page   1
 1                                    Thursday, 5th November 2009
 2   (Morning session)
 3   (10.00 am)
 4                  CHARLES DOUGLAS STEWART, sworn
 5   THE CHAIRMAN:  Your full names are?
 6   A.  Charles Douglas Stewart.
 7                   Examined by MISS CARMICHAEL
 8   Q.  Good morning, Mr Stewart.
 9   A.  Good morning.
10   Q.  We sometimes find that people need to sit quite near the
11       microphone to be heard throughout the hall so it may be
12       from time to time I may ask you to shift it closer to
13       you.
14           You have provided already a signed statement for the
15       Inquiry, Mr Stewart?
16   A.  I did.
17   Q.  I think you have a copy of that with you?
18   A.  I have.
19   Q.  Subject to anything else you might want to say or any
20       changes you might want to make to it in your oral
21       evidence today, are you happy to adopt your statement as
22       part of your evidence?
23   A.  Reasonably so, yes.
24   Q.  If there is anything in advance that you want to point
25       out that you want to change, please feel free to do so
page   2
 1       now?
 2   A.  No, I'm ...
 3   Q.  It may be we can just proceed through and if there are
 4       any subtle differences that you should be drawing to our
 5       attention, please do so.
 6   A.  Will do.
 7   Q.  If we could have up your statement FI0036-02 on screen.
 8       You start your statement, after telling us your name and
 9       personal information, by telling us a bit about your
10       career and your apprenticeship.  I would like to move at
11       this point to page 2 of the statement and paragraph 6.
12       I think we can blow that up so we can all see it
13       clearly.
14           You tell us there, Mr Stewart, that part of your
15       training was about the preparation of evidence for court
16       once it had been requested by the PF.  That is the
17       Procurator Fiscal for the record.  This included the
18       production of evidence books and statements and,
19       latterly, joint reports.  You were taught the style of
20       evidence presentation expected of you in the witness
21       box.
22   A.  That's correct.
23   Q.  I would like to break that down into two different
24       aspects that you tell us about there.
25           Could you tell us about the training you got in
page   3
 1       production of evidence books, statements and joint
 2       reports?
 3   A.  Basically, we were shown by our mentors, as we didn't
 4       have a trainer in those days, what was expected of us,
 5       how the courts expected the evidence to be prepared,
 6       what they expected to be put in the production books,
 7       how they liked it done, how the statements were worded,
 8       what pro formas to use.  That's really it.
 9   Q.  Was there any particular training in relation to the
10       production of enlarged images for court?
11   A.  Well, enlarged images, you were just shown by your
12       mentor the way they did it.  You looked at it, you would
13       talk to other people.  There was different skills
14       involved, cutting the enlargements to size, how to mount
15       them accurately in the book.  It might be you talked to
16       four or five different experts, you found one expert's
17       way of doing it was more suitable to yourself than
18       somebody else's and that's what you did.
19   Q.  I take it in the early days that would be with
20       photographic enlargements?
21   A.  That was correct.
22   Q.  That would mean marking them up by hand?
23   A.  That is correct.
24   Q.  Latterly -- and I think we will return to this at
25       another point -- there was a computer used for producing
page   4
 1       the enlargements?
 2   A.  We went on to using the charting PC for a short period
 3       of time.
 4   Q.  Was there any particular training in that?
 5   A.  Obviously when it came in we would be shown how to use
 6       it, so you we knew how to switch it on, how to get the
 7       images into it, et cetera, how to store them, how
 8       to mark them up, et cetera.  So there would be training
 9       involved in that.
10   Q.  You tell us also you were taught the style of evidence
11       presentation expected of you in the witness box and I
12       wonder if you can tell the Chairman more about that,
13       please?
14   A.  Basically, we were always taught that the evidence in
15       Scotland, the expert did not interpret the evidence.
16       The expert merely gave evidence and it was up to his
17       Lordship or the jury to reach their own findings.  You
18       were only offering advice or information on what you'd
19       done and your conclusions.  You weren't trying to sell
20       it as a result, a completely different style from other
21       experts who have come forward and say, "This is what
22       I've found.  This has got to be right.  It means the
23       person's guilty".  We don't do that because half the
24       time we didn't know the significance of the marks
25       identified so we were quite simply saying, "We've
page   5
 1       received these marks.  We've identified these marks",
 2       and it was up to the decision-makers in the court to
 3       reach their own conclusions.
 4   Q.  Just to understand this more fully perhaps, in relation
 5       to the evidence you were giving about the fingerprints,
 6       that might itself involve some interpretation of the
 7       fingerprints?
 8   A.  Well, each expert interprets a fingerprint themselves
 9       when they compare it.  It's how you see the fingerprint
10       and everybody will see a fingerprint in a slightly
11       different way.  You will see things in it.  I could look
12       at a mark and see something and another expert could see
13       something different in it.  So it's individual
14       interpretation.
15   Q.  Again I will probably ask you a wee bit more about that.
16       Just on the theme of training as to how you should
17       present evidence in court, who gave you that training?
18   A.  It was within the Department.  It would be either one of
19       the senior experts then who was tasked with doing that.
20   Q.  Was that provided as seminars or one-on-one tuition?
21   A.  It depended on your training.  It could be one-on-one,
22       it could be two of you at the same time.  It just
23       depended on how many people were going through training
24       at the time you were going through training.
25   Q.  I would like to move on from that to ask you a little
page   6
 1       bit about procedures as they were in place around 1997.
 2       We have heard a little bit of evidence from different
 3       points of view about whether or not certain procedures
 4       for dire and crucial, for strong suspicion letters and
 5       for 10 plus 10 were in use in 1997 or whether all
 6       identifications were routinely carried out only to a
 7       16-point standard at that time.  I would like to ask you
 8       about these one by one.
 9           What is your recollection as to the use of the dire
10       and crucial procedure?
11   A.  I'm sure at that time the dire and crucial would be in
12       use.
13   Q.  Do you remember it being used in or prior to 1997?
14   A.  It always seems to have been there from memory so, yes,
15       I think we probably were using it and it was used.
16   Q.  Do you remember using it yourself?
17   A.  Directly, no.  I probably have had to do in certain
18       cases but I really can't remember.  I'm sorry, it's a
19       long time ago.
20   Q.  What about the sending of strong suspicion letters,
21       which I think we understand was in a situation where
22       there was an identification to fewer than 16 points but
23       information would nonetheless be passed on to the police
24       or the fiscal?
25   A.  Those would be in use at the same time.
page   7
 1   Q.  Again, do you yourself remember that being used?
 2   A.  I have certainly done strong suspicion letters, yes.
 3   Q.  Would that be prior to 1997?
 4   A.  From memory I would have thought so, yes.
 5   Q.  I appreciate that I am asking you to remember things
 6       from a period 12 years or more ago so if there is
 7       something that you simply are not clear about or you
 8       cannot answer, please feel free to say so?
 9   A.  Well, again from memory, it's a long time ago and I'm
10       trying to do the best I can but it's very difficult.
11   Q.  We have also heard about the 10 plus 10 procedure which
12       I think we understand to be a procedure where if there
13       were two digits identified each to a standard of ten
14       points of similarity, that was something that could go
15       forward, albeit there wasn't a digit identified to a
16       16-point standard.  Would that be correct?
17   A.  That is correct.
18   Q.  Do you remember that procedure being used?
19   A.  Well, that procedure was used and I think from memory it
20       seems to have varied at times.  I think initially it
21       started off to be what you could establish as a
22       sequence, two or three digits down at the same handling
23       of the article.  Then certainly for cheque frauds later
24       on it became if you just had a print with ten points on
25       a cheque, you could add it into the rest of the case.
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 1       So it was changed over the years.
 2   Q.  I am asking you about this particularly because we heard
 3       some evidence from a Mr Luckraft who said that the
 4       standard of 10 plus 10 was not in use in volume crime
 5       when he came to work in SCRO in 2000.
 6   A.  I'm sure that was in place up until the time we did away
 7       with the numeric standard, from memory.
 8   Q.  Have you any idea how it might come to be that he was
 9       under the impression that it was not being used?
10   A.  Perhaps he didn't pick up what he's been told in his
11       training.  Perhaps he's just forgotten.  I can't really
12       offer an explanation.
13   Q.  Is it possible that that may have been something offered
14       in training to someone who was trained at SCRO but might
15       not have been brought to the attention, as a procedure,
16       of somebody who had come in to work from another bureau?
17   A.  It's possible.  It could be that the team he worked at,
18       maybe other experts there hadn't the experience of doing
19       one so there was no dissemination of information.
20       There's so many possible reasons why he would or
21       wouldn't know.  I can't really speculate on a cause.
22   Q.  We also have evidence from a lady, Miss Tierney, who
23       came to work in SCRO also in 2000.  She tells us that
24       some of her work was returned to her when she had
25       attempted to use the 10 plus 10 rule and she was told
page   9
 1       that she would have to asterisk her work to indicate to
 2       the verifiers who came after her that the mark had less
 3       than 16 points.  That was something that she found
 4       curious coming in to work from elsewhere.
 5           Given that your evidence is that the 10 plus 10 rule
 6       was in force, again can you think of any reason why she
 7       would recall being given those instructions?
 8   A.  Well, it sounds as if she's finding difficulties working
 9       with different criteria from one bureau to another
10       bureau.  Certainly, if we had a mark with less than 16
11       we would indicate it in some way so that the next person
12       verifying would know it had been identified but not to
13       the 16-point standard.  So it may have been an asterisk
14       I can't really remember what was in vogue at the time.
15   Q.  I would like to ask you about another matter that we
16       heard from Mr Luckraft.  That is about an incident when
17       he disputed an identification that had been made by
18       Mrs Collette Orr.
19           Is that an incident that you remember, Mr Stewart?
20   A.  I really didn't have any recollection of that incident
21       until Mr Holmes asked me to read Mr Luckraft's
22       statement.  The position I was in, being senior expert,
23       I was regularly asked to offer advice in debates over
24       identifications disputes.  It's not something that would
25       stand out in my mind.  It was almost an everyday
page  10
 1       occurrence.
 2   Q.  I will perhaps come back to that, Mr Stewart.
 3           Insofar as we are concerned with this particular
 4       incident involving Mr Luckraft and Mrs Orr, do you have
 5       any recollection of that particular incident, perhaps of
 6       Mrs Orr coming to you to seek advice?
 7   A.  I have no recollection of it at all, other than what I
 8       read in Mr Luckraft's statement.  As I say, these things
 9       were quite common and I dealt with a lot of them so I
10       just wouldn't remember them.
11   Q.  When you say these things were quite common, what sort
12       of things are you referring to?
13   A.  The usual one was debates as to whether an expert could
14       find 16 in a mark, the second expert couldn't or vice
15       versa.  They always sought advice to see if they could
16       reach an agreement amongst themselves.
17   Q.  How often would that happen, that, presumably, expert
18       number 1 has found 16 points and expert number 2 has
19       perhaps found a fewer number of points?  How often would
20       that happen?
21   A.  It would be reasonably common because your first
22       examiner or your second examiner could be somebody who
23       is just newly qualified as an expert and didn't have the
24       experience of the other examiner.  It all comes down to
25       interpretation.  Your interpretation grows as you gain
page  11
 1       experience so there are areas that you would expect to
 2       have differences.  I wouldn't expect somebody who has
 3       just qualified to be able to identify a mark that
 4       someone who's got say ten years' experience ... there's
 5       a quantum leap.  You're still learning as you are
 6       progressing.
 7   Q.  So who would it be that would come to you?  Would they
 8       come to you together or would it be expert number 2 or
 9       expert number 1?  How would it happen?
10   A.  Are you being specific in this matter or in general?
11   Q.  I'm asking about the generality at the moment?
12   A.  Generally, it could be either or it could be both.  The
13       people concerned who were having an issue would look
14       round and see what senior experts were available because
15       at that time I don't think we had a formal procedure for
16       dealing with that sort of thing and they would just go
17       and ask somebody.  Sometimes you just talk to them.  You
18       could give them your interpretation of the mark and
19       sometimes they'd walk away quite happy.  Other times you
20       still had a difference of opinion, that one was getting
21       16, one wasn't.
22   Q.  What would you do as a practical matter to try and help
23       resolve the matter, Mr Stewart?
24   A.  It's very difficult.  You'd have to hear both people's
25       explanation of why they are where they are, how they've
page  12
 1       reached their conclusions.  It could be one of them is
 2       just working in one area of the mark and the other
 3       person has worked in a different area of the mark and
 4       you suggest, well, have you tried looking in that area
 5       and it may be the person goes away and does that and the
 6       issue is resolved.  It may be one expert doesn't see the
 7       movement or superimposition, isn't happy with it, can't
 8       explain it, doesn't want to work in a different area.
 9       There's a whole load of possibles.  Every mark is unique
10       and every circumstance I think is pretty unique as well.
11   Q.  Would you ever, for example, look at it yourself and
12       perhaps mark on the comparator what you could see?
13   A.  Certainly.  If after the initial discussion you couldn't
14       get the two experts to come to some form of agreement I
15       would have to look at it to see what I saw to see if I
16       was happy with it, because there was no point me trying
17       to tell somebody I think there's 16 in it if I don't
18       think there's 16 in it.  If I was happy with it I would
19       say, well, I'm quite happy with it.  We will just have
20       to have this as being a debate, put it in as a mark as
21       less than 16 so it wouldn't be included for court
22       purposes but you would have accounted for it.
23   Q.  If there was still the difference as to the number of
24       points, it would be submitted but marked in some way as
25       being less than 16 --
page  13
 1   A.  You would probably, that would be like your ten and ten,
 2       you would have a mark with 16 another with ... if it's
 3       more than ten in it but it depends how many the
 4       conclusion was, how many characteristics were found in
 5       the mark.
 6   Q.  I am curious about that because we have heard evidence
 7       that in the case that we are dealing with here and I'm
 8       thinking particularly of mark Y7, what had happened was
 9       that Mr MacPherson had been able to see 16 points,
10       Mr Geddes looked at it next and had seen 10 points but
11       then the mark came to be viewed by I think yourself and
12       Ms McBride and McKenna and that Mr Geddes essentially
13       dropped out of the picture for court purposes.  So I am
14       wondering why it would be then that perhaps with mark Y7
15       it wasn't simply submitted with some form of note
16       saying, well, yes, this has been identified but one of
17       the experts saw 10 rather than 16?
18   A.  I think the accepted practice at the time was, as long
19       as an expert wasn't saying it was a wrong
20       identification, you offered it to another expert and, if
21       you got a sufficient number of experts to agree, the
22       mark just progressed.  It wasn't seen as being an issue
23       because the person was still saying they were quite
24       happy they identified the mark, they just couldn't
25       identify it to the notional standard.
page  14
 1   Q.  Thinking back to the generality rather than thinking
 2       about Y7 at the moment, the situation you told us about,
 3       where a mark might be submitted with a note that it had
 4       not been identified by everyone to the 16-point
 5       standard, can you give the Chairman any idea of how
 6       often that would happen?
 7   A.  From memory, I really couldn't tell you.  It must have
 8       happened at times but how often, how frequently...  in
 9       the dim and distant past, I really can't remember.
10   Q.  I appreciate I am asking about things that are in the
11       past but if you could even give us an idea.  Would it be
12       once a year, twice a year, once a month?
13   A.  I would be guessing.  I really don't know.  It must have
14       happened but as to how often, I couldn't say.
15   Q.  We have been talking in the generality there about a
16       situation where one expert sees 16 points, another
17       expert sees fewer than 16 points.
18           The situation between Mr Luckraft and Mrs Orr was,
19       as I understand it, a little bit different in that
20       Mr Luckraft simply did not think that it was correct
21       that there was an identification and Mrs Orr did.  My
22       understanding of her position is that when she sought
23       your advice, you agreed with her.
24           Thinking to that rather different situation where
25       there was a stark difference of opinion as to whether
page  15
 1       there was an identification, how would that proceed?
 2   A.  Well, in that case -- and I've only got Mr Luckraft's
 3       statement for information on that because I don't
 4       remember the case -- I think I would have progressed
 5       that one immediately to my line manager, the Quality
 6       Assurance Officer, for him to look at because it seems
 7       to be quite a difference of opinion.
 8   Q.  Again, as I understand Mrs Orr's position -- I should
 9       perhaps say that I have had submitted this morning a
10       signed statement from Mrs Orr which others have not had
11       the opportunity to see yet but which, as soon as I can
12       get it copied, I will distribute more widely.  Her
13       position -- and I will put it to you to see if it
14       assists your recollection in any way, Mr Stewart -- is
15       that Mrs Orr sought your advice because you were the
16       highest ranking Fingerprint Officer within the
17       department at the time and that you advised her to
18       obtain photographic enlargements and that was normal
19       procedure -- this was in 2000 when anyone who was having
20       difficulty during an examination.  She obtained those
21       enlargements and then gave all the case material to you
22       and you began examining the case.
23           Does that assist you in any way?
24   A.  If that's what Mrs Orr said, then I assume that's we've
25       done.
page  16
 1   Q.  Can you recall whether it was normal procedure, as at
 2       2000, when someone was having difficulty during an
 3       examination, that photographic enlargements would be
 4       sought?
 5   A.  It was a standard tactic at the time to have an
 6       enlargement so one person could mark it up and
 7       illustrate it, the other person can look at it, you
 8       could then host a discussion on it, so that was the
 9       normal practice.
10   Q.  So the purpose of this was one person could demonstrate
11       to the other visually on an enlarged image what they
12       were seeing?
13   A.  That's correct.
14   Q.  Just continuing with Mrs Orr's account here, she says
15       she waited some hours for your own findings.  She
16       learned that you were satisfied of the identification
17       and that the case paperwork had been handed to
18       Mr Dunbar, the Quality Assurance Officer.
19           I think you said that, effectively, in that
20       situation the matter would be passed up the line so that
21       account would be consistent with that.
22   A.  If there's no resolution, then it's outwith my remit.
23       So I would need to pass it on.
24   Q.  Just still on this particular theme, leaving aside the
25       particular incident that we have been talking about with
page  17
 1       Mr Luckraft and Mrs Orr because I appreciate you do not
 2       have any direct recollection of that, have you yourself
 3       ever been in the position of being the first checker,
 4       the verifier or even perhaps the second or third and
 5       raising a query about the identification?
 6   A.  I think throughout my career at various times I have
 7       come across marks I haven't been happy with.  There have
 8       been marks I've been quite happy are identified as the
 9       person but because I've found problems in it I couldn't
10       explain to my satisfaction I wouldn't want to take them
11       to court.  There have been other areas where I've found
12       mis-identifications and they've got to be resolved so,
13       yes, over my career I've found discrepancies if you want
14       to call them or variations.
15   Q.  How have the mis-identifications in particular been
16       resolved in the course of your career?
17   A.  In latter years, we had a Code of Conduct.  There was
18       instructions laid down on how to progress it, if you
19       found what you thought was a mis-identification, there
20       was a way to deal with it, you need to follow that.  In
21       earlier years all you would do, you would take it to
22       your next senior line manager.  The assumption is they
23       would look at it and then flag it up to either the head
24       of bureau or Quality Assurance Officer if we had one in
25       those days.
page  18
 1   Q.  I should be clear, if I try to take you back to 1997 and
 2       earlier, you say that would be passed to your immediate
 3       superior and then passed to Quality Assurance, possibly
 4       head of bureau?
 5   A.  Well the Quality Assurance Officer, if we had one at the
 6       time, and I think we did, would have to look at it first
 7       and he would report to Head of Bureau, I think.
 8   Q.  What actually happened in those cases?
 9   A.  Well, they would have to review the mark, reach a
10       conclusion whether they thought it was a correct
11       identification or a wrong identification.  If it was a
12       correct identification they would have talked to the
13       person concerned, find out why they'd reached a
14       different conclusion.  I would then assume they would
15       have to look at it from a training point of view.  Is
16       there a training issue here that this person needs some
17       further training or some assistance to help them in
18       certain areas.  That would have to be dealt with.
19   Q.  In practical terms, if the senior person to whom it was
20       ultimately referred thought it was an identification,
21       would it then go forward potentially for court?
22   A.  I think that would come down to the senior person making
23       that decision.  They would probably have to discuss it
24       and they would probably inform the Fiscal, I think from
25       memory, in those days, that this had arisen and the
page  19
 1       Crown would then have to make a decision what they were
 2       doing.
 3   Q.  So your recollection is that the Crown would hear that
 4       there had been some dispute --
 5   A.  I think so from memory, in circumstances like that they
 6       would be informed.
 7   Q.  I would like to bring up, please, pages 27 and 28 of
 8       your statement.  I can start perhaps towards the bottom
 9       of page 27 and then move on to page 28.  You explain
10       there I think you have perhaps started to touch on this
11       that procedures about differences of opinion changed
12       after the HMIC investigation.  You explain there what
13       the changes would be there.
14           I would like to take you on to the next page,
15       please, to page 28 and paragraph 127.  What you say
16       there is:
17           "The problem with the procedures was that they
18       created a situation where experts would be reluctant to
19       say that a fingerprint expert's work was wrong.  This
20       was because of the consequences of a challenge."
21           You tell us it could get one or more experts into
22       difficulties there.  I would like, if you could, to
23       explain to the Chairman in a little more detail what you
24       are meaning by that.
25   A.  I think, basically, if one expert was verifying a mark
page  20
 1       and they found that they were struggling with it and
 2       didn't think it was correctly identified, they would
 3       feel that they would be dropping their friend in it if
 4       they flagged it up in the approved manner and had it
 5       taken forward.
 6           I've had instances where experts have come to me
 7       with what was quite obviously them thinking it was a
 8       mis-identification yet they weren't wanting to state
 9       that.  They were just saying there's something wrong
10       with the mark or I'm not happy with it.  It took a while
11       to get it out of them that they were actually saying
12       they couldn't identify the mark and they thought it was
13       an erroneous identification.  So from that point of view
14       I think that's -- while having formal procedures in
15       place is good, human nature is such a lot of people
16       feel, "I'm dropping my pal in it here".
17   Q.  What sort of things would they say were wrong before you
18       got it out of them?
19   A.  Sometimes it was just very general, they'd just say,
20       "I'm struggling.  I can't get this mark", or, "I'm not
21       sure about it".  They would be noncommittal and that was
22       usually a good sign that it was something more serious
23       than just a dispute over how many characteristics they
24       could find.
25   Q.  Did you detect that people were less willing to say that
page  21
 1       the first person had got it wrong after the change in
 2       procedure than before?
 3   A.  I think perhaps because there was a procedure in place
 4       people felt that they were starting the ball rolling on
 5       something that could lead to retraining.  I don't think
 6       people hid mis-identifications.  They couldn't.  I mean,
 7       it was part of their professional ethos if they found
 8       something they wouldn't sign if they wouldn't happy with
 9       it.  So I just think it was people didn't come to terms
10       with it.  Nobody came to me standing there shouting,
11       "I've found a mis-identification".  They were always
12       quite quiet about it, saying, "What about ..."
13   Q.  Thinking perhaps before the change in procedures, I
14       mean, presumably there was a degree of professional tact
15       and respect for your professional colleagues, apart from
16       anything else in play.  Might even before the change in
17       procedures, it would be that people might have couched
18       doubts that they had about marks in similar terms in any
19       event, rather than coming straight out and saying,
20       "Look, I think they've got it wrong"?
21   A.  I think that's possible.  Human nature is such, some
22       people are probably more open about it.  Other people
23       would be more sheepish about it saying, "I think I've
24       found a mistake here but I don't want to make a big
25       thing about it".
page  22
 1   Q.  Perhaps leading on from that we have heard different
 2       points of view and different expressions from witnesses
 3       as to the way that they would express their confidence
 4       in their opinion as Fingerprint Examiners and the
 5       expression "100 per cent" has come up.
 6           First of all, some people have said it's a
 7       100 per cent certainty as to your conclusion and others
 8       have expressed it as being also that you are
 9       100 per cent confident that any other examiner would
10       only come to the same conclusion as yourself on the
11       mark.
12           Where do you stand on this, Mr Stewart?
13   A.  Certainly, I don't like the term 100 per cent.  I mean,
14       to my mind if, as an expert, you have reached a
15       conclusion, that's a conclusion you're happy with,
16       therefore, that's your conclusion.  You're either happy
17       enough to reach a conclusion or at some point you see
18       something wrong with it or you don't reach that
19       conclusion but once you have reached a conclusion that's
20       your job.  You're making a decision based on your
21       training and your own experience.
22   Q.  If asked in court, for example, perhaps by the Advocate
23       Depute or the Fiscal in the Sheriff Court, "How sure are
24       you with this", which I understand is sometimes a form
25       of question, would you express your certainty in
page  23
 1       percentage terms?
 2   A.  No.  We had a wording that I'm trying to remember
 3       offhand in our joint report.  I think the conclusion was
 4       that you had no doubt that these marks were made by this
 5       person.  I think that was the wording we used.  So
 6       that's what I would use.  I wouldn't express
 7       percentages.
 8   Q.  Turning to the other expression that we have heard, that
 9       you would be 100 per cent confident that any other
10       examiner would come to the same conclusion as yourself,
11       is that a concept by which you operated?
12   A.  Any time you reach a conclusion, it is your conclusion.
13       You have got to assume that the next examiner, if they
14       have had good training and a similar amount of
15       experience, they should reach the same conclusion as
16       yourself.
17           If, for example, it was going to a newly qualified
18       expert they may not yet have had the experience to work
19       with that type of mark so they may not be able to reach
20       the same conclusion.  It's all down to the individual
21       and their own experiences and training.
22   Q.  One possible interpretation is that if people are
23       operating at, at least a very high level of confidence
24       that others will come to the same conclusion as
25       themselves that might be something that made it more
page  24
 1       difficult to come along and tell your colleague that
 2       they got it wrong?
 3   A.  I think it's an individual thing as to how you see it.
 4       It's not something there was a policy on.  You couldn't
 5       instill that in somebody.  It's each individual's
 6       interpretation of how comfortable they are with what
 7       they're doing.
 8   Q.  On the question of identification to 16 points, we have
 9       heard some evidence to suggest that that may have
10       imposed some degree of pressure to try and find
11       16 points when people might have been more happy with
12       identifying a fewer number and having a much higher
13       confidence in the lower number.
14           Do you have any comment on that suggestion?
15   A.  Well, really an expert, when they are carrying out
16       comparison, if I was doing it I would reach a stage
17       where I would have made the identification.  I wouldn't
18       count specifically at that stage.  I would be just
19       looking at the mark, assessing what's there, evaluating
20       it, reaching my conclusion.  Once I have decided I think
21       it's identified I would then be in a position I would
22       count it to see if I could meet this nominal standard or
23       not.  If you reached the standard, you reached the
24       standard.  If you didn't, well, as far as you were
25       concerned you still had identified it but we had this
page  25
 1       barrier that you weren't allowed to do very much with it
 2       because it hadn't reached the criteria.
 3   Q.  We have heard in the course of evidence the expression
 4       "teasing of points".
 5           Is that an expression that you would be familiar
 6       with?
 7   A.  I've heard that expression, yes.
 8   Q.  There has been I think, perhaps, a suggestion that if
 9       there is what may be quite an arbitrary standard of
10       16 points, that's something that might encourage people
11       who are otherwise quite satisfied of their own
12       identification on a lower number of points to seek to
13       find, to tease out points that were not perhaps readily
14       discernible or even properly discernible in order to
15       meet that arbitrary standard?
16   A.  It all comes down to the individual's interpretation of
17       what they see.  Some experts will see more in a mark;
18       some experts will see less in a mark.  There was never
19       any pressure or encouragement to, as you say, tease out
20       points.  Experts were always encouraged to be honest
21       about what they saw.
22   Q.  You started to tell us about how you would perhaps be
23       satisfied as to your own identification before you
24       started counting to see if you got up to the 16 points
25       that were required at the time.
page  26
 1           Did you have a personal bottom line as to the number
 2       of points that would satisfy you, leaving aside what may
 3       be the very arbitrary 16-point standard?
 4   A.  A bottom line is not really viable because every mark is
 5       quite unique.  You could have a mark of very, very high
 6       clarity with not a high number of conventional
 7       characteristics in it but you would be quite happy on
 8       very few characteristics that identity was established.
 9       If you had a mark that didn't have the clarity, had a
10       lot of pressure and movement, you're probably looking
11       for a lot more characteristics to satisfy yourself that
12       identity had been reached.  So it's a value decision
13       based on the quality of each mark.
14   Q.  We have also heard from some witnesses that where there
15       is a certain volume, if I can put it that way, of
16       similarity between the mark and the print, at that point
17       if there is some difference apparent between the mark
18       and the print, then that difference effectively becomes
19       irrelevant because they're satisfied that where there is
20       such a large volume of similarity between the mark and
21       the print the donor of each must be the same and the
22       difference effectively falls out of the picture.
23           Is that a way that you would proceed yourself?
24   A.  I mean, I've always looked at differences that you would
25       be able to establish what the difference was and see if
page  27
 1       you could come up with a reason to explain it.  Now, in
 2       some cases it was quite obvious.  In other instances,
 3       you couldn't offer an explanation.  You wouldn't be able
 4       to say why the difference was there and that may make a
 5       difference to your final decision about the mark.
 6   Q.  Might there be situations where you could not reach an
 7       explanation as to why there was a difference there but
 8       there would be a sufficient similarity between the mark
 9       and the print that you were nonetheless satisfied that
10       they came from the same donor?
11   A.  I think really that would come down to being an
12       individual consideration on each mark.  I mean, the way
13       I always worked was if I found a difference, I wanted to
14       be able to resolve it for my own satisfaction.  You
15       don't like unexplained happenings.  You want to know
16       what's in the mark and be happy with the mark.  So from
17       my own point of view I think I'd want to make sure I
18       could resolve and offer an explanation to myself that I
19       was happy with why this difference has occurred.
20   Q.  Can you recall an occasion where there was a difference
21       that you couldn't explain but you were nonetheless
22       satisfied because on quantity or quality or a mixture of
23       the two, in terms of the similarities, you were
24       satisfied?
25   A.  I don't really know.  I mean, I can't remember one
page  28
 1       specifically.
 2   Q.  I would like to ask you now about procedures and whether
 3       they differed as between when one was eliminating a mark
 4       in a serious case and when one was identifying a mark in
 5       a serious case.
 6           First of all, I am going to ask you about it in
 7       terms of the number of points that were normally
 8       required for an elimination as opposed to
 9       identification.
10           Can you help us with that?
11   A.  Well, there's two criteria.  Normally in a volume crime
12       case, you would be quite happy to eliminate on a lower
13       number than 16, once you had established identity, you
14       were happy identity had been made.
15           In a serious case it was down to the officer in
16       charge of the case to make a decision what criteria he
17       was applying to the case.  He was the one who had the
18       information to decide whether elims may be more
19       significant in the case than suspects, for example.
20       Based on that, the officer in charge of the case would
21       make a decision what criteria you were working the case
22       to.
23   Q.  So it might be in a particular case that there was a
24       16-point standard applied to eliminations?
25   A.  That is correct.
page  29
 1   Q.  How many people were required to confirm an elimination,
 2       normally, in a serious crime case?
 3   A.  Again, that would depend on specific circumstances.
 4       Each case is quite unique.  If you had a case that was
 5       as we called it a whodunit, with no obvious suspects,
 6       everybody would be treated potentially, even the elims,
 7       as a suspect because you don't know the reason you've
 8       had their prints so, again, it's down to the officer in
 9       charge of the case to make a decision what the checking
10       process would be for those.
11   Q.  I would like to turn in this context particularly to one
12       of the marks that we have been considering in the
13       Inquiry, Mr Stewart, and that is mark QI2.
14           I wonder if we could look, please, at DB0001, scroll
15       to the photograph and have the next page as well,
16       please.
17           What we see in red writing on the right-hand image
18       that you are looking at there is, "Deceased's on screen"
19       and I think your initials "CS" are written in in
20       Mr MacPherson's handwriting and would we be right in
21       understanding from that that you were the second person
22       to look at the mark, effectively the first verifier
23       after Mr MacPherson looked at it?
24   A.  If Mr MacPherson put the initials down in order, that
25       would be a fair assumption but maybe he didn't put the
page  30
 1       initials down in the order that we viewed it.  I don't
 2       know.
 3   Q.  I think he has told us that the order should be taken as
 4       the order people saw it.
 5   A.  In that case, so be it.
 6   Q.  When you were looking at this mark, to what standard
 7       were you eliminating it or identifying it?
 8   A.  From memory, we looked at all the marks in this case to
 9       the national standard of 16.
10   Q.  How did that come about?
11   A.  Mr McPherson was the officer in charge of the case
12       because it was his remit to deal with cases from that
13       division.  Therefore, he would make a decision as to how
14       the case was being run and what decisions you'd to
15       reach.
16   Q.  Who instructed you personally that everything in the
17       case was being done to a 16-point standard?
18   A.  I assume, logically, it would be Mr MacPherson at some
19       point when I was doing verification.
20   Q.  Do you have any actual recollection of that?  Again, I
21       appreciate --
22   A.  Again, not really.  I assume the chain of events would
23       be such that he would inform me, along with everybody
24       else that was doing verifications, of how he was working
25       the case and, therefore, that would be how I would
page  31
 1       assume it would work.
 2   Q.  We have heard some evidence from Mr Bruce whose initials
 3       (EB) also appear here and who, in the end of the day,
 4       didn't sign the case envelope in the case.  He infers
 5       from that that he would not have signed the case
 6       envelope because he had here been working with the mark
 7       QI2 to a standard of less than 16 points and that he
 8       certainly himself would not have identified it to that
 9       standard.
10           Now, if that is correct, it does not sit well with
11       the account that every mark was being dealt with to the
12       16-point standard at all stages.  Do you have any
13       comment on or explanation for that?
14   A.  I can't offer an explanation.  Maybe Mr Bruce has
15       forgotten, maybe he assumed it was a different case he
16       was working on.  I don't honestly know.  I can't offer
17       an explanation on his behalf.
18   Q.  We do have some further assistance from Mr Bruce in that
19       when he came to look at the mark again, with the benefit
20       of enlargements in 2006, even at that stage he was only
21       identifying 12 points, which would seem, certainly on
22       one view, to reinforce the view that he may have been
23       working to less than 16 points back in 1997.
24           Again, I offer that for your comment or explanation,
25       Mr Stewart.
page  32
 1   A.  Well, again I can't offer an explanation on behalf of
 2       Mr Bruce.  If he says that's what he found, that's what
 3       he found.
 4   Q.  I would like to turn, please, to page 31 of your
 5       statement, FI0036-02, page 31.  It is paragraph 144 that
 6       I am interested in here because what you tell us here is
 7       that Mr MacPherson wanted four experts to confirm the
 8       elimination of mark Y7 to the 16-point standard.  That
 9       that was the decision for him as team leader and you
10       didn't know why he made the decision.
11           I rather, read that -- and you will no doubt tell me
12       if I am wrong -- as meaning that mark Y7 was perhaps
13       being treated in a particular way rather than
14       necessarily just being part of the overall picture in
15       the case of everything being worked with to a 16-point
16       standard?
17   A.  It depends on the context because that is not a
18       statement -- I did feel that that was a statement based
19       on question and answer so the question must have been
20       specific in relation to mark Y7 so I've given a specific
21       answer in relation to that.
22   Q.  Do you remember, just staying on mark Y7, whether there
23       was any particular discussion of using the 16-point
24       standard in relation to it?
25   A.  I think from memory Mr MacPherson made a decision that
page  33
 1       everything in the case was being done to 16, was my
 2       memory of it.
 3   Q.  There was not, for example, any particular consideration
 4       that it was important because of its location and
 5       should, therefore, be examined to a higher standard?
 6   A.  I wouldn't be aware of that.  Mr MacPherson was the
 7       officer who was in contact with the senior investigation
 8       officers.  He would have the information and he would
 9       make decisions based on the information he was getting
10       from them.
11   Q.  I put this further suggestion to you also, Mr Stewart,
12       that it might have been thought appropriate to look with
13       particular care at the mark because it was one of a
14       police officer at the scene.
15   A.  Police officers regrettably were eliminated on a very
16       regular basis in a lot of cases.  Strathclyde Police
17       have tried over the years to improve their crime scene
18       management to an extent there are now less police
19       officers eliminated than before.  I can't see why it's a
20       police officer is of any great significance.
21   Q.  I would like to move on now, Mr Stewart, to ask you more
22       generally about work methods and how you went about your
23       analysis and comparison of marks.
24           We have heard in the Inquiry about the term ACE-V:
25       analysis, comparison, evaluation and verification.
page  34
 1           Was that terminology that you remember being in
 2       currency as far back as 1997 or is that perhaps a
 3       newer label?
 4   A.  That's a more modern label for a process that we more or
 5       less virtually have done for years.  It's just a fancy
 6       way of dressing it up and making it a formal method.
 7       It's something we've always gone through.  You've always
 8       analysed the mark; you've looked at the mark; you've
 9       assessed can you tell what digit made the mark; you're
10       looking for problems in the mark; do you see a pattern;
11       do you see the delta; do you see the core; is there
12       sufficient detail in it to let you to progress to carry
13       out the comparison that would lead to you reaching a
14       positive or negative conclusion.  After you've done that
15       you then go ahead and carry out your comparisons.
16   Q.  What I am going to do is stop you there and take this
17       step-by-step so that we can gain as full an
18       understanding as possible of how you went about your
19       work.  Again, it may not be something that varied after
20       1997 but I'm asking you to cast your mind back to the
21       way you were working at that time.
22           Starting at the beginning, what do you do first?
23   A.  The first thing when you receive a case is you check
24       you've got all the appropriate marks in the case.  So if
25       you are meant to have 25 marks there you have indeed got
page  35
 1       25 marks.  They are all correctly labelled and numbered
 2       as per the paperwork, because it happens sometimes the
 3       marks get put in the wrong case.  The next stage you
 4       look to see what requires done in the case, whether it's
 5       eliminations, suspect comparison or searching.  That
 6       then points you in a direction of what you do next.  So
 7       if you are going to compare suspects or elims, you would
 8       quite simply take the first mark, you look overall at
 9       the mark, the first thing is do you think there's enough
10       detail in it to allow you to reach a conclusion,
11       therefore, it's comparable?  Yes.  Can I see a pattern?
12       Yes or no?  Can I see the delta, the core of the finger
13       to give me a starting point for my comparisons?  You are
14       then looking for problems in the mark.  Is there obvious
15       superimposition, movement?  You are looking further,
16       does the mark look right for the surface it's meant to
17       be on, to make sure that the mark hasn't been interfered
18       with or transferred.
19           After you've done all that, can I tell what finger
20       it is?  Because if you can work out that this is, for
21       example, say, a right forefinger and you have ten
22       suspects I would then be inclined to compare that
23       against the right forefingers of all ten suspects first.
24       If it wasn't a right forefinger then I would have to go
25       out and carry out a comparison against all the other
page  36
 1       digits of the persons concerned.  But, on the whole, you
 2       got quite good at assessing what finger it was, what
 3       pattern it was and that would cut down your comparison
 4       time because you'd more likely be able to go straight to
 5       the digit or digits that you wanted to compare and
 6       possibly could identify.
 7   Q.  So what happens when you start going to the digit that
 8       you are interested in on the ten-print forms?
 9   A.  The next thing is you need to pick characteristics in
10       your mark that you want to start looking for.  Hopefully
11       experience has taught you there are common
12       characteristics that occur regularly in the cores of
13       marks so you want to avoid them, again round the delta
14       of marks there are common characteristics that appear.
15       So you want to avoid those for possibly -- so you try
16       and pick another area outwith these where you can see
17       three or four characteristics that would give you a good
18       starting point.
19   Q.  I will stop you there.  Your experience has taught you
20       there might be common collections of characteristics in
21       certain areas?
22   A.  That's correct.
23   Q.  In the delta and in the core?
24   A.  In the delta and the core particularly.  These are easy
25       areas to find because your eye goes straight to them if
page  37
 1       you have them available in the mark.  You might not
 2       always have them but there are formations of
 3       characteristics that are quite common in these areas so
 4       logically you are far better starting somewhere else.
 5   Q.  Sorry, I interrupted you as you were going on there.
 6       Please continue.
 7   A.  Once you've picked your group of characteristics you
 8       want to look for, you would then, using two glasses, I
 9       would have one eye over the mark and one glass over
10       whatever digit I was comparing in the fingerprint form.
11       I would then look on to the fingerprint form to see if I
12       could see this group of characteristics.  If I could, I
13       would check they were in correct sequence in
14       relationship to the other.  Then I would go back to the
15       mark, see where the next characteristics were in
16       relation to this starting group and find a couple,
17       wherever they were.  I would then go back to the
18       fingerprint form and see if I could find those in the
19       same relation to the starting group I had there and you
20       would keep going and build up the process as you went
21       through it.
22   Q.  So you have the group of characteristics you are
23       interested in.  If you find that in the known print you
24       then start working back and forth in relation to
25       additional points that you find in similarity and
page  38
 1       sequence between the two?
 2   A.  That is correct.
 3   Q.  I was interested in something you tell us at paragraphs
 4       52 and 53 of your statement if you could look at that,
 5       please.  It is page 13.
 6           At paragraph 52 you tell us that the expert would
 7       not mark up points of importance on the crime scene mark
 8       before looking at comparison prints because you would
 9       need to remember what you had seen on the mark when
10       subsequently looking at the ten-print.
11   A.  You wouldn't physical mark the characteristics on the
12       actual scene of crime impression.  You had your pointers
13       that you could hold over the top of the mark so that you
14       could point them out and to allow you to count
15       intervening ridges between one characteristic and the
16       next characteristic.  So you physically weren't marking
17       the impression, you were looking at it and remembering
18       your target group, then looking through your other eye
19       at the fingerprint form to see if you could find that
20       target group.
21   Q.  I'm sorry I didn't catch -- did you say you were looking
22       through your other eye at the --
23   A.  Yes.  You had two glasses and you would be looking
24       through one glass at the scene of crime mark.  You'd
25       find your target group.  You'd then look through the
page  39
 1       other glass at the fingerprint you were comparing to see
 2       if you could find that target group.
 3   Q.  I am curious about what you say about using the other
 4       eye because I'd rather imagined perhaps looking with
 5       both eyes at one and then with both eyes at the other?
 6   A.  I was always taught to use both eyes simultaneously.
 7       That way you weren't relying on memory because if you're
 8       using just one eye you were going from one glass, you
 9       were trying to remember what was there, you going over
10       to the other glass, you were relying on your memory to
11       remember the pattern, the exact shape of the ridges,
12       whatever you were looking at.  So by using two eyes
13       simultaneously you were doing a simultaneous,
14       effectively, comparison.  You were looking at one and
15       immediately looking at the other.  There was no memory
16       involved.  You were comparing like-for-like.
17   Q.  As to what you were using the pointers for, I think we
18       heard some evidence yesterday from Mr McGinnies, who
19       currently works for SPSA, about using the pointers to
20       keep the place between the two marks.
21           Was that your practice?
22   A.  Basically, you could look at it -- and what you do is
23       you hold your pointer over your first characteristic
24       because that was your reference point, that was your
25       starting point.  If you found on the other, the known,
page  40
 1       you could put your pointer there so you had the two
 2       lined up.  Then you could count out on the mark two
 3       fridges to a bifurcation.  You would use your pointer,
 4       count out two ridges to the bifurcation on the known and
 5       so on and so on round it.  It was easier to make it
 6       easier for you to follow what you were doing, again so
 7       you weren't having to rely on memory, "Which
 8       characteristic have I just looked at".  You knew because
 9       your pointer was placed over the characteristic.
10   Q.  Presumably, when you move the pointer on one, you count
11       two on your mark and then you count two on your print.
12   A.  That's correct.
13   Q.  Presumably you can't count the two simultaneously?
14   A.  No, no. no.
15   Q.  So to that extent you are concentrating on one and
16       counting two and then concentrating on the other and
17       counting two?
18   A.  Yes.
19   Q.  You have told us about using both eyes and I think at
20       paragraph 53 you tell us about a colleague who had lost
21       the use of one eye and some difficulty that gave him.
22   A.  He certainly, from talking to him over the years about
23       it, he found it a lot harder doing comparison looking
24       through one glass with one eye, remembering what was
25       there and then putting his head back over the other
page  41
 1       glass.  He said it made it a lot harder than it was in
 2       the days when he had sight in both eyes.
 3   Q.  Again, this perhaps chimes with your experience of using
 4       both eyes in the process simultaneously?
 5   A.  I think certainly use of both eyes gives you a quicker
 6       process and more accurate because you're not having to
 7       rely on memory, because if you're using one eye you are
 8       trying to commit what you are looking at to your memory,
 9       then you're looking at the other.  Okay, you may have a
10       very good memory, you may be able to remember exactly
11       where the characteristics are and what they are, but I
12       think it's far better if you use both eyes
13       simultaneously -- more accurate.
14   Q.  Thinking back to the situation you have told us about
15       where you find a group of characteristics that interests
16       you, how many characteristics would tend to be in that
17       sort of group?
18   A.  Well, that's very debatable.  British experts had a long
19       history of doing manual searching that no other experts
20       in the world did before AFR systems came in.  So our
21       eyes were honed in to looking for a small cluster of
22       characteristics.
23           It depends on what you saw.  Sometimes it could
24       be two, sometimes it could be three or four.  It just
25       depended on the proximity.  It was what your attention
page  42
 1       was drawn to and what you thought you could find quite
 2       easily.  So there wouldn't be a specific number.  It was
 3       variable.  It was just dependent on the quality and the
 4       type of mark you were comparing.
 5   Q.  When you come to be carrying out the checking, the
 6       verification as opposed to being the first person who
 7       looks at a mark, does the process vary in any way from
 8       what you have told us about?
 9   A.  You're effectively doing exactly the same thing.  The
10       only difference if you're doing a verification is you've
11       probably been given a mark that has been numbered or
12       labelled indicating that somebody thinks this is
13       identified as whatever finger it is and you'd be given a
14       form.  So you're not carrying comparison looking against
15       all the ten fingers on that form, you've been pointed in
16       the direction that somebody has thought in their opinion
17       that you should start at number 7 because that's what
18       they think they've identified as.  But you then go
19       through it yourself.  You look at the mark, you make
20       sure you're quite happy with the mark, you can see
21       enough in it and then you carry out your own comparison,
22       reach your own conclusion and hopefully it's then the
23       same conclusion of the person beforehand.
24           It was quite common people could be dyslexic quite
25       often and would write the number 2 for the number 7 on
page  43
 1       the mark.  Quite often people would just transpose it.
 2       But usually you saw that quite obviously because the
 3       pattern and the shape of the finger would be wrong, so
 4       you'd pick it up saying it's identified as number 2.
 5       You'd look down and say, "No, number 2's the wrong
 6       pattern".  You'd look at number 7, it looks more like
 7       that.  You then just go back to the person, get them to
 8       confirm they've written the wrong digit on it.  But that
 9       was quite common.
10           So you couldn't take what was there as gospel.
11       You'd to carry out your own comparison from scratch, go
12       through your normal process, reach your own conclusion.
13   Q.  If we could go back, please, to image DB0001 and, again,
14       if we could have the next page of the image up as well,
15       what we see there is "deceased's on screen".
16           Should we take that as an indication that you were
17       perhaps looking at this particular mark on the
18       comparator screen rather than using the glasses in the
19       way that you have described?
20   A.  Certainly each individual reaches their own conclusions
21       in the manner they're more comfortable with.  If
22       something's marked up on the screen or left on the
23       screen, I would usually have a quick look at it.  I
24       would then remove it, go back to my desk, sit down and
25       carry out my comparison with my glasses in my normal
page  44
 1       way.  That's how I was comfortable doing it.  I
 2       preferred doing it with two glasses rather than looking
 3       at the screen.  It was just more natural to me.  So,
 4       while it may have been marked on the screen initially or
 5       it may have been on the screen, I would still take it
 6       off and go back to my desk and carry out my comparison
 7       in my normal manner with the two glasses.
 8   Q.  On the assumption that the mark was on the screen and
 9       marked up with somebody else's findings, you would
10       presumably look at that?
11   A.  Normally your starting point -- you would have a quick
12       look but you're looking to reach your own conclusion on
13       the mark, not somebody else's conclusion on the mark.
14       So you would start again.  Some people would just start
15       on the screen by cleaning the screen and marking it up
16       on the screen.  As I say, my policy was to remove it
17       from the screen and sit at my desk and do it in the
18       normal manner.
19   Q.  If I understand rightly, you would look at what the
20       person had done, then you would take it away and examine
21       it for yourself?
22   A.  You would have a quick look to see what they've done.
23       It may be they have marked the top or the right side or
24       the left side of the mark.  You may find when you sit at
25       your desk and look at it under glass that, yes, that's
page  45
 1       the only area of the mark you can work in; so that's why
 2       they have obviously used that side.  You might find you
 3       are happier working at the other side of the mark.
 4   Q.  Do you have any recollection of exactly how you went
 5       about dealing with this mark, QI2.
 6   A.  Specifically, no -- I mean, it's so long ago -- but my
 7       normal practice was to remove things from the screen and
 8       carry out my own comparison process using glasses.
 9   Q.  Should we take it from that then that it is not fair to
10       ask you to try to recall what your initial group of
11       target or interesting characteristics was on this mark?
12   A.  I'm afraid, having compared and identified thousands of
13       marks over the years, they're all marks.  I couldn't
14       honestly say.
15   Q.  If we can take this image down, please, and look at
16       PS0002.  Again, looking at the next part of that image
17       also, what we see annotated here is, I think,
18       Mr McPherson's initials and your own initials and what I
19       understand may be Ms McBride's writing.  Then what I
20       understand to be Ms McBride's initials with the word
21       "glass" beside it.
22           What we might take from that is that Ms McBride
23       uniquely there has used glasses on the basis that nobody
24       else is noted as having used glasses.
25           What is your comment on that?
page  46
 1   A.  I think the best option is to ask Ms McBride what she
 2       means but Fiona was always quite pedantic about things
 3       so I think she would mark something like that on that
 4       basis.  It's not something I would record.  I would just
 5       record that I have looked at it and reached a
 6       conclusion.  I wouldn't stipulate or specify because my
 7       normal process was to do it with glasses anyway, even if
 8       it was on the screen.
 9   Q.  Do you recall viewing this mark after Mr MacPherson had
10       looked at it?
11   A.  No, I don't.
12   Q.  You don't.  So, again, would you be able to give us any
13       specific recollection as to whether you saw it on a
14       comparator perhaps marked up by Mr MacPherson in the
15       first instance?
16   A.  I couldn't honestly tell you.
17   Q.  Do you have any specific recollection yourself of using
18       glasses to carry out your own verification in relation
19       to this mark?
20   A.  I've said already my normal practice was I always
21       preferred to use glasses.  I was never a great fan of
22       the comparator.  I would always try and carry out my
23       comparison using two glasses, reach my conclusion.
24       Sometimes I would go back to the comparator.  It may
25       help me establish areas of movement or distortion in the
page  47
 1       mark because you could write all over the comparator
 2       because you could clean it up after, which you couldn't
 3       write all over your mark.  So you could trace ridge flow
 4       and shape and try and reach a decision as to where, if
 5       there was problem areas in mark, what the problems
 6       actually were.
 7   Q.  Do you have any recollection as to whether you used the
 8       comparator in relation to this mark?
 9   A.  I'm sorry, I really don't know.
10   Q.  I appreciate that I may be asking the impossible because
11       I am asking you about things that are more than 12 years
12       ago, but I will ask you this next question nonetheless,
13       Mr Stewart: can you, at this stage, recall what features
14       were the ones that drew your attention initially in this
15       mark?  I think others have maybe referred to it as the
16       target group.  You have said perhaps a group of
17       characteristics that you would use to go forward to the
18       ten-print?
19   A.  Again, many years ago.  I can't honestly remember which
20       characteristics I would have picked as my starting group
21       to look at.  I don't honestly know.
22   THE CHAIRMAN:  Could I just interrupt for a minute to ask
23       you this: if you had a very straightforward mark, if
24       there is such a thing, I imagine you could look at that
25       on a comparator, if it was a very clear mark and obvious
page  48
 1       characteristics?
 2   A.  You could, sir, but my policy would be I would still
 3       want to sit down.  Being very traditional I like using
 4       my two glasses so I would still sit down and do it.
 5   THE CHAIRMAN:  I was going to go on to ask you then, I mean,
 6       it is even more likely if it is a complicated mark that
 7       you would take the glasses to it?
 8   A.  The process is I was always more comfortable looking at
 9       it with a glass first of all to look at the mark to see
10       what was in the mark.  That was just the way I did it,
11       the way I had been trained and that was my comfort zone
12       and that's the way I would work.
13   THE CHAIRMAN:  So it was an invariable practice?
14   A.  I would think so.  I think that would be a standard --
15       for me, as an individual.
16   THE CHAIRMAN:  That is what I am asking really.  For you, it
17       would be invariably the way you would approach it?
18   A.  Yes, sir, that's correct.
19   MISS CARMICHAEL:  Just before we leave the theme of the
20       comparator and of verification or checking, Mr Stewart,
21       in the situation where you took the mark and the prints
22       away and looked at them at your own desk under the
23       glasses, would you then take them back to the
24       comparator?  We have heard about the procedure of
25       signing the comparator screen.  Would you then do that?
page  49
 1   A.  I must admit, I think from memory, at the time, we were
 2       only beginning to start to sign the comparator screen or
 3       the back of the print.  Up to that point I think it was
 4       all pretty anonymous.  You just used the comparator and
 5       that was it.
 6           If I had seen it and it was ready to move on to the
 7       next person and I'd reached the same conclusion, I would
 8       have done whatever was in vogue at the time to indicate
 9       that I had seen the mark.
10   Q.  So it might be, for example, that in relation to one or
11       both of the marks that we have been looking at today,
12       QI2 and Y7, you may have signed the comparator screen?
13   A.  I may have done so.  I may have gone back to
14       Mr MacPherson and said, "Right, I have seen that one
15       now", and get him to ask whoever he wanted to ask as the
16       next person to verify it, because I wouldn't know who
17       would be verifying it after me.  He would be the only
18       person that would have that information.
19   Q.  I would like to move on to asking you some particular
20       questions that seem to arise in relation to the two
21       marks, QI2 and Y7.
22           We can take that down for the moment.
23           I would like to ask you, please, about a form that
24       we have seen and heard some evidence about.  The
25       document reference is DB0251.33.  We have heard that
page  50
 1       this is a form 13B.
 2           Is that a piece of paperwork you remember,
 3       Mr Stewart?
 4   A.  That's a document that would be submitted with marks to
 5       the Department prior to examinations being carried out.
 6   Q.  We see that this form seems to have been submitted with
 7       a series of marks, QB2 to QL2.
 8           Do you see that about maybe halfway down the sheet?
 9   A.  I do.
10   Q.  That would include QI2 in this case?
11   A.  I would assume so, yes.
12   Q.  What we see handwritten between asterisks is a phrase:
13           "Ident required for deceased".
14           First of all, is this something you remember seeing
15       in the Marion Ross investigation?
16   A.  For most people working on this case they wouldn't see
17       any of the paperwork.  The paperwork would go to the
18       person who was running the case from our point of view,
19       which was Mr MacPherson.  He would be aware of what
20       information was contained or not contained.  For
21       everybody else you would be just carrying out
22       comparisons or verifications as requested.  The first
23       time I saw that was probably at some point when we
24       prepared the material for the HMIC's inquiry.
25   Q.  So we should understand that you had seen this at some
page  51
 1       stage before you gave the statement for this Inquiry?
 2   A.  Oh I think so, yes.
 3   Q.  Just looking at the form of words used there, "Ident
 4       required for deceased", is that a form of words, in your
 5       general experience working within SCRO, that would be
 6       familiar to you on a form of this sort?
 7   A.  Well, information was relayed in various different ways
 8       to us about how to go about our comparisons.  For
 9       example, the senior investigation officer might say, "We
10       want you to focus on these 20 marks.  Give them priority
11       because they have a significance to them".  They might
12       say they want you to focus on a certain elim or certain
13       suspect.  So we require information to let us work.  So
14       that I take it that somebody in the Identification
15       Bureau has been given information when they have
16       examined the article that there's a particular
17       requirement that these marks be compared against the
18       deceased, first of all.
19   Q.  One possible construction that might be put on it is
20       that in some way an instruction was being given to
21       identify one or all of these marks against the deceased
22       rather than to simply compare?
23   A.  If you give an instruction to identify if you wish but
24       you can't identify what's not identifiable.  All the
25       marks could be insufficient, therefore, you can't
page  52
 1       identify it.  All the marks may be negative when you
 2       compare them against the deceased, therefore, you can't
 3       identify it.
 4           In a murder you could have several hundred marks.  A
 5       lot of them could be eliminated or identified as one
 6       person.  You may have a murder where there's no marks
 7       identified as the accused.  There's no God given right
 8       that you must be able to identify anybody.
 9   Q.  Another possible construction might be that this was
10       being highlighted as something that had to be to an
11       identification standard of 16 points rather than to
12       perhaps a lower number of points for an elimination.
13           Is that a possible construction?
14   A.  I really don't think that's a very valid interpretation
15       of it because outside officers, like the Identification
16       Bureau staff, wouldn't be aware of what standards we're
17       working to.  They are just saying they have had
18       information that these marks, the SIO obviously
19       considers are of interest to him and if you could
20       identify the deceased he would be very interested in it.
21   Q.  One slight curiosity perhaps about this form is that we
22       see there's a section for eliminations just below where
23       we see the handwriting and a section with a name that
24       has not been used here that perhaps might have been
25       used.
page  53
 1   A.  Again, when you are receiving these form 13Bs in a major
 2       Inquiry you could receive 20, 30 or 40 of them during
 3       the duration of the case because the marks come in to us
 4       at different times, depending on the method and type of
 5       examination.  They wouldn't repeat all the names of the
 6       elims supplied or the suspects supplied because they
 7       would be spending hours pointlessly filling out a form
 8       to give us information that we already had.
 9   Q.  I would like to ask you also, please, about a passage at
10       page 36 of your statement.  Here at paragraph 166, I
11       think you have been asked when giving your statement
12       about a handwritten note which I think you had
13       identified as being in your own handwriting and this was
14       a note where you have apparently received some
15       information about the police's hopes regarding a tin
16       involved in the investigation.
17   A.  Obviously, at some point Mr MacPherson wouldn't be in
18       the office, which was quite normal because we worked
19       different shifts.  Some of us were on weekends; some of
20       us weren't.  So obviously the Senior Investigation
21       Officer or somebody on his behalf has come into the
22       department.  I've dealt with him because I've been the
23       senior person present.  I've been given some information
24       which I've recorded and passed on so Mr MacPherson was
25       aware of it when he came on duty again so he could treat
page  54
 1       it in the right manner.
 2   Q.  This was information, obviously, that comes from the
 3       police.  Was it normal to get this sort of information
 4       about other aspects of the investigation, I suppose
 5       about the context of some of the marks that you were
 6       going to examine?
 7   A.  Basically, if you've a murder, you could say have 200
 8       impressions.  As far as we're concerned, we're very
 9       boring.  We'd start at impression A and work our way
10       through to the last impression when we're doing a
11       comparison.  We talk to the Senior Investigation Officer
12       on a regular basis so he can give us information that we
13       may be able to target certain marks that are of interest
14       to him or it may be he is more interested in certain
15       suspects or certain eliminations comparisons so there is
16       a result for them earlier.  So there's a flow of
17       information because that is the only way we can make
18       decisions.  If we are just sitting there and we're given
19       a pile of fingerprints and a pile of suspects and elims,
20       you make a decision, right, we'll start there and do
21       that.  Whereas you are trying to -- what shall I say --
22       structure how you are handling the case to best suit the
23       requirement of the SIO.  So he's given you information,
24       "These marks are more significant.  Can you do these
25       marks first".
page  55
 1   Q.  If I can perhaps put this suggestion to you: the Senior
 2       Investigating Officer might simply say please treat
 3       marks -- well, we'll take the example QB2 to QL2 -- as
 4       highest priority, perhaps even give you a list of names
 5       that they are particularly interested in, but what seems
 6       to be happening here is that you go a step beyond that
 7       because you're not just told that they are important and
 8       that they are priority, but you're told why.
 9   A.  Again, it varies.  Different SIOs give you different
10       amounts of information.  You found if you were regularly
11       working on murders and you were dealing with the same
12       SIO, as he got to know you and got more confident with
13       you he would be more open to disseminate information to
14       you.  Whereas if it's a new SIO you've never dealt with
15       before, they were always much more guarded about what
16       they did.  So it came down to a build-up of personal
17       relationships over the years with the various SIOs, and
18       that sometimes decided the level of information and the
19       quantity of information you got.
20   Q.  We have heard that the Senior Investigating Officer in
21       this case was Mr Heath and his immediate deputy was Mr
22       McAllister.
23           Was either of them an individual that you had worked
24       closely with before?
25   A.  I had certainly worked on a regular basis with Mr Heath.
page  56
 1       I knew Mr McAllister, yes.
 2   Q.  I would like to ask you about another aspect of mark
 3       QI2.  Should we take it that you would have been
 4       effectively verifying a number of marks that were maybe
 5       looked at first by Mr MacPherson in this case?
 6   A.  I think the way this worked was that Mr MacPherson's
 7       team -- he had a team that were doing all the
 8       comparisons.  He wouldn't want to have them involved in
 9       the verifications because it meant they were coming off
10       doing comparisons, doing verifications.  The normal
11       practice was you went to the next geographical team to
12       you in the office and you would ask the team leader
13       there if he could verify marks for you and, hopefully,
14       he could maybe supply one or two people or if he could
15       only do it himself you would ask the next team if they
16       could do the same so as to spread the work out round the
17       office so the team doing the comparisons were left alone
18       to effectively carry out the comparisons without
19       interruption.
20   Q.  Miss Ross was the householder in the case and we have
21       heard from Mr MacPherson that for perhaps good and
22       obvious reasons her prints were compared against a
23       considerable number of marks because perhaps the most
24       obvious elimination in a house is that of the
25       householder.
page  57
 1   A.  Normal practice was, hopefully, your first discussion
 2       with the Senior Investigation Officer, they would tell
 3       you who lived in the house and you would make sure you
 4       had elims for this people because, obviously, if they
 5       lived there they were more likely to leave fingerprints.
 6       So by carrying out the comparison against these
 7       people first you could whittle the number of
 8       fingerprints down from say 200, you might only have 100
 9       left to compare against the other elims and the other
10       suspects so you're making the best and most efficient
11       use of your resources.
12   Q.  So might it be that for an entirely appropriate reason
13       you would have dealt with Miss Ross's ten-print form
14       perhaps on a number of occasions before you came to look
15       at mark QI2?
16   A.  Quite likely, yes.
17   Q.  We heard from Mr MacPherson that when one is working
18       with the same print over and over in a case, perhaps
19       eliminating it against a number of marks, one will
20       almost start to memorise some of characteristics in the
21       ten-print form itself.
22           Is that a phenomenon you recognise?
23   A.  It gets to the stage that if you are working on some of
24       these major inquiries for the lengthy periods they run
25       you are effectively picking up the form, it's almost an
page  58
 1       aide-memoire to you.  The same by looking at the marks,
 2       you get to see the marks so often you already can
 3       remember where the cluster is you're going to start
 4       looking at the target group, whatever you want to call
 5       it.  You can probably remember what your assessment of
 6       the mark is so you are not going to repeat that each
 7       time.  You've gone through all that the first time,
 8       therefore, the second time you are refreshing your
 9       memory.  You are also checking that your decisions you
10       made the first time are right.  It could be later on you
11       see something in the mark that makes you change your
12       mind about how you have dealt with it up to now.  You
13       maybe see an area that's going to give you a problem.
14       You may resolve what you thought was a problem area just
15       because you've looked at it again.
16   Q.  So in a large investigation, the process of memorising
17       is something that could apply both to a particular mark
18       but also to prints that you are working with, regularly
19       throughout the case?
20   A.  It's more likely to be the marks because you would
21       normally only compare a known set of prints once against
22       a set of marks.  So if, for example, I was comparing the
23       deceased's prints, I would only compare those once
24       against the marks, whereas the marks that were
25       unidentified I would be comparing against a lot of
page  59
 1       different people so you're more likely to remember the
 2       marks than you are the known prints.
 3   Q.  But presumably for each mark that you compare against
 4       the known prints of, for example, a householder in a
 5       case of this type, each time you do that there is
 6       another look at the ten-print form?
 7   A.  Oh, yes.  You're carrying out a comparison, you've got
 8       to look at the form.  You can't do it from memory but
 9       because you've looked at the mark several times you
10       don't spend so long assessing your mark before you carry
11       out your comparison.  You're almost going to the
12       comparison stage rather than going through the
13       assessment stage again.
14   Q.  Thinking just for the moment about the situation where
15       you are going back to the print, often because you may
16       be eliminating a large number of marks or seeking
17       potentially to eliminate a large number of marks against
18       a person such as a householder, is there not some
19       potential risk that you are carrying the information
20       from the known print with you in a way that causes you
21       to interpret the unknown mark in a particular way?
22   A.  Well, you're going through a comparison each time so
23       hopefully you're just starting from scratch and carrying
24       out a full comparison.  You shouldn't be influencing
25       yourself.  You know if you have looked at the mark once
page  60
 1       you think, well, that's probably a right forefinger so
 2       that would be the first finger you would compare on the
 3       form.  If you didn't identify it as that, you then
 4       compare all the other fingers and work your way through
 5       them.  But you would still carry out your full
 6       comparison as you normally would.
 7   MISS CARMICHAEL:  Sir, I am about to move on to mark Y7.  I
 8       appreciate it is two minutes early but it might be a
 9       natural point to break now and come back two minutes
10       early.
11   THE CHAIRMAN:  Yes, we could stop here and begin again at
12       11.48.
13   (11.28 am)
14                         (A short break)
15   (11.50 am)
16   MISS CARMICHAEL:  Mr Stewart, we were about to turn to some
17       questions about mark Y7 and it might be useful at this
18       point to look at page 30 of your statement.
19           You have told us that you do not have a clear
20       recollection of dealing with this mark individually at
21       the time.  I would like to ask you a little bit about
22       just the end of paragraph 139 where you tell us that
23       while you can't remember using the comparator screen you
24       may have done so as the mark was of poor quality.
25           Are you still happy with that part of your
page  61
 1       statement?
 2   A.  Well, as I've said already, my normal practice is to
 3       make the comparison and the decision-making process with
 4       the two glasses.  As I said, I think earlier, I'd quite
 5       happily go back to the comparator sometimes to try and
 6       mark up or follow ridges to find out if I could answer
 7       the questions I had about the problems in the mark.  So
 8       my decision-making would always be made on the basis of
 9       using two glasses.
10   Q.  You tell us there that the mark was of poor quality and
11       I wonder if you could expand on what you mean by that?
12   A.  It's very subjective.  You get very few marks that are
13       very clear, not suffering a lot of pressure or movement.
14       You get a lot of marks that are quite clear that have
15       pressure and movement and so it goes on.  It just
16       depends on the mark itself.  Every mark is quite unique.
17       You have no control over how it's left.
18   Q.  What did you mean when you said that the mark Y7 in
19       particular was of poor quality?
20   A.  I think, basically, there wasn't a lot of ridge
21       characteristics in it.  I mean, the average mark you
22       probably get 20 or 30 or more characteristics and Y7 did
23       not contain a lot.  It contained areas where there was
24       obviously pressure or movement distortion; therefore,
25       that would mark it out as being of poor quality rather
page  62
 1       than better quality.
 2   Q.  So two factors, relatively little by way of ridge
 3       characteristics and also pressure, movement and/or
 4       distortion?
 5   A.  Yes.
 6   Q.  Have you any picture now of how long you spent looking
 7       at mark Y7?
 8   A.  I couldn't honestly say.  I mean, it would be a
 9       reasonable time because of the quality of the mark but
10       as to whether it was half-an-hour, an hour, I just don't
11       honestly know.  I couldn't say.
12   Q.  Would you be able to say, for example, that it wasn't
13       less than half-an-hour?
14   A.  I couldn't even say that.  I don't know.  I really don't
15       know.
16   Q.  Staying with the theme of the comparator and how it
17       might be recorded that that was used, there are just one
18       or two points in your statement I would like to try and
19       clarify with you.
20           I wonder if we could look, please, at paragraph 57.
21       This is related to record-keeping about using the
22       comparator, Mr Stewart.
23           At paragraph 57 at page 14, you tell us:
24           "A marking on a photograph on screen would show that
25       people had been offered the chance to look at the marks
page  63
 1       on the comparator screen."
 2   A.  Again, I was taking it on the basis that because there
 3       was initials there it showed it was a record that
 4       somebody had seen this mark.  It doesn't guarantee they
 5       have made their decision by use of the screen.  It just
 6       means they have been offered this mark to look at and
 7       they've agreed with the conclusion.
 8   Q.  If we could look, perhaps, having up next to this page,
 9       at page 41 of the statement, and I would like to look
10       particularly at paragraph 193.  I should say this is a
11       section of your statement where you are being asked
12       about the fields for entries on a case envelope.  You
13       are explaining to the person who was taking the
14       statement from you what the fields mean.  What you say
15       is:
16           "The field 'comparator seen by' simply deals with
17       whether the comparator had been used by anyone in
18       comparing marks.  Here the field is annotated with a
19       cross-reference to the photographs.  Accordingly, the
20       photographs should record such matters."
21   A.  Basically, I would assume whoever is completing the
22       ident envelope would transfer the initials from the back
23       of the photograph into that field on the envelope just
24       to show that the mark has been seen.  Again, it's not
25       guaranteed that people used the comparator.  Each person
page  64
 1       reaches their own conclusion in their own way but it
 2       means it has been offered via comparator.
 3   Q.  That is what I wanted to try and clarify with you
 4       because there is, on one view, a contradiction between
 5       saying that the photograph marking simply records
 6       somebody has been offered the use of a comparator and
 7       what we see at paragraph 193 which would seem to suggest
 8       that if the photographs are annotated that is a record
 9       that the comparator had been used by the individuals.
10   A.  That's probably not as accurate as it should be.  It
11       just means the people whose initials are annotated have
12       reached the decision, whether or not by use of the
13       comparator is entirely up to the individual.
14   Q.  I think if we take down both pages at the moment and put
15       up pages 31 and 32.  The reason I would like both pages
16       is because it is paragraph 147 I am interested in which
17       runs between two pages.
18           You are being shown, as we can see from
19       paragraph145, the photograph of Y7 with the annotations
20       on it.  You tell us that the marking of photographs was
21       not standard procedure.  It was something you did not
22       approve of and you were not in favour of marking the
23       photographs.
24           We have seen in this case a number of different
25       marks in respect of which there have been annotations on
page  65
 1       photographs, to the extent that perhaps looking at it
 2       from this perspective it looks to have been something
 3       that was done not uniquely on Y7 but on a number of
 4       marks in the case.
 5           I would like your comment there on it not being
 6       standard procedure?
 7   A.  I take it this is referring to the initials on
 8       photographs?
 9   Q.  Yes, indeed.
10   A.  At that time, we didn't have a set policy.  One of our
11       experts some time beforehand had started doing it
12       thinking it was a better way of recording as an evidence
13       trail who had seen what and quite a few people had
14       adopted that as a standard practice but it wasn't at the
15       time yet in vogue that we had deemed it to be official
16       policy, from memory.  It was just one of these things
17       that some people were doing as a way of recording who
18       had seen what.
19   Q.  I am not sure if we can keep paragraph 147 up while
20       bringing back paragraph 193 on page 41.  What we should
21       maybe just do is perhaps simply remember what is in
22       paragraph 147 for now and not make it too complicated
23       for the computer system and bring back up page 41,
24       paragraph 193.
25           What you are describing in paragraph 193 is, in
page  66
 1       fact, I suppose the use of the photographs as the
 2       reference point for the record-keeping rather than the
 3       envelope in at least one respect?
 4   A.  That's correct.
 5   Q.  So to that extent, it might appear that we should take
 6       as a serious and important record what we see recorded
 7       on the photographs?
 8   A.  On the whole, the envelope did not contain sufficient
 9       space to record everything you dealt with for every mark
10       in a case of this size so it's probably better the
11       information would be recorded elsewhere.
12   Q.  I will leave that, Mr Stewart, and move on, if I may, to
13       paragraph 140 of your statement at page 31.  This again
14       is a part of your statement where you are dealing with
15       your involvement with mark Y7.  You tell us that once
16       you had reached 16 characteristics in sequence and
17       agreement you would have stopped your comparison, that
18       16 points was the requisite standard and there was no
19       need to go beyond that.
20           Thinking back to an earlier point in your evidence
21       today, you told us about reaching a point, in general
22       terms, that you were satisfied with and then starting to
23       count to see whether you had in fact got 16, which was
24       the standard at the time.
25           I am just wondering how that account of your working
page  67
 1       method sits with what we see here at paragraph 140.
 2   A.  That effectively is the final statement after I've
 3       counted out my comparison of it, I've counted to 16 and
 4       I've reached my conclusion, which I probably would have
 5       reached beforehand.
 6   Q.  The way that this is framed -- and, again, please feel
 7       free to amend it in any way you think proper -- is as if
 8       you were perhaps counting as you went along and once you
 9       had counted up to 16, you had reached 16 points in the
10       exercise, that was your stopping point rather than
11       perhaps finding everything that you can and then seeing
12       how much is there?
13   A.  Normally, as I said earlier, you would carry out your
14       comparison, reach your decision.  It could be because of
15       the lack of characteristics in the mark, if I had
16       assessed a mark and thought there was only maybe 16 or
17       18 or 20 characteristics in it, I might have felt it
18       would be easier to count from the outset.  I just don't
19       remember.
20   Q.  On this particular point, I would like to try to be
21       quite clear about what it is you do remember,
22       Mr MacPherson (sic).
23           Do you remember stopping at 16 in this case?
24   A.  Specifically, no, I can't say I do.  It's so long ago I
25       can't say but, I mean, normally you would work on the
page  68
 1       basis that you carry out your comparison.  You get to
 2       the stage you count the characteristics.  As long as
 3       you're quite happy and you've reached the notional
 4       number, then your comparison would stop.
 5   Q.  Would it ever be that you are carrying out that
 6       comparison and when you come to count up what you've got
 7       you've got more than 16?
 8   A.  I think what we all do when we start, when you're
 9       training, in the first mark you identify, you are
10       counting absolutely everything in it, one, to learn how
11       much is there and, two, to satisfy yourself that
12       everything falls into place.  If you were to count
13       everything, for example, on a bit of palm you could be
14       counting 120/130 characteristics, quite easily.  There's
15       no need to count to that level.  You've already
16       established identity long before you go to numbers like
17       that.
18   Q.  What I am trying to understand here is just when you do
19       stop, Mr Stewart.  Do you stop dead on 16 because you
20       are counting as you go along and 16 is the standard and
21       that is the end point?
22   A.  As I say, I would have made my decision as to identity,
23       then I would consider counting to see whether it fits in
24       with the national standard or not.
25           As I said earlier, some marks you can make a
page  69
 1       decision long before 16 that you have made an
 2       identification and you're quite happy with it.  Other
 3       marks you need to work with because of the quality find
 4       more in it to satisfy yourself.
 5   Q.  Let us suppose that you have a mark where you are quite
 6       satisfied with your identification, say, at 9 points --
 7       I pick that arbitrarily, Mr Stewart -- perhaps you count
 8       at that point that you have 9 but back in 1997 you need
 9       16; what do you do then?
10   A.  Well, if I've looked at it and made a decision I'm quite
11       happy the mark contains enough for me to identify, I
12       would then count and if the standard in vogue was 16, 12
13       or whatever it was that's what I would then have to go
14       back and count to say that this mark matches the
15       standard or this mark does not match the standard.
16   Q.  It is perhaps my question that is at fault, Mr Stewart.
17       Again, if we can imagine the situation where you are
18       satisfied in your own mind at 9 points and you count at
19       that point and you find you have 9.  Do you then go back
20       to the mark and the print and see whether there are, in
21       fact, further points in sequence and agreement between
22       the two?
23   A.  Well, to do my initial comparison and conclusion,
24       decision-making process, I wouldn't have been counting.
25       I would just be looking at what is there, making sure
page  70
 1       I'd found sufficient detail that would allow me to
 2       happily say, "Yes, I think I can make a decision this
 3       mark is identified".  So I wouldn't have been counting
 4       along to 9 then saying, "Oh dear, I need to start again
 5       and count to 16 now".
 6   Q.  But at some point when you are satisfied with the
 7       identification on however many points it is in the
 8       individual mark -- and I accept that that my vary from
 9       mark to mark -- once you have reached that point --
10       presumably there must be some point at which you start
11       counting -- this is back in 1997 -- to see --
12   A.  You just reach the point where you are quite happy
13       identity is made.  Then the next decision is does the
14       mark meet the required standard.
15   Q.  What I am trying to deal with here is the situation when
16       you are satisfied, you carry out your count and the
17       total is less than 16.
18           What do you do then?
19   A.  If the total's less than 16?
20   Q.  Yes, indeed.
21   A.  If you don't get 16 you would then normally indicate on
22       the mark using a black pen that it's whatever digit it
23       was to indicate that you're quite happy you've
24       identified it but it doesn't meet the national standard.
25       That mark would be checked and verified.  If others
page  71
 1       agreed with that, the mark is no longer live in the case
 2       and would not be compared against other suspects or
 3       elims or searched on the AFR system and the mark --
 4       well, that would be it.
 5   Q.  Might it not be that you would go back and think, "Well,
 6       you know, I've found my 9 points or my 10 points.  I'm
 7       quite happy with those but perhaps I need to look more
 8       carefully at this mark to see if there is more in
 9       sequence and agreement than I have initially
10       appreciated"?
11   A.  Like I say, my initial process is to look at the mark,
12       reach a decision on identity and then count what I see
13       in it.  So if I reach 16; I've reached 16.  If I haven't
14       reached 16 I would mark it accordingly.  I wouldn't
15       decide that I'd have to go back again and count again
16       because I've just counted it.
17   Q.  I am not suggesting that you recount or that you
18       would've got your count wrong the first time.  What I am
19       wondering is whether you would ever go back and look at
20       the print and the mark again and see if there are more
21       characteristics in sequence and agreement than you had
22       appreciated on your first examination and comparison of
23       the two?
24   A.  Well, circumstances arise where you identify the mark
25       from the form that you are comparing with at the time,
page  72
 1       you can't reach 16.  Later on, if the person is arrested
 2       and charged with the offence, you receive a custody
 3       form.  All the marks are compared against that form and
 4       it may be that this form shows an area you didn't have
 5       in the previous fingerprint form and you can then reach
 6       16 -- in that circumstance.
 7   Q.  Are you saying that there would never be circumstances,
 8       just sticking to the first mark and the first print that
 9       you have seen, where having counted up to some number
10       less than 16 you would go back and see whether there
11       were, in fact, further points that you had missed?
12       Please understand, I am not suggesting here teasing out
13       points.  I am suggesting simply going back and seeing
14       whether there's something else that you perhaps had not
15       appreciated that would take you up to the count of 16?
16   A.  You would be doing that while you are going through the
17       process of counting the points, once you've made your
18       decision.  So if you counted away and got to 10 or
19       whatever the arbitrary number was and you looked at it
20       and you couldn't see any more in it, that would be as
21       far as you could go.
22   Q.  But might it be -- well, following on from that then I
23       suppose, while you are doing your count, is it possible
24       that you may in that process itself see more than
25       perhaps the ones that you have initially appreciated?
page  73
 1   A.  Hopefully, if you've done a thorough comparison you've
 2       seen everything in the mark that you're taking into
 3       account for your comparison process, so I would think
 4       the answer is, no, you wouldn't be.  You would have
 5       equated everything that's there against what you are
 6       currently doing.
 7   THE CHAIRMAN:  Well, are you really counting as you go along
 8       because otherwise if you're not counting you could go on
 9       finding points and you'd have 20 or 27 and you didn't
10       need that?
11   A.  As I said earlier, sir, certain marks you reach your
12       decision earlier with less points, less characteristics
13       and there's other marks the complexity and the nature of
14       each mark means in certain instances you want to find
15       more to satisfy yourself.  Some marks you are happier
16       with less.  So it's just a question of you have looked
17       at it.  You have reached a decision.  You think you're
18       quite happy with what you found.  You're quite happy the
19       decision is an ident.  You then count to see where it is
20       in relation to the standard.
21   THE CHAIRMAN:  I think we may be at slightly crossed
22       purposes because I do not think Miss Carmichael is
23       suggesting that if you can only find 10 then I can
24       appreciate if you can only find 10 that's it, but if you
25       are counting or not counting but looking at the mark and
page  74
 1       you get to 10 and you feel in your bones that you are
 2       satisfied, you would go on.  There's no reason to stop
 3       there.
 4   A.  You go on and look at everything in the mark to be as
 5       accurate in your final count as you could.
 6   THE CHAIRMAN:  Yes.
 7   A.  To know whether you are reaching the national standard
 8       or not.  It may be the mark does not contain enough
 9       detail so you don't reach that figure.
10   THE CHAIRMAN:  So you would continue on even though you were
11       satisfied?
12   A.  Oh once you a satisfied, what you're satisfied as an
13       expert is one thing but what you are counting to for the
14       national standard is something different.
15   THE CHAIRMAN:  Is another.  So you are satisfied but you
16       would go on and get the further points if they were
17       obvious to you or available?
18   A.  If they were available, yes, sir.
19   MISS CARMICHAEL:  Thank you, sir.
20           Should we then take it from paragraph 140 that once
21       you have got to 16 you simply stop?
22   A.  As I said earlier, when you're a trainee you are looking
23       at everything in the mark.  It's nice to sit there with
24       a bit of palm and count to 120 and prove to yourself,
25       wow, this is wonderful.  And your training experience
page  75
 1       tells you that if you have reached 16, in most instances
 2       you've got more than enough to establish identity, the
 3       uniqueness of identity.  In some instances, as I say,
 4       you are quite happy on a lot less than 16 to establish
 5       identity but there's no point, if 16 is the set
 6       standard, why would you go on and count to 85, spend
 7       another 15 minutes looking at the mark and then do the
 8       same with the next mark?  It's just not viable.  It's a
 9       time constraint issue.
10   Q.  Thank you for that, Mr Stewart.  I wonder if we could
11       take down the underlying pages there and go to
12       paragraph 141 again on page 31.
13           What you say there is -- and it may come back to
14       some of what you were saying about time constraints in
15       your last answer, Mr Stewart -- you say you did not keep
16       notes.  Staff were not encouraged to take notes.  When
17       you started as an expert, you did keep notes but time
18       and resource constraints did away with the note-keeping.
19           I would like to ask you what the note-keeping was in
20       the earlier days before the time and resource
21       constraints --
22   A.  Well, the earlier days, the note-keeping was not about
23       comparison specific.  You would keep a notebook, in
24       which case you would enter the case reference number of
25       the case you were comparing.  You would list the names
page  76
 1       of the suspects or elims you had compared or if you were
 2       doing manual searching you'd note down which marks you
 3       had manually searched.  It was just a log of what work
 4       you had achieved.
 5   Q.  But that was something that disappearing over the course
 6       of time itself?
 7   A.  That was felt that there was no need.  You didn't
 8       achieve anything from it.  The information was recorded
 9       on other bits of paperwork anyway within the case.
10       Therefore, it was superfluous.
11   Q.  But we shouldn't take it as any detailed record of what
12       characteristics you had seen or where your target group
13       was for marks --
14   A.  No, at that stage we never worked on that basis.
15   Q.  I would like to move back in your statement now to
16       paragraph 137 on page 30 where you tell us you do not
17       think you were aware of Alister Geddes' involvement with
18       mark Y7 until a long time afterwards.  We have heard
19       evidence that Mr Geddes saw the mark after Mr MacPherson
20       but before you did and that he saw 10 points in sequence
21       and agreement rather than 16.
22           When did you become aware of Alister Geddes'
23       involvement?
24   A.  I couldn't honestly say.  It could have been as late on
25       as the time we were preparing the evidence for court.  I
page  77
 1       don't honestly know.  Certainly at the time when I was
 2       asked to look at the mark I don't remember anybody
 3       telling me that Alister had looked at it and had found
 4       10.  I was just looking at it as being: what do you
 5       think.
 6   Q.  When you refer to preparing the mark for court.  Do you
 7       mean for the case against Mr Asbury or the case against
 8       Ms McKie?
 9   A.  I think it would be more than likely the first event,
10       which would be the Asbury case.
11   Q.  So at some point probably round about the time of
12       preparing evidence for Mr Asbury's court case you had
13       become aware of this.
14           Was that information that you passed on to anybody
15       else, Mr Stewart?
16   A.  I wouldn't have need to pass that on.  As far as the
17       office was concerned, Mr Geddes was still identifying
18       the mark.  Our policy was that wasn't an issue.
19   Q.  We heard evidence from Mrs Greaves and Ms Climie, who
20       were two Procurator Fiscals who came to deal with the
21       various cases, and each of them said that she would have
22       been keen and interested to know that there was somebody
23       who had looked at this mark who had not been able to
24       meet what was then the standard in force, the 16-point
25       standard.  That is something that each of those ladies
page  78
 1       would have found relevant.
 2           I would suggest to you that that would be something
 3       that would be relevant for the Crown, for the Fiscals,
 4       to know when they were preparing the evidence, if not
 5       for Mr Asbury's trial, certainly for Ms McKie's trial?
 6   A.  I was not aware of any policy that we had at the time of
 7       giving that sort of information out.  We had
 8       instructions what information would be disseminated and
 9       what wouldn't be and that, as far as I know, was not
10       part of the issue that would be disseminated because it
11       was agreed as an identification.
12   Q.  To go to court at the time of Ms McKie's trial one would
13       need, in general terms, to have a mark identified to
14       16 points.
15   A.  That's correct.
16   Q.  All the experts who ended up signing the report had
17       identified the mark to 16 points?
18   A.  That's correct.
19   Q.  But it might be thought that the fact that somebody, a
20       person like Mr Geddes, had not been able to see the
21       16 points was something that would at least introduce
22       some doubt as to whether the standard in force at the
23       time could be met for court.
24           Would you agree with that?
25   A.  Well, that's an interpretation but, as I say, our policy
page  79
 1       was that that information was not disseminated.  We had
 2       no instructions to make that information available as
 3       far as I remember.
 4   Q.  Did you consider whether to tell the Procurator Fiscal,
 5       Mrs Greaves (who was preparing the case against
 6       Ms McKie), about this matter about Mr Geddes's position?
 7   A.  It probably wouldn't cross my mind for two reasons: (1)
 8       it wasn't my case, I wasn't the senior officer on it;
 9       and (2) as I say, it wasn't normal policy as far as I'm
10       aware at the time, so it wouldn't have entered my head
11       as something I was required to do.
12   Q.  If I can move forward in time, there was a point when
13       you had, I think, a meeting very shortly before the
14       trial with Mr Murphy (now Sheriff Murphy) who was the
15       Advocate Depute prosecuting the case against Ms McKie.
16       Do you remember that?
17   A.  We were called down to the court, I think it was late on
18       an afternoon, by Mr Murphy.  He said, "There's an
19       American expert that's challenging the identification,
20       I've got hold of his production".  He produced a booklet
21       with images in it and some acetate sheets and some
22       coloured drawings all over it.  We asked could we have
23       time to examine this material.  He said unfortunately he
24       had to give it straight back to the defence and that was
25       it.
page  80
 1   Q.  I will ask you a little more about the detail of that
 2       meeting a little later on, Mr Stewart, but at that point
 3       you became aware that there was an American expert who
 4       was going to come along and say that you and your
 5       colleagues were wrong about Y7?
 6   A.  Yes.
 7   Q.  So you knew it was going to be an issue in the trial as
 8       to whether Y7 was properly matched with Shirley McKie's
 9       fingerprint?
10   A.  I suppose so, yes.
11   Q.  Again, by the standards of the time, Mr Murphy was going
12       to have to lead evidence before the jury to the 16-point
13       standard?
14   A.  Yes, that's right.
15   Q.  Would it not have been relevant for him to be aware that
16       a trained Fingerprint Officer had not been able to see
17       all of those 16 points at that stage?
18   A.  Again, all I can say is it wasn't our normal procedures
19       that that information would be disseminated.  So we did
20       what we normally did.
21   Q.  Ms McKie at her trial would be entitled to the benefit
22       of any reasonable doubt about whether the fingerprint
23       was identified to the standard then in force, wouldn't
24       she?
25   A.  I assume so, yes.
page  81
 1   Q.  Might it not be that the fact that a trained Fingerprint
 2       Officer hadn't been able to see all 16 points was a
 3       matter that would raise that sort of doubt?
 4   A.  It could do.
 5   Q.  Therefore, that is something that the Crown should have
 6       been told about so that they could in return make the
 7       defence aware of it in fairness to Ms McKie?
 8   A.  As I say, it's not -- it wasn't then our normal policy
 9       to do that.  We were only doing the way we had evolved
10       our work with the Crown over the years as far as I know
11       from memory.
12   Q.  Just on this particular point here, if I can take you to
13       paragraph 128 of your statement at page 28 -- and,
14       again, I think you may be touched on this earlier -- the
15       situation where experts agreed but one could not find 16
16       characteristics and then discussions took place.  I
17       think you were touching on this earlier in the morning.
18   A.  This paragraph refers to later procedure.
19   Q.  In fact, you are quite right to point that out.  I
20       should perhaps take that down for now and ask you about
21       that later.
22           I think you did indicate in your evidence earlier
23       that there was a situation prior to the changes where a
24       Fiscal might well be informed; would that be right?
25   A.  If marks were deemed in a serious crime to be dire and
page  82
 1       crucial, for example, if it's a print in blood on a
 2       weapon or a print in a murder of significance and there
 3       was nothing else identified, then in that case we had a
 4       process and the Fiscal would be informed.  But that's
 5       where the uniform consensus was there was less than 16
 6       in the mark, four experts had looked at it and none of
 7       them could get to 16.
 8   Q.  How was it decided in a given case how many experts to
 9       go to within the Bureau in order to find out how many
10       might be able to see 16 points, because I think what you
11       described in evidence earlier was a situation where
12       perhaps one person had seen 16, another person had seen
13       fewer but that mark might still go forward with some
14       kind of warning on it.  What we hear about in this case
15       relating to Y7 is that it doesn't stop there.  As I
16       said, Mr Geddes effectively drops out of the picture and
17       others who can see 16 points become, and continue to be,
18       involved in the case.
19           In a situation where one had the individual who sees
20       16, another individual who sees fewer points, how many
21       officers would be consulted in succession about a mark
22       like that?
23   A.  I think if you've got one officer who says they are
24       quite happy with 16, the second officer says they are
25       happy with less than 16, you go to a third officer.  If
page  83
 1       they say they are happy with less than 16, I think
 2       you're forming an opinion already that the first officer
 3       has seen a bit more, the other two haven't, give it to
 4       one more and the chances are that's the consensus.
 5           I don't think you keep going on -- I mean, if you're
 6       thinking you go round 400 people to try and get four
 7       people to give one opinion, that just wouldn't happen.
 8   Q.  What we know in this particular case is that
 9       Mr MacPherson sees the 16 points, Mr Geddes doesn't and
10       then it comes to you.  Do you have any experience of
11       cases where the first examiner sees 16, perhaps the next
12       two examiners see an identification with fewer than
13       16 points and the mark is then taken to somebody else
14       after those two to see whether they can find 16 points?
15   A.  I think the normal process would be that would happen,
16       yes, because you would then want to report to your line
17       manager by saying you have a mark here, you have X
18       number of people can identify to the notional standard
19       and X number of people can identify but to less than
20       standard and you give it to your line manager as their
21       responsibility to make the decision on how the mark is
22       progressed and what's done with it.
23   Q.  What I am trying to get at is how many people would have
24       to see fewer than 16 before you stop trying to find
25       another officer and ask them to consider whether they
page  84
 1       could see 16?
 2   A.  It's hypothetic but I think in that case the first
 3       person had seen 16, Mr Geddes had only seen 10 or
 4       thereabouts, and I didn't get 16 and the person after me
 5       didn't get 16, I would say at that stage then the
 6       consensus is we don't get 16.
 7   Q.  I will leave that topic but I would like to ask you a
 8       little bit more about Y7 and, in particular, whether you
 9       recall -- and again I appreciate this may be difficult
10       and please say so -- at the time that you examined the
11       mark first whether you considered the upper part of the
12       mark?
13   A.  Again, it's a long time ago but I think from memory
14       there was two reasons I didn't spend a lot of time in
15       the upper part of the mark:  (1) there appeared to be a
16       lot of movement and distortion; and (2) at that time the
17       candidate fingerprint form I had did not show a lot of
18       the upper area of the mark.
19   Q.  We have heard in the course of the Inquiry a lot about a
20       characteristic in Y7 which has come to be called the
21       Rosetta characteristic.  Do you know what I'm talking
22       about when I use that expression?
23   A.  I have heard of it, yes.
24   Q.  Would it assist you to have an image of the mark on the
25       screen?
page  85
 1   A.  No.  I mean, as far as I can see the Rosetta
 2       characteristic I don't remember seeing on any of the
 3       fingerprint forms neither the opportunity to compare the
 4       area that shows that.  I believe I think it was Mr Berry
 5       found it and he used a form he got from somewhere else
 6       that went further round to the side of the finger, I
 7       think, and showed an area that we had never worked with
 8       before, we never had the opportunity to work with.
 9   Q.  Forgetting if we can just for the moment about the
10       fingerprint forms, thinking about the mark itself, do
11       you remember considering at the time what is now known
12       as the Rosetta characteristic?
13   A.  Probably not but from memory I couldn't tell you.  I
14       don't know.
15   Q.  Do you remember looking at the top of the mark at all
16       and thinking that there were any differences that you
17       could discern between the mark and the print?
18   A.  All I remember about the top was I think there was
19       considerable signs of movement, superimposition, maybe
20       even a double touch in it at the time.  Therefore, I
21       would preclude that from my comparison process and I
22       would just work in whatever area of the mark -- I think
23       it was the bottom half of the mark -- I deemed was
24       viable.
25   Q.  So would it be simply a case of effectively discarding
page  86
 1       the top part of the mark?
 2   A.  If you'd looked at it and you thought it was no value to
 3       you, yes.
 4   Q.  At some stage -- and I think it would be at this meeting
 5       with Mr Murphy just before the trial -- you were shown a
 6       production that Mr Wertheim had prepared?
 7   A.  I was shown a production.  I don't know if I was told
 8       Mr Wertheim's name at the time.  I can't even remember
 9       what it was.  I think it was a booklet with a couple of
10       photographs in it and, as I say, all I remember is vinyl
11       overlays and various coloured annotations on it.
12   Q.  I think I can help you with that because I think we have
13       the original here.  Could we have on the screen for
14       others DB0172H.
15           You might just want to take a moment to satisfy
16       yourself that you are looking --
17   A.  I can't honestly be sure that's the production.  I mean,
18       it was ... I must admit I thought it was smaller and I
19       thought there was two or three overlays came across it.
20       I really couldn't say.  We weren't given time to examine
21       it, so I couldn't say.
22   Q.  If we can perhaps on the screen move to page 8.  I
23       wonder if you could find the equivalent page in the
24       original you have in front of you.  It may be easier for
25       you, Mr Stewart.
page  87
 1           There is an image where when the acetates are over
 2       it we see that Mr Wertheim has traced some ridges with a
 3       gap in the middle and he has placed four green circles
 4       on his tracing of the ridges.
 5           Are you able to see that?
 6   A.  Yes, uh-huh.
 7   Q.  We have heard that those four green circles, the lowest
 8       of which is on what's come to be known as the Rosetta
 9       characteristic, were meant to designate areas where he
10       saw difference between mark Y7 and Shirley McKie's
11       print.  Is that something that you remember being made
12       aware of when you saw this production prior to the
13       trial?
14   A.  As I say, we had no time to examine the production.  We
15       were just passed it up to us, quick look at it, we saw
16       circles and lines, didn't really know what they all
17       meant.  Mr Murphy said he's now got to get it back to
18       the defence.  We said, "Well, can you ask for time for
19       us to examine it?"
20   Q.  Could I ask you to come a wee bit closer to the
21       microphone because it becomes quite hard for the
22       stenographer.
23   A.  Sorry.  At the time, we had a quick look at it.  We saw
24       the acetates, the lines on it, the circles.  We didn't
25       really understand what they were all meant to mean.
page  88
 1       Mr Murphy couldn't tell us.  We asked could we have time
 2       to study the production.  He said no, he had to take it
 3       straight back to the defence and that was the last I saw
 4       of it.
 5   Q.  Mr Murphy's account of this meeting with you is that it
 6       was something that took place at the court.  Is that
 7       something you remember?
 8   A.  That's correct.  We went down to the court.
 9   Q.  He remembers you and Mr MacPherson coming down with what
10       he called in his evidence "little magnifying glasses on
11       feet" which I think would be the glasses that you use to
12       view these items?
13   A.  Could be.
14   Q.  And that you examined some of the defence materials?
15   A.  I don't remember examining any of the defence materials
16       in any detail.  All I remember is seeing the production
17       very quickly.  I just don't remember carrying out an
18       examination of these.
19   Q.  If Sheriff Murphy says that, is he wrong about that?
20   A.  Well, it may be my recollection, it may be his.  I
21       certainly am not aware of spending any length of time
22       there.  We were shown the production, we were told an
23       American expert was going to say his opinion is it's not
24       identical and I think that was it.
25   Q.  Again, I should put Sheriff Murphy's recollection of
page  89
 1       this to you.  He said that the reason you went to the
 2       court was because the materials were physically there
 3       and you and your colleague were keen to see it as soon
 4       as you could.  He was keen for you to see it as soon as
 5       possible so that he could have your views on it.
 6           Is he wrong about that in his recollection?
 7   A.  I'm quite sure we carried out no comparison of this
 8       material.  I don't know what Mr MacPherson's
 9       recollection is but I certainly don't remember, other
10       than being passed it up, having a quick look at it,
11       trying to work out what you could to with it.  The only
12       thing I remember realising were the acetates, you could
13       put your finger on it and position things, move things
14       to the side.  I didn't think it was a very accurate way
15       or reproducing anything.
16   Q.  Do you recall how long the meeting took?
17   A.  I think it was a very short meeting.
18   Q.  How short?
19   A.  I don't know.  I couldn't honestly say.  I don't
20       remember it being particularly lengthy.
21   Q.  Again Sheriff Murphy's recollection was that he couldn't
22       put a precise figure on it either, perhaps not
23       surprisingly, like yourself, after the length of time
24       but he said it certainly wasn't ten minutes.  They were
25       there for quite some time.
page  90
 1           Is he wrong about that?
 2   A.  I couldn't honestly say.  I assume there would be some
 3       discussion about how he would deal with the challenge to
 4       the evidence maybe.  I really don't know.
 5   Q.  Do you recall a discussion with Sheriff Murphy about the
 6       process that Mr Wertheim had used of tracing the lines
 7       of the ridges on the acetates?
 8   A.  Certainly, I think at some point but I don't think it
 9       was at that meeting.  I think it was actually during the
10       trial after one of the sessions we had a discussion and
11       he asked me about it and I said, "Well, your problem
12       with tracing anything is that it's your interpretation".
13   Q.  Because his recollection was that you and your colleague
14       had concerns about running the lines on the acetate
15       tracing because it introduced a factor of human error.
16   A.  Well, I think that would probably be the way I would
17       look at it but I don't remember it at that meeting.  I
18       think that was after we had started giving evidence
19       during one of the breaks or at the end of the day we had
20       a discussion or I had a discussion with Mr Murphy about
21       that.  I don't remember that being at the time we saw
22       the production.
23   Q.  Do you remember discussing with Sheriff Murphy the fact
24       that there were striations across the photograph of the
25       mark on Mr Wertheim's production?
page  91
 1   A.  I would have thought it's quite possible we would have
 2       discussed that at some point but, again, from memory I
 3       couldn't say whether we did or didn't.  I really don't
 4       know.  I don't have a record of the meeting.  I didn't
 5       log it so there is no ...
 6   Q.  Do you remember any discussion with Sheriff Murphy about
 7       a difference in approach between yourself and
 8       Mr Wertheim to the top part of the mark?
 9   A.  Not really.  We may have had a discussion about it.  I
10       really couldn't say.
11   Q.  Can you recall at all whether you came away from that
12       meeting aware of the fact that Mr Wertheim was going to
13       be saying that there were differences, those identified
14       in the green circles on the document we're looking at,
15       between the mark and the print?
16   A.  No, I think I just came away from the meeting with the
17       impression that this was an American expert who was just
18       going to say he didn't agree with the identification.  I
19       don't think I'd taken the significance of the green
20       circles because we didn't know what they meant.
21   Q.  When did you become aware of what they meant?
22   A.  Probably watching Mr Wertheim give evidence.
23   Q.  You gave evidence yourself before Mr Wertheim gave
24       evidence?
25   A.  That's correct.
page  92
 1   Q.  You were asked about these, weren't you?
 2   A.  I really can't remember.  I may have been.  It's quite
 3       possible Mr Findlay would go through them and ask me
 4       about them but from memory I couldn't tell you.
 5   Q.  I will try perhaps to find the passage for you if you
 6       will give me just a moment, please.  (Pause)
 7           Can we try, please, page 46 of SG0526.
 8           Here you are being asked about dissimilarities
 9       between Ms McKie's print and the print on the form.  Do
10       you see that at line 7?  You were asked there whether
11       you were conscious of any dissimilarity appearing
12       between the photographed impression and the print on the
13       form and your answer there was:
14           "A.    Within the area of the impression we made our
15       comparison from, no, sir."
16           If we can take that down.  You were asked if you
17       were aware of any elsewhere outwith that area and you
18       say:
19           "There are a few characteristics or what appear to
20       be characteristics appearing at the top of the finger on
21       the mark from the scene of the crime."
22           We can take that down.
23           You are then asked:
24           "Is this the area which we looked at on screen
25       earlier which you did not use for comparison purposes?"
page  93
 1           You say:
 2           "That is correct, sir."
 3           Do you see that?
 4   A.  Yes.
 5   Q.  The next question was:
 6           "What sort of dissimilarities are we talking about
 7       in that area?"
 8           Your answer is:
 9           "In that area there appear to be three or four
10       characteristics that do not appear against any of the
11       fingerprint forms we have made the comparison against."
12           Do you see that?
13   A.  That's correct, yes.
14   Q.  That would seem to suggest that at quite an early stage
15       you are aware of features that, perhaps because of the
16       fingerprint forms you have, you at least can't account
17       for.
18           Would that be fair to say?
19   A.  That is possible, yes.
20   Q.  If we move on to the next page, in fairness to you, you
21       are asked how you would account for the apparent
22       dissimilarities and you say:
23           "I would think if you assume it was all part and
24       parcel of the same fingerprint at the same time, these
25       characteristics would appear further up to the top or
page  94
 1       the side of the finger, areas which have not been shown
 2       in the fingerprint form we used for our comparison
 3       purposes."
 4           Can I suggest to you a possible interpretation of
 5       that is that the Advocate Depute, who is the person who
 6       is asking the questions at that stage, has perhaps
 7       become aware that there is a contention that there are
 8       some dissimilarities in that part of the mark and he is
 9       asking you about that matter first, aware that there
10       will be a contention from Mr Wertheim, perhaps in order
11       to defuse the situation and get your account of the
12       matter before the court first?
13   A.  It may be the way I have answered it but certainly I
14       would say that anything in those areas, we didn't have
15       the forms available to let us carry out the comparison
16       at that time, therefore we can't say whether they are
17       there or not there but, as I said earlier, if we've
18       looked at the mark and we were working in another area
19       and we've reached our conclusions in the other area that
20       would not be an issue to me.
21   Q.  Would you accept that it might be that there had been
22       some awareness and discussion between yourself and the
23       Advocate Depute before the trial that there was going to
24       be this contention about the top part of the mark and
25       the presence of differences?
page  95
 1   A.  I honestly couldn't say because I don't remember what
 2       the discussion was with Mr Murphy.
 3   Q.  If we can take down the transcript just for the moment,
 4       just thinking about the characteristics that -- I can
 5       perhaps highlight it to make sure we are all clear we
 6       are talking about the same thing -- if I place an arrow
 7       here (indicated) I am pointing at what has become known
 8       as the Rosetta characteristic and would that accord with
 9       your understanding of what has become known as the
10       Rosetta characteristic, Mr Stewart?
11   A.  I must admit I thought it was further out to the side.
12       I'm not honestly sure, just looking at that.
13   Q.  I don't think anybody else has disagreed with that
14       proposition, Mr Stewart, but --
15   A.  Well, in that case that will be right then.
16   Q.  -- I know will be corrected if I am wrong by the many
17       people in this room who have spent a great deal of time
18       and care on this.
19           I wonder if we could keep that image up, please, and
20       if we could bring up also FI0170A and if we could
21       enlarge the right-hand part of that.
22           I will tell you what that is.  I think you may have
23       seen it before.  It is a charting done by Mr Zeelenberg
24       for the purposes of this Inquiry but we have heard I
25       think from a number of witnesses that the point that he
page  96
 1       has listed as number 14 on this chart on the right is
 2       the point that those who regard the Rosetta
 3       characteristic as a similarity between Ms McKie's mark
 4       and her print identify as the Rosetta characteristic on
 5       the print.
 6           Is that something that you are aware of?
 7   A.  Not really.  I mean, I stopped looking at fingerprints
 8       three and a half years ago.  I don't look at
 9       fingerprints now, sorry.
10   Q.  The reason I am asking you this is because you had said
11       that areas of difference or areas that might be regarded
12       as areas of difference were areas that had not appeared
13       on the fingerprint forms that you had examined.  What we
14       see on the right here is the plain impression of Shirley
15       McKie's left thumb from the 6th February form that you
16       and your colleagues originally examined back in
17       February 1997.
18           On the basis that number 14 is the characteristic
19       which may, if those who identified it as a similarity
20       are correct, is the characteristic that we see on the
21       left with the blue arrow, that would tend to suggest
22       that there was some part of the form that you did have
23       that disclosed something of relevance, potentially,
24       about something that appears, on one view, as a
25       difference between the mark and the print.
page  97
 1           Would you agree with that?
 2   A.  If it's the Rosetta characteristic it can't be a
 3       difference because it's, from what I understand, it has
 4       been identified as being there.
 5   Q.  I will perhaps venture into the dangerous waters of
 6       trying to summarise this, Mr Stewart, but I think the
 7       position would be that those who say that it is a
 8       similarity account for it being in different places on
 9       the mark and the print by virtue of some sort of
10       movement having taken place because, on the face of it,
11       without some form of explanation that the Rosetta
12       characteristic would constitute a difference between the
13       mark and the print.
14           Is that something you are familiar with at all?
15   A.  Not really, no.
16   Q.  It may be because this is an entirely unproductive
17       discussion I should not take any further with you,
18       Mr Stewart, and I will not do so.
19   THE CHAIRMAN:  Could we discover or can you say what area
20       was presented to you in the print?  Can you remember?
21   A.  When I made my comparison, sir?
22   THE CHAIRMAN:  Yes.  I know it's a long time ago.
23   A.  I seem to remember working in the sort of bottom half of
24       the mark, not in the top area because there seems to be
25       quite clearly a lot of movement and superimposition
page  98
 1       going on there.
 2   THE CHAIRMAN:  Yes, but the whole print was there?
 3   A.  The whole print would be there, yes.
 4   THE CHAIRMAN:  I want to get that clear.
 5   A.  Yes, the whole image would be present.
 6   MISS CARMICHAEL:  Thank you, sir.
 7           You've raised the question about whether you had
 8       been asked the green circles at the trial and I think I
 9       can perhaps assist you a little further with that,
10       Mr Stewart.  I wonder if we could look at SG0527,
11       please, and looking first, please, at page 77 of the
12       pdf.  You can take down the other images that are on the
13       screen at the moment.
14           This is a point where you are being re-examined by
15       the Advocate Depute about the defence production.  I
16       think it has been put on the screen and you can perhaps
17       take that question down.  You are being asked to remove
18       the sheets and put one of the acetates, the one with the
19       green circles, down on it.  You see there is reference
20       to green circles, 1, 2, 3 and 4.
21           So I think we can take it from that that this is a
22       matter that has been drawn to your attention in the
23       course of the trial?
24   A.  That is correct, by the looks of it.
25   Q.  Can you assist us with whether you had given any
page  99
 1       consideration before the trial at all to what the
 2       explanation for the areas that Mr Wertheim had marked in
 3       the little green circles was?
 4   A.  As I say, as far as I'm aware we had no opportunity to
 5       study or examine the production.  We weren't given a
 6       copy of it.  Therefore, I think the first time I would
 7       see that in greater detail would be during my
 8       examination-in-chief.
 9   Q.  If we can take down that question there.  The next
10       question the Advocate Depute puts to you is referring
11       back to a question that Mr Findlay, that is who he means
12       by his learned friend, that Mr Findlay had asked you on
13       the previous day that the features in the green circles
14       indicated or proved that the print wasn't Ms McKie's
15       print.  He asked you what your position was on that.
16       Your answer is:
17           "Well, I am quite happy that, as I said originally,
18       I feel across the mark, somewhere in this vicinity,
19       there has been some degree of movement in the top area
20       which is not connected to the bottom area."
21           So at least at that stage we see that you are
22       starting perhaps to provide some explanation for it.
23   A.  I think I'd already said earlier on that I considered
24       that the mark was suffering from pressure and
25       superimposition in top area.
page 100
 1   Q.  I understand that, Mr Stewart, but as an explanation for
 2       the green circle features, if I can call them that, is
 3       it your position that the first time that you had given
 4       consideration to what the explanation for those
 5       particular features was, was in the course of giving
 6       evidence in the trial itself?
 7   A.  From memory because I don't remember having the
 8       opportunity to examine the productions then, I think
 9       that was the first time I had opportunity to look at it.
10   Q.  If you are incorrect in your recollection of the meeting
11       with Mr Murphy and the extent to which you had an
12       opportunity to examine the defence production, is it
13       possible you may be wrong that you first considered an
14       explanation for these green circle features in the
15       course of the trial and it is possible that that is
16       something that you may have helped the Crown with prior
17       to the trial?
18   A.  I must admit I'd like to be able to give you a
19       definitive answer but I really can't.  I just have very
20       little recollection of it.  I have a very limited
21       recollection of that meeting.
22   Q.  I will leave that topic there then, Mr Stewart, and we
23       can leave the trial transcripts.
24           There is one perhaps rather minor matter here that
25       you might be able to help us with and it is going back
page 101
 1       again in time from the trial to 12th February 1997.
 2       What we have heard is that there was a set of
 3       photographs taken of Y7 on 12th February and brought by
 4       a police officer, a Mr Wilson, first to the
 5       Identification Bureau to have them developed and then
 6       taken across the corridor to SCRO to have them examined.
 7           What we have not been able to determine was just who
 8       was involved in that.  What Mr Wilson told us was that
 9       there were several male Fingerprint Examiners looking at
10       the photo and the prints with an eye glass and he
11       described a small gentleman with glasses and a beard.
12           I wonder if you either recognise that description of
13       someone who was in the department at that time or
14       whether, on the off-chance, that you may have had a
15       beard yourself at the time?
16   A.  It could have been me but are these the impressions that
17       were taken when they went back to the locus with
18       Ms McKie?
19   Q.  It is perhaps slightly confusing, Mr Stewart, because we
20       know that there were images taken on 12th February and a
21       further set taken later with Ms McKie in attendance
22       later on 18th February.  This is the earlier set, the
23       12th February set.
24   A.  I don't really remember the earlier set.  I would look
25       at whatever marks we had that had been submitted with
page 102
 1       the case at the time when they were offered for
 2       identification.  I can remember the second mark coming
 3       in when Ms McKie was present at the locus.  I don't
 4       remember a Scene of Crime Officer brining in other marks
 5       at any time from recollection.
 6   Q.  What seems to have happened and it may or may not assist
 7       your recollection with it, was that when it became
 8       apparent quite quickly that Ms McKie was saying she had
 9       not been there and there was quite an early instruction
10       to someone to take another picture of the mark Y7 and
11       bring it to SCRO for some form of comparison and I am
12       simply wondering if you can give us any assistance with
13       recollection as to whether or not you were involved?
14   A.  I don't remember at all.  It would be very unusual for
15       us to carry out examinations with other people present.
16       It wasn't the normal policy to have people standing over
17       your shoulder when you were carrying out examinations so
18       I wouldn't think Mr Wilson would have been present
19       anyway.  He may have handed the marks in but I would
20       think that would be his involvement finished.
21   Q.  Again, I may be able to assist you a little bit further
22       because -- I hope I represent the evidence correctly.
23       What he did was he waited about for a result, was handed
24       back the photo and print form and took it back to the
25       police officer who had instructed him to carry out the
page 103
 1       exercise, which might account for the slightly unusual
 2       circumstances.
 3   A.  I've no recollection of that at all, I'm afraid.
 4   Q.  I would like to move on to the topic of reports prepared
 5       for court, Mr Stewart.  In this case we know that it was
 6       yourself, Mr MacPherson, Ms McBride and Mr McKenna that
 7       came to write the reports?
 8   A.  That's correct.
 9   Q.  Do you know why the particular four were selected?
10   A.  The head of the bureau would allocate the witnesses to
11       the case when the Fiscal required the evidence to be
12       prepared.
13   Q.  We have heard that Mr Geddes and Mr Bruce were both
14       involved in the case also.  Is there any reason
15       particularly why they were not selected?
16   A.  You would need to ask the head of the bureau who
17       allocated to the case.  I believe there was a lot of
18       experts were involved in identifying different marks
19       within the case.  I think normal practice is you try and
20       have a quorum of people who see the majority of the
21       marks so when it comes to court case preparation you
22       don't have to start with a lot of people afresh and they
23       have to carry out new examinations.  So I think the
24       basis would be the four of us would probably have
25       identified a reasonable number or a good quantity of the
page 104
 1       marks as the case progressed so that's why it was
 2       probably giving to us but you would have to ask the head
 3       of bureau why that happened.
 4   Q.  Still on the theme of reports, Mr Stewart, I would like
 5       to ask you about, if we could bring up paragraph 238 of
 6       your statement on the left-hand side of the page,
 7       please, and it is page 49 of your statement running on
 8       to page 50.  In fact, since it runs on it may be too
 9       complicated to bring up any other image so we will just
10       look at paragraph 238 on the two pages for now.
11           I will start reading 238 there.  In giving your
12       statement you were referred to a document which was a
13       report of 27th March 1997 which was a joint report by
14       yourself and your colleagues.  It contains a paragraph
15       which is set out there so perhaps I do not need to take
16       you to the document itself.  This is a paragraph about
17       the location and orientation of the mark Y7.
18           We can take that back down to normal size.  I will
19       ask you in the first instance if you have any
20       recollection yourself as to why that paragraph was
21       included in the report?
22   A.  I think from memory the Fiscal had indicated that the
23       original defence was going to be that the impression had
24       been transferred or planted there and they wanted us to
25       look at the mark to see if we could offer any comment as
page 105
 1       to whether the way it was on would indicate anything, I
 2       think, from memory.
 3   Q.  That is what I wanted to clarify with you because in the
 4       next paragraph, paragraph 239, what you say is:
 5           "This is a non-standard paragraph.  The Procurator
 6       Fiscal would have asked for it."
 7           I really wanted to clarify whether you were saying
 8       that was something that you had a recollection of, that
 9       is the Fiscal asking for you to put the paragraph in, or
10       whether in giving your statement on this point it is
11       effectively an assumption on your part?
12   A.  We certainly put the paragraph in without being asked to
13       make some form of comment.  We would normally just
14       follow the normal pro forma for it.  So we've obviously
15       been asked by the Fiscal to do something in relation to
16       it and that's why that paragraph would be included.
17   Q.  When you say it's non-standard, what do you mean?
18   A.  It's not the sort of thing we would normally put in a
19       joint report.
20   Q.  Is that because there was at the time a particular
21       standard form of report which would not have included a
22       paragraph about location or orientation?
23   A.  The joint report was more or less a pro forma.  You just
24       filled in the blanks of the marks received, the
25       fingerprint forms received, what was identified,
page 106
 1       et cetera, and that was it.
 2   THE CHAIRMAN:  Well then, I think we will sit again at 1.50,
 3       please.
 4   (1.00 pm)
 5                      (Luncheon Adjournment)
 6   (Afternoon session)
 7   (1.50 pm)
 8                     CHARLES DOUGLAS STEWART
 9             Examined by MISS CARMICHAEL (continued)
10   MISS CARMICHAEL:  Good afternoon, Mr Stewart.
11   A.  Good afternoon.
12   Q.  I think just before lunch I had been asking if you could
13       help us with a couple of mysteries, one of which was
14       about a report that we were not quite sure how it had
15       come into being in that form.
16           I would like to ask you about another one of the
17       productions that we are not quite perhaps sure what the
18       origin of it was.  I wonder if we could put up, please,
19       DB0011.  If we scroll through to the next page and
20       following page, we will see that is listed as production
21       number 180 from the case against Ms McKie.  If we scroll
22       further forward, we can see this is an SCRO photograph
23       book but unusually for the productions that we've got in
24       this case it's signed only by yourself and
25       Mr MacPherson, rather than by others of your colleagues
page 107
 1       as well.
 2           If we can scroll on further just to show you again
 3       what it is, here we've got two photographic images of Y7
 4       and then when we turn to the next page, page 6, we see
 5       on the right part of Ms McKie's left thumbprint and on
 6       the left part of Y7 and the two of them charted to show
 7       the items in sequence and agreement that had been
 8       identified by yourself and your colleague.
 9           Would that be correct?
10   A.  That's correct.
11   Q.  We have had, I think, three possible explanations for
12       where this might have come from.  The first we heard was
13       that it was possible that it might have gone with the
14       unused report that we have just looked at, the
15       27th March one, and I think that was at one stage
16       Mr MacPherson's suggestion.
17           The second suggestion -- and I will give you all
18       three at the outset, Mr Stewart, was one that you made
19       in the course of the trial and I can bring the
20       appropriate page up for you.  It is SG0526 at page 40.
21       If we look at line 9 we see that the Advocate Depute is
22       referring to 180 which I hope you will take from me is
23       the production 180 that we have just been looking at.
24           As we go through, we see that the Advocate Depute
25       asks you if we see a similar comparison exercise in the
page 108
 1       same way we have already seen and I hope you will take
 2       it from me he previously referred you to a similar book.
 3       He asks you:
 4           "In taking part in the second examination as you
 5       have described, what was your conclusion."
 6           You say:
 7           "The conclusion was the same as the first time
 8       round, that the fingerprint was made by the left
 9       thumbprint of Shirley McKie or Cardwell."
10           Then there is a little bit of confusion between the
11       two of you, I think, as to what image you are talking
12       about, the thumbprint or the comparison print.
13           Line 3 of page 41 and that is:
14           "I am sorry [this is a question] what I mean is the
15       comparison print from the form, was that taken from the
16       form which is now in front of you?"
17           Again I hope to save time you will perhaps take it
18       from me that that was a reference to the second
19       elimination form, the one of 18th February 1997.
20           What you explained to the Advocate Depute about
21       production 180 is that you made the comparison from the
22       form that you were being shown there, which was the
23       18th February one, but you say:
24           "For the illustration purposes we used the previous
25       form."
page 109
 1           The Advocate Depute then says:
 2           "Oh I see.  So the illustration relates to the one
 3       we have already seen."
 4           You explain that the left thumb in the impression
 5       was very badly taken at the top of the form and that it
 6       was over-inked and distorted.  Then the Advocate Depute
 7       clarifies with you that, for illustration purposes, you
 8       were actually looking at the same item as you had
 9       before.  So it had come to be for some reason, and the
10       reason that you are suggesting there was that albeit
11       that you might have had available to you a further
12       elimination form, a further illustration had been
13       produced similar to an earlier one because the later
14       impression had been badly taken.  So that was the second
15       explanation that we had for the existence of this book
16       signed by the two of you only.
17           We have come up with a possible third one, and I am
18       sorry that this comes via a long question with a number
19       of different things for you to hear all at once,
20       Mr Stewart, but the third possibility was that it may
21       have been prepared by you and your colleague,
22       Mr MacPherson, for the purposes of a Mr Wilson who was
23       carrying out a disciplinary investigation against
24       Ms McKie within the Police Service.
25           Perhaps it might assist you to see CO0345.13.  If we
page 110
 1       look to the top of the page there, the first three
 2       paragraphs, those relate to yourself and to
 3       Mr MacPherson.  It indicates there that, in the first
 4       place, that Mr MacPherson had provided a book containing
 5       the fingerprint for comparison and also that you had
 6       signed the book prepared by Mr MacPherson and that
 7       certainly seemed to raise at least the possibility that
 8       the book signed by the two of you, rather than the four
 9       as seemed to be more usual in the case, may have been
10       for the police for their investigation rather than, in
11       the ordinary way, for the Crown for a prosecution.
12           With each of these possibilities in front of you --
13       and I do apologise for the length of question, if you
14       can remember what they all are -- do you have any
15       comment as to which might be the correct one, if any?
16   A.  First of all, can I ask you to go back to the
17       production, please, to show the photographs of Y7?
18   Q.  Yes of course, if we go back to DB0011 and if we run
19       back to the previous page, page 5 and if we take away
20       the image on the right-hand side and enlarge that.
21   A.  What I see there is an original version of Y7 and a
22       version that would appear to have been taken when
23       Ms McKie was taken back to the locus because I think she
24       signed the production label.
25   Q.  I think you are absolutely correct about that.
page 111
 1   A.  From that point of view, that narrows down the
 2       possibilities.  I don't think it would be a production
 3       we prepared for the normal court purposes because it
 4       would have been signed by all four of us in the usual
 5       way, therefore I think it more than likely falls into
 6       the scenario it was prepared for a discipline purpose
 7       and only two of us, maybe, would be requested to give
 8       evidence or give a statement and prepare productions so
 9       I think that the third option is probably the more
10       likely one.
11   Q.  Thank you for your assistance on that, Mr Stewart.
12           If we can take that down for the moment, please, and
13       perhaps continue on the theme of enlarged images, having
14       touched on that production.  I would like to go, please,
15       to pages 24 and 25 of your statement, if we could have
16       them both up here.
17           You are being asked about enlargements and the use
18       of a charting PC machine in this part of your statement.
19       If we look first at paragraph 105, you say:
20           "The charting PC was a dreadful machine.  It was
21       almost impossible to work with.  It had limited
22       contrast.  The charting PC produced poor quality images.
23       It could only enlarge to certain sizes, which meant that
24       the image of the mark had to be cropped.  It was
25       preferable to show the full mark."
page 112
 1           When you say the charting PC produced poor quality
 2       images, can you explain to the Chairman what you mean by
 3       that?
 4   A.  I think, basically, the imaging process within the
 5       machine did not give as sharp an image as you would get
 6       by photographic enlargements.  When you scanned in your
 7       photograph of the scene of crime mark and the
 8       fingerprint form I don't think the material that scanned
 9       it, the lenses or whatever, were anything like the same
10       quality you could get when you were using a photographic
11       enlargement.
12   Q.  What was the consequence of that?
13   A.  Usually the marks, if you had a good quality mark that
14       had good contrast, it was fine.  If you had a mark that
15       was disappearing into the background, say a black mark
16       against a grey-ish background you didn't get a lot of
17       contrast on it so it made it very hard to see and work
18       with.  I always found the images were never as sharp.
19       There was always a slight fuzziness on them.  I just
20       didn't think it was a very professional machine.
21   Q.  If I understand correctly, you would use the computer
22       not just to produce the images of the mark and the print
23       but also to plot characteristics on it?
24   A.  That's correct.
25   Q.  Were you happy with the way the machine worked in terms
page 113
 1       of letting you plot the characteristics?
 2   A.  I always found it very difficult because you lined the
 3       mouse up to put the dot over your characteristic and
 4       just in the brief second you press the mouse button to
 5       confirm that's where you wanted it, the mouse usually
 6       moved fractionally so it was very hard to line up your
 7       dot, certainly I always found, precisely where you
 8       wanted it.
 9   Q.  Did that raise any concerns for you about the accuracy
10       of the charting that you were able to produce of the
11       characteristics that you had seen in a case?
12   A.  Well, realistically the charting was always just an
13       illustration.  The evidence was what the expert was
14       giving but the charting was just an illustration of how
15       we went about it.  So, while it wasn't as accurate as a
16       photographic enlargement would be, I didn't really have
17       a problem with it from that point of view.
18   Q.  I would like to ask you just a little bit more about
19       that because I think you touch on that, if we take down
20       105, at paragraphs 109 and 110 of your statement and if
21       we could have the two of those up on the screen.
22           You say the enlargements were prepared for
23       illustrative purposes to show how a fingerprint expert
24       went about his job but you also say at paragraph 110
25       that the enlargement was illustrative to the specific
page 114
 1       case, in that each enlargement showed a specific
 2       identification with 16 points in sequence and agreement.
 3           What do you mean by that?
 4   A.  I think I'm maybe slightly contradicting myself between
 5       the two.  You produced an illustration for each case you
 6       sent to court so it would be case specific, which is
 7       probably what I'm trying to say in paragraph 110, and
 8       you marked up 16 points just to show how you went about
 9       what you did but we always referred to them as
10       illustrations because the understanding was if a defence
11       expert was looking at it his first port of call would be
12       to look at the actual size mark and the fingerprint form
13       and carry out the comparison, not to look at your
14       illustration.
15   Q.  If I can perhaps explore it this way, Mr Stewart, if one
16       was simply interested in how a Fingerprint Examiner went
17       about his or her job, I suppose one could do that with a
18       generic illustration of a fingerprint that was quite
19       unrelated to the case.
20           Would that be fair?
21   A.  That would be fair, yes.
22   Q.  Would it not then be reasonable to think that if you
23       have gone to the trouble of preparing an enlargement
24       that shows the points or at least certain of the points
25       that you and your colleagues have identified in a given
page 115
 1       case that that was actually meant to show anyone who was
 2       interested just what points you had relied on in
 3       reaching your identification?
 4   A.  Well, it was always referred to as an illustration.  It
 5       was a guide to how you went about what you did.  That's
 6       the way I was always taught about it and that's the way
 7       I always looked at it.
 8   Q.  In this particular case, thinking of the McKie case
 9       rather than the Asbury one, when you came to be going to
10       give evidence in court about Y7 did the accuracy that
11       the machine had allowed you to produce on the charting
12       cause you any concern?
13   A.  I've always had concerns with the charting PC because
14       the accuracy of it was not as good as you could obtain
15       doing it manually with photographic enlargements.
16   Q.  Again, if I can perhaps explore that a little further,
17       why would the accuracy matter at all if it wasn't a
18       matter of trying to demonstrate properly which points
19       you'd identified on the mark.
20   A.  We were always trying to be as professional as possible
21       in producing the best possible illustration we could.
22       Therefore, being as accurate as possible was something
23       we saw as being beneficial.
24   Q.  I think we touched on this earlier, that there was a
25       point, certainly by the time of your meeting with
page 116
 1       Mr Murphy, when you became aware that there was going to
 2       be a challenge to the fingerprint identification in this
 3       case, yes?
 4   A.  Yes, uh-huh.
 5   Q.  At that stage presumably you became aware that it is
 6       going to be necessary to show the court, to show the
 7       jury, just what points you had relied on in making your
 8       identification?
 9   A.  I assume so, yes.
10   Q.  At that point, were you happy that the images that your
11       colleague had marked up and that you had signed up to
12       represented your position accurately?
13   A.  Well, it was as accurately as you could with that
14       machine.  We didn't have an option to do anything else
15       because we were told not to use photographic
16       enlargements.  We were expected to use the machine to
17       produce the illustration.
18   Q.  Please understand I am not criticising you for using the
19       machine.  I think we can all quite understand that you
20       use the equipment that you are given at a particular
21       time.
22           What I am trying to get at is whether, at the point
23       when you knew there was going to be a challenge, the
24       fact that the machine did not perhaps allow you to do
25       the job that you might have wished to do had you had
page 117
 1       other sources available to you, if that was something
 2       that gave you any concern?
 3   A.  Certainly, it's easy to look back in hindsight and say
 4       we might have been better asking for an adjournment or a
 5       period of time to allow us to do further enlargements
 6       photographically, but that's easy looking back.
 7   Q.  Again, please be clear, I am not seeking to criticise
 8       you for not taking that course, Mr Stewart.  I am simply
 9       trying to find out whether at the time that was a matter
10       that caused you any concern?
11   A.  I really can't remember if it did, other than the fact I
12       wasn't happy with the charting PC anyway.
13   Q.  Was there any point during the trial that the quality of
14       the enlargement and the charting became an issue?
15   A.  I really can't remember.
16   Q.  There are some points in the transcript that I would
17       like to ask you about.  It may be that you don't
18       remember and that you may not be able to remember
19       whether it had anything to do with the enlargement or
20       not, but if I could take you, please, to SG0526 at
21       page 139.  I think perhaps in fairness I should have the
22       previous page up for you also.
23           Where it says at the top of page 186, "By the
24       Court", that I think you can take it from me is an
25       indication that you are being asked a question by the
page 118
 1       judge rather than by any of the other lawyers in the
 2       court.  That passage continues to line 5 on our
 3       page 139.  The judge says:
 4           "My concern at the moment is the quality of the
 5       print in 152, [that was production 152] the real print,
 6       if I may call it that, but that is another question and
 7       that's a matter for the ladies and gentlemen."
 8           At that point were you perhaps concerned about the
 9       quality of reproduction that was available for the
10       Court?
11   A.  From that I don't know whether he's expressing concern
12       over the actual mark, life size mark, or one of the
13       illustrations thereof.  That doesn't make it clear.
14   Q.  That is perhaps my fault.  We will take that one down if
15       it is not of assistance to you.
16           Do you recall being examined by Mr Findlay about
17       things that appeared as blobs?
18   A.  Certainly, I remember being examined by Mr Findlay.  I
19       don't remember -- I think he used the term "blobs" but I
20       really don't remember.
21   Q.  If we go to page 152 of this same document we may find
22       one of the references.  If we have the left page as
23       well.  Sorry, this is another example and, again, I must
24       apologise, this is not Mr Findlay, this is the judge
25       again.
page 119
 1           This is an instance where you are clearly discussing
 2       the charted enlargement with the red lines and the
 3       numbers because we can see from the left-hand page that
 4       we're talking about a point number 7 and when we get to
 5       our page 152 "By the Court" we see a reference that:
 6           "The top of the red line is partly through a blank
 7       space, is it not?  The top of the red line is going into
 8       the white bit between the ridge splitting."
 9           So I think here we can quite firmly put this in a
10       discussion of the charted production.  Now, where it is
11       being put to you by the Court that apparently the red
12       line is going into a white area, should we take it that
13       this might be an area where the charting was not good in
14       some way or that it was that you had, in fact, intended
15       the red line to go into a white area?
16   A.  Well, I would think it very unlikely the red line would
17       be marked into a white area, therefore I assume that
18       when it's been charted the end of the red line has moved
19       a fraction and therefore appears off the ridge.
20   Q.  So that would be an instance where, as it were, the
21       charting had let you down?
22   A.  That is correct.
23   Q.  Perhaps because of the difficulties with the mouse that
24       you had indicated earlier?
25   A.  That is more than likely so.
page 120
 1   Q.  That difficulty with the charting -- and again I am sure
 2       I will be corrected if I am wrong -- is not something
 3       you refer to at any point in your evidence in the trial
 4       of Ms McKie?
 5   A.  I think the policy was it was a machine brought into the
 6       department.  It wasn't there to be criticised in any
 7       way.  We were told just to use it and get on with it.
 8   Q.  Again, I am not suggesting that you should have done
 9       anything other than use the machine that you were given,
10       Mr Stewart, but what I am suggesting is that if there
11       was a difficulty of this sort caused by the machine that
12       seemed to be causing the trial judge some difficulty, it
13       would have been perfectly open to you to say, "Well, I'm
14       sorry, my Lord, that's just because I can't put the mark
15       where I need to.  The machine's not really very good",
16       or something along those lines?
17   A.  Well, perhaps I just lacked the presence of mind to say
18       so.
19   Q.  Very well, I think we can take that down.  If you bear
20       with me a moment, something else is being suggested to
21       me, Mr Stewart.  (Pause)
22           I may come back to this but I think I will ask a
23       different question just at this point.  Thinking on the
24       theme of the enlargements and the use of them with a
25       jury, should a juror be able to see a feature on a mark
page 121
 1       that you say is there?
 2   A.  It's very hard to say.  You can't make a juror an
 3       instant expert.  You can't make them see what's there if
 4       they can't see it.  It depends on the clarity of the
 5       mark.  If you have two very good quality marks it's
 6       quite potentially likely the juror could follow what you
 7       are doing and see the ridge ending in one and the ridge
 8       ending in another.  The second you start working with
 9       more complex marks I consider it very unlikely the jury
10       would be able to follow you clearly.
11   Q.  It might be, for example, I suppose that an examiner
12       comes along to court and says, "Well, I see a continuous
13       ridge here", and the juror looks at it and to the lay
14       eye it doesn't look to be continuous, it may appear to
15       have gaps in it or something of that sort.  It certainly
16       doesn't appear there as a solid or anything like a solid
17       line.
18           Why should the juror not accept simply the evidence
19       of his or her own eyes?
20   A.  Well, at the end of the day, it's opinion evidence.  We
21       give evidence on the basis it's up to the decision maker
22       or the jury to weigh up the evidence and make a decision
23       thereon, whether they accept it or not.
24   Q.  We have heard also that there may be instances where
25       there is some interpretation by the Fingerprint Examiner
page 122
 1       in the sense of there being, for example, a feature on a
 2       mark which may be a ridge ending or it may be that for
 3       some reason it should be properly construed as a
 4       bifurcation in one direction or another.
 5           Again, if the juror cannot see a connection between
 6       one ridge and another, why should he accept from the
 7       examiner that there are not simply two separate ridges,
 8       if the examiner contends that the ridges are joined in
 9       the form of a bifurcation?
10   A.  Again, the examiner is there to offer his or her
11       experience of comparisons to the jury to explain how
12       they go about it.  You can't make the members of the
13       jury an expert.  They will see what they see.
14   Q.  We have heard some witnesses say that they, as experts,
15       should always be able to demonstrate to another person
16       even a person unqualified in fingerprint examination, a
17       feature that they say is present on a mark.
18           Do you have any comment on that?
19   A.  From my experience, as I said earlier, all marks vary.
20       The quality of the marks vary.  As I said, if you have a
21       reasonable quality mark it is very likely you could go
22       round it and explain to the jury exactly what is there
23       and they would see it but once you start going into a
24       poorer quality mark I think it becomes harder for the
25       lay person to follow.
page 123
 1   Q.  Might it be then that there are occasions when a juror
 2       simply might not be able to see what you are telling
 3       them is there?
 4   A.  I suspect so because it can take an expert many years of
 5       training to be able to look at a mark and interpret
 6       what's there and see what's there.  So to expect a
 7       person off the street sitting in a jury for 10, 15
 8       minutes, half-an-hour to be able to do that, I would
 9       have thought is unlikely.
10   Q.  If I can take you to another part of the transcript,
11       page 157 of SG0526 and again if we look to where the
12       judge is asking you questions, Lord Johnson asked you:
13           "Just before you leave 152 to put it very crudely,
14       Mr Stewart, would you accept or not that to the
15       untrained eye, such as mine, 15 and 16 on the latent
16       print give the impression of a blob?"
17           I think this is part of your answer, sorry:
18           "It is a good term that Mr Findlay used earlier.
19       Yes, sir, I would say to someone who has no training and
20       no experience of fingerprints probably a whole lot of
21       that just looks like a black mess you would think, my
22       Lord."
23           Should we take this as an example of the sort of
24       thing that you have just been describing?
25   A.  I mean, I can go back to my early days when I was
page 124
 1       training and the first marks I looked at were just
 2       blobs, they meant nothing to me and I was amazed that
 3       people could look at them and see things in them and
 4       interpret them.  So, from that point of view, it is very
 5       hard to expect the jury to always see what you can see.
 6   Q.  Would I understand rightly that it is through perhaps
 7       other examiners explaining their view to you of what
 8       might have seemed to you initially blobs that you gained
 9       your own means of comprehending these sorts of
10       features on marks?
11   A.  The essence of learning is talking to other more
12       experienced examiners, having them disseminate their
13       experience to you.  You learn from what they tell you,
14       you learn from their experience.  Hopefully, you
15       appreciate it, you take it on board and you will
16       continue to learn as you go forward in your career.
17   MISS CARMICHAEL:  If I might have a moment, please?
18   THE CHAIRMAN:  Yes.  (Pause)
19   MISS CARMICHAEL:  I wonder if you would look for me, please,
20       still on this theme, at ST0006.  I think we have an H
21       reference for that as well.  I think we can give you an
22       original document here to have in your hand, Mr Stewart,
23       rather than asking you to strain at the screen.
24       (Handed)
25           Perhaps if we could run to the final page of that.
page 125
 1       I think the term "blob" in Ms McKie's trial perhaps was
 2       first mentioned by Mr Findlay in relation to the area
 3       that has the marker of 1 on it in the left-hand image
 4       here, the image of Y7.  I won't go back to the
 5       transcript for that at the moment but if you just
 6       perhaps take that from me at the moment.
 7           Is area 1 one of these black messes that you refer
 8       to in your answer to Lord Johnson in the passage that
 9       we've just been looking at?
10   A.  Certainly I would say for the lay person looking at that
11       it is not obviously clear but, then again, that's why
12       we've always argued we should use generics and not of
13       case-specific enlargements because it avoids problems
14       like this.
15   Q.  I suppose that answer that you have just given to the
16       Inquiry here, that I suppose is not the answer that you
17       gave at the trial in relation to these matters.  If I
18       understand your position, your position was rather more
19       that you can see the matter, not that one should not
20       bother with enlargements of this sort at all?
21   A.  As I said earlier, it is quite open for the expert with
22       experience to be able to look at the mark and interpret
23       what they see.  What I see, what another examiner sees,
24       could be two different things.  Another examiner could
25       see more or less in the mark and there's absolutely no
page 126
 1       guarantee the ladies and gentlemen of the jury will see
 2       what you see.
 3   Q.  I wonder if we could have page 147 of pdf 0526.  I think
 4       we've got 157 there.  We need 147.
 5           This is where you are being cross-examined by
 6       Mr Findlay about point number 1, the point that I just
 7       asked you about.  If we go to line 15, Mr Findlay asks
 8       you:
 9           "Now look at the latent.  What is that blob meant to
10       tell us?  Point to where number 1 is, please?  What is
11       that blob meant to tell us?"
12           Your answer is:
13           "That ridge comes down here and splits here and goes
14       down [...] there."
15           You are then asked:
16           "So what is the blob?"
17           You say:
18           "The blob is the point of bifurcation."
19           You are then asked:
20           "No, the blob is a blob.  How do you convert the
21       bifurcation into a blob?"
22           You say:
23           "That is just using your terminology.  That point
24       there is where the ridge is bifurcating."
25           If we can go on to the next page, please, you are
page 127
 1       then asked:
 2           "So, you say, but you would agree what that looks
 3       like, even with a magnifying glass all right to you
 4       trained eye but to the untrained eye is an area of
 5       darkness?"
 6           You say:
 7           "You say see it as that, sir, but I see it as a
 8       characteristic."
 9           Then the trial judge asks you:
10           "I have got to be honest, Mr Stewart, because even
11       with my magnifying class the word 'blob' is appropriate.
12       Can you just with the pointer demonstrate where the
13       bifurcation is actually taking place?"
14           You say:
15           "The ridge comes down here, my Lord, to this point
16       here and one side of the ridge continues on that side
17       and the other continues here."
18           ... which is perhaps something that doesn't
19       enlighten us terribly in the detail just reading the
20       transcript.
21           When we are talking about that area of darkness, if
22       I can be quite clear, is that something that you say was
23       a difficulty that was caused in terms of the quality of
24       the image you were able to produce for the Court?
25   A.  You mean using the charting PC?
page 128
 1   Q.  Yes.
 2   A.  I can't honestly remember from photographic enlargements
 3       whether we had the same problems with clarity or not.  I
 4       would need to look at a photographic enlargement and see
 5       whether there is the same blob appearing.
 6   Q.  It may be that we can look to that without troubling you
 7       any further, Mr Stewart.
 8           I shall leave that for the moment but I do have some
 9       more questions about enlargements.  If we go this time
10       to pages 25 and 26 of your statement.  If we start at
11       paragraph 113 at the foot of page 25 we see you are
12       telling us that you -- and I assume you mean the SCRO --
13       at that stage had been trying to persuade the Crown to
14       drop the requirement for case-specific enlargements for
15       many years.
16           Should we take it on the basis of what you have just
17       told us that that was because you felt there was a
18       difficulty with demonstrating what you saw and your own
19       interpretations of marks to juries in individual cases?
20   A.  Two reasons for that: one, as a bureau we were virtually
21       out of line with the rest of the United Kingdom, no
22       other bureau produced case specific enlargements; two,
23       from what I had seen over the years of giving evidence
24       members of the jury certainly had problems following you
25       when you were looking at the case-specific illustrations
page 129
 1       so from both points of view I'd always felt there was a
 2       benefit in not having it.
 3   Q.  Just to clarify your understanding about the practice of
 4       other bureaux, was it your understanding that they did
 5       not produce case-specific enlargements at all or was it
 6       rather than they perhaps produced them only when
 7       specifically asked to do so in individual cases?
 8   A.  I think on the whole the majority of them didn't
 9       produce.  One or two did produce on very rare occasions
10       when it was case-specific but it wasn't done as a norm
11       from what I understand.
12   Q.  Do you have, yourself, any knowledge of how they managed
13       to present the evidence in court without the assistance
14       of case-specific enlargements?
15   A.  I understand that some of the bureaux used generics of
16       the type we saw yesterday for Alec McGinnies or similar
17       to that.
18   Q.  Do you know -- and if you don't then, please, simply say
19       so -- how they went about demonstrating their
20       identifications and the points that they'd used in
21       making identifications in individual cases when they
22       went to court?
23   A.  My understanding is they didn't point out the specific
24       points relative to the case they were talking to in
25       court.  They would just use the generic to illustrate to
page 130
 1       the ladies and gentlemen of the jury how you go about
 2       making a comparison; how you reach a conclusion.
 3   Q.  You refer to this matter again at a later stage in your
 4       statement at paragraph 299 on page 61.  We should see
 5       paragraph 299 here where you talk about the Crown Office
 6       and Procurator Fiscal Service.  You again give the
 7       example of lobbying with no success for the dropping of
 8       charted enlargements.
 9           I have been asked to clarify with you whether there
10       were any other examples that you would be able to give
11       of circumstances where you tried to involve Fiscals to
12       allow them to learn more about what they required or
13       what you required but that was not taken up?
14   A.  I think historically over the years as a bureau we tried
15       to involve Fiscals in part of our training, for mock
16       trials, et cetera, to give our trainees a more real
17       experience of a court setting and to have somebody who
18       wasn't a fingerprint expert asking them questions so
19       they would get the questions worded in a different
20       manner.
21   Q.  Can you tell us when those attempts were made?
22   A.  I think that was ongoing over many, many years.  We had
23       always tried to have more involvement from the Fiscal
24       Service in training but we never seemed to be
25       successful.
page 131
 1   Q.  Was this before or after Ms McKie's case?
 2   A.  Oh, I think it had been going on for quite a few years
 3       beforehand.
 4   Q.  I would like to turn to the discussions and meetings
 5       that you had with Mr Murphy and as that arose at an
 6       earlier point I perhaps do not have very much to ask you
 7       about that just now.
 8           If I understand you correctly, your only
 9       recollection is of the meeting immediately before the
10       trial?
11   A.  I was thinking about that earlier and I think we met
12       with Mr Murphy after each day during Mr Wertheim and
13       Mr Grieve's evidence.  He was asking us for our opinion
14       of what they were saying and what they could do and I
15       just wonder it that's where Mr Murphy is getting all his
16       information from.  He's putting it all in one meeting
17       whereas I think perhaps we did have a briefing session
18       with him each day during the trial, from memory.
19   Q.  That isn't quite what I was meaning to ask you about,
20       Mr Stewart.  Sheriff Murphy has told us that he had a
21       meeting first with yourself and Mr MacPherson on
22       30th March 1999, that's some weeks before the trial
23       started.
24           Is that something you recall at all?
25   A.  I don't think so, I must admit.  No, I don't remember
page 132
 1       that.  The first meeting I really remember is
 2       immediately before the trial we were shown the
 3       production for a few seconds.  I don't remember an
 4       earlier meeting I must admit.
 5   Q.  I would like to ask you more particularly some matters,
 6       when they came to your attention and whether you told
 7       Mr Murphy, as he was then, about them.
 8           When did you first become aware that a Mr Swann had
 9       been involved in the case?
10   A.  I certainly was aware that there had been two
11       independent experts involved, only one of whose name I
12       knew and that was Malcolm Grahame.  We'd heard stories
13       that another independent expert had been used and had
14       agreed with our evidence but I didn't know his name
15       until I think it was about the first day I was giving
16       evidence.  I went back to the office that night and I
17       think somebody told me then who it was and I
18       communicated that to Mr Murphy the next day -- I think.
19   Q.  You think you told Mr Murphy, possibly on the second day
20       that you were giving evidence, that Mr Swann had been
21       involved?
22   A.  I'm sure it was reasonably near the start of the trial.
23       I really can't remember which day it was but I'm sure it
24       was near the start.
25   Q.  Because Sheriff Murphy's recollection is that that is
page 133
 1       not something certainly that he had any certainty about
 2       until after a stage when Ms McKie had given evidence,
 3       which obviously would be some time later than you had
 4       given evidence.
 5           Do you have any comment on that?
 6   A.  From memory, no, I can't really confirm any more
 7       accurately what date I thought it took place on.
 8   Q.  Where had your information come from?
 9   A.  Somebody in the office told me.  I don't know where they
10       got it from but we certainly had been looking to see if
11       this was the case that had another independent expert
12       examined the material, what their findings were and who
13       they were.
14   Q.  Would it be fair to say that the best information that
15       you would have been able to give Sheriff Murphy was that
16       somebody in the office had mentioned Mr Swann's name as
17       a person who had looked at the matter?
18   A.  I would think that would be right, yes.
19   Q.  But at that stage it perhaps would be fair to say that
20       there had not been any independent checking or
21       verification of whether that was actually correct as a
22       matter of fact?
23   A.  No.
24   Q.  I don't mean this at all pejoratively but at that stage
25       it's hearsay?
page 134
 1   A.  Yes, it would be.
 2   Q.  Going back to just before the trial, who was it that
 3       made you first aware that Mr Wertheim was involved with
 4       as a witness?  Can you recall whether that was Sheriff
 5       Murphy or some other person?
 6   A.  I think it was Sheriff Murphy the day we were called
 7       down to see the production was the first time we found
 8       out there was a challenge based on identification
 9       because up to that point the challenge we understood was
10       based on transferring or transplanting.
11   Q.  Leaving aside the precise nature of the challenge at
12       that stage, was that the first occasion that you became
13       aware of Mr Wertheim's involvement?
14   A.  Yes, it would be, I think.
15   MISS CARMICHAEL:  Thank you, Mr Stewart.  I don't have any
16       further questions for you at the moment.
17   THE CHAIRMAN:  Once again we will begin with you, Mr Smith.
18   MR SMITH:  Yes, sir, again, I do have an application to
19       make.  There are a number of matters, most of these are
20       points of fairly narrow detail.  The first is this
21       witness's understanding of the current status of the
22       mark, the various definitions that have been discussed.
23           The second point is a very particular matter
24       relating to his involvement with the tin, in particular
25       the question of the dust impression we heard something
page 135
 1       about.
 2           The third relates to QI2 and whether any pressure
 3       was being brought to bear for an identification and I
 4       will avoid, as much as I can, any questions already put
 5       in that respect.
 6           I would like to ask some further questions regarding
 7       the charting enlargement machine and, if I may, a couple
 8       of points made about the opportunity to explain that in
 9       the trial.
10           The fifth matter is relating to the position of this
11       witness regarding what information is given by one
12       examiner when a print, in particular Y7, is passed down
13       the line for further examination.
14           Six relates to, again, some further questions
15       regarding the preparation for the trial and his
16       involvement with the Advocate Depute and what he did
17       with the that information.
18           The seventh relates to questions of distortion,
19       again generally speaking, and this witness' experience
20       in training with regards to recognition of distortion
21       and I have a couple of miscellaneous points relating to,
22       in particular, the conclusion of another report and what
23       that report involved in its analysis.
24   THE CHAIRMAN:  I am not quite sure what that means, the
25       conclusion of another report.
page 136
 1   MR SMITH:  It is simply, I can make it absolutely clear just
 2       now, the Black Report that has been referred to by the
 3       witness and the question will be whether the Black
 4       Report actually had an analysis carried out of either Y7
 5       or QI2 by fingerprint experts.
 6   THE CHAIRMAN:  It was just the nature of the report I wasn't
 7       sure of.
 8           Again, I just urge you not to cover matters we have
 9       been through.
10                    Cross-examined by MR SMITH
11   Q.  Of course.
12           Mr Stewart, before I embark on the questioning
13       process, I think you gave evidence earlier today that
14       you hadn't really examined fingerprints for some years.
15   A.  That is correct.
16   Q.  Can you remind me, was it two years or three years, I've
17       forgotten?
18   A.  Just over two and a half.
19   Q.  Did you take part at all in the phase 1 and phase 2
20       exercise which the Inquiry invited individuals to take
21       part in?
22   A.  I tried to take part in the phase 2.  I looked at a
23       couple of the enlargements but it brought back all the
24       stress and trauma of looking at fingerprints so I gave
25       up.
page 137
 1   Q.  As far as phase 1 is concerned, which I think was trying
 2       to identify what points had actually been marked, I may
 3       have that wrong, but did you take part in the phase 1
 4       exercise?
 5   A.  Yes, I did phase 1.
 6   Q.  I take it from these answers you are less than
 7       comfortable about actually expressing particular views
 8       in the way that Mr MacPherson was asked to yesterday and
 9       the day before.
10           Would I be right in that assumption?
11   A.  Well, I just find it -- I found the last few years of my
12       employment very stressful and traumatic and I don't
13       intend to go through that, again, sir.
14   Q.  I am really interested and I am we can all understand if
15       the answer to this is, "No, I don't feel comfortable
16       looking at it", your position, I take it, is that from
17       an experience and a retraining point of view you are
18       less than comfortable about engaging in that, is that as
19       much as the stress of it?
20   A.  Basically, the two factors, the stress, but also I feel
21       I haven't worked as an expert for long enough.  I
22       haven't been competency tested.  I haven't been peer
23       reviewed, so as to how accurate my considerations and
24       deliberations would be I don't know.
25   Q.  I take it from that answer then, as far as the
page 138
 1       presentation by Mr Zeelenberg is concerned, did you see
 2       and hear him giving his evidence?
 3   A.  No, I did not.
 4   Q.  As far as any other presentations are concerned
 5       regarding the question of identification or
 6       mis-identification that has been before this Inquiry, is
 7       your position that you are neutral about it?
 8   A.  Well, I haven't seen any of the other presentations so I
 9       wouldn't know.
10   Q.  You haven't even looked at Mr Zeelenberg's presentation
11       on the database?
12   A.  No, I haven't.
13   Q.  Let me deal if I can with some further questions
14       regarding the preparation and build-up to the criminal
15       trial of Shirley McKie.  Obviously, the question of
16       challenge to the fingerprint was a first for you, was
17       it?  Challenge to identification in the court process,
18       was it a first for you?
19   A.  The challenge to identification, yes.
20   Q.  As far as you were aware, was it a first for SCRO?
21   A.  I would think so, yes.
22   Q.  Were you aware of, in fact, any other challenges in the
23       United Kingdom taking place at that time?  Forget about
24       subsequent, but at that time any other challenge that
25       had been presented of an expert witness for the
page 139
 1       prosecution of their identification of a fingerprint
 2       mark?
 3   A.  I don't think so, sir.
 4   Q.  This was a unique thing when you became aware that there
 5       was going to be a challenge to the identification,
 6       wasn't it?
 7   A.  Yes, it would be.
 8   Q.  By the time you got to the meeting with Sean Murphy, the
 9       pre-trial meeting, you would very quickly be aware that
10       there was challenge to the identification that you had
11       carried out for the purposes of Shirley McKie's trial?
12   A.  Yes, sir, I would.
13   Q.  Indeed, if we can perhaps have DB0172H and 1008 as well,
14       please.  This is the acetate prepared by Mr Wertheim.
15       As we were flicking through these I think we can see
16       that the acetates were being built-up in layers.
17           Do you recall the physical appearance of the
18       original document?
19   A.  It was similar to that.  It was a couple of images with
20       acetates coming from different directions with coloured
21       lines and markings on it but whether it was that
22       document or not I couldn't honestly say.
23   Q.  I wonder, just for the sake of fairness to you, if we
24       can have the defence production number 2 which I think
25       is on the table hopefully just passed to you and may,
page 140
 1       therefore, perhaps refresh your memory.  (Handed)
 2           If you take it from me, first of all, that the
 3       document on the scene is an image taken from that
 4       document that you have in front of you.
 5           Do you recognise the folder in front of you now?
 6       Does it jog your memory at all?
 7   A.  When I was shown it this morning, sir, it didn't jog my
 8       memory.  It's similar, whether it's the exact same one
 9       or a different one I really couldn't say.
10   Q.  I think what we can see from the notation in this
11       document that we can see on the screen, to the left-hand
12       side we see the handwritten legend "Traced ridges and
13       points as they exist in the crime scene mark".  It is
14       pretty clear what that is doing, especially since it
15       looks to be in black pen and there's black pen used to
16       trace apparent ridges.  You understand very clearly what
17       the creator of this document is trying to represent.  It
18       is obvious, isn't it?
19   A.  If his interpretation's accurate, yes.
20   Q.  Let us leave aside the question whether his
21       interpretation is accurate.  What is clear is what this
22       document is saying, the creator is trying to represent,
23       "Traced ridges and points as they exist in the crime
24       scene mark", and then we can see, even without that
25       legend, we can see that someone has attempted to draw in
page 141
 1       lines on top of an image, which is Y7.  You understood
 2       that to be what was taking place?
 3   A.  Yes, sir.
 4   Q.  Equally, we see at the top of the page we see, first of
 5       all, in black writing:
 6           "Target group."
 7           Then we get to green writing:
 8           "Points in crime scene mark which clearly do not
 9       exist in left thumb of Shirley McKie."
10           Again, we are looking from our computer generated
11       image but there are certainly towards the top, working
12       in an arc down towards the right, I can certainly see
13       possibly four green circles.
14           Again, I am going to suggest to you that it is very
15       clear what the creator of this document is suggesting,
16       that there are points of difference which are marked in
17       green and the legend gives a very clear direction as to
18       what was being suggested.
19           Would you agree with that?
20   A.  Well, looking at it now with the amount of time I've
21       seen it, it's quite easy to see this but the first time
22       I've saw it and the only time I've seen it previously,
23       if indeed this is the same document, we were given it
24       for seconds.  We didn't have time to study it or examine
25       it, sir.
page 142
 1   Q.  I am trying to imagine the position of the Advocate
 2       Depute, Sean Murphy QC.  He has invited you and one of
 3       your colleagues down to speak to him about a trial that
 4       is coming and he shows you a defence production.  You
 5       say you saw it for seconds.
 6           Did you touch it?
 7   A.  I think it was handed to us.  We looked at it.  We
 8       lifted the acetates.  We asked for time to examine it.
 9       He said, no, he had to return it to the defence and that
10       was it.
11   Q.  Are you quite sure about that, Mr Stewart --
12   A.  From my recollection, to the best of my abilities after
13       all these years, yes.
14   Q.  You are saying you asked to examine it and he said,
15       effectively, "No, you can't"?
16   A.  He said he had to return it to the defence.
17   Q.  You will appreciate that there are a number of
18       possibilities here.  Either you are mistaken or he is
19       mistaken or he is lying or you are lying.
20           You understand there is that range of possibilities?
21   A.  I appreciate that, yes, sir.
22   Q.  No doubt as an experienced, very experienced, prosecutor
23       he was anxious to be given the ammunition with which to
24       cross-examine defence experts, he would want to know
25       what guidance you could give him.  That is obvious,
page 143
 1       isn't it?
 2   A.  Well, we could only give him guidance if we were given
 3       the materials to examine and study.
 4   Q.  You see, of course, his position is that the purpose of
 5       you coming down was to give him guidance as to what this
 6       was about and how he could actually cross-examine the
 7       defence experts.  You understand that's his evidence?
 8   A.  If you say so, sir.
 9   Q.  Well, it is not what I say.  It is what he said in the
10       course of his evidence before this Inquiry.
11           Were you aware of that?
12   A.  No, I haven't read Sheriff Murphy's evidence.
13   Q.  When was the first time, Mr Stewart, you were aware that
14       Sheriff Murphy was suggesting that this was a fairly
15       lengthy meeting with you for the purposes of discussing
16       what evidence was going to be led?  When did you first
17       know what Sheriff Murphy's position was?
18   A.  I really couldn't say so.  I don't know.
19   Q.  Was it today?
20   A.  No, I don't think it was today.
21   Q.  It is a matter of extreme importance because, on one
22       view, what has been called into question is Sheriff
23       Murphy's integrity.  You will appreciate that.
24           Can you please apply your mind to it and tell us
25       when you first became aware, as accurately as you can,
page 144
 1       of Sheriff Murphy saying that he had a lengthy meeting
 2       with you and Mr MacPherson?
 3   A.  I'm sorry, sir, from memory, I can't honestly remember.
 4       I think it was in reasonably recent times that somebody
 5       pointed me in the direction that Sheriff Murphy's
 6       version of events was different to mine, but as to when,
 7       I don't know.  It may have been one of my ex-colleagues
 8       when I was talking to them.  I couldn't honestly tell
 9       you, sir.
10   Q.  Was it prior to this Inquiry starting, Mr Stewart?
11   A.  I don't think it could be prior to the Inquiry starting
12       because Sheriff Murphy's statement wouldn't be available
13       then, would it, sir?
14   Q.  I am asking you a question.  Was it prior to the Inquiry
15       starting?
16   A.  I don't honestly know, sir.
17   Q.  I am not asking about the content of discussion with
18       your lawyers who are representing you, but are you
19       saying that, even with the opportunity of discussing
20       with your lawyers, you were unaware that there is such
21       major factual dispute between you on one hand and
22       Sheriff Murphy on the other?  Is that what you are
23       asking us to accept, you were --
24   A.  I don't honestly remember having a discussion with my
25       lawyers about the discrepancy or variation or difference
page 145
 1       or whatever you want to call it, sir.
 2   Q.  Let us take your version of events then and just see how
 3       it follows through.  You say that it was taken away from
 4       you by Sheriff Murphy who said, apparently, it, a
 5       production lodged with the court as we understand it, it
 6       had to be for some reason returned to the defence.  That
 7       is your recollection, is it?
 8   A.  I understood when we were shown it, he had arranged to
 9       borrow it from the defence.  It was, at that time, not
10       lodged in the court as a production.
11   Q.  Did you not say to him at that time, "Hold on, Advocate
12       Depute, if you want me to give you some guidance on this
13       I'd like to hang on to it.  I'd like to examine it.  I'd
14       like to give you some guidance about it.  I need to take
15       it away"?  Did it never cross your mind to say something
16       like that?
17   A.  I think I said earlier, sir, we asked for time to
18       examine and compare the material.
19   Q.  And he said no?
20   A.  He said at that stage he had to return it to the
21       defence.  We assumed it would be available again at some
22       point for our consideration.
23   Q.  So I take it you followed it up, did you, and say,
24       "Advocate Depute we expected to get this back before you
25       expect me to go into court and be cross-examined"?  Did
page 146
 1       you follow it up?
 2   A.  I can't honestly say whether we had any further
 3       discussions with Mr Murphy about it.  I assume we would
 4       have asked but whether we did or not I'm afraid I can't
 5       remember.
 6   Q.  Mr Stewart, when you left that meeting, whatever the
 7       content was, you were clearly aware there was going to
 8       be a direct head-to-head challenge by American experts
 9       against SCRO, you knew that.
10   A.  Yes, I did.
11   Q.  I take it, armed with that information, a unique
12       experience in SCRO, far less with you, armed with that
13       information you would be most anxious to, first of all,
14       consider how you were going to deal with this direct
15       challenge, were you not?
16   A.  Well, I think our first concern is it's the Crown that
17       deals with these things, how witnesses react to how or
18       what the Crown wants, we were looking for guidance from
19       the Crown as to what we were expected to do.
20   Q.  Did you ask for it from the Crown?
21   A.  From memory, I believe when we saw Mr Murphy that day we
22       asked could we have it at some point to compare and
23       consider.
24   Q.  Did you ask for guidance from the Crown as to how you
25       were supposed to handle your position in the witness
page 147
 1       box?
 2   A.  I assumed, logically, I wouldn't have to ask for
 3       guidance.  I assumed the Crown would instruct us as they
 4       normally do.
 5   Q.  Are you telling me the Crown instructs as to how to
 6       answer questions?  Is that what you're saying?
 7   A.  No, they don't give you instructions how to answer
 8       questions but the Crown would normally say, "We're going
 9       to explore this area or that area.  Can you give me some
10       idea of questions we should ask, the potentials, the
11       pitfalls, the strengths and the weaknesses of any
12       arguments therein".
13   Q.  Mr Stewart, for the first time in your career you were
14       going to be in a witness box where there was going to be
15       evidence directly challenging your opinion.  You knew
16       it.  Are you telling us you were quite content to go
17       back to the office and wait and see what happened?  Is
18       that your evidence?
19   A.  That is essentially the way we worked.  I mean, I went
20       back to the office.  I told my line manager's -- well,
21       neither of them were there.  I told the deputy, well,
22       the superintendent who was in charge of the Bureau that
23       there was this challenge to fingerprints.  I was
24       expecting guidance from him.  Didn't have any.
25   Q.  Your line manager was whom?
page 148
 1   A.  My line manager would be the Quality Assurance Officer.
 2       After that it would be the Head of Bureau.  As neither
 3       of them were there, for whatever reason, holidays or
 4       courses, I then went to the superintendent who was the
 5       next person up the tree.
 6   Q.  I am sorry, you will have to remind me, the name of the
 7       line manager?
 8   A.  Alan Dunbar would be my first port of call.
 9   Q.  You did speak to him, did you?
10   A.  No, he wasn't present.
11   Q.  Was he absent between the point that you spoke to
12       Sheriff Murphy and the point that -- I am sorry the
13       Advocate Depute, Mr Murphy as he then was, and the
14       trial?  Mr Dunbar was absent during that entire period,
15       was he?
16   A.  I believe so.  I think he was on annual leave.
17   Q.  Who was substituting for him during his annual leave?
18   A.  Well, I would report to the personal above him, who was
19       the deputy head of bureau, who was Mr Mackenzie.
20   Q.  You did this all simply verbally, you didn't consider
21       you should report it in writing, there was going to be a
22       challenge and you were awaiting guidance from the Crown
23       as to how to deal with it?
24   A.  I don't see why I would do it in writing.  The quickest
25       way is to go and contact somebody and say flag up here
page 149
 1       as an issue.  Why would I do it in writing?  It's
 2       quicker to knock on the door and say, "I want to make
 3       you aware of this".
 4   Q.  The reason you would do it in writing, since you ask the
 5       question, is because of the importance of the matter.
 6       Was it not an important matter?
 7   A.  I thought I was treating it in the correct manner by
 8       giving it the due deference to its importance by going
 9       straight to the person concerned and knocking on their
10       door and talking to them.
11   Q.  Very well.  What was Mr Mackenzie's response?
12   A.  Mr Mackenzie, as I said, wasn't present.  I believe he
13       was away at a conference for a few days, which is why I
14       went to the superintendent.
15   Q.  Who was?
16   A.  Brian Gorman.
17   Q.  You told Mr Gorman about the potential?  He was there,
18       was he?
19   A.  I told him what I'd found out from our short meeting
20       with Sheriff Murphy.  I updated him and left it with him
21       to hopefully come back to me and give me some guidance
22       on the matter.
23   Q.  Did he do?
24   A.  No.
25   Q.  Did you go back to him and ask what guidance you were
page 150
 1       going to get and when?
 2   A.  Well, I was in court the next day.  At the end of the
 3       day I came back to the office, talked to him about it.
 4       It seemed to be it was a unique situation, nobody knew
 5       how to handle it and that was it.  We were left on our
 6       own, effectively.
 7   Q.  You were just left, really, to your own devices at that
 8       stage, were you?
 9   A.  More or less, yes.
10   Q.  Did you never think of contacting the Advocate Depute
11       again and saying, at that stage, "I've tried to get help
12       from my superiors.  I'm not getting help or guidance.  I
13       don't know what I should be doing here but this is
14       unique, Advocate Depute"?  Did you never think of
15       raising it with someone?
16   A.  Not really, sir, no.
17   Q.  Did you think there was any possibility that the
18       challenge against you and your colleagues would be
19       successful?
20   A.  Any debate over a fingerprint mark you don't know how it
21       can go.  One person says black; one person says white.
22       It could be successful, it may not have been successful.
23       You don't know.  We don't know if it even -- the result
24       of the case was based on the fingerprint evidence.  We
25       understand there may have been other matters involved.
page 151
 1   MR SMITH:  Sir, I see the time.
 2   THE CHAIRMAN:  I did not want to interrupt you earlier.
 3           Just on this topic so that I can understand it, to
 4       have a proper opportunity to examine this production,
 5       you would have had to take it away back to your
 6       laboratory and look at it.  It wasn't a question of you
 7       being able to look at it in any depth in the courtroom
 8       where you were meeting?
 9   A.  Oh, no, even if Mr Murphy had said, "You've got 5
10       minutes", we wouldn't have been able to do it justice.
11       You would have to take it away, fully understand it,
12       look at what Mr Wertheim's interpretations were to see
13       whether you agreed with him or disagreed with him, try
14       and learn where he's coming from, then you'd talk it
15       over with the Advocate Depute, give him advice,
16       information, whatever he's looking for.  It wouldn't be
17       a 5-minute job.  It would take a period of time.
18   THE CHAIRMAN:  That's what I was thinking, in an ideal world
19       you would get an opportunity to take it away and examine
20       it.
21   A.  We didn't, unfortunately.  It would have been nice if we
22       had.
23   THE CHAIRMAN:  No, but that's what you would have wanted to
24       do.
25   A.  Yes, sir.
page 152
 1   THE CHAIRMAN:  Have a proper examination.
 2   A.  Yes, sir.
 3   THE CHAIRMAN:  What I suggest is that we sit again at 3.10
 4       and we might continue until 4.15 today in the hope that
 5       we can perhaps allow Mr Stewart to complete his
 6       evidence.
 7   (3.00 pm)
 8                         (A short break)
 9   (3.10 pm)
10   MR SMITH:  If I can perhaps move on, Mr Stewart, to
11       something else now.  I'd like to ask you about the
12       question of disclosure.  I think you acknowledged
13       earlier today that you recognise that if there was a
14       16-point standard within the office and there were
15       certain individuals within the office who could not
16       reach 16 points, then that is something you recognise
17       that the defence in a case would wish to know.
18           Did I note you correctly when you said that earlier?
19   A.  I'm sorry, sir, are you talking about in more recent
20       times or are you talking about in the times of ...?
21   Q.  Let us deal with the point in time when Y7 was being
22       examined carefully, which I think was in about 1997, if
23       I remember, '98, about that time.
24           You were aware that a 16-point standard was the
25       court requirement, were you not?
page 153
 1   A.  That is correct.
 2   Q.  You were aware, I think you acknowledged that you knew
 3       within the office there were some individuals who were
 4       unable to reach 16 points in examining Y7?
 5   A.  At that time I was not aware of it.  I only became aware
 6       of Mr Geddes's position at some point later on.
 7   Q.  After the trial?
 8   A.  I couldn't honestly say.  I think it was probably at the
 9       time we were preparing the productions for the trial
10       against David Asbury, but I really couldn't say.
11   Q.  Nonetheless, prior to the trial of Shirley McKie you
12       were aware that someone in the office was unable to
13       achieve the 16-point standard?
14   A.  Yes, sir.
15   Q.  Accordingly, even at that time, you would be aware that
16       any defence counsel worth his or her salt would use that
17       as a cross-examination tool?
18   A.  With the greatest of respect, sir, it's not up to me to
19       decide what a defence counsel would do.  I can only
20       supply to the Crown information that they indicate they
21       want and at that stage they hadn't indicated to us that
22       was information they expected from us on a regular
23       basis.
24   Q.  We will move on to the blame game in a minute.  I am
25       just asking you the question just now.  You would
page 154
 1       recognise that any defence counsel would be able to say
 2       to you was there anyone in your office who failed to
 3       achieve the required legal standard, to which you would
 4       say yes.  That would be important, wouldn't it,
 5       cross-examination material?
 6   A.  It could be.
 7   Q.  It would be, wouldn't it?  Anyone would know that.
 8   A.  I'm not a defence counsel, sir.  I wouldn't know.
 9   Q.  Did you ever receive training about how to give evidence
10       in court?
11   A.  Yes, we did.
12   Q.  Did anyone ever tell you that defence counsel might like
13       to ask questions that may damage the prosecution?
14   A.  I think that was the name of the game, sir.
15   Q.  Accordingly, if someone in your office was unable to
16       achieve the required legal standard that would be
17       something that could damage the prosecution, wouldn't
18       it?
19   A.  In this case, as far as we're concerned, was the person
20       had identified the mark, therefore, there's not an
21       issue.
22   Q.  Mr Stewart, can you, please, attend to the question.
23       You would realise that that would be a useful piece of
24       cross-examination weaponry to say that there was someone
25       who was unable in your office to achieve the required
page 155
 1       legal standard?
 2   A.  It may be.
 3   Q.  It is inevitable, Mr Stewart, isn't it?
 4   A.  I can't say it's inevitable because I don't see things
 5       from defence counsel's point of view, sir.
 6   Q.  As an independent expert -- independent -- who do you
 7       owe a duty to?
 8   A.  My employers.
 9   Q.  Your employers were who?
10   A.  Strathclyde Police or the Scottish Criminal Record
11       Office.
12   Q.  So accordingly you didn't owe any duty to the defence;
13       is that your position before this Inquiry?
14   A.  Information that the defence normally would get would be
15       disseminated from the Crown.  We had a facility that the
16       Crown instructed us, they told us what they wanted and
17       that's what they got.
18   Q.  Mr Stewart, at that time did you consider you had any
19       duty whatsoever to the defence?
20   A.  I don't think it would have crossed my mind, sir, to be
21       honest.
22   Q.  What about to the Court?  Did you have any duty to the
23       Court?
24   A.  Well, our duty to the Court was to present the evidence
25       as best we could, as honestly as we could, in the best
page 156
 1       manner that the Court may follow our evidence and
 2       understand it.
 3   Q.  And independently?
 4   A.  Well, as independent as you can be if you are employed
 5       by the Police Service, I suppose.
 6   Q.  Let us cut to the chase on this, Mr Stewart.  Did you
 7       consider that you were there to provide as much
 8       assistance as you could to the police and Crown and you
 9       did not owe any obligation of fairness to the defence/is
10       that your position?
11   A.  Well, I would assume the Crown would take care of the
12       fairness to the defence, sir.
13   Q.  So I take it then if there was someone in your office
14       who actually directly said, "No, this is not a match",
15       it goes to someone else who says, "Yes, it is", you
16       would be quite happy to have concealed that from the
17       Crown, would you?
18   A.  If somebody said no, it wasn't a match and somebody else
19       said it was identified, it would be flagged up to our
20       management and they then would have to deal with it and
21       resolve it.  It wouldn't be an issue I would have to
22       deal with.
23   Q.  Let us suppose you say yes, someone else says no, it
24       goes to management, it comes back with a "yes, we go
25       ahead with this".  You are in the witness box in a trial
page 157
 1       and you are asked by defence counsel, "Are you sure
 2       about this?  Is this one beyond any doubt?", you would
 3       be quite happy to conceal the fact that there was a
 4       contradictor within the offices of SCRO, would you?
 5   A.  Well, if the defence asked me if anybody in the
 6       department had a different opinion I would say so but if
 7       I was asked was I quite happy beyond all reasonable
 8       doubt, I would say yes.
 9   Q.  If someone asked you an open question trying to find out
10       how certain in fact that SCRO were about this, this is a
11       production by SCRO, and you tell me there's no doubt
12       about this, would you have been happy to give the
13       answer, "Yes, sir, I'm telling you that is the
14       position"?
15   A.  All I can give is my position as an expert based on my
16       interpretation of the evidence.  I don't say what the
17       organisation's view is.
18   Q.  Equally, you don't say if it's someone else who has an
19       expression of positive doubt about it, you would be
20       quite content -- unless you are asked a direct question
21       about that, you would be quite happy to keep that to
22       yourself.  Is that your position?
23   A.  I think that's why procedures have changed over the
24       years now and we're going for full disclosure in the
25       submission of reports.
page 158
 1   Q.  All I'm suggesting to you, Mr Stewart, is it was
 2       abundantly clear, even in the late 1990s, that something
 3       like this, something about a failure to achieve a
 4       standard by someone else in the office, obviously should
 5       be disclosed to the Crown.  Do you disagree with me?
 6   A.  No, I suppose in principle yes.
 7   Q.  So why wasn't it?
 8   THE CHAIRMAN:  I think the first question is who do you
 9       think would have been responsible for disclosing it?
10       Would it be you or your line manager or whoever?
11   A.  I would have thought it would have been our line
12       manager, sir.  Even the head of the organisation would
13       have to disclose that to the Crown.
14   THE CHAIRMAN:  But not you as an individual?
15   A.  It wouldn't be my function as an individual.
16   MR SMITH:  Let us assume for a moment something slightly
17       different, that you were the person who failed to
18       achieve the 16 points.  Would you have ensured that
19       that went as far as your line manager?
20   A.  If I was the only person didn't achieve 16?
21   Q.  Yes.
22   A.  And others had?
23   Q.  Yes.
24   A.  My line manager would deal with that in the appropriate
25       manner, as however they saw fit.
page 159
 1   Q.  They would definitely know about it, would they?
 2   A.  Well, part of the verification process is somebody
 3       somewhere will know about it.  Someone is in control of
 4       the whole process.
 5   Q.  Let me ask you about something in particular: the tin
 6       that we have heard some evidence about.  I would like to
 7       ask you what your first involvement was or your first
 8       knowledge of the importance of the tin that QI2 was
 9       found on?
10   A.  I think my first knowledge of that would be the item we
11       had up on the screen earlier -- I can't remember what
12       one it was -- that I had taken a note when I was on
13       working a weekend and left a note for Mr MacPherson.
14   Q.  Let us look at a document, please, DB0256.  Can I ask
15       you about this.  Is that your writing?
16   A.  It is.
17   Q.  Just reading it out:
18           "Gift tag bought 18/11/96."
19           It goes on to say:
20           "They are hopeful about the tin the money was in.
21       There is an area the same size as the tin on her bedside
22       table, clearly seen with dust round it.  Tin recovered
23       at accused's."
24           This note, as you have indicated, was written by
25       yourself but what was the purpose of this note?  Where
page 160
 1       was that, as far as you can recall it, sent to?
 2   A.  Basically, I would have received information from
 3       whichever officer from division came up to the office.
 4       Mr MacPherson wouldn't be present; therefore, if I was
 5       the senior man available, I would talk to them.  I would
 6       take a note of the information and I would leave it in
 7       the case papers for Mr MacPherson to catch up with next
 8       time he was on duty.
 9   Q.  Did you yourself ever actually visit the locus and see
10       this dust mark?
11   A.  No, I did not.
12   Q.  I don't think we necessarily need to bring it up but I
13       can read through it slowly, but Mr Les Brown suggests
14       that he had spoken to you about the dust evidence, if I
15       put it that way.  Do you have any recollection of
16       Mr Brown having discussed this piece of evidence with
17       you?
18   A.  Offhand, no.  I remember officers of the Identification
19       Bureau talking about it but I don't remember Mr Brown
20       talking about it.
21   Q.  Just so that those of us can track this back, can we
22       have in front of us Mr Brown's statement to the Inquiry
23       at paragraph number 55.  I will read it slowly in order
24       that you can perhaps absorb:
25           "Evidence was led at the trial that one of Marion
page 161
 1       Ross's rooms was covered in dust.  My information is
 2       that on the dust-covered shelf there was a dust-free
 3       shape identical to the shape of the tin found at
 4       Asbury's room and in which police found £1,700 in notes
 5       and a fingerprint identified as that of the murdered
 6       woman.  This evidence is crucial and I spent some time
 7       attempting to identify the source of this information."
 8           He says:
 9           "What I discovered is that Charles Stewart,
10       Principal Fingerprint Officer, who attended the scene at
11       the material time, has the answer."
12           You didn't attend the scene?
13   A.  I certainly was not present at that locus at any time,
14       no.
15   Q.  To the extent that Mr Brown's seems to have derived some
16       information that you "have the answer", as he puts it,
17       you have no recollection of any discussion with Mr Brown
18       about that, I take it?
19   A.  I'm not aware of that and I think some of that
20       information isn't as accurate as information I was aware
21       of so ...
22   Q.  Just to be clear about it, do you even have any
23       information to assist the Inquiry on the question of
24       dust and the tin and where it was found?  Are you able
25       to assist with that at all?
page 162
 1   A.  I think one of the IB witnesses at one stage said it was
 2       on a bedside table and that was it because we didn't
 3       understand where the tin really fitted into the Inquiry
 4       until I took this message.
 5   Q.  I would like to ask you about the relationship between
 6       SCRO and Strathclyde Police.  Would you describe it in
 7       context.  Let us deal with this particular murder
 8       inquiry.  Would you describe it as a close working
 9       relationship?
10   A.  Do you mean Strathclyde Police in general or are you
11       talking about the Scenes of Crime Branch, sir?
12   Q.  I'm actually talking about the police officers involved
13       in the investigation, in particular Mr Heath and
14       Mr McAllister.
15   A.  Really, in terms of discussions about this inquiry,
16       Mr MacPherson was our point of contact.  He would be
17       doing the liaison with Mr Heath and Mr McAllister.  I
18       would only have been involved on the other occasion if
19       Mr MacPherson wasn't in the office and I was the senior
20       person present and I would act in his capacity.
21   Q.  I think in your Inquiry statement you indicate that
22       contact or dialogue with the SIO (Senior Investigating
23       Officer) was critical and I think the phrase you use is
24       "often that dialogue would be daily."
25           Is that something that you consider is accurate?
page 163
 1   A.  It was virtually case-specific, sir.  There were some
 2       cases the dynamics of the case changed daily so you
 3       needed a very regular contact so that we could change
 4       our comparison work to suit the requirements of the
 5       investigating officer.  What the contact was in this
 6       case you would need to ask Mr MacPherson because, as I
 7       say, I wasn't the point of contact.
 8   Q.  I am simply interested even as a general point and I may
 9       say it is not a criticism.  I must say, I would be
10       rather surprised if there wasn't regular contact.  But
11       could it be, according to your impression, more or less
12       on a daily basis updates are required, discussing the
13       progress of the case?  Is that an accurate impression to
14       take from it?
15   A.  To be honest, sir, sometimes it could be contact several
16       times a day.  You don't know.  Every case is unique.
17       Certainly you would have to have contact to make sure
18       you were doing the right things, that you would be
19       contacting them to disseminate information back the way
20       of people that had been identified, you would have asked
21       questions over a period of time.  So regular contact, I
22       would have thought, would be more likely.
23   Q.  Can I ask you to look at another document.  It is the
24       case envelope which I think we have seen something of
25       already, DB0253.  Can we flick through the pages.  I am
page 164
 1       not sure precisely what page we have got.  I am looking
 2       for a note that begins "DI McAllister."
 3           Can you try another document, DO0258.  Can you go
 4       back one page.  Again, is this your writing?
 5   A.  It is, sir.
 6   Q.  It indicates, just not necessarily reading every word,
 7       but:
 8           "DI McAllister was in on Saturday.  He did not know
 9       about other mark eliminated.  He is setting elims for
10       the two plumbers who installed the shower, et cetera.
11       Told him marks, if any, from ..."
12           And can you help me with that word?
13   A.  "From money not with us yet."
14   Q.  Thank you.  "Not with us yet."  I think it's "CS", the
15       initials, and then we see:
16           "Sunday.  Steve Heath brought in accused's ten-print
17       [I assume, something] and elims."
18           We heard some evidence -- and I'm sure you won't
19       know this if you haven't listened to much of the
20       evidence -- Stevie Heath, the reference there.  Was
21       Stevie Heath someone known to you?
22   A.  Well, I'd worked on other inquiries occasionally with
23       Stevie Heath as the SIO, yes.
24   Q.  Is that how he was known?  Was it Stevie Heath?
25   A.  Yes.
page 165
 1   Q.  As far as Mr Heath is concerned, did you have any
 2       informal contact with him outwith the context of
 3       investigations; for example, a social contact?  Is that
 4       something that ever happened?
 5   A.  I don't think so, sir.  No, I wouldn't have thought so.
 6   Q.  What was your understanding of how important the mark
 7       which became known as QI2 was to the investigation?
 8   A.  Certainly from the fact that I'd taken a note I would
 9       have known that these marks were of interest to the
10       investigating team.
11   Q.  Did you become aware that it was going to be critical to
12       the case against David Asbury?
13   A.  A lot of the time you're not aware how critical the
14       marks are.  You can identify X number of marks and the
15       one we think's important by the time it goes to trial,
16       the Crown is actually much more interested in something
17       else.  As to assessing which one is more critical or
18       not, it's sometimes very hard for us to say.
19   Q.  I am interested in the -- and, again, I am not sure
20       anyone can really criticise this itself -- the close
21       professional relationship through other cases with
22       Mr Heath, it would not be unnatural, I would suggest to
23       you, where he would say QI2's really important in the
24       case against David Asbury.  Was that something that was
25       discussed informally?
page 166
 1   A.  I don't think there was ever discussions like that and
 2       SIOs normally wouldn't discuss it like that.  They would
 3       be giving you guidance saying, "We're particularly
 4       interested in marks A, B, C, D against this person, then
 5       marks such and such, such and such, such and such
 6       against a different person".  I doubt if very often
 7       anybody said the marks would be of critical importance
 8       or dire importance.  Sometimes it was obvious if there's
 9       a print in blood but, apart from that, half the time we
10       weren't aware of what we were comparing.
11   Q.  Can I ask you a little bit more, just briefly I hope,
12       about the question of the charting enlargement machine
13       and the position that Y7 had in the course of the trial.
14           As I understand your evidence earlier today, you
15       gave an indication that the apparent differences in
16       Mr Wertheim's acetate demonstration showed bifurcations
17       going in the opposite direction to anything that could
18       be seen on Shirley McKie's inked mark.  As I understand
19       it, your position today was that the area of these
20       bifurcations would be off any inked print you actually
21       had?
22   A.  I think at the time we didn't have an inked impression
23       that disclosed the relevant areas for comparison against
24       those characteristics.
25   Q.  But you did have available to you in her ten-print form
page 167
 1       a rolled impression of the relevant thumb, didn't you --
 2       her left thumb?
 3   A.  Yes, we would have.
 4   Q.  I take it that a rolled impression taken is bound to
 5       include almost all of the ridge detail on a digit, is it
 6       not?
 7   A.  Regrettably, officers have ability to take fingerprints
 8       in different ways.  Some are better at it than others.
 9       Sometimes you get rolled impressions you only get half
10       the finger fully rolled.  Sometimes you well a
11       well-rolled finger.  Sometimes you get it cut off at the
12       top.  There's infinite variations.  It depends on the
13       experience of the officer taking the fingerprints.
14   Q.  Can I ask you then on the basis that you didn't have the
15       entire print available to you, there is clearly
16       something missing from the rolled impression, why didn't
17       you ask for a proper rolled impression to be taken from
18       Shirley McKie?
19   A.  I would think the simple answer to that would be that if
20       we had already decided we had enough detail to allow us
21       to make a decision, carry out a comparison and reach a
22       conclusion, there wouldn't be any need to further look
23       at it.
24   Q.  Let us deal with the question of pressure and distortion
25       then.  Did you see any differences on any part of Y7 as
page 168
 1       compared with Shirley McKie's inked print when you were
 2       initially examining it?  Did you notice any differences?
 3   A.  There was some very heavy areas of dark deposition
 4       pressure at the top.  Whether it is movement, whether it
 5       is just a pressure or indeed whether it is a double
 6       touch, I can't say.
 7   Q.  But I think I am right in saying in the course of your
 8       evidence at the trial you were not suggesting it was a
 9       double touch, other than it was a very slight movement
10       between the bottom section and the top section.  Do you
11       recall what you said at the trial?
12   A.  I cannot remember.  If I've said that, I would have said
13       that, yes.
14   Q.  Let us deal with the question of distortion, et cetera.
15       Did you receive any specific training in how to
16       recognise distortion and what effect it may have on an
17       analysis?
18   A.  I think Mr McGinnies covered that yesterday, sir.  It's
19       training from your mentor.  As you're learning you talk
20       to them about a mark, you've got a problem in a mark,
21       they give you the benefit of their experience.  You look
22       at it, you talk to other experts, you learn from their
23       experience, and eventually with this guidance you can
24       formulate your own opinion.
25   Q.  But, as far as distortion is concerned, I take it you
page 169
 1       are aware that that is almost a science in its own
 2       right, what can happen with fingerprints when distortion
 3       takes place.  You are aware that it's quite a refined
 4       topic?
 5   A.  Distortion is amazing on the finger.  The finger is such
 6       an amazing piece of equipment.  The skin is so flexible,
 7       distortion and movement is infinite and variable.
 8   Q.  But there are some things it can't do.  That's right,
 9       isn't it?
10   A.  I don't know.  My experience of looking at fingerprints
11       over the years is we always say "always expect the
12       unexpected" because we've seen some amazing twists and
13       variations in what's there.
14   Q.  Could you ever through pressure and distortion get a
15       left opening bifurcation flip 180 years and open right?
16   A.  I wouldn't have thought so, sir.
17   Q.  Just again a matter of detail, have you heard of any of
18       the work of Alison Maceo?
19   A.  I've heard the name, sir.
20   Q.  Her work specialises in questions of distortion and
21       movement and how that can affect ridge analysis.  You
22       are aware of that much, I take it?
23   A.  I have never read the work, sir.
24   Q.  You see, the reason I am asking you, Mr Stewart -- and,
25       again, I am not necessarily saying it is your fault --
page 170
 1       but the question of distortion on one view might be
 2       simply almost an excuse for a difference without
 3       actually explaining how it happens.  Do you see the
 4       danger in that, that someone could say, "Yes, I see
 5       there's a difference but it must be distortion".  Do you
 6       see the danger of that approach?
 7   A.  There is a danger in that but we're always taught over
 8       the years that all you can do is look at the mark with
 9       what you have learnt over the years and see if you are
10       happy to work with the mark.
11   Q.  Let me deal with a related topic if I can.  You were
12       asked some questions by Miss Carmichael on the issue of
13       being able to demonstrate to the lay person, if I put it
14       that way, a feature in a fingerprint.  As I understand
15       the position we have reached with your evidence, and you
16       said it yourself, you can't make an expert from a jury
17       member in 15 minutes.  You can't really do that?
18   A.  It would be nice if you could, sir.
19   Q.  The thing is, though, that one of course can accept that
20       if you are trying to persuade a juror that you can see a
21       ridge ending -- and of course that happened in the
22       trial, didn't it?  You were asked to say what is
23       this point and you said, "That's a bifurcation going up"
24       or something like that.  Do you remember that?
25   A.  I think from memory going through every enlargement and
page 171
 1       every characteristic in each enlargement in detail, sir,
 2       yes.
 3   Q.  I take it you recall at one stage -- and I think part of
 4       this passage was read out -- even the judge who had a
 5       magnifying glass said, "I'm sorry, I just can't see this
 6       at all.  It just looks like a blob to me."  Do you
 7       remember that exchange taking place?
 8   A.  Yes, sir.
 9   Q.  Of course, one possibility is that your expertise allows
10       you to see something that others without your expertise
11       just can't see.  I recognise that is a possibility.
12           Do you recognise the other possibility, which is
13       that you are seeing something or convincing yourself
14       about the existence of something that doesn't actually
15       exist?  Do you recognise that that's a possibility?
16   A.  I think that's always a possibility but we're working
17       the assumption that by having the level of checking that
18       four people have to independently verify each
19       identification, it would be something that would be
20       precluded.
21   Q.  Yes.  Of course, that requires there to be no
22       confirmation bias going on.  Do you understand what I
23       mean by that?
24   A.  I do.
25   Q.  Again, you must recognise that there is a risk of
page 172
 1       confirmation bias that you may genuinely, but
 2       mistakenly, agree with someone else's persuasion.  Do
 3       you recognise that's a difficulty?
 4   A.  It is possible but, as experts, we're always taught to
 5       approach every comparison with a fully open mind.  You
 6       don't go in with a closed mindset.  You start from
 7       afresh, you carry out your own comparison and reach your
 8       own conclusion.
 9   Q.  I would like to ask you, if I can, about the information
10       passed by one expert down the line to the other with
11       regard, in particular, to Y7.
12           I think if we can have your Inquiry statement up,
13       please, which is FI0036, I would like paragraph 136.
14       136 says this:
15           "I was asked to look at mark Y7 and Shirley McKie's
16       ten print form by Hugh MacPherson.  I was not given
17       background information.  The photograph may have had the
18       mark number 6 with an arrow on it, to indicate that it
19       was a left thumb and the direction of the mark.
20       However, in this situation I would not read the form in
21       detail, I would simply get on and compare the marks to
22       the print."
23           The clear understanding of what happened there was
24       that you had virtually no information provided.  "I was
25       not given background information."  Is that your
page 173
 1       recollection of what had happened?
 2   A.  Normally with Mr MacPherson he would just give you a
 3       mark.  On the mark would be a directional arrow
 4       indicating which way was up for the impression or
 5       impressions, the digit number suggesting what was
 6       identified and you would go and carry out your
 7       comparison and reach a conclusion.
 8   Q.  Can I ask to compare that with FI0055, which is
 9       Mr MacPherson's Inquiry statement.  Again, it is
10       paragraph number 55.  What is said there is:
11           "I identified XF as David Asbury's number 2 finger
12       based on the 16-point standard.  Once I had made this
13       identification I believe I then passed the photo and
14       elimination/fingerprint form on to the next person.
15       They could then look at it under glasses or in the
16       comparator machine.  Sometimes I would put the mark and
17       the form on the comparator machine and mark up my points
18       of comparison.  It could then be examined from there by
19       other experts.  I will return to this below when
20       discussing Y7 as I remember using this method for that
21       mark.  Who I passed it to depended on who was available,
22       having regard to the shifts we were working."
23           As I understand what he is saying there is with
24       regards to Y7, as probably XF, the comparator machine
25       would be there and points of comparison would be on it.
page 174
 1       Do you understand that that's what is being suggested?
 2   A.  Yes, I do.
 3   Q.  You would agree that that is a different position to
 4       your own position about not being given background
 5       information.  Do you understand that or are the two
 6       reconcilable?
 7   A.  Well, I mean, I don't -- I think in the question of the
 8       context I was answering, background information would be
 9       information about whose print it was or the significance
10       of it.  I don't think I would be talking specifically
11       about background information as to whether or not it's
12       the comparator.
13   Q.  Very well.  Are you saying he might be right that you
14       went to the comparator machine, there may indeed have
15       been points marked up on it as to what he considered the
16       appropriate points --
17   A.  Yes, sir, it's possible.  I think I covered that
18       earlier, that if I was asked to look at something on the
19       comparator I normally have a quick look, take it off, go
20       to my desk, sit down, carry out my normal comparison
21       process and see if I can reach a conclusion.
22   Q.  I mentioned earlier one of the particular points that I
23       wanted to ask you about was the Black Report, which I
24       think is referred to in your statement.  I do not need
25       to go to it but the reference is paragraph 280.  What
page 175
 1       you said in your statement was this, that:
 2           "A non-standard external discipline inquiry was set
 3       up which was carried out bu an external person, Jim
 4       Black.  That inquiry found that I had properly carried
 5       out my duties and recommended that I return to work and
 6       resume full duties."
 7           I take it you are able to confirm that the Black
 8       Report did not have Y7 or QI2 independently assessed, as
 9       it were, by an Independent Fingerprint Expert?  Can you
10       confirm that for us, please?
11   A.  From memory, sir, I don't think the Black Report did
12       anything other than look into our procedures, how we
13       worked.  I don't think they had any external independent
14       examination but I would need to read the Black Report to
15       confirm that, sir.
16   MR SMITH:  Thank you very much, Mr Stewart.
17   THE CHAIRMAN:  Miss Grahame, you would be next.
18   MISS GRAHAME:  There are four brief matters that I wish to
19       raise.  I would say I am grateful to my learned friend,
20       Mr Smith, for raising a number of matters regarding the
21       meeting with Mr Murphy but there are one or two matters
22       that I feel, in fairness to this witness, I should put
23       to him.  I don't intend to go over again matters that
24       have already been raised.
25   THE CHAIRMAN:  Without detailing them then, you can do that.
page 176
 1   MISS GRAHAME:  The first three issues relate to Mr Murphy
 2       and the meeting and the final one relates to discussions
 3       within the Bureau itself prior to the trial.  I am
 4       obliged.
 5                  Cross-examined by MISS GRAHAME
 6   Q.  Mr Stewart, I would like to ask you some further
 7       questions about the meeting with Sheriff Murphy.  The
 8       Crown contacted SCRO at the time once the defence
 9       productions were available -- you are aware of that --
10       and, in response to that, you and Mr MacPherson
11       travelled to the High Court in Glasgow?
12   A.  We went down to the High Court as a result of a phone
13       call from Mr Murphy.  We turned up to meet Mr Murphy.
14       He said, "I'll just go and get the productions".  He
15       left the room, came back.  As far as I remember, we had
16       a brief look at the productions and he said he had to
17       return them to the defence and that was it.
18   Q.  So two very senior fingerprint officers went to the High
19       Court in Glasgow for the purpose of looking at defence
20       productions?
21   A.  Yes, that's right -- in simple terms, yes.
22   Q.  You met personally with the Advocate Depute who was
23       going to be prosecuting the trial?
24   A.  We did.
25   Q.  You sat in a courtroom?
page 177
 1   A.  Honestly, I'm not sure.  If it was the High Court the
 2       chances are it would be a courtroom but I really can't
 3       remember.
 4   Q.  If Sheriff Murphy gave evidence that it was a courtroom
 5       in which you sat you wouldn't disagree with him?
 6   A.  He'll be right, I assume.
 7   Q.  Sheriff Murphy said in evidence that the materials, the
 8       defence productions, had been lodged by the defence at
 9       that point and he had a copy -- and for those of us with
10       the benefit of LiveNote, that's at line 33 on day 14 in
11       the transcript:
12           "The materials had been lodged by the defence and I
13       had a copy and we sat in one of the court rooms and
14       looked at this process, placing the acetates over and
15       they made certain comments to me, which I had noted and
16       I seem to recall them examining the defence materials.
17       They carried basically what looked to me effectively
18       like magnifying glasses on feet and they examined some
19       of the defence materials."
20           If Sheriff Murphy is correct in that, do you accept
21       that the copies would not have to be returned to the
22       defence and you would be mistaken?
23   A.  Well, I mean I just don't remember having the
24       opportunity to examine the materials at the time, I must
25       admit, was my recollection.  I could be wrong but I
page 178
 1       really don't recollect it.
 2   Q.  So do you accept that you could be mistaken in your
 3       recollection?
 4   A.  It's possible.  It was so many years ago.
 5   Q.  Is it possible equally that, perhaps, Sheriff Murphy has
 6       a better recollection than you?
 7   A.  It's possible.
 8   Q.  The purpose of the meeting, obviously to look at the
 9       defence productions for the first time and there were
10       potentially three outcomes of that meeting.  One could
11       be that you said to Sheriff Murphy, "We need more time
12       to look at the defence productions and we won't be ready
13       in time for the trial starting next week".  That was one
14       possibility.
15   A.  I must admit, I think we said to Sheriff Murphy that we
16       would like time to examine the productions and from
17       memory I think he said time wasn't available.  That was
18       it.
19   Q.  I will come back to that in a moment.  One of the other
20       possibilities was that you were going to provide Sheriff
21       Murphy with, effectively, ammunition which would allow
22       him to cross-examine defence experts.
23   A.  For us to do that I think we would have had to have the
24       time to study the productions to be able to look at
25       possible avenues that he could use for
page 179
 1       cross-examination.
 2   Q.  But you would appreciate that that was something that
 3       Sheriff Murphy would consider important, that he would
 4       seek from you?
 5   A.  I would have thought so.
 6   Q.  The third possibility is that potentially you might have
 7       agreed with the defence productions and said, "Well,
 8       actually, we got it wrong", and that's certainly
 9       something Sheriff Murphy would have wanted to know in
10       advance?
11   A.  Again, to do that we would have had to have time to
12       study and consider the defence productions, yes.
13   Q.  So do you accept that perhaps it's a little unlikely
14       that, against that background, Sheriff Murphy would have
15       called you to the High Court for a meeting to show you
16       the productions and then simply to have either rushed
17       you out the door without letting you see them or to only
18       give you seconds to look at them?
19   A.  I must admit, I think from memory that Sheriff Murphy
20       just called us down to make us aware of this challenge.
21   Q.  He could have done that simply over the telephone?
22   A.  He could have.
23   Q.  But he asked you to come to the High Court?
24   A.  He did.
25   Q.  To look at the productions?
page 180
 1   A.  Well, quick glance at the productions, yes.
 2   Q.  You have said today in your evidence three things:
 3           "As far as I'm aware, we had no opportunity to study
 4       or examine the productions."
 5           You said to my learned friend, Mr Smith:
 6           "We were given it for seconds", and you have said
 7       now:
 8           "We only had a quick glance."
 9           Is it possible that you are simply not correct on
10       that?
11   A.  As I say, I'm trying to do it from memory.  It's very
12       difficult.  I don't remember at any period having a
13       lengthy time to actually carry out a significant,
14       meaningful examination of that material.
15   Q.  I would like to put a statement to you for your
16       consideration and I will give you a moment to read
17       through it.  It is CO2036.  This is a statement given by
18       Sheriff Murphy.
19           You will see on the front page which is on the
20       screen now that it was given by him on
21       6th September 2000.  Do you see the date, just around a
22       third of the way down the page, slightly to the
23       left-hand side?
24   A.  Yes, I do.
25   Q.  Do you see that it is given by Sean Francis Murphy?
page 181
 1   A.  I do.
 2   Q.  If you take it from me for the moment that this is a
 3       statement which he gave to Operation Alba or the Mackay
 4       Inquiry to a Detective Sergeant Brown in Chambers Street
 5       in Edinburgh, which was Crown Office, when he was an
 6       Advocate Depute.  It was at the time that a criminal
 7       prosecution was being looked into or investigated
 8       against the four SCRO officers, one of whom was
 9       yourself, Mr Stewart.
10   A.  That's correct.
11   Q.  So it was a very serious matter, you would accept that.
12           Could I ask you to look please at page 2.  Do you
13       see from the second paragraph there, I wonder if you
14       could just take a moment to read through that page and
15       then let me know when you have had an opportunity to
16       read it.  (Pause)
17           Have you managed to read the page?
18   A.  I've read it, yes.
19   Q.  Thank you, Mr Stewart.
20           This is a statement which was given just over a year
21       after the McKie trial.  Do you see that Sheriff Murphy
22       there indicates that you were discussing this in the
23       courtroom at Glasgow High Court for the best part of
24       afternoon?  Do you see that phrase is in paragraph 3?
25   A.  I do.
page 182
 1   Q.  He says you were going over the defence productions
 2       produced by Wertheim and going back over your own
 3       presentations, which he also had in court?
 4   A.  I'm sorry to say I still have no recollection.  It
 5       hasn't helped jogged my memory.
 6   Q.  Do you accept that perhaps Sheriff Murphy's statement
 7       could be correct?
 8   A.  Well, if he gave that statement in 2000, there is a
 9       chance his recollection then would be more accurate than
10       mine is over 12 years.  His was only over 2 years then,
11       but I really don't know.
12   Q.  With that in mind in relation to paragraph 3 do you
13       accept the remainder of that on that page, given by
14       Sheriff Murphy in 2000 to the police, could be an
15       accurate recollection of the events?
16   A.  I'm not saying it's not accurate.  It's just I don't
17       remember it.  I don't recognise it.  That's it, it could
18       be accurate.
19   Q.  Finally, I would like to move on to one last thing.  The
20       fact that Mr Wertheim was giving evidence against the
21       four SCRO officers, including yourself, and challenging
22       the identification of a print for a first time, that was
23       viewed as a very serious matter in SCRO?
24   A.  It would be, yes.
25   Q.  After your meeting with Sheriff Murphy, the Advocate
page 183
 1       Depute, before the trial, you have told us that you
 2       tried to speak to Mr Mackenzie who was a senior member
 3       of staff but in the end you spoke to Mr Gorman?
 4   A.  That's correct.
 5   Q.  He was a superintendent at the time?
 6   A.  He was.
 7   Q.  So again, a very senior member of staff?
 8   A.  He was.
 9   Q.  As far as you are aware, did Mr MacPherson also view it
10       as a serious matter?
11   A.  I would assume so.
12   Q.  Did he also speak to the senior members of staff, as far
13       as you are aware?
14   A.  I think the reason I spoke to senior members of staff
15       was when we come out of the court it was after shift
16       finishing time.  I was on late shift that night so I
17       went back to the office.  Mr MacPherson had other things
18       to do so he would go away and do that and I would just
19       go back and I would try and report to whatever managers
20       were present.
21   Q.  Was that something you discussed with Mr MacPherson,
22       that you intended to do that?
23   A.  I would have thought so.  From memory, I don't know.
24   Q.  The officer the charge of the Bureau at that time, was
25       that Chief Inspector Ian Hogg?
page 184
 1   A.  No, Inspector Hogg was in charge of the Identification
 2       Bureau, the Scene of Crime branch.
 3   Q.  Sorry, that's my mistake.  So he was in charge of the
 4       Identification Bureau?
 5   A.  Yes.
 6   Q.  They were also aware of the situation prior to the
 7       trial?
 8   A.  I would assume so, yes.
 9   Q.  Is it correct that Chief Inspector Hogg discussed the
10       matter with yourself, Mr MacPherson, Mr McKenna and
11       Ms McBride?
12   A.  Sorry, I can't remember.  He may have done.  I really
13       don't know.
14   Q.  If the Inquiry hears evidence from Mr McKenna in
15       relation to a statement he has given the Inquiry that he
16       did discuss this with all four of you, would you accept
17       that that's correct?
18   A.  His recollection may be better than mine, so yes.
19   Q.  But that would be a reflection of how seriously the
20       SCRO and the Identification Bureau were taking the
21       challenge by Mr Wertheim?
22   A.  I would assume it was being taken seriously, yes.
23   MISS GRAHAME:  That is fine.  Thank you very much.  I have
24       no further questions.
25   THE CHAIRMAN:  Ms Jones?
page 185
 1   MS JONES:  Sir, just one small point on the issue to do with
 2       Mrs Collette Orr and Richard Luckraft and the challenge
 3       made by Mr Luckraft to Mrs Orr.
 4   THE CHAIRMAN:  Yes.
 5                    Cross-examined by MS JONES
 6   Q.  Mr Stewart, there is just one small point I wanted to
 7       ask you about.  You were asked questions this morning by
 8       Miss Carmichael about Mrs Collette Orr and Richard
 9       Luckraft.  I think you said you couldn't really remember
10       anything very much about it; is that right?
11   A.  That's correct.
12   Q.  Can I just ask you whether you would agree with me that
13       at no point was Mrs Orr ever transferred to any other
14       unit because of any question over her competence?  You
15       see the reason I ask you is that Mr Luckraft appears to
16       have suggested in his evidence that after the challenge
17       he was move to one unit and Mrs Orr was moved to another
18       unit and he seems to imply that the reason Mrs Orr was
19       moved was because then her work would be subject to an
20       additional check.  I just ask you whether, so far as you
21       are aware, in fact, Mrs Orr was never moved for any
22       reason to do with competence?
23   A.  From memory, to be quite honest, I can't remember.
24       Management would have dealt with the issue once I
25       flagged it up to them.  They would have taken whatever
page 186
 1       actions they thought appropriate.  Whether or not one or
 2       both of them would be moved, retrained or whatever, I
 3       couldn't tell you.  You would need to talk to the
 4       management of the time to see what happened, what the
 5       actions were.
 6   Q.  So you can't help us with that at all?
 7   A.  I can't remember.
 8   MS JONES:  Okay, thank you.
 9   THE CHAIRMAN:  Mr Holmes?
10   MR HOLMES:  Yes, sir, there are three matters I would like
11       to ask about all of which arise from answers given to
12       questions Mr Stewart has been asked today.
13           The first relates to questions that he was asked
14       about the position of Mr Bruce in relation to QI2.  The
15       second relates to Mr Stewart's own evidence during the
16       trial and the third relates to a comment made by
17       Mr Stewart about the latter part of his employment at
18       SCRO.
19   THE CHAIRMAN:  Yes.  You may ask those questions or cover
20       those issues.
21                   Cross-examined by MR HOLMES
22   Q.  Mr Stewart, if I can first ask you about the questions
23       you were earlier asked about the position of Mr Bruce.
24           It was put to you that Mr Bruce gave evidence that
25       he thought on re-examination of QI2 that he could see
page 187
 1       12 points and that in 1997, when he first examined it,
 2       he would have found fewer than 16 because he didn't sign
 3       the case envelope.
 4           In 1987 how many checkers were required for an
 5       elimination?
 6   A.  Are you talking in general terms or case-specific to
 7       this case?
 8   Q.  In general terms.
 9   A.  In general terms, it would be two.
10   Q.  How many were required for an identification?
11   A.  Four.
12   Q.  So if you were the third or fourth checker, you would
13       have been well aware that you were being asked to
14       confirm an identification to 16 points?
15   A.  I would think that's a very fair decision, sir, yes.
16   Q.  By the time that QI2 was examined, do you recall whether
17       Mr Asbury was already a suspect?
18   A.  Having seen the form 13 this morning that was displayed
19       on the screen it was clearly indicated on that that he
20       was a suspect at the time.
21   Q.  That being the case, any examination against Mr Asbury
22       would have been carried out to 16 points; is that
23       correct?
24   A.  It would be, sir.
25   Q.  The second thing I would like to ask you about is your
page 188
 1       own evidence during the trial.  You were asked by my
 2       learned friend, Miss Carmichael, whether you would be
 3       aware that you would have to show the 16 points that you
 4       relied on to make the identification on the enlargement.
 5           Can I ask, did charted enlargements ever show the
 6       16 points that you personally relied upon to make an
 7       identification?
 8   A.  Regrettably, any time you produced an illustration it
 9       was always a compromise between the four experts.  We
10       could all have looked at the mark and reached our
11       conclusion based on different characteristics, so what
12       was illustrated had to be a compromise.
13   Q.  So is it the case that the enlargement that was produced
14       for court would have 16 points on it that you were
15       content with but those may not necessarily have been the
16       points that you relied upon to make your identification?
17   A.  I think that's always the case.  One expert could look
18       at the top of the mark, one expert at the bottom, one at
19       the left, one at the right, you all reach the
20       same conclusion but for illustration you've got to have
21       a consensus.
22   Q.  Indeed, you have given evidence that you would reach a
23       conclusion as to identity before there were 16 points in
24       any event so it wouldn't be the 16 that were marked on
25       any enlargement that you relied upon, would it?
page 189
 1   A.  No, sir, it wouldn't.
 2   Q.  One more question in relation to the trial.  I see from
 3       the transcript that Mr Findlay was asking you to look at
 4       things on a screen.
 5           How were enlargements displayed at the trial?
 6   A.  I can't remember, sir.  I think it was an overhead
 7       projector.  They put them down on the bed of the
 8       projector and projected them up on a screen.
 9   Q.  So that would be yourself, the jury and the judge
10       looking at the screen, rather than at copies of the
11       enlargements?
12   A.  Yes, sir.
13   Q.  Do you recall whether that had any effect on the quality
14       of the images that --
15   A.  I think that certainly would be detrimental because I
16       don't think many of these overhead projectors ever have
17       a particularly good quality.
18   Q.  Finally, there was a question that you were asked about
19       your employment at SCRO and you have said in relation to
20       the later part of your employment, the later years at
21       SCRO, that they were stressful and traumatic.
22           Can I ask why?
23   A.  Well, I think we all react to the pressure, particularly
24       of being falsely accused of being criminal, et cetera,
25       it affects -- it affected me as an individual.  It
page 190
 1       affected my relationship with my wife and my kids.  I
 2       became short tempered, irritable.  I was off with stress
 3       for a period of time.  It was just a very traumatic
 4       experience, the whole thing.
 5   MR HOLMES:  Thank you.
 6   THE CHAIRMAN:  Yes?
 7                  Re-examined by MISS CARMICHAEL
 8   Q.  Very briefly indeed, sir.
 9           You were asked questions there by Mr Holmes about
10       things being projected on a screen.  I think if we go to
11       the transcript we can probably find simply one example
12       of something that I think maybe we can read for
13       ourselves throughout it elsewhere but if we go to
14       SG0526, at page 40, we see at line 9 the Advocate Depute
15       requesting that copies of 180, which we have seen is one
16       of the productions with an enlargement of the
17       fingerprint and fingermark, if these could be made
18       available to the jury.  So it would certainly appear
19       from that that documentary productions of these items
20       were available to the ladies and gentlemen of the jury
21       as well as their simply watching it on the screen.
22           Would that be fair?
23   A.  Certainly in previous years our court productions always
24       used to be copied so there was a copy there for each
25       juror.  I can't remember when we stopped that practice
page 191
 1       because we used to send photographic enlargements down,
 2       as good quality as the original.  Then they spent -- to
 3       save money, they photocopied them and the copies weren't
 4       very good.  Now whether that was still being done at
 5       that point or whether we'd stopped that point I don't
 6       know but certainly that would appear to indicate that
 7       copies of the productions had been made and were
 8       available to the jury.
 9   Q.  Thank you.
10           If I may just have one moment, my Lord, there is one
11       matter I would like to check before closing.  (Pause)
12           Again, in answer to Mr Holmes you said that the 16
13       points on a production would be a matter of compromise
14       and I just want to clarify with you what we should take
15       from that.
16           Would it be the case that you might be agreeing to
17       points being marked up on the enlargement to be signed
18       by all of you that you personally were unhappy with in
19       any way?
20   A.  I don't think you would be unhappy with them.  It was
21       always a compromise.  You might -- you'd sit there and
22       say, "Well, I don't like that one and I don't like that
23       one".  Somebody else would say, "Well, I don't like
24       that.  I'm quite happy with that".  So you would soon
25       between you rule out some and rule in others and
page 192
 1       hopefully on that basis you would have 16 on the
 2       illustration.
 3   Q.  What I have in mind is that what transpired in this case
 4       was that three of you, yourself, Mr MacPherson and
 5       Ms McBride, all had to go to court with the potential
 6       that each one of you might be asked about any one of
 7       those 16 points.  With that in mind, I just wanted to be
 8       clear whether, on what you describe as a compromise, you
 9       would be happy speaking to any one of those 16 points?
10   A.  Well, at the end of the day it had to be a compromise
11       you were happy with because, yes, as you say, you were
12       aware you could be asked or questioned on any of it.
13   THE CHAIRMAN:  I think you have maybe covered the one matter
14       I wanted to ask you about.  In your very long
15       experience, which I think is about 37 years --
16   A.  It was, sir.
17   THE CHAIRMAN:  During that time, when you were giving
18       evidence would you always produce the enlargements?
19   A.  For any solemn procedure where there was a jury present,
20       yes, sir.  It was the standard practice, particularly
21       for cases within Strathclyde because the Fiscals seemed
22       to like them, the Fiscals were comfortable with them;
23       they always wanted them and that's the way we did it.
24   THE CHAIRMAN:  Would you be expected to go through all the
25       points or if the defence indicated they weren't
page 193
 1       challenging it --
 2   A.  No, sir, that was rare.  You sometimes used the
 3       illustration just to show the ladies and gentlemen what
 4       the fingerprint pattern was and what the different
 5       characteristics were, just purely as an illustration and
 6       that was it.
 7   THE CHAIRMAN:  So really you wouldn't have had, even with
 8       your long experience, you hadn't had a challenge before
 9       and you wouldn't have had really much experience of
10       having to demonstrate all your points because you hadn't
11       been challenged.
12   A.  No, sir, it was definitely a learning experience that I
13       think we took on board and decided we could, perhaps,
14       make better illustrations for future use or it
15       strengthened the desire to go down the generic road.
16   THE CHAIRMAN:  So really how you demonstrated your points at
17       this trial, that is the trial of Shirley McKie, was a
18       new experience really?
19   A.  Yes, sir, we were virtually making it up as we were
20       going along.  We hadn't done it in that depth before at
21       any time.
22   THE CHAIRMAN:  You were not happy with the charting
23       computer?
24   A.  No, sir, I certainly was not.
25   THE CHAIRMAN:  And so there undoubtedly would have been
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 1       better ways of demonstrating, had they been available to
 2       you?
 3   A.  There would have been, sir, yes.
 4   THE CHAIRMAN:  Thank you very much.  Sorry to have had to
 5       bring you back to this issue but it was very good of you
 6       to come and I am pleased to say we have completed your
 7       evidence today.
 8   A.  Thank you very much for sitting on to accommodate me,
 9       sir.
10   THE CHAIRMAN:  Thank you.
11           Tomorrow then we will continue with ...?
12   MISS CARMICHAEL:  Mr McKenna and, I hope, also Ms McBride.
13   THE CHAIRMAN:  Yes, at 10.00.  Thank you very much.
14   (4.10 pm)
15        (Adjourned until 10.00 am the following morning)
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