprint nice and clear on
22       the flat surface on the glass of a rear view mirror in a
23       car and you have your, I think you said, 30 or 40
24       characteristics --
25   A.  Yes.
page  65
 1   Q.  -- but you have a bifurcation, a single bifurcation,
 2       that does not match.
 3   A.  You could still effect that as an identification.  You
 4       could still say that area of friction ridge skin has so
 5       much features and detail in sequence and agreement that
 6       it could only be made by that area of friction ridge
 7       skin that you're comparing it with and, therefore, an
 8       identification to the same person.
 9   Q.  You would be saying in that situation then that there
10       must be some explanation for the bifurcation that does
11       not match?
12   A.  Yes.
13   Q.  But might it be that you would not know or be very sure
14       yourself what that explanation was?
15   A.  That's correct, yes.
16   Q.  What I would like to try to explore is where you tell
17       the trainees the cut-off is.  In what circumstances can
18       one and can one not disregard the feature that does not
19       match?
20   A.  They would be trained not to look, again from day 1, not
21       to look to explain away things as movement.  That's
22       movement and that one over there that's probably
23       movement as well and that's just a dark area.  They
24       would have to have done their complete analysis and
25       looked -- when they are doing their analysis again at
page  66
 1       the early stages they would be writing these things down
 2       before they look at the known or the exemplar mark.
 3       They would have that in their mind whether there's going
 4       to be red flag areas, maybe areas of double touch, areas
 5       of movement, areas of slippage that they are going to
 6       take and this is where it comes into like a clarity
 7       bridge or their tolerance levels.  The more complex the
 8       mark, the more movement, the more deposition pressure
 9       there is, the more the development method may have
10       affected the mark, the more tolerance they are going to
11       build into their comparison for differences.  If you
12       have a nice clear mark on a rear view mirror and you
13       have several discrepancies that can't be explained away,
14       you shouldn't be looking to explain them away by that's
15       movement.  So they are trained at a very early stage to
16       look at each mark on its own merit, to complete their
17       analysis stage and to bear in mind any red flag areas or
18       the tolerances they are going to build in to their
19       comparison.
20   Q.  You said where there's a very clear mark they should be
21       reluctant to try to explain things away.  Where one has
22       a complex mark, are you suggesting then there is more
23       room for them to interpret what may appear to be things
24       that don't match as between the mark and the print?
25   A.  Yes.
page  67
 1   Q.  Again, looking at this from the lay perspective, if I
 2       may, Mr McGinnies, might it not be that there's actually
 3       more potential for error where one has a mark that is
 4       not clear and one should perhaps be more reluctant to,
 5       if I can put it this way, explain away things that look
 6       different in those circumstances.
 7   A.  Yes, and again we take it back to each mark on its own
 8       merit but they would have to be satisfied in their own
 9       mind why they are explaining these things.  We are
10       talking about features in sequence and agreement with
11       none in disagreement, but when we talk about none in
12       disagreement we have to look at the individual mark and
13       this is why we carry out the analysis stage.  This is
14       why we look at what the marks on, what it's developed
15       with, what pressures have been involved, if there's any
16       movement, if there's any background disturbances.  This
17       will then be built into their tolerances when they are
18       making their comparison, not to explain things away but
19       to realise why things may look different.  Yes, you are
20       correct, in more complex marks there are more things
21       they have to explain but it's not to explain away.  If
22       you're explaining away too many or putting in too many,
23       "Well, if that's that, then that's that and that could
24       be because of that", then you are probably looking at an
25       insufficient mark.
page  68
 1   Q.  If I am understanding you rightly, when one looks at a
 2       complex mark there may come a point whereby if one is
 3       having to make too many judgments to explain apparent
 4       differences then one perhaps should not be making them
 5       at all?
 6   A.  It's possible, yes.
 7   Q.  This may be a difficult question but how do you teach
 8       the trainees to recognise that point?
 9   A.  By carrying out their ACE-V analysis.  Throughout the
10       training we don't give them very complex marks very
11       early on in the training.  We have a training programme
12       that follows a national programme through their
13       foundation, intermediate and advanced course.  On these
14       courses they are assessed on various aspects of their
15       profession, one of them being a practical assessment.
16       These practical assessments grow in difficulty
17       throughout their training, as will the tests that they
18       sit in-house set by myself or other trainers.
19           It's in this building up to the more difficult
20       marks, if you talk about working into a mark and looking
21       in to more difficult and complex marks.  It's an
22       experience-led thing through continual assessment and
23       gauging their progress that lets them come to their
24       conclusions and realise why they can work into more
25       difficult marks.
page  69
 1           What we actually do -- what I do at this stage of
 2       training is let people -- and it's sometimes people
 3       contain it in their ACE portfolio, is looking at marks,
 4       revisiting marks that they weren't able to identify at
 5       an earlier stage in their career and realising how more
 6       easily they can identify them now and it's just been
 7       through their experience of looking at different marks
 8       and looking at different development methods, on
 9       different deposition pressures, the way that marks are
10       left on different surfaces, that builds up that and
11       that's carefully monitored throughout their career to
12       make sure that they are making progress on that.
13   Q.  If I can just take movement as an example, Mr McGinnies,
14       if I have understood what you have just been saying, it
15       might be that when people become more experienced and
16       start to work through more complex marks, they might
17       become more ready or more able to identify that there's
18       been movement in a mark and that's perhaps an
19       explanation for some difference they have not been able
20       to rationalise in that way previously?
21   A.  That's correct.
22   Q.  That, as you have said, is something through experience.
23       Is there any, if I can put it this way, ground truth
24       research that a trainee can go to and say, "Well, there
25       have been papers done that show how movement can affect
page  70
 1       a mark, people have done experiments that show how
 2       movement can affect a mark and when I go and look at a
 3       mark and try to assess whether movement is the cause of
 4       the difference in appearance that I see between the mark
 5       and the print", if they can gauge the correctness of
 6       their working by reference to any paper or research or
 7       objective information of that sort?
 8   A.  Certainly very early on in a trainee's career, on one of
 9       the portfolios is an attachment to -- it's recovering of
10       friction ridge detail from scenes of crime, from the
11       mark enhancement lab and from the mortuary.  When they
12       are on these attachments -- it's a three
13       week attachment -- what they do is they conduct their
14       own experiments.  They are able to first hand see the
15       effects on the developed mark on, for instance, glass,
16       on ninhydrin.  So if you take ninhydrin, the sweat onto
17       the paper of ninhydrin, they look at the ninhydrin
18       process with the ninhydrin reacting with the amino acids
19       in the sweat and they see how the mark then develops.
20       They see that it may appears pitted, it may appear,
21       where on the fingerprint it would appear as a straight
22       ridge because of the porous substance of the paper and
23       because the sweat evaporates off they may see it as a
24       dotted line.  That's the first-hand experience of them
25       seeing that process taking place.  So when a ninhydrin
page  71
 1       mark comes into the Bureau they are building that into
 2       their analysis stage by knowing from first hand
 3       experience, "I know that is why that that is why that is
 4       going to look like that.  That's why when I look at the
 5       unknown against the known it appears as a continuous
 6       ridge on the fingerprint form but it appears like a
 7       series of dots and I know from my experience from my
 8       attachment that that's because of the way that ninhydrin
 9       reacts with the amino acids in the sweat and the sweat
10       on the paper to make it look like that".
11   Q.  I can follow what you are saying so far as that might
12       help people learn about how development methods affect
13       the appearance of marks but dwelling, if we can, on the
14       theme of movement.  What is there by way of objective
15       material that the trainee can go to to gauge whether the
16       assumptions that they are making about movement as an
17       explanation are correct ones?
18   A.  Again, this would be through the training department,
19       letting them have a look at previous marks that we have
20       within the training, that may be double touches, may be
21       lateral reversals, may be reversal of colour.  We let
22       them see these so that they know what it is to look for.
23       We let them examine these marks and do an ACE report on
24       them so when they see this, when this recurs in their
25       daily working they know what it is they are looking for,
page  72
 1       they have had experience of what these marks look like,
 2       with different deposition pressures and different
 3       movements.
 4   Q.  Would I understand rightly that these examples would
 5       come from the everyday practice of other people in the
 6       office?
 7   A.  Yes.  One part of the national trainers forum where we
 8       have regional meetings and national meetings, that is
 9       the sort of thing that's shared across the country and
10       you would take along to your national/regional meeting
11       an impression that was unusual or an impression that had
12       posed some difficulty or an impression that could be
13       used for training purposes.  So we share that across the
14       country.
15   Q.  What the trainees learn from that is that another,
16       probably a more experienced examiner has made an
17       identification of a particular mark with a particular
18       print and that that examiner has done so on the basis of
19       understanding that there has perhaps been some movement
20       when the mark was deposited?
21   A.  Correct, yes.
22   Q.  So, in a sense, that is another way of the experience of
23       other examiners being handed to the trainee --
24   A.  Yes.
25   Q.  -- or to the less experienced person.
page  73
 1           What I was wondering was whether there are examples
 2       in research where there is a known ground truth, if I
 3       can put it that way, because I am not suggesting that in
 4       these examples the individuals who have done the
 5       identification have got it wrong but there is no
 6       underlying known ground truth to that identification in
 7       the sense that it is known that they came from the same
 8       digit and in the sense that it is known how movement
 9       affected it in the way if I gave you my fingerprint form
10       and you watched me smear my thumb across a piece of
11       glass you could be quite certain in that circumstance
12       that the difference between my ten-print form from my
13       thumb and what you found on the piece of glass was that
14       I'd moved it because you saw that and you had an
15       absolutely objective basis for saying that that's what
16       caused the movement.
17   A.  Yes.
18   Q.  What I am wondering is whether there is experimental
19       work of that sort where there is the known truth and
20       that the trainees are directed to, to help them gauge
21       whether interpretations based on movement are correct
22       interpretations?
23   A.  That's some of the work that trainees will carry out on
24       their placement.  They will have the chance to, as you
25       say, using a control print, they know exactly when the
page  74
 1       print was left, they know the deposition pressure, they
 2       know the development medium because they created it.
 3       I've got several of my own that we use which I know are
 4       left in a certain pressure on a plastic bag, which has
 5       been vacuum (inaudible) and then I have my fingerprints.
 6       So I know that because that look's like that is because
 7       it was dealt with by a certain chemical process that
 8       made it look like that because those are my fingerprints
 9       I'm comparing with.
10           Trainees will do that for several areas of
11       comparison.  They'll do it for movement, they'll do it
12       for pressure, they'll do it for looking at different
13       development mediums and they'll bring those back and
14       those will form part of the reports that they create for
15       the recovery of friction ridge detail at a scene, in the
16       lab and from the mortuary.
17   Q.  So what they would have would be experimental material
18       that they created themselves in the course of their
19       training?
20   A.  Yes.
21   Q.  I had started asking you about, I think we came to this
22       via, originally, a question about differences and
23       unexplained differences at the start of this sequence of
24       questions.
25           In the context of the non-numeric standard where you
page  75
 1       have the holistic analysis and, if I understand rightly,
 2       possibly a mixture of Second and Third Level Detail --
 3       is that correct?
 4   A.  Yes.
 5   Q.  -- how do you teach the trainees to assess the volume of
 6       information, particularly where there may be a mixture
 7       of that sort of Second and Third Level Detail that is
 8       sufficient to individualise and to render irrelevant the
 9       stray bifurcation that we talked about earlier?
10   A.  Again, this is taken from early training, it's taken on
11       just doing ACE reports on what they see.  So they will
12       list features and bifurcations -- sorry, features,
13       breaking it down into bifurcations, maybe ridge endings,
14       taking it as far as writing down it's a ridge ending to
15       the right or a ridge ending to the left, it's a
16       bifurcation to the left or right or up or down, drawing
17       out their target areas.  Then as we take them through
18       more complex marks, marks with less area of friction
19       ridge detail present, there may be impressions that
20       we'll let them have a look at that maybe have only eight
21       or nine characteristics but have other features in
22       sequence and agreement.  There may be scars, creasing,
23       ridge edge shapes and let them do ACE reports on those
24       so they are building up a picture of how they can look
25       further into the mark and use more of the information
page  76
 1       that's available to come to their conclusions.
 2           Under the numeric standard that was still done but
 3       there had been to be 16, 10 and 10 -- 16 points to take
 4       to court.  The holistic -- sorry, under the numeric
 5       standard these features in sequence and agreement were
 6       still used not -- to come to a conclusion of identity
 7       however not to take it to court.
 8   Q.  Now that one is not looking for 16 points simply because
 9       a rule that says that you have to under the non-numeric
10       standard now, if you can think about the situation where
11       perhaps somebody has identified a target group in a
12       series of, say, four or five features that leap out at
13       them from the mark and they go to the print and they
14       find those there, if they found their target group there
15       in the print, is that it?  Is that enough to identify?
16       Would they stop there?
17   A.  No, they would work across the print.  They should be
18       looking at any feature that they see on the print
19       bearing that they work between any feature on the
20       unknown print across the print to any feature on the
21       known mark across.  So if they're counting 12 ridges
22       between a ridge ending and a bifurcation and 4 around to
23       another ridge ending, they should be able to do that
24       right across the print.
25           They wouldn't concentrate on the target area.  The
page  77
 1       target area's only an area that naturally draws the eye
 2       to get them a starting point, if you like, to see if
 3       they can further compare.  They would certainly look
 4       right across the print for all the information that's
 5       available, checking that it's all in sequence and
 6       agreement.
 7   Q.  If I can take that a step further, they start with their
 8       target group.  They work back and forth and find that
 9       the target group are all there.  They work back and
10       forward a little more and find more points in sequence
11       and agreement, at what point, if you can tell us, do
12       they have enough to be sure?
13   A.  Again, it's trying -- it's a quantitative and
14       qualitative analysis.  You're looking at the whole mark.
15       So it would be when you're satisfied.  That sounds a
16       bit sort of ... it's when they're satisfied that they
17       have enough, sufficient information of quality and
18       quantity within the two to effect an identification.
19       Depending on the mark, it may take longer or may take
20       more to convince them but it could be very early in the
21       comparison or, depending on the complexity of the mark,
22       it may take longer to work to get right across the mark
23       and make sure that everything's in sequence and
24       agreement.
25           So, depending on the clarity of the mark and the
page  78
 1       tolerance level, will depend on how soon they came to
 2       their conclusions.
 3   Q.  What do you teach them about what is enough for
 4       satisfaction in that situation as they work across?
 5   A.  Funny enough that is a question that comes up in our
 6       mock courts is what -- we were just thinking back to
 7       what you were speaking about earlier and that is a
 8       question that is posed by defence, if you like.  When
 9       are you satisfied?  What is satisfied?
10           The answer to those would be by looking at each mark
11       on its own merit, by studying all the details, all the
12       features that are present, by taking into account all
13       your information, all your analysis, and it's when
14       you're satisfied to that conclusion of identification
15       that anyone else coming behind you with the same
16       training, qualifications and experience will come to the
17       same conclusion you've effected an identification.  So
18       it sounds (inaudible) to say it depends on the mark but
19       that's what they are trained when they are satisfied.
20   Q.  Can I take it then that the answer to any question that
21       I ask you along these lines will always be it depends on
22       the mark?
23   A.  Yes.  It's something that they're taught at NPIA as well
24       very early on is to -- it's something that in court and
25       in mock courts especially we try to hypothetically take
page  79
 1       people down the line of "could you identify on".   So
 2       they've got to be aware that the answer has to be
 3       "depends on the mark" and they can only talk about the
 4       mark that they've identified in this case.  They
 5       shouldn't really be drawn into going down a way, a line.
 6       They've got to talk about what they're there in court
 7       for that day to.
 8   Q.  Just following that theme, if a defence agent does ask,
 9       "Well, would you identify on four points?" is there any
10       reason why he is not entitled to a straight answer?
11   A.  No, certainly not but the answer would be I would need
12       to see the four points.  Hypothetically could I identify
13       four points?  Yes, if they were clear, if there were
14       other features in sequence and agreement, yes, but it
15       would need to be qualified by, "Yes but I would need to
16       see the mark".  You would need to see the four points.
17       But there would never be an evasion.  There would be no
18       evasive answer of, "No, I couldn't answer that".  They
19       would give their opinion obviously.
20   Q.  I would like to ask you a little bit more about the
21       Court Skills Course just following on from that.  Before
22       I move on to that, I am being asked to highlight just
23       something we touched on earlier about tolerances and, in
24       particular, are there any documented standards that one
25       can go to in the first place as to how one should assess
page  80
 1       the quality of a mark in determining how much tolerance
 2       to give?
 3   A.  No.
 4   Q.  Is there any anything written down as to what one should
 5       tolerate for or is it simply the sorts of things that
 6       you have been talking that are passed on through
 7       experience: the idea there may be movement; there may be
 8       pressure; there may be a difference because of a
 9       development medium, that sort of thing?
10   A.  Yes.  It's through training, through experience and
11       through demonstration of this is what reversal colour
12       looks like, this is what a double touch looks like, and
13       let them see these things, let them work through them
14       for themselves and that give them the experience to
15       recognise these things when they come up in day-to-day
16       work.  There's no manual of tolerance levels like you
17       would have for a machine, no.
18   Q.  That is helpful to know.  Thank you.
19           Moving on then to the Court Skills Course, I have
20       been asked to clarify with you some things you say at
21       paragraph 75 and 76 of your statement if we could have
22       that, FI0193 at page 19 to on 20.  At paragraph 75, if
23       we can start with that, you describe a course prepared
24       and presented with the Crown Office and Procurator
25       Fiscal Service at Tulliallan.  Who goes on that?  Is
page  81
 1       that just trainees or is it qualified officers as well?
 2   A.  That one's -- that's the sort of basic criminal justice
 3       system and that's for trainees.  There's nothing to say
 4       that if an expert wanted a refresher or something like
 5       that an expert couldn't go along on that, but it is
 6       designed at trainees who are learning about the criminal
 7       justice system, the sort of basics of roles, who sits
 8       where, what their responsibilities are.  That's the
 9       basis of that one and a very, sort of, brief
10       introduction of court etiquette, et cetera.
11   Q.  Is that one where they would get the mock court
12       examination or does that --
13   A.  No, that would be a further course.
14   Q.  I see.  You describe at paragraph 76, if we could go to
15       that, please, another Court Skills Course specific to
16       the NPIA Court Assessment Element to assist trainees
17       developing skills in the area.  In the first place, is
18       that a Tulliallan course as well?
19   A.  That can either be run at SPC(?), because it's good to
20       use the courtroom facilities up there, but that can be
21       run anywhere.  That's run by ourselves, SPSA Training,
22       in accordance with NPIA as well or sometimes by trainers
23       from other bureaux in England and Wales and Northern
24       Ireland.
25   Q.  Are the Fiscals involved in that course?
page  82
 1   A.  If I run it at Tulliallan, the Fiscal -- the last time I
 2       ran it, I had the Fiscal come along as a sort of
 3       evaluation of the course.  The reason we don't involve
 4       Fiscals at that stage is because it's not
 5       Scottish-specific.  It's geared towards the NPIA court
 6       assessment and it's more across a national standard.
 7       It's court skills in general as opposed to dealing with
 8       specific court practices in Scotland.
 9   Q.  Sorry, staying on that course, how long is the course
10       you describe the paragraph 76?
11   A.  That's a two-day course as well.
12   Q.  At what stage do we come to a course where the Fiscals
13       come along and carry out examination in-chief and
14       cross-examination in the mock court?
15   A.  That's an expert -- we term it an expert or an
16       examiner's court skills course.  Those are run at
17       Tulliallan and those are run for -- those have been run
18       recently.  We had two for fingerprints but those are
19       going to be run for Forensic Services-wide.  So, for
20       instance, on the day it would be a two-day course and we
21       would have a Fingerprint Examiner, someone from the Mark
22       Enhancement Lab, and somebody from DNA all involved in
23       the same mock case given to them as if it was an actual
24       court case.  They would prepare the court case, submit
25       it to the Fiscals who were taking part in the exercise
page  83
 1       and would appear on the day and go through the court
 2       process.  That would involve workshops and would also
 3       have about another eight or nine delegates from across
 4       SPSA Forensic Services attend on the day to observe.
 5           The reason for that one is to let everyone across
 6       the forensic services see where they fit in in the
 7       picture and let people know what other areas are
 8       responsible for and what they actually do in court.
 9   Q.  Is that a course that has been run yet or have the court
10       skills courses with the Fiscals so far only been for
11       fingerprint people?
12   A.  The two that we've run have been for fingerprints.  The
13       next one is February and that will be across Forensic
14       Services.
15   Q.  Is there a course for trainees where they get the mock
16       court treatment with examination and cross-examination
17       by the Fiscal?
18   A.  Yes.  That's ... the first of those two depending on
19       where that's been run it may have Fiscal input to the
20       court part of it.  Otherwise that would be run currently
21       by Fingerprint Officers within the Bureaux.  In other
22       words, I myself would do mock courts with them.
23           When they qualify, then they will go on the experts'
24       Court Skills Course.  I'm currently working with the
25       Fiscals at the -- sorry, at the Scottish Police College
page  84
 1       to have them more involved in the Scottish input with a
 2       view to having them doing inputs for them going to
 3       court; in other words, the Scottish Court Skills Course
 4       for trainees as well.
 5           The reason they don't do two in tandem, if you like,
 6       is when they are preparing for Durham they don't -- in
 7       your Durham assessment, you don't talk about anything
 8       that is specific to law.  It's a generic Court Skills
 9       Course.  The questions that are asked are generic.  They
10       won't be asked about anything on Scottish law, they
11       won't be asked about anything regarding the law side of
12       how they prepare their joint report.  That's kept
13       separate so that there's no cross-confusion on how they
14       carry that out.
15   Q.  If I have understood this rightly, they may go for their
16       Durham court skills assessment without necessarily
17       having had Fiscal input at that stage?
18   A.  That's correct.
19   Q.  When we get to the stage where we have the qualified
20       examiners going for the court skills training and having
21       the examination-in-chief and cross-examination from
22       Fiscals, I take it that is done on the basis of current
23       practice as it would arise in the courts now?
24   A.  Yes.  They are asked to prepare a court case as if it
25       was a court case that they were taking to court that
page  85
 1       week.  So, yes, it's reflective of current practices
 2       using joint reports and the information that they would
 3       provide to the Crown, yes.
 4   Q.  We have heard that current practice is not to prepare
 5       charted enlargements.
 6   A.  No.
 7   Q.  How do the people on the course, the examiners, explain
 8       their reasoning about the mark and the print in the mock
 9       court without a charted enlargement?
10   A.  They would explain the basis for friction ridge
11       identification, they would explain the basis -- in other
12       words, they would explain how friction ridges are
13       formed, how they are unique and permanent and
14       individualising, they would explain how they carry out
15       their ACE process and they would explain that that's
16       what they did in this case.  There would be no marked-up
17       enlargement.  There would be no way of them showing on a
18       day-to-day court presentation how they actually came to
19       their conclusions.
20   Q.  Are they ever challenged about that in the course of
21       these mock courts, ever challenged to explain what they
22       have seen, where a characteristic is, anything of that
23       sort?
24   A.  Yes and recently we've challenged in court as well
25       regarding that.  This was a decision that was made to
page  86
 1       stop doing the generic enlargements but recently we've
 2       been asked a couple of times.  On these court feedback
 3       forms that I talked about, a couple of examiners have
 4       come back and said that they were asked in court how
 5       they can demonstrate that to the jury and they had to
 6       obviously say that they had no means.
 7           However, if it helped the to court and there was a
 8       request for enlargements, then that could have been
 9       requested.
10   THE CHAIRMAN:  So there is no graphic assistance at all?
11   A.  No, sir.
12   THE CHAIRMAN:  You just describe what a ridge ending looks
13       like in words rather than by demonstration.
14   A.  We actually are currently in talks with the Crown Office
15       about regarding preparing some sort of PowerPoint or
16       some sort of mark-up, electronic.  That was asked for in
17       a trial recently.  It wasn't used on the day but they
18       were asked recently -- two experts were asked to prepare
19       a presentation, an electronic presentation, to assist in
20       how they use their identification and certainly at that
21       very seminar we use that PowerPoint that we looked at
22       earlier, requests soon after that to ask if we could use
23       that in a court so talks are ongoing that we are looking
24       for a -- in fact, I'm very interested, at the end of
25       this, to find out the electronic process that you have
page  87
 1       for the mark-ups that I've been looking at this week
 2       because that's the sort of technology we would require
 3       to do it on mark for mark basis.
 4   Q.  In terms of what is being discussed at the moment is
 5       this some sort of generic presentation showing how you
 6       go about your job in the same way we looked at in your
 7       presentation for the Advocate Deputes?
 8   A.  Yes, I think it would need to be because I think
 9       currently the technology of the time doesn't allow for
10       us to do it for every single case but that's being
11       looked at.
12   Q.  Now --
13   A.  Sorry, for trainees we have a generic enlargement that
14       we use.  Part of the Durham assessment is that they have
15       to have a visual aid, they have to use a visual aid in
16       their demonstrating of how they come to their
17       conclusions.  This is a generic enlargement and this is
18       what we use.  This is what we use on our Durham
19       training.
20   Q.  You are holding up a document.  We can put it on the
21       screen so people can see it and maybe take a copy of it
22       for later.  We can put it up on the screen even if we
23       don't have it on the system.  (Handed)
24   A.  This was put together by ourselves because it is a
25       requirement for the Durham assessment that they use a
page  88
 1       visual aid to demonstrate how they came to their
 2       conclusions.
 3   Q.  When do that they are using the generic aid?
 4   A.  It's a generic aid.
 5   Q.  Is there any recent experience at all in your Bureau of
 6       doing anything on a case specific basis or is that
 7       simply ancient history now?
 8   A.  I don't have a bureau.  I cover the whole of Scotland
 9       but certainly there was a case in Dundee recently, a
10       high profile case, where they were asked to prepare a
11       generic PowerPoint but there's been nothing to my
12       knowledge that's been asked for, case specific, for any
13       mark ups, no.
14   Q.  So what you have on the generic, which is what we are
15       looking at here, is simply a sample mark with points
16       marked up.
17   A.  Yes.
18   Q.  Bifurcations are marked in green and ridge endings are
19       marked in red.
20   A.  Yes, I'm actually in the process of changing that
21       because it was only after I submitted that to be put
22       together I realised those are the two colours people
23       with colour blind deficiency have so I'm going to have
24       to change those.
25   Q.  But this gives us an idea of what a generic example
page  89
 1       might look like.
 2           In the mock court situation does anybody ever run
 3       into trouble trying to explain themselves because they
 4       don't have a case-specific enlargement to be able to
 5       show people where they have seen a bifurcation on one
 6       and a bifurcation on the other, for example?
 7   A.  Yes and, again, in the mock court situations, if they
 8       are asked about, as they were in the actual court, how
 9       they can demonstrate their findings, then currently they
10       have nothing that they can demonstrate their findings on
11       by a point to point analysis, no.
12   Q.  We can take that down.  Carrying this forward, perhaps,
13       to thoughts of disclosure of how people have gone about
14       their working, would I be right in thinking there's no
15       way for either the Crown or the defence to know what
16       points have been relied on?
17   A.  No.
18   Q.  Or whether it is Second Level Detail or Third Level
19       Detail?
20   A.  No.
21   Q.  Or how much of it is Second Level Detail as opposed to
22       Third Level Detail?
23   A.  Currently, no.
24   Q.  That's simply something that there's no mechanism for at
25       the moment?
page  90
 1   A.  That's correct.
 2   Q.  Staying perhaps with that theme of disclosure for the
 3       moment, I would like to ask you about, in the first
 4       place, precognition in the context of disclosure and
 5       then about some other disclosure issues.
 6           What is the current practice regarding precognition
 7       of experts within SPSA?
 8   A.  This is another area that's in a state of change, quite
 9       recently.  We have now received instruction there will
10       be precognitions for all High Court cases and this is
11       actually happening and we have a document that's sitting
12       just now with the unit managers that sets out a
13       precognition structure for the precognition of
14       Fingerprint Examiners and it goes through stage by stage
15       asking in more detail, of the precognition process, of
16       what's going to be required.
17           Trainees are taught on that course at the SPC (sic)
18       about what a precognition is and what they should expect
19       in a precognition and what their duties round a
20       precognition are and then they carry that forward to
21       when they are qualified examiners.
22   Q.  You say you have now received an instruction about
23       precognition for all High Court cases.  Can you tell me
24       when that happened?
25   A.  It wasn't long after I gave the presentation to the
page  91
 1       Advocate Deputes.  So it probably would have been -- I
 2       received the documentation for the proposal which I put
 3       to heads of unit and that would have been in the last
 4       month.  Prior to that, there have been a marked increase
 5       in the number of precognitions that have been received
 6       across all four bureaux.
 7   Q.  I think we know you gave your presentation to the
 8       Deputes back in June of this year.
 9   A.  June.
10   Q.  Picking up on what said about what trainees were taught
11       about precognition can you tell me what they are taught
12       to expect as to what they should do if they are
13       precognosced?
14   A.  As I say, this is an input that's delivered by the
15       Fiscal Depute who is at the college but they are taught
16       what the precognition process is.  They are taught why
17       they are being precognosced.  Obviously, they are taught
18       that it's reflective of what they may be asked in court,
19       it's in evidence-gathering that you may be precognosced
20       by defence or prosecution and to treat, obviously, both
21       exactly the same and just to state what their evidence
22       is going to be and anything that may be of assistance.
23   Q.  Is there anything they are taught to volunteer or are
24       they taught they are simply reacting to questions from
25       the lawyer who is precognoscing them?
page  92
 1   A.  I would actually need to check with the content from the
 2       Crown Office on that but I think they would be taught to
 3       answer the questions that they are put regarding what
 4       they will say, in other words their statement and their
 5       evidence.
 6   Q.  It may be from what you are saying this is a question we
 7       should be directing to the witness who comes from Crown
 8       Office eventually rather than to yourself and if that is
 9       the case, please, just say so?
10   A.  Possibly, yes, thanks.
11   THE CHAIRMAN:  Before we leave that, do you ever actually
12       produce, as experts, a report if a case is going to,
13       say, the High Court?
14   A.  Part of our joint report, sir, would have detailed all
15       the productions in the case.  It would detail everything
16       that had happened with the case.
17   THE CHAIRMAN:  Yes, but an actual report saying, "I have
18       examined this fingerprint and I found so many points in
19       agreement", nothing like that?
20   A.  No, sir.  Currently, no.
21   MISS CARMICHAEL:  I think I had asked you about whether
22       people would know to volunteer particular things and I
23       think you say in your statement at paragraph 141, if we
24       can go to that, please, that a facilitated discussion is
25       something that would not routinely be disclosed.  That
page  93
 1       is page 34.
 2           I think you say:
 3           "We would not as a matter of course disclose that
 4       experts had disagreed about the inclusion or exclusion
 5       of a mark as identified, ie a facilitated discussion."
 6   A.  Under current disclosure, no, I don't think -- that
 7       hasn't been.  That might be something that is
 8       exculpatory so I think in future that is something that
 9       would have to be disclosed.  That is something that
10       would, obviously -- obviously, they would need to look
11       at, whoever is making the decision on what is disclosed
12       for the fingerprint sort of business area they would
13       need to look at to see -- understand what disclosure is
14       and they would have to make sure that everything that
15       can be exculpatory or inculpatory is put forward under
16       disclosure.
17   Q.  If there has been a difference of view at some stage in
18       the process, even if it seems to have been resolved,
19       that is something that might indicate to the Crown and
20       to the defence that there is at least room for a
21       difference of view?
22   A.  Yes.
23   Q.  So that is something that they should probably know
24       about; isn't that right?
25   A.  Yes.
page  94
 1   Q.  I appreciate you are saying that is something that might
 2       need to be looked at and is maybe not something that has
 3       been done up to now, but how as a matter of practicality
 4       would something of that sort come to be disclosed?
 5   A.  It would possibly be recorded or it would be recorded on
 6       the diary page for the case.  In other words, the diary
 7       page is almost like contemporaneous notes regarding the
 8       tracking of what happens in that case.  So it would
 9       possibly be recorded on there.  I would possibly stand
10       corrected on that but I think it would be recorded on
11       that, in which case if the diary page was being
12       submitted that would highlight it.
13   Q.  Do you know -- and, again, if you don't and there's
14       somebody else we should ask please say -- but do you
15       know whether the diary page is sent to the Crown?
16   A.  I would say it's not but I would say that may be
17       something to ask possibly somebody from the verification
18       unit, whether it's sent as a matter of course.  I would
19       think under full disclosure it would probably need to
20       be.  Again, that would again be something they would
21       need to look at.
22   Q.  So, again, that is perhaps an area of practice that
23       needs to be looked at.
24           If, thinking to the precognition process, an
25       examiner comes to be precognosced, is this something
page  95
 1       they would think perhaps to volunteer to, in the first
 2       instance, the Fiscal who is speaking to them, that there
 3       had been this bit of history in the case where there had
 4       been some level of disagreement?
 5   A.  I wouldn't know.  I would think currently it wouldn't be
 6       volunteered but again I would stand to be corrected on
 7       that with someone who deals with precognitions on a
 8       daily basis and is certainly since they've moved on in
 9       the last month or so.
10   Q.  Thinking with your trainer's hat on, is that something
11       that you would be expecting your trainees to know to do,
12       to volunteer something like that?
13   A.  Under full disclosure, yes.  I would be looking for --
14       and again on this document that's, as I said, being
15       ratified or gone through by the unit managers then I
16       would think that would be something that would be on
17       there or would be volunteered under full disclosure,
18       yes.
19   Q.  But we should take it that there is perhaps a dynamic
20       situation at the moment where there is discussion of
21       perhaps more being disclosed by way of precognition and
22       more instruction in precognition than has previously
23       been the case?
24   A.  Yes.
25   Q.  That might be something we should ask either SPSA or
page  96
 1       Crown Office about further?
 2   A.  Yes, I would think so.
 3   Q.  Do you know yourself, thinking of perhaps a situation
 4       where somebody has been found to make a mistake, whether
 5       that's picked up in dip sampling or verification or
 6       incompetency testing, whether a mistake of that sort is
 7       something that would be brought to the attention of the
 8       Crown if they were thinking of leading the individual as
 9       a witness?
10   A.  Currently, no, I don't think that would be volunteered.
11       I don't think that's something we would disclose, "You
12       have called Alec McGinnies as an expert and,
13       incidentally, he failed his last competency test".  I
14       don't think that's something that we would disclose just
15       now.  Again, it would need to be something looked at, do
16       we need to disclose that.
17   Q.  I suppose looking at it as a defence agent might, they
18       might think that's an indication that Mr McGinnies has
19       made a mistake in the past and that is something I want
20       to ask him about, to challenge him and challenge his
21       expertise.
22   A.  Yes.
23   Q.  Why would it be that they should not know about it?
24   A.  Oh no, excuse me, I didn't mean -- sorry, that was
25       misleading.  Yes, I think, it's possible that should be
page  97
 1       and that's something, when we're looking at disclosure
 2       and full disclosure, then we would need to, obviously,
 3       look at what we're disclosing.
 4   Q.  So, again, that might be something for ongoing and
 5       future discussion?
 6   A.  Yes.
 7   Q.  Before we leave precognition, you say there's been an
 8       upturn in precognition of High Court cases.  When
 9       somebody -- and, again, if you don't know and I should
10       ask somebody else please say -- but when somebody goes
11       off to be precognosced by the Crown now do they take the
12       case file with them?
13   A.  Yes, I believe they would.  Precognitions very often
14       happen within the individual bureaux, with the
15       precognoscer attending at the unit but, yes, they would
16       have the case file to refer to, yes.
17   Q.  You say there's been an upturn in High Court
18       precognition.  What about Sheriff and juries?
19   A.  I think, again, I would need to check with the court
20       liaison officers to find out what the actual figures are
21       but there has definitely been -- and I think this has
22       come about through better communication with the Crown
23       Office and two-way communication that this is now
24       something that is more to the front.
25   Q.  I asked you some questions in that disclosure context
page  98
 1       about mistakes that had been picked up and disclosed.
 2           I would like to ask you a little bit more about how
 3       mistakes are treated and I suppose those might be picked
 4       up in verification.  Is that something that happens
 5       sometimes?
 6   A.  When you say mistakes, what do you mean by ... do you
 7       mean missed identifications?
 8   Q.  Either a mis-identification, I suppose, or a missed
 9       identification?
10   A.  Yes, that would be picked up through the verification
11       process in an actual tracking of the case or it may be
12       picked up at dip sampling.  It may be picked up at
13       process checking.  So you want to know how these would
14       be dealt with on an individual basis?
15   Q.  What I am interested in particularly is whether they
16       would be dealt with as perhaps a disciplinary matter
17       that would create a problem for somebody or how you,
18       wearing your training hat, might come in in that sort of
19       situation?
20   A.  If we're talking about missed identifications, for
21       example, if there's two or three or four identified on a
22       mark and the first checker has picked up the two, three
23       and just missed the four and it's picked up in the
24       subsequent checker's -- second checker's sort of -- that
25       would then be returned to them and they would obviously
page  99
 1       revisit the mark and pick it up.
 2           If someone was doing that on a regular basis that
 3       would be highlighted probably by the line manager or by
 4       the verification unit.  That would then be a process
 5       where they would speak to the individual.  Where
 6       training would be involved would be if it was somebody
 7       who was missing say, for instance, it was always bits of
 8       palm, they've had four or five cases back and they have
 9       missed identifications and it's always pieces of palm I
10       would look at it as a trainer then to assist them with
11       further training in palms, possibly a demystifying palms
12       course, either internal or externally, putting together
13       some suspect packs with palm identifications in them
14       with known outcomes, to ask them to do ACE-Vs and work
15       through how they carry out that process and then that
16       would, along with support from their line manager, would
17       hopefully address the problem.
18           You would obviously keep monitoring their progress,
19       make sure all their stuff has been second-checked and
20       verified anyway so that would highlight anything else.
21       Dip sampling of their work, maybe more stringent dip
22       sampling of that person's work to see if they've missed
23       anything in the past which hasn't gone through.  So
24       that's where training would come into that.
25           As for a missed identification, if you had a
page 100
 1       missed-identification -- sorry, a mis-identification --
 2   Q.  Sorry, a mis-identification?
 3   A.  Yes, a mis-identification -- then training would
 4       certainly be involved through the processes and
 5       procedures that are in place.  In the procedures manual
 6       they would be -- I would be involved in putting together
 7       a training plan.  For a training plan I would take the
 8       person through everything from formation and structure
 9       of skin right through to the verification process.  I
10       would take them through the whole thing again in a
11       training plan, with set inputs.  That would be to
12       reinforce and underpin their knowledge that they have.
13       I would ask them to do an ACE-V report on the
14       mis-identification so they can see -- ACE-V reports for
15       trainees who miss a mark is employed to let them see
16       where it is they missed the mark.  Very often they can
17       look at the mark with their ACE-V report and say, "I can
18       see the reason I didn't pick it up is because I was
19       looking in the wrong area.  The reason I didn't pick it
20       up was my digit determination was maybe in the wrong
21       direction".
22           As with a mis-identification, doing an ACE report we
23       let the individual see where they went in the wrong
24       direction.  They would obviously have their work dip
25       sampled or all their work checked for the period before
page 101
 1       and all their work checked for the period after and then
 2       a progress report from myself, their line manager and
 3       probably their supervisor would have to go to the unit
 4       manager to say that the corrective measures, if you
 5       like, or the training plan had gone full circle and the
 6       person was back on track.  I think that's what would ...
 7   Q.  When you say you think that's what would happen, do we
 8       take it from that it's not actually happened and you're
 9       describing a procedure or should we take it that it has
10       occurred and you've had to go through that?
11   A.  It has occurred and that's the process that I would go
12       through.
13   Q.  It has occurred?
14   A.  It has occurred, yes.
15   Q.  What about if a problem is disclosed during competency
16       testing?  How would you handle that from the training
17       point of view?
18   A.  Again, that would be something that would be looked at
19       by the person's line manager.  They would revisit the
20       mark.  It maybe a case of again asking them to possibly
21       do an ACE report on it to look and see why it was that
22       they had missed the mark.  Then again it may be a
23       possible case that they require some further training in
24       an area say, for instance, the mark they missed was a
25       piece of flexion I may put together training packages on
page 102
 1       that, may give them further inputs on digit
 2       determination, again have their work checked round about
 3       that area for a ... it would depend on the level
 4       of ... sorry, the discussion between the line manager
 5       and the individual as to how they thought they had
 6       missed that mark and it came about whether training
 7       would be involved at all or whether it was just
 8       something that they moved on with.
 9   Q.  Should we take it from that that competency testing will
10       involve testing whether people miss identifications?
11   A.  Yes.
12   Q.  Rather than whether they mis-identify?
13   A.  The way it works with collaborative testing systems is
14       they distribute the tests, we set them in
15       October/November time.  That's all sent --
16       independently, that's all sent away back to
17       collaborative testings and they then publish the
18       findings and send back the individuals their feedback,
19       if you like, the scores of the marks that they marked,
20       they will tell them, of everyone who sat the test, what
21       percentage had it as an identification.  So they will be
22       able to look at that and then see if there were any
23       mis-identifications.
24           That will also go through our quality assurance who
25       deal with the CTS test now and they will highlight any
page 103
 1       problems to the individual's unit manager, line manager
 2       and, if necessary, training will be involved.
 3   Q.  Sorry, it was my question that perhaps was not clear.
 4       Are there ever times when people find a match in the
 5       competency testing when they shouldn't?
 6   A.  To my knowledge that hasn't happened.
 7   Q.  Do you know whether the competency testing tests that or
 8       whether it is really just testing whether people can
 9       make identifications in situations where they ought to?
10   A.  CTS -- I believe CTS use exemplar marks so they know the
11       donor, the know where they came from.  So they are set
12       up Scenes of Crime mark, if you like, so they know who
13       made the mark and they know who's fingerprints they are
14       by taking the prints and using that as the test.
15   Q.  But they are not throwing in one, for example, where it
16       looks like Mr McGinnies but it isn't quite Mr McGinnies,
17       to see if anybody --
18   A.  No.  It's a fair and even test.  There's nothing that's
19       meant to mislead.  I think it's just there, as you say,
20       to test a person's competence in comparing impressions.
21   Q.  I have some more questions for you, hopefully slightly
22       briefer ones, Mr McGinnies.
23           You tell us at paragraph 92 about the National
24       Register of Fingerprint Experts.  If we can go back,
25       please, to page 23 where you tell us about the National
page 104
 1       Register of Fingerprint Experts.  Really a very simple
 2       question: who keeps that?
 3   A.  The National Register is maintained by NPIA at Durham.
 4       It's actually -- when an individual goes through their
 5       foundation, intermediate and advanced courses, and they
 6       pass the advanced course that enables them to be entered
 7       onto the National Register of Fingerprint Experts.  That
 8       decision as to whether they are entered or not comes
 9       from the unit manager responsible for that individual.
10       They will then apply to the National Register to have
11       them inserted on the National Register and they will
12       receive a number.  In Scotland we also apply to the
13       Executive to have the person deemed under section 280
14       for making joint reports as well.
15   Q.  Shall we take it that once one is on the National
16       Register of Fingerprint Experts, having passed all the
17       necessary courses at Durham and the supervisor having
18       put you forward, there isn't any test thereafter that
19       would take you off it?
20   A.  No.  I spoke to head of fingerprints at NPIA regarding
21       this because it was something I had recalled him talking
22       about bringing in for England and Wales and they are
23       still in the process of talking about having a
24       re-accreditation.  Certainly, if you leave the
25       fingerprint practice for more than two years you would
page 105
 1       have to resit the advanced practical course to be
 2       allowed back on to the advanced register.
 3   Q.  How would you come off it in the meantime, if that makes
 4       sense?
 5   A.  You could be long-term sick.  It could be you are
 6       seconded to another --
 7   Q.  Again, sorry, it's my question that's at fault,
 8       Mr McGinnies.
 9           If you are off, for whatever reason, away from
10       fingerprint practice, how does your name come to be
11       removed from it?
12   A.  SPSA or across the country, whoever is responsible for
13       that person, the unit manager for instance, would
14       contact NPIA and let them know that this person should
15       be removed from the register for whatever reason,
16       they've retired or whatever.
17   MISS CARMICHAEL:  This might be a convenient point, sir.  I
18       do have a few more questions.
19   THE CHAIRMAN:  We will sit again at 1.50.
20   (1.00 pm)
21                      (Luncheon Adjournment)
22   (1.52 pm)
23   MISS CARMICHAEL:  Mr McGinnies, I have now a couple more
24       questions for you really about the Mayfield report, one
25       particular and one more general.
page 106
 1           Coming to the particular one, if you look first at
 2       paragraph 128 of your statement, which is at page 32 of
 3       FI0193, I think you have been asked about your thoughts
 4       on blind testing in the sense of putting in something
 5       that is meant to be testing material by way of perhaps
 6       something that, if not treated properly, might produce a
 7       mis-identification into ordinary workload undisclosed so
 8       that people wouldn't know that they were dealing with
 9       anything out of the ordinary run of their work.  Your
10       response had been that you questioned whether that would
11       bring many additional benefits, given competency
12       testing, dip sampling and you mentioned technical and
13       procedural problems?
14   A.  Would this be a test whereby you create the sample?
15   Q.  The intention of question to you, I think, was in
16       relation to material that was deliberately generated to
17       be fed into the system.
18   A.  The problem we have with was we would need -- and it
19       is procedural and technical problems -- if it was a mark
20       that was being submitted it would need a crime reference
21       number, it would need to be put through our office
22       management system.  If it was fingerprints that were
23       submitted they would need to be checked through the
24       Ident1 system.  It's a live system.  There's no training
25       facility on it we have access to.  That would generate a
page 107
 1       national search.  The individual would need to be
 2       checked out on the criminal history system.  The people
 3       who are carrying out the process and procedures from
 4       that criminal history system, realising that it wasn't
 5       on the system, on either Ident1 or in the
 6       criminal history system, would need to create a record
 7       for it and that would generate a unique reference
 8       number.  To that stage we've created a lot of official
 9       documentation for something that isn't going to have --
10       you would need then to apply to the Criminal Record
11       Office to kill off the criminal record.  Ident1, we're
12       not supposed to -- we don't use any -- the live system
13       for any training database or any checking of that.  So
14       it is not the fact that blind checking wouldn't be of
15       benefit, it's a fact that there would be technical and
16       procedural problems.  If there was a way round that and
17       there was a demonstration that blind checking would
18       be of assistance to further checking from manual
19       competency testing, the verification process and
20       procedures, dip sampling and our career procedures
21       through ISO, then that could be looked at.
22   Q.  Is the difficulty that you are indicating one that it
23       would be difficult to generate something for the first
24       person looking at a mark because it wouldn't look like a
25       proper crime record?
page 108
 1   A.  No, you could feed a blind test into the system but the
 2       way that the system and the procedure is run it would
 3       generate lots of official paperwork that wouldn't
 4       necessarily be right to create in a test system because
 5       it would create things that would then need to be erased
 6       and taken off.  For instance, on the Criminal History
 7       System the unique reference number that's allocated to
 8       each individual the first time that a record's created,
 9       that record would need to be killed off because it was
10       be a sample.  It would also be searched on the Ident 1.
11       So that wouldn't be an ideal scenario because you were
12       creating records that aren't going to exist.
13   Q.  I am not quite following why there would have to be a
14       search on Ident1.
15   A.  When you submit a form, either by LiveScan or by ten
16       prints, the procedure that it need to go through so that
17       when that first checker got it looked like a proper case
18       was it would need to be searched on Ident1 to make sure
19       that the fingerprints -- to find out whether they were
20       on record or not on record.  If they weren't on record,
21       as they wouldn't be, then a record would need to be
22       created for them and that would on a live system which
23       we wouldn't be allowed to do.
24   Q.  Subject to perhaps looking to overcome some way around
25       the technical difficulties of creating effectively a
page 109
 1       dummy record and a dummy file, there's no objection in
 2       principle to doing this?
 3   A.  No.
 4   Q.  The reason I am asking you about it is because
 5       recommendation 13 of the OIG in Mayfield was that blind
 6       or undisclosed testing fed into the verification process
 7       might be a useful way of making sure that verifiers
 8       weren't just rubber stamping things from the first
 9       examiner or indeed from another verifier.  I would like
10       to have you comment on that as a matter of principle.
11   A.  Yes.  As an additional check to the ones that are in
12       place, if there was a way of creating that process that
13       could be implemented, yes, I can't see why that would be
14       a problem.
15   Q.  My other question about the OIG Mayfield report was
16       rather a more general one and it may be for another
17       witness -- and if so please tell me -- but do you
18       yourself know whether your organisation or its
19       predecessor took into account the Mayfield
20       recommendations at the time that the non-numeric
21       standard was being considered for introduction in
22       Scotland?
23   A.  I would need to -- I wouldn't know the answer to that.
24       I think it may be something that would be looked at
25       nationally by NPIA in the national training for anything
page 110
 1       regarding those specific recommendations prior to us
 2       going non-numeric I wouldn't know the answer.
 3   Q.  Moving on to a rather different theme, as regards the
 4       marks that the Chairman is considering mainly in this
 5       Inquiry, Y7 and we've been looking at QI2 (Marion Ross)
 6       as well, what is the position of SPSA as an organisation
 7       as to whether there might be useful lessons to be
 8       learned from the training point of view arising from
 9       either of those marks?
10   A.  Currently we don't use either marks in a training
11       environment.  The only way I've referred to either mark
12       in a training environment is that when talking to
13       trainees I'll say that the differences between Y7 being
14       an identification or not an identification can't be
15       explained by opinion.  It was put forward at one point,
16       probably in the SFS past, that it was just a difference
17       in opinion.  I was only reiterating to the trainees that
18       that couldn't be the case, that if A says that Y7 is an
19       identification and B says that Y7 is not an
20       identification, then the very fundamentals of the way we
21       carry out fingerprint examinations means someone is
22       wrong.  I would never go on to draw any conclusions from
23       that.  We don't have any learning outcomes from the
24       position of Y7.  We're still ongoing with the Inquiry at
25       the moment.  So we have nothing that we take from that
page 111
 1       at the present, no.
 2   Q.  Do we take it from that that, effectively, your
 3       organisation is waiting to learn what the Chairman has
 4       to say at the end of the day about either or both of
 5       these marks?
 6   A.  Yes, wholly so, yes.
 7   Q.  And will decide what, if anything, turns out to be
 8       appropriate in the light of that?
 9   A.  Yes.
10   Q.  There has been some suggestion in evidence,
11       Mr McGinnies, that people within SPSA, employees, may
12       either have been actively discouraged by management from
13       coming to these hearings or certainly not actively
14       encouraged to come to them.
15           Do you have any knowledge of anything of that sort?
16   A.  Certainly not actively discouraged.  I think anyone
17       within the working environment who had applied to their
18       line manager, I would certainly, from a training point
19       of view, see it as CPD, continuous professional
20       development, if someone had an interest to come along
21       and see how an inquiry runs, the set up, et cetera, the
22       questions that are being asked -- I know people follow
23       it certainly on line, if you like, but certainly anyone
24       who went to their line manager with a request to attend
25       with the reasons for attending would be facilitated.  I
page 112
 1       know that SPSA had bought -- at one point was the
 2       Inquiry going to be televised?  I think at one point --
 3   Q.  I don't think anybody ever positively proposed that but
 4       I think there were queries at the outset as to whether
 5       it might be --
 6   A.  I know there were a number of televisions purchased for
 7       such an event so ...
 8   THE CHAIRMAN:  I am sure people wouldn't have been rushing
 9       home to hear the next edition of it.
10   A.  But not actively discouraged in any way, no.
11   MISS CARMICHAEL:  I take it from what you say your
12       understanding had been that if there had, in fact, been
13       live streaming you would have been keen to have it?
14   A.  Oh, yes.
15   Q.  Finally, Mr McGinnies, I would like you to look at a
16       document that you may not have looked at before.  It is
17       CO0034.  As I say, this may not be a document that you
18       are familiar with but to give you some idea of the
19       context, it is a minute of a meeting that took place
20       after Her Majesty's Advocate v Shirley McKie
21       involving Crown Office representatives and Fingerprint
22       Examiners and management from SCRO.  I think you will
23       probably see that from the list.  The names you might
24       not be familiar with are Mr Sean Murphy who was the
25       Advocate Depute in the case, Mr Frank Crowe who was the
page 113
 1       Deputy Crown Agent.  I do not need to trouble you with
 2       the detail of all of this but there were some learning
 3       points from this, what was effectively a debrief, at the
 4       end of the document.  I wonder if we could go to page 6,
 5       please.
 6           What we see as main learning points there were that
 7       in the first place -- and I will go through these one by
 8       one with you for your own comment on them -- is that
 9       visits to SCRO by advocates, and I think we heard what
10       was actually meant there was Advocate Deputes, High
11       Court prosecutors, would be of value.
12           I wonder if I could have your comment on that?
13   A.  Certainly, as you know, we have -- more recently we've
14       had a better educational and communication approach with
15       the Crown Office.  Certainly at the seminar earlier that
16       I spoke about, I mentioned to them at the end of it if
17       anyone wanted to come along and get a look round at any
18       of the bureaux to let me know.  I would apply to the
19       unit manager and see if they could be given a tour, if
20       they liked, and certainly I and others have been out
21       giving more presentations.  Yesterday there was a
22       presentation to the Solemn Legal Managers at Ballater
23       Street by a member of SPSA staff from Dundee.
24   Q.  Ballater Street, for those who maybe don't understand,
25       is the Procurator Fiscals' office in Glasgow and I think
page 114
 1       there is also a training facility there.
 2   A.  Yes.  So whether it came -- I wouldn't say it came
 3       directly from that but it is something we are working
 4       on.
 5   Q.  It is not something that is yet routine that Advocate
 6       Deputes come along to the office?
 7   A.  No.
 8   Q.  The second learning point, if I can go to that, is:
 9           "Presentation of evidence needs to be considered
10       with a view to giving clearer cut explanations to the
11       jury, especially in relation to areas of distortion,
12       et cetera."
13   A.  Certainly the clearer cut explanations to the jury.  I
14       think that now we would be expected more and certainly
15       the run up in training before going non-numeric was to
16       explain the whole process to be better prepared in court
17       to explain the formation and structure of skin, talk
18       about our methodology and talk about how we came to our
19       conclusions.  Unfortunately, as we can see from, and we
20       spoke about earlier, in relation to talking areas of
21       distortion with nothing to actually demonstrate areas of
22       distortion physically present, then that would be quite
23       difficult to do.
24   Q.  The third one is that generic material would be examined
25       to allow for a more professional presentation in high
page 115
 1       profile cases.  I think we touched on that briefly
 2       earlier?
 3   A.  Again, our direction, to my understanding, when we
 4       stopped doing generic enlargements was that in place of
 5       it they weren't looking to have any generic -- sorry,
 6       when we stopped doing case-specific enlargements they
 7       weren't looking to have any generic enlargement
 8       introduced to assist the expert.  However, as I stated,
 9       in recent cases, one case in particular in Dundee, a
10       high profile case, they were asked to prepare generic
11       presentation on how they carry out their examination.
12   Q.  But, again, we have something that currently is not, at
13       least not yet, routine?
14   A.  No.
15   Q.  If we could move on to the fourth learning point:
16           "Guidance would be given to fingerprint experts on
17       how to respond to this case [that was the McKie case] at
18       future trials and to ask for time to examined fresh
19       material."
20           I will take that apart at a time.  Is there
21       currently any guidance as to what examiners' response
22       might be if they were asked about the identifications in
23       the Asbury and the McKie cases?
24   A.  Currently at this time I would be inclined to think that
25       because we're in the middle of this process that they
page 116
 1       would just refer to the fact that we're in the middle of
 2       an Inquiry regarding both cases and it may be a case of
 3       waiting for the recommendations and outcomes of the
 4       Inquiry before they made any comment.
 5   Q.  Do you know, as a matter of fact, whether there is any
 6       guidance of that sort?
 7   A.  No, not currently.
 8   Q.  The second part of that learning point arose -- I think
 9       I'm representing it fairly -- because defence
10       productions had come in quite close to the date of the
11       start of trial and what was being said here was that
12       fingerprint experts might had given guidance indicating
13       that they should ask for time, perhaps for extra time,
14       to look at fresh material that had come in.
15           Do you know whether there is any guidance or
16       instruction of that sort?
17   A.  I don't know.  I would expect that that would be the
18       case, that the Crown would contact us to let us know
19       there was fresh material to be examined but I couldn't
20       be certain in which format that would take.
21   Q.  Insofar as there's any guidance within SPSA or training
22       for examiners within SPSA, is it something that they are
23       trained or guided about, how to deal with a situation
24       where there's perhaps a late defence production and they
25       are concerned about having enough time to consider it
page 117
 1       before the trial?
 2   A.  Currently, no, not to my knowledge.  I may stand to be
 3       corrected on that by someone but not that I'm aware of
 4       at current, no.
 5   Q.  The next two learning points are perhaps ones that are
 6       more for the Crown than for you so I will not ask you
 7       further about these.
 8           There is one further matter that I would like to ask
 9       you about but I am going to have to obtain a document
10       reference so I am sorry to break for a moment but if you
11       can bear with my just a moment I will try and do that.
12       (Pause)
13           If we could have CO4109, and if we can scroll
14       through that to page 4, you were asked I think by the
15       Chairman earlier in your evidence about the sort of
16       reports you do for court and I think I am right in
17       saying here that what we have is a style joint report?
18   A.  Yes, that's correct.
19   Q.  I think I would be right in saying that this is a style
20       that is agreed for all cases in Scotland?
21   A.  That's correct, yes.
22   Q.  What we see is a narration of the names of the officers
23       involved and that they are authorised by the relevant
24       statutory provision.
25   A.  Yes.
page 118
 1   Q.  We see in I think perhaps fairly formal terms that they
 2       received certain items on certain dates and those would
 3       be detailed in the report after that?
 4   A.  Yes.
 5   Q.  Can we have the next page up beside it, please.
 6           So you would have a narration of the lifts and
 7       photographs and a narration of the particular finger or
 8       palm-print forms that you were using and then really a
 9       very brief certification that you had carried out
10       analysis, comparison and evaluation and that there had
11       been a verification process?
12   A.  Yes.
13   Q.  There would then be the signatures.
14           Can we move on to the next page, please.
15           Here we have another form to be filled in.  Can you
16       tell us what that is for?
17   A.  Is this page 6 of the ...?
18   Q.  Yes.  That, as I understand it, forms part of your joint
19       report as well?
20   A.  That will list, in the boxes there, the production
21       numbers which are left blank and will be allocated
22       later.  It will detail in there the results of the -- it
23       says, "lift photograph details", so you will put in
24       there whatever the lift photograph details were and then
25       you put in the results of the identification and say
page 119
 1       identified as shown on the finger and palm-print form
 2       the name and that would then be signed.
 3   Q.  So in the results box you would see the name of the
 4       person who had been identified as the donor of the mark?
 5   A.  Yes.
 6   Q.  Again, we have space for signature and there is some
 7       further detail that there were further items received in
 8       relation to the case.
 9   A.  Yes.
10   Q.  And letting people know that there were such items and
11       that the results of examinations are elsewhere?
12   A.  That's correct.
13   Q.  Can I take it then that that would be the extent and the
14       form of your report?
15   A.  That's a standard joint report, yes.
16   Q.  In any case, whether summary or solemn --
17   A.  Yes.
18   Q.  -- that you were involved in in Scotland?
19   A.  In Scotland.
20   MISS CARMICHAEL:  Thank you very much, Mr McGinnies.
21   THE CHAIRMAN:  Shall we begin again with you, Mr Smith?
22   MR SMITH:  It seems I am usually the first.  I am happy to
23       go again, sir.  There are a number of areas I would like
24       to ask this witness about.  They relate to some further
25       questions relating to the training within SCRO and the
page 120
 1       subsequent bodies, effectively SCRO from the past; the
 2       system of note-taking that may or may not exist;
 3       competency testing; some further issues about
 4       disclosure; some further questions about giving evidence
 5       in court; and some questions about the status of Y7 and
 6       QI2, the official status of these.
 7           Again, I am happy to say I will do my level best to
 8       avoid duplicating --
 9   THE CHAIRMAN:  Yes, as long as you do not cover ground we
10       have been over.
11                    Cross-examined by MR SMITH
12   Q.  Before I turn to the particular issues, Mr McGinnies, I
13       would like to ask you a few questions about your own
14       background.
15           I think we can see from your statement to the
16       Inquiry that you explain in numbered paragraph 2 -- I
17       don't think we need to bring it up but just to read it
18       out -- you worked with the Strathclyde Police,
19       effectively, as a police officer, I suppose, is that --
20   A.  No, actually, sir, I was a divisional
21       assistant/turn-key.  They'd civilianised certain posts.
22       When I came out the army I went into one of those
23       posts and it was a station assistant/turn-key at Stewart
24       Street --
25   THE CHAIRMAN:  It is very natural to turn to the person who
page 121
 1       is speaking to you but if you wouldn't mind keeping this
 2       way, then I can hear and the stenographer can also
 3       follow.
 4   MR SMITH:  I think, although the stenographer is extremely
 5       quick I think you also speak very quickly and I wonder
 6       if you can slow down a little bit.
 7           I was mistaken, I understood it was as a police
 8       officer but you were a civilian employee by Strathclyde
 9       Police?
10   A.  That's correct.
11   Q.  Then in March 2001 you joined SCRO as a Trainee
12       Fingerprint Officer at that time?
13   A.  That's correct.
14   Q.  I notice you say you completed your training in
15       October 2004, so we are looking at about three and a
16       half years training at that stage?
17   A.  That would be correct.
18   Q.  You say you qualified as a Fingerprint Officer at that
19       time.
20           Did that require any examinations being carried out
21       before you actually achieved your qualification?
22   A.  Yes, sir.  When I first started with SCRO, I was on the
23       five year qualification plan.  In the middle, after
24       about a year and a half of that, we changed, the NPIA
25       changed the criteria to a modular route, whereby I
page 122
 1       undertook modules.  Scotland came into line at the same
 2       time with the rest of the UK in making it three years,
 3       if you like, competency based before you could be put
 4       forward for your advanced course.  So I had sat the
 5       Durham foundation, the Durham intermediate and modular
 6       route and the Durham NPIA or as it was Centrex and NPIA
 7       advanced course and qualified in October of that year
 8       which would make three and a half years.
 9   Q.  You have actually answered my next question whether it
10       was outside training and, effectively, certification.
11       The answer is yes it was, it was --
12   A.  Yes, sir, it was Centrex and NPIA from beginning to end,
13       yes.
14   Q.  You qualified in October 2004 but I am just wondering if
15       the date is actually right.  November 2004, so the very
16       next month, your statement says you became a temporary
17       training officer for the Glasgow Bureau.
18           Was it as quick as that, you qualified one month and
19       the next month you were temporary training officer?
20   A.  That would be correct, yes.
21   Q.  Forgive me, I don't wish this to sound critical but you
22       will appreciate that you have three and a half years
23       where you are effectively being trained yourself until
24       you qualify and as soon as you qualify you then become a
25       temporary training officer.
page 123
 1           Is that something that was unusual, for someone to
 2       move so swiftly from being qualified to actually then
 3       training people?
 4   A.  I think it may be termed as unusual but what there was
 5       there was a vacancy had arisen.  I was qualified to
 6       apply for the vacancy.  I applied for the vacancy and
 7       was the successful candidate.
 8   Q.  In 2005 you explain the post became permanent, that you
 9       moved from a temporary training officer into a training
10       officer permanent, as it were?
11   A.  Again, sir, that was -- I had to effectively apply again
12       for my own job.  That was again an open ...
13   THE CHAIRMAN:  Competition?
14   A.  Competition, yes, and again I was the successful
15       candidate.
16   MR SMITH:  Mr McGinnies, I am not suggesting you --
17   A.  I am not getting defensive, no.  I am trying to explain
18       the process.
19   Q.  I am simply expressing a little bit of surprise that so
20       swiftly you moved from having been trained to training
21       people and you have explained it was a competition and
22       you made the application and got the job.
23   A.  I think that I possibly had -- one of the things that
24       possibly in my favour was I had gone through most
25       recently this modular route and process so I was
page 124
 1       probably the most up-to-date candidate, among other
 2       things, for that learning programme.
 3   Q.  Sure.  Can I also ask you this: have you ever given
 4       evidence in court about fingerprints?
 5   A.  I've given evidence as a turn-key on the taking of
 6       fingerprints.  As regards to making identification
 7       evidence, no, I have not.
 8   Q.  I think just for the notes you said evidence as a
 9       turn-key --
10   A.  Yes.
11   Q.  -- did you say that, taking fingerprints, so it would be
12       part of your job, in your previous work with the
13       Strathclyde Police, to take inked prints and then have
14       to give evidence that you took inked prints from
15       someone?
16   A.  Inked and LiveScan, that's correct.
17   Q.  At that stage, of course, you weren't a Fingerprint
18       Examiner?
19   A.  No.
20   Q.  But I take it from that then you haven't actually had to
21       or haven't in fact given evidence in court, as it were,
22       defending an opinion?
23   A.  No, I have not.
24   Q.  Have you ever seen fingerprint experts doing so in
25       court?
page 125
 1   A.  Yes, I do that on a regular basis.  One part of the
 2       training programme is to take trainee fingerprint
 3       experts to court and let them observe experts giving
 4       evidence and then they would, part of one of the modules
 5       on preparing and presenting evidence, they would have to
 6       compile a report on their observations.
 7   Q.  Is that seeing experts in fingerprints giving evidence
 8       in a live case, as it were, not a mock up, a live case?
 9   A.  No, in live cases.  For instance, the Tobin trial in
10       Dundee and various other cases, yes.
11   Q.  Although it would depend in a case whether there was an
12       actual challenge being presented.  I think I am right in
13       saying the Tobin trial, although some questions were
14       asked, there was no actual dispute about the
15       identification of the fingerprints, was there?
16   A.  Not regarding the identification, just the -- I believe
17       it was the placement of the prints.
18   Q.  It is obviously not a very common thing for fingerprints
19       to be challenged, the identification of them to be
20       challenged in the courts in Scotland, is it?
21   A.  No.
22   Q.  In fact, certainly, as far as I understand it, in the
23       context of a live criminal trial the McKie case really
24       was, as far as I'm aware, the only one in the trial
25       where there has been a challenge placed with
page 126
 1       fingerprints.
 2           Is that you understanding to?
 3   A.  I think it would possibly be, yes.
 4   THE CHAIRMAN:  Have there been any since then in which it
 5       has been challenged, in your experience?
 6   A.  Not to my knowledge, no.
 7   MR SMITH:  So it was a pretty unusual case by any stretch of
 8       the imagination, the McKie case; we would agree about
 9       that?
10   A.  Yes.
11   Q.  Of course one of the other interesting features about it
12       is that relating to the McKie case is not just one but
13       two fingerprints, QI2 and Y7, both of which appear to be
14       hotly disputed in the fingerprint community.  You are
15       obviously aware of that, I take it?
16   A.  Oh, yes, sir.
17   Q.  Against that background, can I ask you this: have you
18       yourself looked at Y7 and the inked mark of Shirley
19       McKie?  Have you ever seen it?
20   A.  I've seen them.  I have not compared them.
21   Q.  In what context did you see them?
22   A.  I was given them -- I think, it was at a training forum.
23       In fact, it was a National Fingerprint Bureau meeting by
24       a colleague.
25   Q.  In your statement you mention the Brandon Mayfield case
page 127
 1       for obvious reasons and it is an important case and I am
 2       sure you have read the report in the Brandon Mayfield
 3       case and understand its context?
 4   A.  Yes.
 5   Q.  But against that background you have a much more
 6       interesting case, in many ways, nearer to home and, in
 7       fact, not just right on your doorstep but right in your
 8       organisation that undoubtedly is causing some concern,
 9       very, very public discussion about the case.
10           Can I ask why it is then that you yourself have not
11       actually looked at it and said, "Well, I'm going to have
12       to look at this to know what my opinion is about Y7
13       compared with the inked mark of Shirley McKie"?  Why
14       haven't you done that?
15   A.  My main reason for not comparing the mark is the
16       material that I received wasn't the original material.
17       I was told this when I received the material.
18           My main reason for not comparing the mark is that at
19       the time I received the mark and still currently and in
20       the future I'm looking to have a non-biased way of
21       taking fingerprints forward in Scotland, in a way that
22       no matter who I converse with in the rest of the
23       fingerprint community I am not -- I wouldn't like to say
24       pigeon-holed but I am not immediately taken to task or
25       held an opinion about on myself because of my opinions
page 128
 1       on the McKie mark.
 2           The other reason I would have is the fact it is an
 3       ongoing mark and I still work within that organisation
 4       currently.
 5   Q.  The thing is though, Mr McGinnies, within the SPSA there
 6       are a number of different units including, for example,
 7       what was formerly the Aberdeen Bureau; is that right?
 8   A.  Yes.
 9   Q.  Obviously, there is the Glasgow branch of the SPSA as
10       well.
11           Would you agree with me that the views, the very
12       clearly expressed views of a number of individuals
13       within the SPSA, is that Y7 was wrongly identified by
14       SCRO.
15           You're aware of that, aren't you?
16   A.  Yes.
17   Q.  So what we've got is a situation where you are in charge
18       of training in an organisation where you have different
19       groups within that organisation who are diametrically
20       opposed to one another.
21           Do you follow?
22   A.  Yes.
23   Q.  I am wondering from almost a management point of view,
24       that the SPSA has to have a position on Y7.  It must.
25       It cannot go through life just pretending it didn't
page 129
 1       happen.
 2           Are we agreed about that much?
 3   A.  Yes.
 4   Q.  Would you agree with me that the way they dealt with it
 5       in the Brandon Mayfield case was a very, very swift
 6       acceptance that there had been a mistake, questions then
 7       asked as to how it happened, systems brought in to
 8       ensure it couldn't happen again, but there was a
 9       starting point of a very clear and unequivocal
10       acceptance of an error had been made.
11           You agree with that as a broad outline of the
12       Brandon Mayfield case?
13   A.  Of the Brandon Mayfield case, yes, I do.
14   Q.  Do you not see that that approach is a very powerful
15       one?  It has a starting point because of course if the
16       SPSA's position is that Y7 was correctly identified,
17       then there would be an argument that, well, we don't
18       actually need to change very much because it was right
19       and there's nothing to say it was a systems failure
20       because it was right.  But when you have a situation
21       where no position is being taken, it is very hard for
22       anyone to understand what the SPSA is actually waiting
23       for.
24           Do you understand the point I am trying to make,
25       that it is better if it is wrong face up to it, if it is
page 130
 1       right then herald it as being correct?
 2   A.  Yes, I do and I believe that that's why there is an
 3       Inquiry.  I believe that's one of the outcomes that I
 4       would think the SPSA may be looking to see.  As I say,
 5       this is something you may have to ask of the forensic
 6       director of SPSA's position on the mark.
 7   Q.  I understand that you yourself don't necessarily speak
 8       for the whole organisation.  I fully understand that but
 9       can I ask you this: let us suppose you go back to your
10       office today and you get a phone call saying one of our
11       guys in a High Court trial at Dundee was presenting
12       evidence, a defence expert came in challenging it and
13       the jury acquitted the individual.  Someone in a
14       position that you are in, what would your response to
15       that be?  What would you do?
16   A.  I would -- I would get this call from the line manager
17       or the head of that unit, I would think.
18   Q.  Let's assume it comes to your attention that there was,
19       in effect, a successful challenge to one of your people,
20       someone maybe you had trained, whose evidence, let's say
21       it's a fair assumption, was not accepted by a court,
22       whether it's a judge and jury or whether it is a Sheriff
23       alone sitting saying, "I'm not accepting this evidence".
24       What would your response be to it?  How would you handle
25       it?
page 131
 1   A.  My response would be to speak to the person's line
 2       manager and ask them if there has to be training
 3       involvement, if the line manager is requesting that
 4       training be involved, whether it be court training or
 5       whether it be any other kind of training, where an
 6       action plan needs to be put in place for that
 7       individual.
 8   Q.  Would the first question not be, well, was the SPSA
 9       employee right or were they wrong?  Is that not the
10       starting point?  You look at the work, you say, "No,
11       sorry, whether the judge didn't accept it or the jury
12       didn't accept it, this man was right in his opinion and
13       we will stand by that and if we need to get an
14       independent report we will do it".  You see the strength
15       of that?  Equally, if they got it wrong then you have
16       got a training issue.  Do you understand the --
17   A.  Sorry, I had just taken it -- I thought you said that
18       they had got it wrong.  It was agreed that they had --
19   Q.  No, I'm not asking you to assume that.  Just you are
20       told that they were successfully challenged, apparently.
21       They were challenged successfully.
22           Do you agree with me that the logical response is to
23       find out what the correct analysis was?  That is the
24       first starting point, isn't it?
25   A.  Yes.
page 132
 1   Q.  As I understand it, Mr Mulhern, some time in the past,
 2       acknowledged that Y7 was mistaken in some way.  You are
 3       aware of that, are you not?
 4   A.  That's correct, yes.
 5   Q.  At some stage, as I understand it, the official status
 6       of Y7 within the SPSA is it is an unsafe identification,
 7       I think is the way it has been put.
 8           Is that the official position of it?
 9   A.  At that time I think I believe I was at the Bureau when
10       Mr Mulhern said that if asked in -- sorry, that the
11       position of SPSA at that time was that Y7 was an unsafe
12       identification.  That was Mr Mulhern's statement at that
13       time, I believe.
14   Q.  I stand to be corrected if I get this wrong but, as I
15       understand it, Mr Mulhern acknowledged that the
16       fingerprint Y7 was mistaken in the identification.  Have
17       I got that wrong?
18   A.  I would need to be -- I'm not quite sure on that.  I'm
19       not sure whether he said it was a mis-identification or
20       whether he said it was an unsafe identification.
21   Q.  The position now about Y7 is that it is unsafe.  You are
22       aware of that, at least?
23   A.  Yes.
24   Q.  What does it mean?  What actually are we to understand
25       by unsafe?  Does it mean it was correctly identified but
page 133
 1       it's not really one that we can comfortably rely on?  Or
 2       does it mean it's wrong?  It seems to have this somewhat
 3       fuzzy description to it.  Can you tell me what you
 4       understand by unsafe?
 5   A.  What my opinion on what unsafe, if someone said
 6       something was unsafe means or are you talking about what
 7       Mr Mulhern said it was unsafe?
 8   Q.  Let's leave aside Mr Mulhern.  It has been confirmed to
 9       me that his position was it was a mistake and I am
10       assuming there's some difference between a mistake and
11       unsafe otherwise they wouldn't need to change the
12       terminology.
13           What I am trying to understand is what the status is
14       officially of Y7.  Perhaps I will tell you what I am
15       imagining.  I am imagining a criminal trial taking place
16       and one of the people in court is asked by defence
17       counsel, "You work for SPSA", answer, "Yes".
18           "What is SPSA's official position regarding the mark
19       Y7 in the Shirley McKie case?"
20           Now, it would be a question, certainly from my
21       perspective, I would be interested if I was defence
22       counsel in the answer to, because it may give an
23       impression to the jury of some doubt or some dogmatic
24       attitude by SPSA.
25           What is it that you would expect, if asked that
page 134
 1       question, one of your trainees would say?
 2   A.  I would say that it is, currently -- that the mark in
 3       the cases is currently subject to a public inquiry.
 4   Q.  My next question would be before the public inquiry was
 5       announced what was the SPSA's position on Y7?
 6   A.  I believe, and I stand to be corrected, that it was --
 7       that the SPSA line was that it was a mis-identification.
 8       That it was not an identification.  By the same token,
 9       when Mr Mulhern announced that, it was asked if anyone
10       had an opinion of their own on that and they were under
11       oath they had to obviously state their own opinion.
12   Q.  Of course.  But the answer to the question is there is a
13       public inquiry ongoing.  We are going to wait to see
14       what that says.  But there is an official position, as
15       you have explained, which is unsafe, it uses the word
16       "unsafe".  What I am struggling to understand is what is
17       meant by unsafe when used by the SPSA as a description.
18   A.  My understanding would be that it would be under -- this
19       is my understanding, it would be that it is an
20       impression or it is an identification that under current
21       circumstances we wouldn't take to court.  As I say, I
22       stand to be corrected on that but that would be my
23       understanding of an unsafe identification.
24   Q.  I wonder if we could have a document up, please, just on
25       this question of unsafe.  Could we have document SG07865
page 135
 1       up, please?
 2           This is the action plan for excellence.  Is that a
 3       document that you are familiar with, the action plan for
 4       excellence?
 5   A.  Yes.
 6   Q.  I am interested in the introduction.  I will just read
 7       out what is on the screen there in paragraph 1.1.  It
 8       says in this document:
 9           "Mis-identification of a fingerprint, as Shirley
10       McKie's 1997, has understandably caused considerable
11       public concern ever since about the quality of the work
12       done by fingerprint experts in Scotland -- an issue
13       which is central to maintaining public confidence in the
14       Scottish criminal justice system."
15           If we can flick through to paragraph 5.13, please,
16       it says:
17           "It has however been almost nine years since the
18       mis-identification occurred, seven years since Shirley
19       McKie's acquittal and almost six years since this issue
20       was addressed by HMCI."
21           I take it that you would agree that what we have is
22       a very clear indication there that there was a
23       mis-identification in the action plan for excellence.
24       You agree with that --
25   A.  Yes.
page 136
 1   Q.  -- that is the way it has been presented.
 2           Can we also have up document now, a different
 3       document, DB0650.  This is, I understand it, we have a
 4       document dated September 2006 by Roger Shearn, a
 5       forensic consultant.  Can we have paragraph 4.3, please.
 6       What is said in 4.3 is this:
 7           "My answer to this, based on 40 years' of
 8       identification practice, is that a disputed
 9       identification cannot remain as such.  Identification of
10       a crime scene mark against the fingerprints of a
11       nominated person can ONLY have three outcomes.
12           "[The first is] there are insufficient minutiae for
13       a useful comparison to be completed.
14           "[Second] it is identical.
15           "[Third] it is not identical.  What cannot happen is
16       a comparison remaining 'disputed'."
17           Perhaps we can compare that with something in a
18       statement, Mr Tom Nelson's statement.  Can we have
19       FI01353, please.  I am just trying to track down the
20       paragraph in which he notes that both Y7 and QI2 are,
21       the description is, unsafe identification?
22   MISS CARMICHAEL:  I think it may be 93 or 97.
23   MR SMITH:  Yes 97, please.  Paragraph 97.  I will just read
24       it out:
25           "Although I am not a fingerprint expert, I am aware
page 137
 1       that there are a number of interpretations of Y7 and
 2       QI2.  In these circumstances, based on my scientific
 3       background and given that the benefit of the doubt
 4       should always be given to the accused, it is SPSA's view
 5       that these are both unsafe identifications."
 6           Perhaps, just for completeness, paragraph 104.  What
 7       is said is under section A -- if you can just take in
 8       the A, thank you:
 9           "In relation to the identification of Y7 and QI2, I
10       can confirm that SPSA's position is that there are so
11       many varied views on these issues that it is our view
12       that these are unsafe identifications and SPSA will
13       accept the findings of this Inquiry in this regard."
14           I would like to ask you just really to compare the
15       two things, what is said by Mr Shearn to begin with
16       where he comments that there are really only three
17       possibilities: identical, not identical, insufficient
18       minutiae to come to a conclusion.
19           Would you agree with me that the idea of unsafe
20       identification is not within these three possibilities;
21       it can't be squashed into one of these three categories,
22       is it?
23   A.  No, it's not and actually that same three scenarios
24       appear on one of the slides that I use regularly in
25       training.  Disputed or unsafe identifications do not
page 138
 1       come under those categories, no.
 2   Q.  You understand why it is important that we don't create
 3       additional categories there because it causes a lack of
 4       public confidence in the result?
 5   A.  Yes.
 6   Q.  Would you not agree with the suggestion that to the
 7       extent that the SPSA is presenting it as being an unsafe
 8       identification, then that is bound to damage public
 9       confidence in the position of the SPSA?  Would you not
10       agree with that?
11   A.  I would think that the SPSA will accept the finding of
12       this Inquiry in this regard.  I wouldn't want to
13       second-guess the Inquiry, what it's going to decide, but
14       I think taking direction on how we should deal with that
15       may be left for the Inquiry.
16   Q.  The thing is that there are two points to be made about
17       that for your comment.  The first is what will the SPSA
18       have done, do you think, or what would you have
19       suggested they do if the public inquiry was not going to
20       take place?  Just do nothing?  Just leave it as an
21       unsafe identification?
22   A.  I think that that would obviously be a question possibly
23       for Mr Nelson as to what was -- I don't know whether he
24       had a position on this before the Inquiry was coming or
25       whether that's because of the Inquiry.
page 139
 1   Q.  The other point that I wish to make is that it has been
 2       ten years since Shirley McKie's trial, over ten years
 3       since the trial.  Ten years is an awfully long time for
 4       doubt to be floating about in the public about issues of
 5       confidence over an organisation that is given an
 6       extremely responsible job.  I am just wondering why it
 7       is that the SPSA -- can you think of any reason why they
 8       couldn't adopt a strong and clear position, whether it
 9       was the SCRO are right or whether it is they were wrong,
10       in order that the public can then consider it and say,
11       "Well, we know where we stand on that" rather than what
12       might be seen to be sitting on the fence?
13           Can you see that there would be merit by actually
14       taking a positive position as opposed to, "Just let's
15       wait and see what the Inquiry says"?
16   A.  It's my opinion that whatever the Inquiry decides now
17       should be our -- should be SPSA's line under it, if you
18       like, and we should definitely move on from there.
19   Q.  Of course.  I think it would be a surprising position if
20       SPSA said they were not going to accept the views of the
21       Chairman in this matter.
22           I am more interested in whether you see frankly that
23       in the past ten years there has been a huge loss of
24       confidence by the public in SCRO, then becoming SFS,
25       then becoming SPSA.  You realise that there is a huge
page 140
 1       lack of public confidence in that service, don't you?
 2   A.  Yes, I would agree with the fact that it cannot remain a
 3       disputed ident.  That cannot be -- in my opinion, I
 4       would feel that SPSA has to move on from it being a
 5       disputed ident, yes.
 6   THE CHAIRMAN:  I think you yourself earlier this afternoon
 7       said you regarded it as a mis-identification if I
 8       understood your evidence properly.  I think you said
 9       that -- I was just looking at the passage.  Maybe I have
10       misinterpreted what you said.
11   A.  Possibly, sir, because I haven't compared the mark to a
12       conclusion so I don't think -- unless I was taking the
13       standpoint that SFS --
14   THE CHAIRMAN:  Maybe you were speaking of an example that
15       was being given to you of a case in Dundee or somebody
16       coming back.  I will just look for the passage.
17           I thought I had marked it but obviously I haven't.
18       I will just look again.
19           "My understanding would be that it would be that it
20       is an impression that is an identification that under
21       current circumstances we wouldn't take to court.  As I
22       say, I stand to be corrected on that but that would be
23       my understanding of an unsafe identification."
24   A.  Yes, sir, correct.
25   THE CHAIRMAN:  That is what I understood you to say.
page 141
 1   A.  Yes.  If we were talking about unsafe identification --
 2       if we have identified, not identified, unable to say
 3       then "unsafe" would fall into either "not identified" or
 4       "unable to say" due to insufficient features in sequence
 5       and agreement to individualise it.
 6   MR SMITH:  I would like, if I can, really to pick up on that
 7       and come back to this question of you say that you have
 8       been passed copies of Y7 and the inked mark of Shirley
 9       McKie.  I think you explained that it was given to you.
10       Was there some sort of training environment?
11   A.  We were -- I'm trying to recall exactly when it was.  It
12       was either at a conference or coming back from a
13       conference that a colleague had passed me it.
14   Q.  For what purpose?
15   A.  I don't know whether he'd -- you'd need to ask him
16       whether he came across it in his drawer or whether he
17       thought it was something that I would want to see,
18       whether he thought it was something I hadn't had a look
19       at.
20   Q.  Did you know what it was as soon as you opened it?
21   A.  Yes, he told me what it was and I've actually since --
22       it was a long time ago.  But since then I've had a
23       conversation with the individual and he knows that I
24       didn't compare it.  I think I've discussed it with him
25       more recently than when I first got it.
page 142
 1   Q.  What I am struggling with a little bit here,
 2       Mr McGinnies, is this: you're handed an envelope, the
 3       single-most, arguably, interesting piece of forensic
 4       evidence in a fingerprint case in the history of
 5       fingerprinting upon which no-one is suggesting that this
 6       fingerprint is, as I understand it on two camps, that
 7       you cannot examine it and come up with an opinion.  Both
 8       sides are saying either you can and it is hers or you
 9       can and it's not hers.
10   A.  I believe there are other people saying that you can
11       look at it and say that there would be insufficient to
12       individualise, but it's the same thing.  It's not --
13   Q.  These people have told you that, that they've --
14   A.  No, I believe that there are -- I could be wrong.  I
15       thought there were people who had looked at the
16       impression and thought it was an insufficient mark; in
17       other words, they wouldn't compare it.
18   Q.  Your position is that -- well, perhaps if I can put it
19       this way: did you take a positive decision that you
20       didn't want to look at it?
21   A.  Yes.
22   Q.  Why are you scared of looking at it?  Why are you scared
23       of coming to your own professional opinion as a trainer?
24   A.  I'm not in any way scared to come to my own professional
25       opinion as a trainer.  I am a professional.  I took the
page 143
 1       professional decision in the organisation that I worked
 2       in that it was an ongoing process, that I wasn't
 3       prepared to look at it at that time.
 4   THE CHAIRMAN:  I have understood you when you last were
 5       asked this question that you said you gave me the
 6       impression that what you wanted was not to be seen to be
 7       in either camp because you were running the office or
 8       doing the work that you were doing at present.
 9   A.  That's correct, sir, and not only in a Scottish context
10       but integrating even more fully the Scottish SPSA (or as
11       it was known then the Scottish Fingerprint Service)
12       international training model, having ourselves fully
13       integrated with that, having open doors.
14           Unfortunately, some people who have an opinion one
15       way or the other can't be professional about this and
16       would hold it against you if you had an opinion one way
17       or the other.  That would close the doors to what I see
18       as the more important point of taking the Scottish
19       training forward.
20   MR SMITH:  Can I ask you, moving on from that, just on the
21       management position where you have people with different
22       organisations within the same organisation with
23       diametrically opposed views.  It must be quite a
24       difficult thing actually to manage.  You're having a
25       meeting and you've got the Aberdeen people there who are
page 144
 1       saying the former SCRO people are wrong and you've got
 2       someone then saying they were right.  That must be quite
 3       a difficult thing to manage, is it not?
 4   A.  Believe it or not, it's not something that comes up at
 5       meetings.  It's not something that's the be all and end
 6       all.  People are professional enough to put their
 7       position on that to one side and still deal with each
 8       other on a professional basis daily.
 9   Q.  Just one more question.  I see the time.  We usually
10       stop at ten to.  The other thing I wanted to ask is
11       would it not be a very useful training model not just Y7
12       and the inked print to look at it and then try and work
13       out what happened, but also the methods of presentation,
14       the difference between how the Americans presented the
15       evidence, is it not something that is a very useful
16       database for training purposes for, frankly, interest's
17       sake within the SPSA?  Would you agree with that
18       comment?
19   A.  I certainly would and we do use the Mayfield case.  The
20       Brandon Mayfield case has, if you like, a beginning a
21       middle and an end.  It has, as you say, a very quick
22       turnaround on the report, the international experts and
23       the recommendations.  We use that to look back and look
24       at the procedural breakdowns.  I'm hoping that when the
25       case is resolved that I will be able to use that as a
page 145
 1       training aid, yes.
 2   Q.  So hopefully one this Inquiry is completed you might
 3       actually use the McKie case as a training model?
 4   A.  Certainly, as you say, the models and standards of
 5       presentation that I've observed both in the case and
 6       here, yes.
 7   MR SMITH:  Thank you, sir.  I am going to move on to
 8       something else.
 9   THE CHAIRMAN:  We will just rise now but, before we do, of
10       course the advantage of the Mayfield case, as I keep
11       reminding myself, is that there there was someone who
12       was the suspected owner of the mark.
13   A.  Yes, that's correct, yes.
14   THE CHAIRMAN:  Not just the person that the FBI suspected
15       but that the person that the Spanish police suspected so
16       you could compare both to see where the difference lay.
17   A.  Exactly, yes.
18   THE CHAIRMAN:  Very good.  We will sit again at 2 minutes
19       past 3.
20   (2.52 pm)
21                         (A short break)
22   (3.03 pm)
23   MR SMITH:  Mr McGinnies, dealing now if I can with the
24       question of differences of view amongst employees with
25       the SPSA, let us suppose we have fingerprint expert A
page 146
 1       and fingerprint expert B, each of whom disagree.  Let us
 2       say they disagree with the analysis of Y7.  They can't
 3       both be right about that.  Assuming one says Y7 is
 4       correctly identified and the other one says it was
 5       incorrect, they cannot both be right.
 6           How is it in a training situation you would manage
 7       that if these individuals are both going to be going to
 8       give evidence?  There must be a training issue for one
 9       of them.  He needs to have his training revised, doesn't
10       he?
11   A.  Certainly that's one training with a learning outcome
12       that we can have from this case so far is that if expert
13       A says that it's an identification and expert B says
14       it's not an identification, then they can't both be
15       right.  In cases where that happened, we would always
16       err on the side of the accused.  We wouldn't be going to
17       court with it.
18   Q.  I understand but I'm actually thinking let's say they
19       both agree in a case they are going to court over but,
20       apart from that, one of them says Y7 is right and one
21       says Y7 is wrong.  Do you follow?  So they actually have
22       a view expressed, maybe very clearly and publicly, about
23       the analysis of Y7.
24           As a training manager, you would no doubt be
25       concerned as to why it is they had diametrically opposed
page 147
 1       views, which may raise questions over frankly their
 2       competence, wouldn't it?
 3   A.  Yes.
 4   Q.  How do you handle that knowing there are some people
 5       within SPSA who say Y7 is right and some who say it's
 6       wrong?  How can you handle that because someone
 7       obviously requires some degree of retraining or
 8       education about the position?  What do you do about it?
 9   A.  Regarding talking to an individual who has stated
10       that -- these individuals, what would happen ... I'm
11       quite lost, sorry.  I'm not quite understanding.
12   Q.  Let us suppose you are conducting a training course and
13       there are two fingerprint people there and they are
14       talking about Y7 and one says, "I think SCRO were right"
15       and the other says, "I think they were wrong" and they
16       both say, "We've looked at it, we've analysed it and we
17       differ about that".
18           It must immediately cross your mind that it is
19       likely that one of them hasn't done the work properly.
20       It follows, doesn't it?
21   A.  Yes.
22   Q.  How would you respond to that if you know that there are
23       two people in the same room who disagree?  A training
24       issue is raised but how do you deal with it as an SPSA
25       training officer?
page 148
 1   A.  I can't think of an occurrence of that happening.  If it
 2       is someone that is already within the organisation, then
 3       I would say that their work was being verified daily,
 4       they're being competency tested, they're being dip
 5       sampled, they're on the national register and I think
 6       that their work is undergoing daily ongoing assessment.
 7   Q.  I would like to ask you a very particular question.
 8       First of all, in case I forget about it, have you seen
 9       images of QI2?
10   A.  Yes.
11   Q.  What is your position about that?  Have you analysed
12       that or have you the same position as Y7?
13   A.  No, the first time I'd seen QI2 is when I was sitting
14       over there when I came in look at the Inquiry a few days
15       ago.
16   Q.  So you have never been passed copies even by the same
17       individual who gave you Y7?
18   A.  Not to my knowledge, no.
19   Q.  Let us move on to the question of training in a
20       particular matter, training about slippage, distortion,
21       movement, et cetera, et cetera.
22           Are you saying to the Inquiry that whenever you
23       provide training to trainees you specifically train them
24       on the question of identification of distortion,
25       movement, et cetera?  They are told what to look for,
page 149
 1       are they?
 2   A.  They are shown various examples that -- sorry, they are
 3       shown various examples that contain these different
 4       aspects and it's highlighted to them what they would
 5       look like.  For instance, a blood mark, what a blood
 6       mark would look like as compared to sweat on glass that
 7       had been developed with powder so that they know what
 8       these look like to build up their knowledge database of
 9       the things that can happen in chance impressions.
10   Q.  Yes, but I am asking you something very particular.  I
11       am not asking what a blood mark looks like or what a
12       print on glass looks like, I'm asking about whether they
13       get direct training that there's a very, very concerning
14       part of your work that may crop up, and probably will
15       crop up, which is there may be distortion or movement,
16       smudging, pressure, et cetera, et cetera, and you have
17       to know how to identify when that has happened because
18       it will throw you off the trail of making an analysis.
19           Are they taught the importance of how to recognise
20       features of that kind of distortion?  Specifically, are
21       they taught about it?
22   A.  Yes.  In an ACE-V presentation that I do, there are
23       various examples of marks that have these distortions or
24       these characteristics during when they've been deposited
25       and the presentation let's them see.  For instance, one
page 150
 1       is an elliptical whorl which has been on a plastic bag
 2       and it's folded and it makes it look like a normal
 3       whorl.  That's then explained to them and shown to them
 4       the impact that fold in the plastic bag has caused on
 5       that fingerprint.
 6   Q.  I understand that.  Let us take one step back because it
 7       is important that we all understand the if I call it the
 8       one discrepancy role.  I know you answered some
 9       questions about this but I just want to be crystal clear
10       about it.
11           Let us suppose that you look at a mark and you're
12       carrying out a comparison and you will just have a
13       single very clear difference between the two.  What do
14       you do about that difference when you spot it?  Let us
15       say it is the first thing you see, a bifurcation say or
16       a ridge count is out.  What do you do then?  Do you
17       carry on or do you say, "Nope, it's not a match.  I'm
18       not going further"?
19   A.  You would have to look at the print in a whole and see
20       what other weight you put under that evidence.  You have
21       to see if there was sufficient quantity and quality of
22       other features in sequence and agreement to allow you to
23       effect an identification.
24   Q.  Let us suppose you get 20 points in similarity but you
25       have got one that is different, a very clear one that is
page 151
 1       different.  Are you saying that that could still be a
 2       valid analysis even if you don't know the reason for the
 3       difference?
 4   A.  And you can't explain if there's -- it's a nice clear
 5       mark you can't explain?
 6   Q.  Correct.
 7   A.  I don't think you would be able to take that forward as
 8       an individual identification then because you have no
 9       reason whatsoever of why that's there.
10   Q.  That is part of the training, is it?  That is what
11       people are trained to do?
12   A.  I believe so, yes.
13   Q.  Is there a bit of a danger here, though -- I know you
14       have not heard all of the evidence -- but is there not a
15       danger where a difference is spotted, the danger is that
16       the Fingerprint Examiner, if they are satisfied of their
17       other points of the similarity just say, "Well, there
18       must be some kind of distortion or twisting or something
19       going on here.  I can't see it specifically but I can
20       only explain this difference because there must have
21       been".  You see, it's round the wrong way, isn't it?
22   A.  Yes.  Trainees will never be advised to explain things
23       away by it must be a movement or there are three ridges
24       going in and there's a dark area where they can't make
25       out what happens and there's only two ridges coming up
page 152
 1       or one ridge coming up; so, therefore, there must be
 2       something happening in it.  There needs to be clear
 3       features that are in sequence and agreement for them to
 4       be able to -- they can't explain things away if that's
 5       what you're saying.
 6   Q.  That is really what I am saying because it would be
 7       (inaudible due to coughing) if the individual examiner
 8       was able to say, "I think there is distortion by
 9       twisting and I can show you why there is twisting here.
10       You can actually see a dragging of ridges" or something
11       and that can account for the ridge count.  That is one
12       scenario, isn't it?
13   A.  Yes.
14   Q.  Which would be perfectly legitimate if it was explicable
15       if you could justify it?
16   A.  Yes.
17   Q.  But I take it you would be critical of someone who said,
18       "I can't actually see it here but the differences must
19       be accountable by some kind of pressure, distortion,
20       movement, et cetera".  That would not be a comfortable
21       position to be in, would it?
22   A.  No, certainly it's not the way that people would
23       training to explain things away because they must be --
24       in other words, if you are working, the danger there
25       would be reverse reasoning.  If you're going from left
page 153
 1       to right and then you can see it clearly on the
 2       right-hand print but you transfer that back over to
 3       well, that must be what's happening there.
 4   Q.  I am glad you raised this point.  It is something I
 5       wanted to ask you about -- I do not need to go to it --
 6       but the demonstration carried out with the dots on in
 7       green and red that you explained you were going to have
 8       to change.
 9   A.  Yes.
10   Q.  As I understood what you were saying is you look for a
11       point on the latent and then you would go to the inked
12       and see if you plot it.  I think your PowerPoint
13       actually showed that taking place?
14   A.  Yes, that's correct.
15   Q.  We have heard some evidence in this Inquiry that the
16       appropriate way of dealing with it is to look at the
17       latent and not plot one and then find it, but to
18       actually look for a cluster of them in the latent and
19       plot them and then you go to the inked and see if you
20       can find them.
21   A.  That's correct.  That's a very basic level demonstration
22       for them.  Actually, when I was presenting that, I would
23       talk about looking for a cluster of characteristics and
24       then pick a strong characteristic or two or three, a
25       bifurcation next to a lake or a ridge ending, and
page 154
 1       transferring that over.  That PowerPoint can probably
 2       deal with that actually.
 3   Q.  I am interested not so much in what the PowerPoint
 4       shows, I am interested in what people are trained to do.
 5       Do you follow?
 6           We have two scenarios.  One is you pick a point,
 7       find the other, pick another point and find the other
 8       and working backwards and forwards like a game of
 9       tennis.  What I am interested in, though, is whether
10       that is what's done as opposed to looking at the latent,
11       concentrating, squeezing very last drop out of what you
12       can find, and then and only then you go to the end.  Two
13       different scenarios?
14   A.  Yes, it's two different scenarios and, on reflection,
15       that PowerPoint doing -- maybe it's a bit simplistic to
16       explain it.  It's broken down for not laymen but broken
17       down to show the working from left to right.  More
18       accurate would be the ACE-V report with the target areas
19       drawn on the back and the whole report on the ACE side
20       of the unknown mark and then transferring that over to
21       do your comparison.
22   Q.  I follow.
23           Obviously the danger is that you are doing it like a
24       game of tennis as I've described.
25   A.  You start transferring in circular reasoning, yes.
page 155
 1   Q.  Exactly.  You are looking for things in the other one,
 2       maybe accidentally, but you are looking for them?
 3   A.  Yes.
 4   Q.  As far as this Inquiry is concerned, how closely have
 5       you been following the evidence?
 6   A.  As closely as my work and social life has allowed me.
 7   Q.  Of course.  Again, I am not being critical --
 8   A.  No, no but obviously I have more time --
 9   Q.  It is consuming a lot of my social time as well, I have
10       to say.  But I am not criticising.
11           What I am interested in is this: I am sure you know
12       or may even have seen, for example, the presentation by
13       Mr Zeelenberg.  Have you seen that presentation?
14   A.  I wasn't present and seeing the whole thing.  I followed
15       the transcript but not the whole presentation, no.
16   Q.  I think in fact the actual PowerPoint is available
17       online.
18   A.  It's on there.
19   Q.  What I am interested in, though, is whether you would
20       see on a presentational basis, even for a training
21       basis, that using PowerPoint to show how points could be
22       placed or differences could be placed, would you see
23       that as a useful training tool?
24   A.  Certainly, yes.  On reflection and with time to digest
25       the stuff that comes out from the Inquiry, I would look
page 156
 1       to optimise and use some of these things possibly for
 2       training aids.
 3   Q.  Equally, coming almost full circle back to the question
 4       of presentation to the jury, I think it was raised by
 5       the Chairman as to the only thing that really is placed
 6       in front of the jury is a typewritten report, in fairly
 7       short measure actually, just saying, "We've looked at it
 8       and we're satisfied that these two match".
 9           Again, I take it you would agree with me if I
10       suggest that the purpose of the expert is not just to
11       stand there and say, "I'm an expert, I know what I'm
12       talking about"?
13   A.  Absolutely.
14   Q.  And if either the defence or the judge or indeed, I
15       suppose, theoretically the jury would say, "Sorry, I
16       don't follow this", it would be incumbent upon the
17       expert to actually be able to demonstrate why the expert
18       held that opinion.  Do you agree with that --
19   A.  I do, yes.
20   Q.  Against that background, are you comfortable with -- I
21       know it's the Crown who are principally leading it, but
22       are you comfortable with just a written report being
23       made available to the court?
24   A.  No, and I think I actually touched on earlier that there
25       are moves being made in that area of looking at whether
page 157
 1       its a generic PowerPoint or a generic way of describing
 2       how we make our identifications and use it or whether we
 3       actually can get to some stage for case-specific.  These
 4       are ongoing talks and I would certainly advocate that
 5       that's where we should be going.
 6   Q.  I would like to ask you a few questions if I can about
 7       the question of disclosure.  You were asked some
 8       questions about that earlier.  Part of the training
 9       programme that is provided, as I follow it, is a
10       discussion about the criminal justice system.  I think
11       it is in your statement to the Inquiry explaining that
12       it is part of the training for the fingerprint experts,
13       for obvious reasons.
14   A.  That's correct.
15   Q.  Can I ask you if you yourself have ever received
16       training particularly on the question of what disclosure
17       is and what is required?  Do you understand what is
18       required in law?
19   A.  Yes.  I have recently been on a one-week course at
20       Tulliallan run by Superintendent George Basley(?) who is
21       leading on disclosure stuff for the Police.  I am
22       currently working with SPSA in putting together -- in
23       fact, they have already put together an open distance
24       learning package that basically outlines what disclosure
25       is.  I think that's going to be put on the SPSA website
page 158
 1       as well.
 2           Our next move from that is to actually look at each
 3       business area and for them to draw up plans for what
 4       they need to do to conform to full disclosure.
 5   Q.  I understand there are various systems to implement
 6       disclosure but what I am interested in is if you
 7       understand, as it were, what the law requires is
 8       disclosed.  Obviously, it is the Crown who carries the
 9       can but the can has to have something in it.  They have
10       to have information available to them from various
11       organisations (whether it is the police, whether it's a
12       pathologist, whether it's a fingerprint expert) in order
13       that they are educated as to what they have and they
14       know what has to be disclosed.
15   A.  Yes, talking about any material that may undermine the
16       prosecution or assist the defence case.
17   Q.  Yes.  I think you said that quite quickly for the
18       stenographer.  Can you just repeat that.
19   A.  It would be any information that's held that may
20       undermine the prosecution case or assist the defence
21       case, any exculpatory or inculpatory evidence.
22   Q.  I think that is a pretty accurate summary of what has to
23       be handed over.
24           I take it you are aware that in fact the disclosure
25       policy of the Crown is available on their website.  It
page 159
 1       is readily available.  Did you know that?
 2   A.  That's possibly one of the things that come out of the
 3       training.
 4   Q.  Against that background, obviously it is important that
 5       when analysis has been carried out within an office,
 6       then there is a very clear audit of who looks at the
 7       document, when, what their conclusion is.  In light of
 8       that, first of all, if there is a problem from the
 9       prosecution side that it can be communicated, traced
10       back and verified or managed or something of the kind.
11       You would agree that that is necessary?
12   A.  Yes.
13   Q.  I am interested in something you said earlier.  I think
14       when Miss Carmichael was asking you questions you said
15       if there was a problem like that, it probably would be
16       put in the diary.  It probably would end up there.
17           Do you remember giving evidence to that effect?
18   A.  I think so.  I think we were talking about facilitated
19       discussions.  I think anything of that nature would be
20       recorded on a diary page, which is like a chart of what
21       happens with the case as it goes through.
22   Q.  By "facilitated discussion", do you mean when a
23       disagreement arises there's actually almost like a mini
24       committee meeting to discuss it?  Is that what you mean?
25   A.  It would go to the quality assurance.  I think earlier I
page 160
 1       said the verification unit.  I think it goes to the
 2       Quality Assurance Unit, who would deal with the
 3       discussion, yes.
 4   Q.  It is just the use of the word "probably" be put in the
 5       diary.  Are you saying it definitely --
 6   A.  It would be.  Sorry, that's where it would be recorded.
 7       It would be recorded in the diary page for the case.
 8   Q.  The diary page in those circumstances would always be
 9       communicated to the Crown, would it?
10   A.  I would have to say that I'm not sure about that.  I
11       would need to take advice on that.  I'm not sure whether
12       it is always or whether that is -- I don't think it is
13       as a matter of course given to the Crown.
14   Q.  Why wouldn't it be because how could the Crown be able
15       to disclose to the defence that there had been some
16       debate about the mark unless the Crown was told?
17   A.  As I say, I would have to just say that at this point
18       I'm unsure whether we are now putting it to the Crown or
19       whether we have always put it to the Crown.  I'm
20       sorry, I (inaudible) --
21   Q.  You understand the importance of it, though, I take it?
22   A.  Certainly, yes.
23   Q.  Are there no standard operating procedures or there's no
24       rule book about this?  The simple rule where there's a
25       dispute about it, then SPSA, it must be reported to the
page 161
 1       Crown.  It is an easy rule to devise and an easy rule to
 2       follow; do you accept that?
 3   A.  Yes, I do.  I would just need to apologise and say that
 4       at this time I'm unsure whether that is happening.
 5   THE CHAIRMAN:  But if you cannot answer the question, so be
 6       it.
 7   MR SMITH:  I fully understand.
 8           I would like to ask you, if I can, about the
 9       question of the work of Professor Dror.  Are you aware
10       of Dror's work?
11   A.  Dr Itiel Dror, yes.
12   Q.  I think broadly speaking -- I don't want to try and
13       summarise him in a sentence or two -- but I think his
14       position is that the culture, psychology and emotional
15       context of the way people work can sometimes influence
16       decisions.  There can be cross-contamination, there can
17       be observer bias, there can be confirmation bias --
18       these kinds of things?
19   A.  Yes.
20   Q.  As far as that is concerned, is that something that you
21       are aware of being taken into account, for example, in
22       your training courses when you train people?
23   A.  We currently send -- people who are members of the
24       Fingerprint Society have attended lectures at various
25       times by David Charlton and Dr Dror.  We currently have
page 162
 1       one expert who is doing some research for her Masters
 2       degree which encompasses contextual bias and reverse
 3       reasoning, et cetera, in her studies.  So that obviously
 4       as well will be shared with the wider community when she
 5       has finished her report.
 6   Q.  So it is being taken into account.  There is obviously a
 7       recognition within SPSA that that kind of approach is
 8       important?
 9   A.  Oh yes.
10   Q.  I see.
11           This is one small point of detail, the question of
12       testing and verification.  I think you indicated that
13       effectively there's an outside agency which occasionally
14       verifies the testing process?
15   A.  The collaborative Testing Systems which all the experts
16       sit annually.  So yes.
17   Q.  Can you help me with this.  I have tried to find out
18       without success, but Collaborative Testing Systems, what
19       is that organisation?  Is it a private commercial
20       organisation?
21   A.  To my understanding, it's a private commercial
22       organisation from America that provides this test.  I
23       think they sit two tests a year and all our experts sit
24       on one test roundabout this time of year, November.
25   Q.  But as far as they are concerned, they are not
page 163
 1       particularly fingerprint experts, are they?
 2   A.  I don't know their background.  I think we've always
 3       used CTS and we still use CTS.  We had looked at using
 4       other collaborative testing systems and did a pilot with
 5       one under SFS and we decided not to use and they've
 6       stuck with CTS.
 7   Q.  What do they actually check?
 8   A.  To my understanding, they put out a set of control
 9       prints, Scenes of Crime marks and check prints and they
10       know the results of these because they are donor prints
11       and they've set those up, if you like.  We would then
12       issue the experts with these tests.  They would fill
13       them in independently and send them back through our QA
14       process to Collaborative Testing Services in America and
15       they would publish results.  So they're testing people's
16       identification skills, if you like.
17   Q.  The actual fingerprints that they are providing for the
18       test, are they provided by the SPSA or do they obtain
19       them from another source?
20   A.  They don't obtain them from SPSA so it must be from
21       their own source.
22   Q.  Can you help me with this: what is dip testing?  It is
23       referred to in your statement.
24   A.  Dip testing.  I possibly meant dip sampling.
25   Q.  I am sorry, dip sampling.  What is that?
page 164
 1   A.  Dip sampling is where you would randomly take cases
 2       throughout -- if we were talking about dip sampling for
 3       a person, it would be a dip sample one in ten of their
 4       cases for the last six months.  We're talking about for
 5       a bureau we may take it from across the bureaux, dip
 6       sampling of cases which would then receive a sort of
 7       full verification and QA check to make sure that
 8       everything that was -- it's almost like blind testing
 9       afterwards.  So you go through the whole process and
10       make sure that everything was done correctly.
11   THE CHAIRMAN:  By whom?
12   A.  By our Quality Assurance Team within the units.
13   MR SMITH:  That would be across the whole of the SPSA.  So
14       you might have someone in Glasgow quality assurance
15       testing someone from the Aberdeen, would it?
16   A.  I'm not sure that they cross-test.  I may be wrong on
17       that but certainly there's QA dip sampling across the
18       service, yes.
19   Q.  I just want to understand though.  The SPSA is a single
20       unit, isn't it, but with smaller or separate departments
21       within it or are they just geographically in different
22       places --
23   A.  I think the SPSA -- SPSA Forensic Services Fingerprints
24       located at four different locations throughout Scotland.
25   Q.  As far as these dip testing dip analysis procedures are
page 165
 1       concerned, are the results of these held for posterity?
 2   A.  Sir, you would need to speak to someone possibly in the
 3       QA or the dip sampling.  It's not my area of expertise
 4       and I'm not really sure --
 5   Q.  I understand you can't answer the question now.  So be
 6       it.
 7           The last thing I wanted to ask you might have
 8       thought a strange question but the SPSA is obviously
 9       your immediate employer but who, as it were, operates
10       the SPSA?  Is it police-funded, is it Strathclyde
11       Region-funded --
12   A.  It's a public service body that would answerable to the
13       Scottish Parliament, I believe.
14   Q.  The reason I ask is -- and you may or may not be aware
15       of it -- at the outset of the litigation at the instance
16       of Shirley McKie there seemed to be considerable doubt
17       amongst the Scottish Executive, the Strathclyde Police,
18       the Glasgow City Council, as to who actually had
19       vicarious responsibility for the Fingerprint Officers in
20       question.
21           Are you able to help us whether you are
22       ultimately -- it may be you cannot answer this -- but
23       the SPSA is ultimately effectively owned by or
24       immediately owned by the Scottish Executive?
25   A.  I would think it would be the Scottish Executive.
page 166
 1       That's who I would expect us to answer to.  Certainly
 2       when there's reports within that I'm sure that's where
 3       they would be directed, yes.
 4   Q.  Give me one moment, please.
 5   A.  Certainly.
 6   Q.  I have been reminded there is one question I wanted to
 7       ask you and it is this.  We can actually see in the
 8       draft of the report that is prepared, the template for
 9       the expert report, a reference to the role of
10       legislation, the Criminal Procedure (Scotland) Act 1995.
11       There appears to be certification by the appropriate
12       Minister of an expert.
13           Can you help me with this?  You have obviously been
14       approved.  What is the mechanism by which you get that
15       approval?  Do you just apply and it is rubber-stamped
16       or --
17   A.  What would happen would -- you are talking about the
18       application to the Scottish Executive to have us
19       considered under section 2(8) to prepare a joint report?
20   Q.  Yes.
21   A.  What would happen in that was we're back to our national
22       training programme.  The national training programme and
23       the SPSA's fingerprint training policy sit within each
24       other; so the training follows that national programme
25       through to completion and the advanced course.
page 167
 1           They would then have -- that would then enable them
 2       to be put on a National Register of Fingerprint Experts
 3       held at NPIA.  What would happen then is a full report
 4       would go from that trainee's line manager, the coach or
 5       mentor, their supervisor, all their completed training
 6       would then go to the unit manager and it would be the
 7       unit manager that would submit that in writing to the
 8       Scottish Executive basically saying that they are now a
 9       fingerprint expert that can be considered for giving
10       expert evidence on fingerprints in court.
11   Q.  Is there some kind of list or register of them?
12   A.  I believe there is a register that sits with Executive
13       that has a list of expert witnesses, if you like, yes.
14   Q.  What about within SPSA?  Is there a book that says who
15       is qualified --
16   A.  Yes.  That would match and mirror the one that we have
17       sitting with the National Police Improvement Agency.
18       It's up to SPSA to manage that list for the NPIA; in
19       other words, if someone was to leave the organisation,
20       we would have to have inform the NPIA and the Scottish
21       Executive of their status.
22   Q.  Are individuals who have been trained under your
23       guidance encouraged to, for example, do additional
24       training courses with the Met, even going abroad to
25       attend training courses and join organisations such as
page 168
 1       the IAI and so on and so forth?  Is there encouragement
 2       to go and see the world?
 3   A.  Certainly there's encouragement and support and through
 4       our PDR process, anyone who has written aims and
 5       objectives and gave an agreement with their line manager
 6       through the chain would be supported in these
 7       endeavours.
 8   MR SMITH:  Thank you very much.
 9   THE CHAIRMAN:  Mr Holmes?
10   MR HOLMES:  Thank you, sir.  There are three topics I would
11       like to cover with this witness, all of them relatively
12       brief.
13           The first is the question of demonstration of
14       individual characteristics to a jury.
15   THE CHAIRMAN:  Yes.
16   MR HOLMES:  The second is his evidence regarding the SPSA
17       position on Y7 and there is a statement that I am able
18       to put to him.  The third is his own position on the
19       value of examining Y7 and QI2.
20   THE CHAIRMAN:  You may ask those.
21                   Cross-examined by MR HOLMES
22   Q.  Mr McGinnies, if I can ask you first about this question
23       of demonstrating characteristics to a jury.  I know it
24       is something that others have asked you about already,
25       but am I correct in saying that you gave evidence
page 169
 1       earlier that, in your experience, charted enlargements
 2       since the advent of the non-numeric system have simply
 3       not been produced?
 4   A.  Whether they were standard before for every case, no,
 5       they're not any more, no.
 6   Q.  Do you ever recall charted enlargements being produced
 7       for a specific case since non-numeric came in?
 8   A.  Not to my knowledge, no.
 9   Q.  So there is no longer any attempt to get the jurors to
10       actually see what the fingerprint expert is seeing when
11       they are carrying out their comparison?
12   A.  No.
13   Q.  You do, however, describe when you give the evidence
14       what you have seen; is that correct?
15   A.  If asked to do so, yes -- anything that you think would
16       help the court to come to a conclusion, yes.
17   Q.  When it is being suggested to you that you are asking
18       the jury to make some kind of leap of faith, is it not
19       the case that what in fact is happening is that either
20       the Advocate Depute or the Procurator Fiscal -- because
21       you are not asking the jury to accept anything, it would
22       be the Depute or the Fiscal asking the jury to accept
23       the evidence of any of their witnesses -- is what is
24       happening that the Depute or the Fiscal is asking the
25       jury to accept the evidence of a witness who is on oath
page 170
 1       as to something they have seen?
 2   A.  Yes, that would be the case, yes.
 3   Q.  Which is exactly what happens with every witness as to
 4       everything in every case?
 5   A.  Yes, that would be correct.
 6   Q.  The second thing I would like to ask you about is the
 7       SPSA position now.  You say that the characterisation of
 8       the identification of Y7 as unsafe indicates to you that
 9       it is something that the organisation wouldn't take to
10       court now?
11   A.  Yes, I believe that was my evidence, yes.
12   Q.  If you have four officers all of whom are competency
13       tested, all whom have their work verified on a daily
14       basis, who are prepared to sign a joint report, why
15       wouldn't you take it to court?
16   A.  Sorry, if they've all signed it saying that it's an
17       identification?
18   Q.  There are four officers or there were four officers in
19       this case who signed the joint report, all of whom are
20       competency tested, all of whom had their work verified
21       on a regular basis.  If there were four officers willing
22       to sign a joint report in relation to Y7 right now, why
23       would you not take it to court?
24   A.  If today, if four officers signed a case where they were
25       sure of the thing why would you not take to court?
page 171
 1   Q.  Yes.
 2   A.  You would take to court, if the four officers -- if
 3       today in the Dundee Bureau four officers examined a mark
 4       and took it to court then they would -- sorry, put it
 5       forward for taking to court, then it would go to court.
 6       Are you talking about Y7 as opposed to it being
 7       insufficient?
 8   Q.  I am asking about Y7.  You indicated earlier on that the
 9       characterisation of Y7 as unsafe --
10   A.  I believe that's the SPSA's position on Y7.
11   Q.  Yes.  You indicated that what that said to you is that
12       it was something that wouldn't be taken to court.  What
13       I am asking is when you have got an identification
14       where officers are ready to sign the joint report, why
15       not take it to court?
16   A.  I think -- I'm not sure I'm qualified to answer that.
17       If SPSA have said they wouldn't take -- was it an
18       insufficient or ... an unsafe identification to court
19       then that's the SPSA's position.
20   Q.  You indicated earlier on that what you took from the
21       SPSA's position previously was down to a statement made
22       by Mr Mulhern; is that correct?
23   A.  At one point Mr Mulhern had made a statement of the
24       position on Y7 for SPSA, yes.
25   Q.  Your understanding from that statement that he had made
page 172
 1       was that the organisation's view, if I can put it like
 2       that, the institutional view was that Y7 was a
 3       mis-identification?
 4   A.  That's correct.
 5   Q.  Can I put this statement to you from Mr Mulhern.  This
 6       is him giving evidence at Justice 1, where Mr Mulhern
 7       says:
 8           "In recent weeks an inference made from my comments
 9       on this matter has been reported in the press.
10       Obviously, we will fully support the Scottish Government
11       in every way we can with regard to an Inquiry.  However,
12       I hope that such an Inquiry will not try to reopen the
13       question whether the McKie print was a
14       mis-identification.  I do not think that we will ever
15       resolve that matter."
16           Does that indicate to you that Mr Mulhern's view was
17       that there was no way of telling whether this was a
18       mis-identification or not and that the question would
19       never be resolved?
20   A.  Reading that statement, whether that's a personal
21       statement on what he is saying or whether he's talking
22       about SPSA as an organisation but at one point he
23       definitely said that the SPSA position was that Y7 was a
24       mis-identification.
25   Q.  You yourself have never looked at Y7?
page 173
 1   A.  I never compared Y7, no.
 2   Q.  Nor have you looked at QI2?
 3   A.  I've seen them but I've never --
 4   Q.  You've never carried out a comparison?
 5   A.  -- carried a full comparison of them both, no.
 6   Q.  Is the reason for your not carrying out a comparison of
 7       QI2 the same as the reason that you have given for not
 8       carrying out a comparison of Y7?
 9   A.  I would say so, yes.
10   Q.  Is there any degree of fear there, that if you were to
11       look at Y7 or QI2 and you were to agree with those who
12       identified those marks that you would be affected in the
13       same way that they had been?
14   A.  Excuse me, sir.  Anyone who knows me knows that I don't
15       do fear.  That would not affect my decisions in any way,
16       no.
17   Q.  I appreciate that but is there a risk then, perhaps,
18       that you would be treated in the same way as the
19       individuals who have identified Y7 and who have
20       identified QI2 as belonging to Shirley McKie and Marion
21       Ross respectively, that you would be treated in the same
22       way were you to agree with their opinion?
23   A.  No, if I was going to make a professional decision on
24       any impression in any case then I would stand by that
25       decision.  There would be no peer pressure.  I wouldn't
page 174
 1       be swayed by anything that I perceived outside that
 2       professional opinion, no.
 3   Q.  Those who have identified Y7 as belonging to Shirley
 4       McKie and those who have identified QI2 as belonging to
 5       Marion Ross have been accused not of making a mistake
 6       but something far less pleasant than that.  They have
 7       been accused variously of criminality, malpractice, bad
 8       practice and the position of those who still work at the
 9       SPSA has been questioned if they agree with those
10       identifications.
11           Is there not some concern on your part that were you
12       to agree with their opinion you would be treated the
13       same way and has that not contributed to your failure to
14       look at the marks?
15   A.  No.  I can see where someone who doesn't know me
16       personally may have -- may be putting someone else's
17       stereotyping onto why someone may feel that.  That
18       wouldn't be me, no.
19   MR HOLMES:  Thank you very much.
20   THE CHAIRMAN:  Miss Grahame?
21   MISS GRAHAME:  Yes, there are two matters I wish to ask
22       questions on, both of which arise as a result of the
23       evidence that's been given today.  The first relates to
24       the documents that were produced to Crown Office and the
25       question of disclosure within those and the second
page 175
 1       relates to the precognition of experts.
 2   THE CHAIRMAN:  Yes.  You can deal with both.
 3                  Cross-examined by MISS GRAHAME
 4   Q.  Mr McGinnies, can I just clarify with you, first of all,
 5       the documents that are produced to Crown Office from
 6       Fingerprint Officers in SPSA.  There is the joint
 7       report, first of all?
 8   A.  That is correct, yes.
 9   Q.  And that deals with conclusions regarding positive
10       identifications relating to the accused in the case?
11   A.  The first part of a joint report does that, yes.
12   Q.  Then there is an annex which is attached to the joint
13       report?
14   A.  That's correct.
15   Q.  That gives details of all the other fingerprints in the
16       case but not those relating to the accused?
17   A.  That's correct.
18   Q.  Then in addition there is a written statement prepared
19       by each of the Fingerprint Officers detailing their
20       involvement?
21   A.  That's correct.  Those didn't come up and I should
22       possibly have asked for those to come up to clarify the
23       position at the time, yes.
24   Q.  You clearly understand and can repeat the definition of
25       disclosure and what is required on the part of the
page 176
 1       Crown.
 2           Do you appreciate, Mr McGinnies, that the Crown
 3       expect that all relevant or material information should
 4       be included in either the joint report or the witness
 5       statement?
 6   A.  That's correct, yes.  I would agree that would be the
 7       case, yes.
 8   Q.  You have acknowledged in evidence and you have used the
 9       words "full disclosure" at certain times throughout
10       today and you have acknowledged that the Crown should be
11       told about situations arising where there's maybe
12       disagreements or there's different views held with
13       Fingerprint Officers, mistakes made or there's been a
14       facilitated discussion.
15           Do you appreciate that there's a benefit to Crown
16       Office, the COPFS, the Crown Fiscal Service, that if a
17       matter is raised in the joint report or the statement
18       that this can alert the precognoscer to any issue and
19       that can then be explored further at precognition?
20   A.  Yes.  This was one of the conversations that I had with
21       the Advocate Depute on the day we were doing my
22       presentation, was the fact that unless they know there
23       is something to speak about in precognition then they
24       need to be able to bring that out and certainly that new
25       draft -- I don't know if you've seen the new draft
page 177
 1       statement regarding precognitions but it certainly goes
 2       a long way to making sure that the questions that are
 3       being asked cover all the topics that will be involved
 4       in the case.
 5   Q.  This was something the Advocate Deputes alerted you to?
 6   A.  Yes, it was.
 7   Q.  Do you also appreciate that if that information is
 8       provided in the joint report or the statement then the
 9       Crown can take that information into consideration when
10       they're looking at the entire case?
11   A.  Certainly and, again, that would be something that they
12       would be able to raise at the precognition.
13   Q.  You will also appreciate, Mr McGinnies, that if it is
14       not in the joint report or the statement then it is
15       going to be difficult for the Crown to be aware of that.
16       Can I ask you this: do you tell trainees that they have
17       a duty to raise this in their statements or the joint
18       report or perhaps at precognition?
19   A.  Currently, we -- trainees will do, as part of one of
20       their portfolios they would do, their attachment with
21       their team and of the elements would be the writing out
22       of the local work instructions -- sorry, not the writing
23       out but the understanding of the local work
24       instructions.  They would take two example cases and go
25       through them and one of the points that is highlighted
page 178
 1       in that instruction and one of the elements they need to
 2       cover when they are doing that for their modules is
 3       disclosure to the Crown.
 4   Q.  So that is covered in the training that's given?
 5   A.  Yes.
 6   Q.  Just finally on this question of disclosure, you talked
 7       about training you have had recently from Strathclyde
 8       Police at Tulliallan.
 9           Did that cover the ACPOS guidance manual which
10       covers the issue of disclosure and which has recently
11       been published?
12   A.  Yes, it did.
13   Q.  We may hear evidence about that from a later witness.
14           Moving on to the question of precognition, you have
15       had sight already of a Crown Office circular.  I wonder
16       if we could have that on the screen again, please.
17       That's CO4109, and it is pdf page 3 that I would like to
18       look at.  Would you highlight paragraph 12, please.
19           This is the Crown Office guidance that was issued in
20       March of this year, Mr McGinnies.
21   A.  All right.
22   Q.  Would you just take a moment to read that paragraph to
23       yourself, particularly the last three lines.  (Pause)
24   A.  Yes, thank you.
25   Q.  So do you see that -- and again we may hear further
page 179
 1       evidence about this at a later stage in the Inquiry --
 2       that:
 3           "There is now an instruction to fiscals and
 4       precognoscers that all fingerprint experts in High Court
 5       cases should be precognosced and there is a presumption
 6       that the same applies to Sheriff and jury cases (unless
 7       it is clear at the time of precognition that the
 8       fingerprint evidence in the case is agreed)."
 9   A.  Yes, and this is happening.
10   Q.  You mentioned in evidence earlier today that you had
11       noticed a marked increase in the precognition of
12       fingerprint experts and you said it was some time prior
13       to your presentation to the ADs in June.  I wondered if
14       it could have been since March, since the issuing of
15       this guidance?
16   A.  Yes, that would certainly tie in with the timeline, yes.
17   Q.  You also said that you had received an instruction to
18       precognosce all High Court cases and for the avoidance
19       of any confusion at all, can you just clarify: SPSA
20       don't do their own precognitions of experts?
21   A.  No, they do not.
22   Q.  That is something for a Fiscal or precognoscer in COPFS?
23   A.  Yes, that's correct.
24   Q.  In relation to this circular, you may not be aware of
25       this, Mr McGinnies -- and if not, please, feel free to
page 180
 1       say so -- that in fact SPSA were asked to comment on the
 2       circular before it was issued and brought into force in
 3       Crown Office.  Are you aware of that?
 4   A.  No, I'm not, no.
 5   Q.  In addition to this circular -- that can come of the
 6       screen, thank you -- are you aware that, in fact, there
 7       has been a review of expert evidence within Crown Office
 8       and they are developing what is being described as an
 9       aide-memoire in relation to taking precognitions of
10       expert witnesses?
11   A.  Yes, I think I referred to the document earlier that is
12       sitting just now with our unit managers to go over it.
13       Mr Patterson, Scott Patterson, had something for me for
14       distribution to the unit managers for comment and that
15       will then be returned to the Crown with our sort of
16       comments on it, but I think it was a six-page document
17       which was very detailed on what precognition process to
18       go through with a Fingerprint Examiner.
19   Q.  Perhaps that is something that Scott Patterson will be
20       better placed to give evidence on?
21   A.  Yes, sir.
22   MISS GRAHAME:  Thank you very much.  I have no further
23       questions.
24   THE CHAIRMAN:  Ms Jones?
25   MS JONES:  There are three matters.  Two arise from matters
page 181
 1       asked by my learned friends today and one is on resource
 2       implications and some suggestions from the OIG report.
 3   THE CHAIRMAN:  Yes, very good.
 4                    Cross-examined by MS JONES
 5   Q.  Sorry, there's one other -- well, if I start perhaps
 6       with this matter: I think you were asked some questions
 7       about how experts would deal with being asked questions
 8       about Y7 in court.
 9           To your knowledge have any experts been asked about
10       Y7 in court?
11   A.  I would need to look back at the summaries of questions
12       that people have been asked.  So I'm sorry, I couldn't
13       recall.  I would need to look back to see if anyone had
14       been asked recently.
15   Q.  So it's not something you can comment on?
16   A.  No, sorry.
17   Q.  You were also asked about whether there were
18       difficulties managing individuals in SPSA who still
19       maintain the identification of Y7 as Ms McKie.
20           Is that something you are aware of there being any
21       difficulties in?
22   A.  No, certainly through line management, if there was
23       anything raised from a training perspective they would
24       bring that to me to request a training intervention
25       after they had obviously discussed it with the unit
page 182
 1       manager.  But, no, I haven't had any such requests, no.
 2   Q.  I think it has also been suggested at another time
 3       during the Inquiry that the circumstances surrounding Y7
 4       continue in the present day to have a significant impact
 5       on morale within the Fingerprint Service within SPSA.
 6           Is that something you can comment on?
 7   A.  I would say morale is very good.  I would say that
 8       people have worked through some difficult times, people
 9       have worked through some HMIC reports, inquiries, in the
10       press and various other media outlets and Internet
11       things and come into work every day and continue in a
12       professional and constructive manner.  So I would say
13       that, across the service, everyone has done a
14       professional job.
15   Q.  Following on from that, it's been suggested that, in
16       fact, the circumstances surrounding Y7 and these
17       perceived difficulties have had an impact on the actual
18       efficiency of work within the Fingerprint Service within
19       SPSA.
20           Is that something you can comment on?
21   A.  I would say again from a training perspective, we are
22       part of a national training programme.  We've follow a
23       national training programme closely and we integrate
24       with other bureaux, both in England, Wales and Northern
25       Ireland.  I don't think that there has been any question
page 183
 1       called into the professionalism or the way the Scottish
 2       Police Services Authority, Forensic Service,
 3       Fingerprints is running or efficiency, no.
 4   Q.  Moving on then to the report into the Mayfield case and
 5       some other suggestions that have been discussed in the
 6       context of the Inquiry, particularly about note-taking.
 7           Are you able to say at what stages and in what
 8       circumstances more detailed notes could be taken in an
 9       identification process which wouldn't have too dramatic
10       resource implications for the organisation?
11   A.  The diary page is there for anyone to record anything
12       that they find.  It may be the case that they, for
13       instance, look at an impression or a sequence of marks
14       and say that they can see the 2 or 3 and identify them
15       however there is insufficient features in sequence and
16       agreement in number 4 to individualise.  They may record
17       that on the diary page.
18           For the purpose of note-taking on a daily basis to
19       the extent of an ACE-V report would be very time
20       consuming and I think it would just grind things to -- I
21       don't think it's practicable.  Possibly for preparing
22       something for court, especially under full disclosure,
23       it may be something that could be looked at to provide
24       more robust reporting, especially where we have a lack
25       of using either generic or case-specific enlargements.
page 184
 1   Q.  Are you able to say then if such a requirement were made
 2       of experts during that process what practical
 3       implication that would have within the resources that
 4       are currently available to SPSA?
 5   A.  They would need to -- as I say, it would be time
 6       consuming and it would possibly slow down turnaround
 7       times on cases, it may mean that cases would certainly
 8       take longer to prepare and to get through a case, if
 9       you -- to whatever level of note-taking was having to
10       take place.
11   Q.  Finally, you also gave some evidence in relation to your
12       trainee notes that we had on the screen.  I don't think
13       we need to have them up but the question of,
14       effectively, what was being put forward by the trainee
15       who was talking about not being persuaded by the
16       opinions of others.  She seemed to be suggesting almost
17       a process of blind verification.
18           Is that something you could comment on in terms of
19       resource implications and whether it would be
20       practicable?
21   A.  Again, it would slow down case times if -- the person
22       involved, actually, in her summary and her coming round
23       thinking actually highlighted that, that she realised
24       this would be the implication, that looking at each mark
25       individually from the start would have on the length of
page 185
 1       the case, that it would basically be a resource
 2       implication of needing more people to maintain the same
 3       service level agreement or it would slow down the times
 4       taken to look at cases.
 5   Q.  It may be you are not able to answer this but I think
 6       what the Inquiry may be interested in is what you mean
 7       by slow down.
 8           Do you simply mean that a backlog may increase very
 9       slightly or do you mean that there may be a dramatic
10       increase in a backlog or do you mean there would be a
11       significant number of additional staff required?  If you
12       could perhaps give us a bit of a better idea about what
13       you mean really by slowing down?
14   A.  I think that, depending on the level of note-taking or
15       revisiting of each mark by each individual examiner from
16       afresh, if you like, would dramatically lengthen the
17       amount of time it would take to progress a case.  That,
18       obviously, would possibly need to be looked at as a
19       weigh-off against how cases could be progressed or
20       further resourcing.
21   MS JONES:  Thank you.
22   MISS CARMICHAEL:  Sir, there are two points I would like to
23       clarify, firstly, one from the questions from
24       Miss Grahame and one from the questions from Mr Smith.
25   THE CHAIRMAN:  Yes.
page 186
 1                  Re-examined by MISS CARMICHAEL
 2   Q.  I wonder if you would look again for me at CO4109 and
 3       perhaps we if start with page 7 because Miss Graham very
 4       correctly pointed out that wasn't a page you had been
 5       directed to earlier, which was the appendix to the
 6       report.  This was, for completeness, results on other
 7       items.
 8   A.  Right, yes.
 9   Q.  I wonder if we could scroll through back to I think it
10       is page 4.
11           I am sure it is a form you are very familiar with so
12       you maybe don't need to look at it for long.  If we look
13       at page 1 of the report, then we look at the next page,
14       if we look at the next page, and we look at what I think
15       I am now right in saying is the final page.
16           First of all, am I right in thinking that this is an
17       agreed form of report that everybody uses throughout
18       Scotland?
19   A.  Yes.
20   Q.  There was, I think we may hear, some consultation with
21       the Crown about the form of that report?
22   A.  There was, yes.
23   Q.  Whereabouts in the report would you make disclosure of
24       matters other than those that are obviously formally
25       covered in the standard pro forma that we see here?
page 187
 1       Because it seemed to be being suggested to you that you
 2       might make disclosure of other matters, the sorts of
 3       matters that were discovered in evidence this afternoon,
 4       using this joint report and I would like you comment on
 5       how that might be done?
 6   A.  There would also possibly be a statement that would go
 7       in, along with the report and then that statement you
 8       could put anything else that you thought may
 9       highlight -- that statement would then possibly lead the
10       precognition.
11   Q.  So would we be better perhaps looking at the statement
12       rather than at the joint report for the possibility of
13       disclosure?
14   A.  Yes, everything else that's in the case would be on the
15       appendix but anything else that were be disclosed would
16       fall into the statement I believe.
17   Q.  I wonder if we can look at MM0034.  This is where the
18       technology is going to fail me at 4.02.  The computer is
19       obviously tired.
20           It is my fault because I am asking it to find
21       something that is not there.  It may be that I can
22       perhaps ask another witness about this rather than
23       detain you.  There will be other SPSA witnesses and it
24       may be that I can cover this otherwise.
25           The other point I wanted to clarify arising out of
page 188
 1       Miss Grahame's questions -- and it may be my fault and I
 2       have been back to the transcript which has not been
 3       corrected so I am not perhaps 100 per cent confident
 4       myself, if I can use that language, that I am putting
 5       this to you correctly but my recollection of your
 6       evidence earlier today, which is only partially assisted
 7       by the transcript, is that you said it wasn't long after
 8       your presentation to the Deputes that the marked
 9       increase in request for precognition came in.  I just
10       wanted to be quite clear about what your evidence on
11       that was.
12           I think Miss Grahame put it to you that she had
13       heard you had said it was before that and I am not
14       immediately gaining assistance from the transcript on
15       that.
16   A.  I believe that from March on there was an increase in
17       the precognitions.  But I certainly -- it would be my
18       evidence, I believe, that since June lines of
19       communication, I think, were even better, if you like
20       even more strengthened, and it's certainly since then I
21       have had comment to make that precognitions are
22       happening on a very regular basis, for every case, and
23       precognitions were being very thorough and more
24       in-depth.  It's possibly two dates then, there's
25       probably they have been happening since March and after
page 189
 1       my input to the Advocates Depute in June that it's
 2       increased further.
 3   Q.  Am I detecting there -- please tell me if I am wrong --
 4       that you are saying there's some causal relationship
 5       between your presentation and the increased lines of
 6       communication and increased precognitions?
 7   A.  I would think so.  I stand to be corrected but, no, I
 8       would think that, yes, it's something that possibly --
 9       standing in front of the advocates and speaking to --
10       and Mr Patterson -- that that maybe highlighted the fact
11       that it was to be increased or that caused it to be
12       increased.
13   Q.  There is one question I wanted to ask you arising from
14       what you said in answer to Mr Smith's questions.  You
15       said there was an aspect on which you would want
16       to amend slightly the presentation you have given to the
17       Advocate Deputes.
18   A.  Yes.
19   Q.  Again, I do not want to keep you too long.  You have had
20       a very long day, Mr McGinnies, but would I be right in
21       understanding the way you would probably want to amend
22       it is by starting it with a cluster?
23   A.  Is by starting with a target group.  I talk about a
24       target group and then I talk about going from left to
25       right.  The illustration and the dots appearing is to do
page 190
 1       the left to right.  I would now amend it, I think,
 2       especially seeing some of the presentations over the
 3       last two or three days, to have a target group, possibly
 4       look at colouring in ridge edges and things and moving
 5       that over, something like Steve Meager from the FBI did
 6       on his presentation or Mr Langenburg.
 7   Q.  It would perhaps have an amended version with your
 8       target group and then the demonstration of how you move
 9       on to other points from the immediate target group?
10   A.  Yes and I certainly am, as I say, interested in finding
11       out the technology that you have in place here because I
12       think that's something that we would certainly looking
13       at employing.
14   MISS CARMICHAEL:  Thank you very much.
15   THE CHAIRMAN:  Just to finish, there are two things I wanted
16       to ask you.
17           First about note-taking: I can well understand that
18       if you made notes in every case it would be very time
19       consuming but where you have a complicated mark, would
20       there not be some advantage in the examiner making some
21       notes?
22   A.  In my opinion, yes, sir.
23   THE CHAIRMAN:  That would not reflect on everything.  If you
24       are not doing it in every case, the number of
25       complicated marks, I don't know how many you would have
page 191
 1       but --
 2   A.  It would be on the rare occasion when you have
 3       complicated marks, I would say, I would advocate it
 4       would be good practice to make annotations on what you
 5       are actually looking at, yes.
 6   THE CHAIRMAN:  I think there was only one other thing that I
 7       wanted to touch on and that is how much information do
 8       you anticipate would be given in the precognition?  The
 9       reason I am asking you this is that, for example, in Y7
10       the first defence expert saw the charting and was able
11       to form an opinion and, as it happened, he agreed with
12       the SCRO officers.  Nowadays you wouldn't get anything
13       like that.
14   A.  No.  To take to court or to present in court, no.
15   THE CHAIRMAN:  I can see one disadvantage and that is --
16       well, two.  The first is if you wanted to challenge it
17       all you have got is somebody saying, "I have examined
18       this and I am confident", or whatever the words are,
19       "that this print belongs to whoever" but it means, first
20       of all, if you want to challenge it you can't see what
21       the points were that they were relying on and, on the
22       other hand, if you saw them you might agree with them
23       and the whole question of a contest might disappear or
24       the need for a contest.
25   A.  Sir, I still believe the mechanism is in process -- in
page 192
 1       place, sorry, that if a defence agent wants to look at
 2       the material they will be afforded access to the
 3       material in the case.
 4   THE CHAIRMAN:  That is what I was going to ask you because
 5       my own experience is that, in other fields of forensic
 6       science people are given access to see whatever the item
 7       is.
 8   A.  Yes, that's still the case in fingerprints.
 9   THE CHAIRMAN:  That is the way it would happen with you, if
10       somebody wanted to come to your laboratory to see the
11       workings -- if that is the way to put it --
12   A.  Yes, they would be given access to the materials, yes,
13       sir.
14   THE CHAIRMAN:  -- that would be made available to them.
15       That clears that up.  Thank you very much.
16           You have given up a lot of time and I gather you had
17       a very difficult journey here yesterday.  I am sorry
18       about that.  That really concludes, well and truly,
19       today's proceedings and we will resume then with
20       Mr Stewart tomorrow at 10.00.
21   (4.10 pm)
22        (Adjourned until 10.00 am the following morning)
23
24
25