page 1 1 Tuesday, 10th November 2009 2 (Morning session) 3 (9.30 am) 4 LORD BOYD OF DUNCANSBY, sworn 5 THE CHAIRMAN: Your full names so we can have them on the 6 record, please. 7 A. My name is Colin David Boyd, Lord Boyd of Duncansby. 8 Examined by MR MOYNIHAN 9 Q. Lord Boyd, you have assisted the Inquiry by providing us 10 with two statements. The first our code is FI0057 and 11 the second FI0079. 12 I understand you have copies with you.? 13 A. Yes, I do. 14 Q. So far as these statements are concerned, you have had 15 an opportunity to consider these statements and, subject 16 to one thing we will discuss about the first, you are 17 generally content these represent the truth as best you 18 can recollect it on the matters you have been asked 19 questions about? 20 A. Yes, I am. 21 Q. The one point that we want just to tidy up is, in fact, 22 to large measure the reason for the second statement 23 existing. When you were asked to give your first 24 statement, the Inquiry team did not have the 25 correspondence relating to the treatment of the four or page 2 1 perhaps six Scottish Criminal Record Office staff and 2 their suspension and then we did obtain that material 3 and you provided a second statement. 4 So far as which of the two one should rely on as the 5 more accurate representation of your position, can you 6 explain which of the two it is? 7 A. Well, the second one is the accurate one because the 8 first one was based on my best recollection at the time. 9 I didn't have any material to go on and once I saw that, 10 then I made the second statement. So if there is a 11 discrepancy between the two, then it is the later 12 statement that should prevail. 13 Q. More generally in relation to the matters that we are 14 going to cover, are you, like many others, dependent on 15 the documentation that is shown to you rather than 16 having a particularly clear recollection of events? 17 A. Yes. I mean, clearly those events that are towards the 18 end of all of this process I have a better recollection 19 than I do of the start of the process, but I do very 20 much rely upon the documentation. 21 Q. What I want to do is to start in a more general way 22 relating to your function as a Law Officer and then we 23 will come down to the specifics of this. 24 For the events with which we are concerned, you were 25 for a period the Solicitor-General and for a period the page 3 1 Lord Advocate. 2 Can you explain what the difference would be between 3 the two Law Officers in relation to conduct of a case 4 such as this? 5 A. Yes. The Lord Advocate is the senior of the two Law 6 Officers. The Solicitor-General is, effectively, his or 7 her deputy. The rough -- well, actually it was a bit 8 clearer than this. The distinction between the two, at 9 least in my time, was that the Solicitor-General tended 10 to deal with the casework in the Crown Office whereas 11 the Lord Advocate was more concerned with the overall 12 policy, with civil matters, which of course we're not 13 dealing with here, and things such as resourcing and so 14 on. That is not to say that the Lord Advocate would not 15 get involved in particular individual cases but 16 certainly the Solicitor-General was the individual who 17 had responsibility for the day-to-day casework in Crown 18 Office. 19 Q. More particularly we are involved in this case initially 20 with the murder before your time as a Law Officer but by 21 the stage that you are a Law Officer we are interested 22 in the potential and then ultimately the actual 23 prosecution of a serving police officer. 24 Were there special arrangements in Crown Office 25 relating to these matters? page 4 1 A. Yes. All complaints against police with allegations of 2 criminal conduct would go to the Solicitor-General. 3 Q. Is that with a view to any sort of prosecution decision 4 or, indeed, disciplinary decision? 5 A. Not disciplinary but certainly every prosecution 6 decision would be taken by the Solicitor-General. 7 Occasionally, if the Solicitor-General wasn't there, it 8 might go to the Lord Advocate, but the policy was that 9 it was the Solicitor-General who dealt with these. 10 Q. Why would it be that in relation to serving police 11 officers a Law Officer would be involved in the 12 prosecution decisions as opposed to any one of the other 13 Lord Advocate's Deputes? 14 A. I think because of the nature of the alleged offences. 15 Police officers are of course agents of the State and 16 they have powers and responsibilities which we ask them 17 to exercise on our behalf but, equally, where 18 allegations of criminal conduct are made against them, 19 then the public interest is engaged in a way in which it 20 wouldn't be with many other ordinary citizens. 21 I think it's probably fair to say that the 22 complaints against police involving criminal conduct 23 were usually allegations of assault and often made 24 either in response to allegations of assault against the 25 individual who is in turn making the complaint against page 5 1 the police officer or in general melees often that took 2 place after pubs closing and so on, or occasionally you 3 would have allegations of assault within police 4 stations. 5 I think there are two issues. One was that they 6 would be, police officers may be more the subject of 7 malicious complaints in that sort of situation or, 8 alternatively, that in fact because they deal with the 9 more vulnerable in our society that actually there 10 was an obligation on us as prosecutors to ensure that 11 these offences were properly investigated and, if 12 necessary, prosecuted. 13 This particular one, perjury, perhaps falls 14 obviously outwith that issue and in that situation the 15 key issue is, I suppose, an offence against the 16 administration of justice. If a police officer commits 17 perjury or attempts to pervert the course of justice, 18 then that is very serious and that would also require 19 the kind of consideration that would come from a Law 20 Officer. 21 Q. One might think of the importance of the case as 22 requiring a Law Officer from either of two perspectives, 23 either the importance of it for the purposes of the 24 career of the serving officer or the alternative is the 25 importance of police officers, as you say, as hands of page 6 1 the State and the public interest in maintaining proper 2 discipline of the police. 3 So far as the involvement of a Law Officer is 4 concerned, from which of these two angles did you view 5 it, the consequence for the individual or the attitude 6 of the public? 7 A. I think it has to be the attitude of the public. I 8 mean, any prosecution decision will have implications 9 for an accused person and police officers, in one sense, 10 are no different from anybody else, if it's a doctor or 11 a lawyer or somebody professional then it could have 12 serious implications but equally of course anybody who's 13 charged in the High Court it will have implications for 14 them. So the reason why it became a Law Officer 15 involvement was not necessarily the implications for the 16 accused, but the wider interests of justice. 17 Q. Again, speaking generally -- we will come to specifics 18 in this instance -- if you as the Solicitor-General were 19 dealing with a case involving a police officer would you 20 receive the ordinary papers that would come in in any 21 criminal prosecution that would be, as we understand it, 22 the precognition and any sort of correspondence file? 23 A. I think the answer to that is yes. I don't think that 24 anything was taken out, particularly in those days. 25 Things have changed markedly since 1998, but I'm pretty page 7 1 sure that I would have seen the precognition and the 2 correspondence file. I mean, I can't be 100 per cent 3 certain on that but I think I would have. 4 Q. If I confine myself to the time 1997 to 1999, the time 5 of the McKie case, therefore, just in asking these 6 questions, the papers coming to you as a Law Officer one 7 might think, in some situations, a civil servant, might 8 present just a memo or summary and ask for an immediate 9 decision. The alternative would be that you would be 10 simply left to read as much of the full papers as you 11 thought appropriate. 12 Which was it in relation to police prosecutions? 13 A. It did change slightly when I was there as 14 Solicitor-General because of changes that I initiated 15 when I was Solicitor-General but I think that this would 16 have been before then, and I think that what one got was 17 the precognition, which would be in probably several 18 volumes. 19 I'm pretty certain, reasonably certain, that I would 20 have got the correspondence file and I would have had a 21 memo, probably from the Deputy Crown Agent, possibly 22 something from the Advocate Depute, the Crown Counsel, 23 but certainly I would have had something from the Deputy 24 Crown Agent. 25 Q. Would you then proceed to read as much of the page 8 1 precognition as you thought necessary? 2 A. Yes. 3 Q. In relation to Ms McKie we are dealing with a case which 4 is one of a potential prosecution for perjury, do you 5 have a recollection of considering the papers in her 6 case? 7 A. A hazy recollection, helped by what I've seen from the 8 Inquiry team. I think without that I would have found 9 it pretty difficult. 10 Q. One of the questions that you have been asked to 11 consider by reference to such papers as we do have is in 12 relation to the actual decision to prosecute her. In an 13 ordinary case we would understand that an individual may 14 be placed on petition immediately after the crime has 15 been committed with investigation in relation to the 16 background and the preparation of a precognition coming 17 later and then a second decision being taken to indict 18 the individual in the light of the precognition. 19 We have had evidence that with perjury it could 20 occur in a different order and in this particular case 21 we know from the papers we have seen that a full 22 precognition was carried out before the case came to you 23 for a decision to place on petition. As I think you are 24 aware, we do not have available to us -- first of all, 25 we don't have the file; secondly, we don't have page 9 1 available to us any piece of paper that would represent 2 a separate decision to indict, there seems only to be 3 the decision at the time that she was placed on 4 petition. 5 Can you explain how perjury would and whether it may 6 be that there was only one decision taken in relation to 7 this case? 8 A. I don't recall there being a policy that perjury was 9 dealt with in any different way from any other case but 10 that might be very well have been true. 11 I can't really -- in relation to decision separately 12 to indict, I have no recollection of having taken a 13 separate decision. Clearly from the papers I know it 14 came to me at a point where she had not been put on 15 petition. I am aware there had been an instruction from 16 Crown Counsel actually to go to indictment and my 17 instruction is for petition. As I say, I have no 18 recollection of seeing them separately to put on 19 indictment. 20 Now, it may be that the view was taken that because 21 I had seen all of the papers that would have been 22 considered at indictment stage, because Crown Counsel 23 had separately instructed indictment, that it was not 24 necessary for me to see the papers again and the 25 instruction to place on petition was, in effect, taken page 10 1 as one to indict. 2 It might have been better had it come back for a 3 separate instruction. It may have done but I don't 4 recall it. It may have gone to an Advocate Depute and 5 there'd been an instruction at that stage but I'm not 6 sure that I would criticise the officials for having 7 taken a decision, if they did, that I didn't need to see 8 it again. 9 THE CHAIRMAN: Would it be fair to say that, in effect, you 10 had authorised a prosecution in the general sense and 11 that the indictment is a more detailed part of that? 12 A. I think that would be fair, yes, yes. 13 MR MOYNIHAN: If we just look at some of the documents you 14 have seen so that others can see. Just so we get a 15 date, if I show you CO3937. This is simply the cover 16 sheet from the precognition that will show the 17 precognition was, in fact, received in the Crown Office 18 on 22nd December 1997. We see the name of the accused 19 was Shirley Cardwell as she then was and the charge 20 suggested was one of perjury. 21 I then take you to CO3936. Perhaps there is more 22 than one page. Could you bring up the two pages 23 side-by-side. 24 At that time things were dealt with in Crown Office 25 in manuscript? page 11 1 A. Yes. 2 Q. The suggestion is that this is the handwriting of the 3 then Deputy Crown Agent, Norman MacFadyen? 4 A. Yes, I recognise it. 5 Q. It's not the easiest to read? 6 A. No, it never was. 7 Q. We see that, in fact, he is writing on 2nd January 1998? 8 A. Yes. 9 Q. If I understand it correctly, he sent the papers to 10 Ms Climie who dealt with the Asbury case and saying it 11 would be helpful if Crown Counsel can have your comments 12 before instructing here and then he sets out his own 13 view: 14 "My own view is that there is no reason not to 15 prosecute and no reason to delay pending appeal." 16 The complication there was Mr Asbury's appeal was 17 still outstanding? 18 A. Yes. 19 Q. "Application can be made for release of the 20 productions", then something I can't read ... 21 A. "... which can obviously be made available for the 22 purposes of appeal." 23 Q. "It is ..."? 24 A. "... incomprehensible". 25 Q. "... incomprehensible that fingerprints would have been page 12 1 planted in this case". 2 A. Yes. 3 Q. "... but given the observations on Cardwell's 4 plausibility, it may indeed make sense to ..." 5 A. "... involve an independent expert." 6 It is perhaps easier if I ... 7 Q. Yes, please do. 8 A. "... both on the question of transfer/planting and on 9 the general basis for concluding that fingerprint ..." 10 observation? 11 Q. "... identification". 12 A. "... identification [sorry] is 100 per cent reliable -- 13 please pass directly to AD with this note." 14 Q. He was, in fact, in the hall last week. We should have 15 asked him to read it out when he was here. 16 So that is a note going from the Deputy Crown Agent. 17 One of the reasons for looking to that is it picks up 18 one of the questions I am going to ultimately ask you 19 about, namely the independent expert. 20 He sends that on 2nd January to Ms Climie. 21 Ms Climie then, if we look at CO3935 -- and there may be 22 more than one page to this -- a note by Ms Climie to the 23 Duty AD. 24 Would that simply be the procedure at this time, 25 that the Procurator Fiscals would be referring the page 13 1 papers on to the -- 2 A. Yes, to the Duty Advocate Depute, yes. 3 Q. We will see she gives some of the history of her own 4 involvement, having indicted the murder case. She had 5 apparently spoken to the prosecutor and the information 6 was his position was that Ms Cardwell (Ms McKie) should 7 be prosecuted, then she says: 8 "No reason to delay until the disposal of the 9 appeal. The productions can be obtained." 10 She then says that Ms Cardwell has not yet appeared 11 on petition. She would recommend that further 12 fingerprint expert evidence be pursued and we have 13 previously seen page 37 of the precognition. The Home 14 Office expert should be asked to give expert evidence 15 and then she says: 16 "(a) the possibility of transfer/planting; (b) the 17 general basis for concluding that fingerprint evidence 18 is 100 per cent reliable." 19 She says: 20 "I understand although I do not know the detail that 21 the English standard for matching prints is more 22 stringent than that used in Scotland, although even in 23 Scotland the number of points of comparison required 24 before a match is declared is higher than the number 25 required in some other jurisdictions. It might be an page 14 1 idea to pursue whether Y7 can be matched to Shirley 2 Cardwell on the English standard. Presumably the Home 3 Office expert could deal with this. Crown Counsel's 4 instructions are sought." 5 So this is being sent to the Duty AD. 6 First of all, just stopping there, from your own 7 experience, your own knowledge, were you aware of a 8 difference in standard between Scotland and England in 9 relation to fingerprints? 10 A. No. I knew that there was a standard of 16 points and 11 that that was true, I think, throughout the United 12 Kingdom. I certainly didn't know that there were any 13 differences in terms of the way particular things were 14 analysed, as to whether a point was a point in England 15 as opposed to in Scotland. I didn't know anything about 16 that so that was news to me. 17 Q. Picking up just the very point you mentioned there just 18 now, from your understanding of the case, from your 19 understanding, it was a case in which it was being 20 suggested that the print had been identified to the 21 16-point national standard? 22 A. Yes. In fact, there were four SCRO officers who said 23 that as you know. 24 Q. We will come on to a little bit more about that in a 25 moment. page 15 1 We then go from Ms Climie having written to the Duty 2 AD. If we then go, please, to CO3934. 3 This is the note by Crown Counsel; is that correct? 4 A. Yes. 5 Q. It says: 6 "Please indict High Court. Crown Counsel considers 7 that the independent expert should be instructed re the 8 fingerprint comparison and on question of 9 planting/reliability of fingerprint identification. If 10 the English requirement is more stringent, it would be 11 helpful if the expert making yet another comparison 12 could do so to the English requirements. In due course, 13 a transcript of the evidence or at least the relevant 14 evidence will be required." 15 That is 15th January. 16 A. Yes. 17 Q. Technically speaking, from what you said earlier, should 18 it in fact or should an Advocate Depute have been taking 19 this decision, given it was a serving police officer? 20 A. It should have gone to a Law Officer, although I think 21 at that stage my recollection is that an Advocate Depute 22 would always see a complaint against a police officer 23 and write a note for the Solicitor-General and I think 24 that's probably why it went to Crown Counsel and that 25 was probably the expectation. page 16 1 That changed later but certainly at that stage that 2 would have been the process. 3 Q. What we, in fact, see is that Crown Counsel has, as you 4 have yourself said previously, actually given the 5 instruction, "Please, indict High Court" that in normal 6 events would have resulted in a prosecution decision; is 7 that correct? 8 A. Yes, I think that's right. I mean, I think that 9 technically it should have been a note to the 10 Solicitor-General, which I would imagine in this case 11 would be a recommendation that there be an indictment. 12 Q. I will bring up the document just in a second but there 13 was, in fact, a questioning of that by Ms Climie, the 14 Procurator Fiscal, quite properly, saying in fact she 15 saw merit in Ms McKie being placed on petition first if 16 there were any enquiries to be carried out. 17 If I look at 3933 now -- take down 34 and bring up, 18 perhaps it's more than one page of 3933. 19 A. Yes, I see it. 20 Q. You will see, in effect, the second paragraph, Ms Climie 21 writing to the DCA. It says: 22 "Please see Crown counsel's instructions. Obviously 23 Cardwell has not appeared on petition yet and that would 24 seem to be the appropriate first step." 25 Then of course she goes on in relation to these page 17 1 matters about other reports. 2 If I fast forward, what we will do is see at 3932 -- 3 there is obviously more than one page -- this is the 4 Deputy Crown Agent writing to you. It happens to be 5 undated but writing to you as Solicitor-General -- 6 A. I think there is actually a date, though it's perhaps 7 not very clear but just at the bottom -- well, maybe 8 not. 9 Q. Oh, yes. 10 A. I take that as being a date but I'm not sure I would be 11 able to tell what date it is. 12 Q. In effect, what we can see is that it is being 13 communicated now to you that the Deputy Crown Agent is 14 envisaging further fingerprint evidence but not 15 envisaging the need to delay putting Miss Cardwell on 16 petition; is that correct? 17 A. Yes, and that would have accorded with my view. I mean, 18 the problem about delay in placing on petition is it 19 actually leaves the individual really in a bit of a 20 limbo and until they are put on petition they can't 21 apply for Legal Aid and instruct their own advisers and 22 it just builds delay into the process. So that would 23 certainly have accorded with my view. 24 Q. The next then document is 3931. I had better not say 25 too much about this handwriting. The motif at the top page 18 1 tells us this is, in fact, a letter from you. 2 This is your own initial thinking on 3 20th January 1998. 4 A. Yes. 5 Q. It would seem that your only hesitation/concern is the 6 relationship of this prosecution to the outstanding 7 appeal? 8 A. Yes. Looking at the papers in preparation for this and 9 for finalising the statement, it was clear that that was 10 an issue raised by Alf Vannet and Denise Greaves in the 11 precognition and I have picked up on that and wanted to 12 be satisfied that there wasn't going to be a difficulty 13 with productions if we placed her on petition. 14 Q. One of the things I am going to come back to in due 15 course is you, in fact, echo what is an accumulating 16 picture here of the need to look at an independent 17 expert being instructed. You say: 18 "Clearly we need a further independent expert but 19 that need not hold up the petition." 20 A. Yes. 21 Q. Prior to that, since this is only one stage of the 22 process, prior to that you said: 23 "Could you please have a word with me about timing." 24 Is there anything unusual about you having a word 25 with the Deputy Crown Agent on any matter? page 19 1 A. No. The Deputy Crown Agent was responsible for the 2 operations within Crown Office. The Solicitor-General 3 dealt with the casework. I would see the Deputy Crown 4 Agent certainly two or three times a week, depending if 5 I was in Edinburgh or in London and sometimes two or 6 three times a day. 7 Q. So he was simply someone who was available to give you 8 advice as required? 9 A. Yes. 10 Q. Can we then go on to the next point, 3930, please. 11 Again, a note in your handwriting on 26th January 1998 12 to the Deputy Crown Agent: 13 "As discussed, please arrange for Cardwell to be 14 placed on petition." 15 Do you see that? 16 A. Mmm. 17 Q. So plainly this comes after your discussion with the 18 Deputy Crown Agent and is a decision to place on 19 petition? 20 A. I think we can safely say that the discussion took place 21 on 26th January and at the end of it I would have picked 22 up the slip of paper and written that out and handed in 23 the papers. He would have probably gone out with them, 24 although it is possible it went through the private 25 office but the discussion would have taken place on that page 20 1 day. 2 Q. The significance of the piece of paper, may I take it 3 that what this means is that instructions, whether from 4 a Law Officer or an Advocate Depute, instructions from 5 Crown Counsel collectively would tend to be in writing? 6 A. Yes. 7 Q. Albeit of a brief and formal nature? 8 A. Yes. I mean, these things have changed over time and I 9 think probably now there's a greater emphasis on having, 10 you know, a typewritten record with probably more 11 explanation, frankly. But in those days that was not 12 unusual. 13 Q. I'll just separate out two different strands at the 14 moment: the question of further investigation and also 15 the question of the decision actually ultimately to 16 prosecute. We know that takes place a year later, the 17 prosecution, in 1999. 18 The intermediate stage between the two is a letter 19 that goes out from the Crown Office. It is CO3928. 20 There are two pages to this. It is a letter dated 21 30th January 1998. It goes from Gillian Climie, 22 Procurator Fiscal, to Mrs Denise Greaves in the Glasgow 23 office. As we see, it's -- first of all it returns the 24 precognition and then it says: 25 "Crown Counsel instruct that you proceed to place page 21 1 the accused Cardwell on petition on a charge of perjury. 2 There would appear to be no reason to oppose bail, if 3 sought." 4 So far as the instruction to place on petition, the 5 Crown Counsel involved would have been yourself? 6 A. Yes. 7 Q. We will come back to this letter. Perhaps if we just 8 take it at this stage and we will come to separate them 9 later, you will see that in this letter there is a 10 number of lines of enquiry suggested by Ms Climie, one 11 primarily this the question of the English expert and 12 re-fingerprinting Ms McKie (Detective Constable 13 Cardwell) on arrest. 14 Do you see that? 15 A. Yes. 16 Q. In fact, if I move on from there -- sorry, if I just 17 finish, the last paragraph refers to a form F32 being 18 received as soon as possible. If I bring that in it is 19 in a somewhat peculiar location, CO3921. I'll at the 20 peculiar location first so that we see we are now 21 beginning to move to a point where I simply don't have 22 papers to show you relating to some of this. I am 23 bringing up what is, in fact, the CV of Mr Kent. If I 24 move to attachments of that, pdf pages 4 and 5, do we 25 see that page 4 on the left-hand side is a letter to page 22 1 Crown Office from Denise Greaves, dated 15th April? 2 A. Yes. 3 Q. It refers to the fact that there had been some contact 4 with Mr Kent by telephone. It also refers to the F32. 5 That is the form that had been previously requested and 6 the F32 is on the right-hand side. 7 Do you see that? 8 A. Yes. 9 Q. We are told -- and I don't know if you can assist in 10 relation to this -- that the F32, quite apart from 11 giving dates that are relevant to the time bars in the 12 case, so that it would be known that Ms McKie having 13 appeared on petition on 6th March 1998 her trial, 14 barring an adjournment, had to commence by 15 6th March 1999; is that correct? 16 A. Yes. 17 Q. We are told that this form would mark the opening of a 18 file for Ms McKie and the file reference is given in the 19 top right-hand side. As I say, I don't have that file 20 to show you. What I am primarily interested in is what 21 is written in manuscript at the bottom: 22 "Crown Counsel's instructions are to proceed High 23 Court. Additional investigation is ongoing." 24 Then the Crown Office contact is given as Ms Climie. 25 I just want us to stop there. page 23 1 First of all, there might have been the suggestion 2 that Ms McKie having been placed on petition with 3 further enquiries being undertaken that the further 4 enquiries would have a bearing on whether she is 5 prosecuted or not. That is one possibility. 6 The alternative is that she was going to be 7 prosecuted anyway and the further enquiries were simply 8 relating to ancillary matters, detail which builds up. 9 This particular document would suggest that it is 10 the latter: a decision had been taken to prosecute, 11 albeit some more detailed preparation work to be done. 12 That is why I have been asking about the absence of any 13 other paperwork relating to the decision to prosecute. 14 First of all, just for the avoidance of doubt, you 15 yourself have no recollection of being involved beyond 16 the January correspondence that we have seen? 17 A. That's true. 18 Q. I certainly have no internal Crown Office documentation 19 that would assist one way or the other in relation to 20 this. 21 Having looked at -- it is in your first statement -- 22 having looked at such documentation as you have been 23 able to be shown, as we have shown you, your 24 understanding was that it was a reasonable 25 interpretation that your original decision to place on page 24 1 petition, perhaps read in the light of Crown Counsel's 2 earlier instruction to indict High Court, could have 3 been understood by the Procurators Fiscal in the Crown 4 Office as a final decision to prosecute? 5 A. Yes. I mean, as I say, I can't be absolutely 6 100 per cent certain that it might not have come back to 7 me but I have no recollection of it and, obviously, I'm 8 aware of F32s but it's not something that I dealt with. 9 Q. Certainly from your point of view and knowing, as you 10 do, the special procedures involved with police officers 11 so that a final decision on prosecution would rest with 12 you as Solicitor-General, you have no criticism that it 13 may be that your original decision to place on petition 14 was understood to be the final decision to indict the 15 case? 16 A. Yes, that's absolutely right and it seems to me, just on 17 looking at the totality of the documentation that you 18 have been showing to the Inquiry, that the further 19 evidence that was being considered or expected was in 20 the context of meeting a possible defence rather than in 21 terms of dealing with a sufficiency of evidence, for 22 example. 23 Q. Can we move on, without looking at the correspondence 24 itself, it is important in trying to understand what 25 your position was and your own knowledge at this time, page 25 1 in 1997/1998. 2 You cover this to some extent in your statement. 3 What was your perception of the reliability of 4 fingerprint evidence at that time? 5 A. I had been an Advocate Depute for three years before 6 becoming Solicitor-General. I had dealt with 7 fingerprint evidence. I knew the generality of the case 8 law and fingerprint evidence was regarded as being 9 100 per cent reliable. So the evidence of a mark was 10 regarded as effectively conclusive evidence of either -- 11 of that individual having touched the place where the 12 mark was found. So if it was an immovable object, then 13 it would be evidence of presence. If it was a movable 14 object it would be evidence of that perhaps having been 15 in their possession at some stage or at least having 16 been handled in some way. 17 Q. You have already touched on this, that you were aware 18 from the reading of the papers of some question of 19 forgery or planting of that sort. 20 At the time when you were involved, did you envisage 21 anything other than forgery or planting, in other words, 22 any question of it relating to the reliability of the 23 fingerprint evidence itself? 24 A. No. 25 Q. One interpretation of the letter that came out from page 26 1 Crown Office about the instruction of an expert, because 2 it mentions the English expert checking whether Y7 can 3 be confirmed to the English standard, on one reading it 4 might be thought at least someone within Crown Office 5 was envisaging some doubt and, therefore, the need to 6 check the reliability of the identification. 7 Is that something that was on your mind at all at 8 that time? 9 A. Well, I'd be surprised if anybody had any doubt. The 10 view within Crown Office at the time was that there 11 would be no doubt. I mean, it seems to me that if you 12 have instructed a particular expert to deal with the 13 issue of planting and ... lifting and planting, then it 14 would be perhaps inconceivable you might not ask them 15 also to look at the issue of comparison because in terms 16 of the way in which the presentation would go to the 17 jury, if they had not themselves looked at a comparison, 18 then they might be open to criticism and the Crown might 19 be open to criticism by the defence. The first question 20 would be, "Well, have you made a comparison yourself?" 21 So it wouldn't surprise me that that question would 22 be asked of an English expert, as Terry Kent was, and I 23 understand from what I know that he was not able to do 24 that but, I mean, that I'm not sure was known to others 25 at the time. page 27 1 Q. If I can just deal with that, it transpired that 2 Mr Kent, who was thought to be the man who would deal 3 with all aspects of this, it transpires is a scientist 4 who could deal with and did deal with the question of 5 planting but was unable to express a fingerprint 6 opinion? 7 A. Yes. 8 Q. When his report came back in May, Mrs Greaves picked up 9 on one point -- not that point, picked up on one 10 point -- that was in correspondence with Crown Office. 11 Ultimately, the question comes to be asked, if we look 12 at CO3453 -- and, again, I do apologise, I can only show 13 you excerpts rather than a complete picture -- you will 14 see Mrs Greaves comes to write on 19th October 15 to Ms Climie, with some correspondence from 16 Levy & McRae, who were then the solicitors acting 17 for Ms McKie. Then it says: 18 "Please advise if Crown Counsel are satisfied with 19 the terms of Terry Kent's report. If so, I will arrange 20 for the return of the productions from PSDB." 21 That is the Police Science Development Branch in 22 London where Mr Kent operated. 23 First of all, understanding the normal procedure in 24 Crown Office at that time -- this is 1998 -- Fiscals 25 writing to each other referring to Crown Counsel being page 28 1 satisfied with the terms of Mr Kent's report, would you 2 understand why Fiscals would be writing to ask if Crown 3 Counsel were satisfied? 4 A. Yes, I think that was understandable. I would have 5 expected that it would have gone to the Duty Advocate 6 Depute. It is possible, though I think unlikely, that I 7 was asked about it. I have no recollection of it. 8 Q. But at the very least, because we have an absence of 9 paper, at the very least your understanding of normal 10 routine is a Fiscal presented with such a question would 11 consult the Duty Advocate Depute? 12 A. Yes. Of course, that has changed now but at that time 13 it would be the Duty Advocate Depute. 14 Q. You would never expect a Fiscal -- one readily 15 understands this might be capable of misinterpretation, 16 I'm not suggesting otherwise -- you would not expect a 17 Procurator Fiscal to take the decision herself? 18 A. I would have been surprised if that happened. 19 Q. One assumes, therefore, in the ordinary course of events 20 that Ms Climie will have consulted an Advocate Depute 21 but there is now no record of that having occurred? 22 THE CHAIRMAN: Miss Greaves. 23 MR MOYNIHAN: No, ms Climie. Ms Climie in the Crown Office. 24 THE CHAIRMAN: I see, once she got the letter from 25 Mrs Greaves. page 29 1 MR MOYNIHAN: So one assumes that she did. 2 A. I would have assumed that, yes. 3 Q. But you certainly, as the Law Officer, you have no 4 recollection of yourself being involved? 5 A. None whatsoever. 6 Q. As we then know in 1999, the case comes up for 7 prosecution. It would seem it is indicted in January. 8 It comes up, as the time bar would have suggested, at 9 the beginning of March. It seems to have been adjourned 10 and then it comes for prosecution April/May of that 11 year? 12 A. Yes. 13 Q. To the point of March, we understand from the background 14 that the defence issue was still one of planting/forgery 15 and you yourself didn't know otherwise at that stage? 16 A. Yes. I mean, again I have no recollection of having 17 seen or discussed it. 18 Q. Shortly before the trial took place/began, the defence 19 did indeed intimate to the Advocate Depute that the 20 nature of the defence was going to change and was going 21 to change to a suggestion of mis-identification. 22 Were you consulted by the Advocate Depute at that 23 stage? 24 A. I've no recollection of that. 25 Q. Would there have been any need for the Advocate Depute page 30 1 to have consulted you at that stage? 2 A. I wouldn't have expected that. There were particular 3 issues that Advocate Deputes were expected to discuss 4 with Law Officers but that would not be one of them. 5 Q. So there would be some crimes at that time, it would be 6 murder and rape, where Advocate Deputes would be 7 expected to consult the Law Officers, again given the 8 public importance of those crimes, but perjury would not 9 require consultation? 10 A. That's right. I mean, occasionally you would have an 11 Advocate Depute asking to discuss other issues but I 12 can't think this would have been one of them. 13 Q. Again, just from your experience as a Law Officer and 14 again a prosecutor, the Advocate Depute is now faced 15 with a challenge to his expert evidence. He has 16 available to him four Scottish Criminal Record Office 17 experts. He is told that apparently two other 18 experts -- they happen to be American, it matters not -- 19 two other experts are going to challenge their evidence. 20 Would you expect the Advocate Depute to, in the 21 first instance, consult his own experts or would you 22 expect him to be considering going off to get some 23 further external expert? 24 A. In the first instance, I would expect the Advocate 25 Depute to consult with their own experts. What would page 31 1 happen after that might very well depend on what was 2 said, but the first step would be to see your own 3 experts. Indeed, I think it would be highly unfortunate 4 if you went off and got another expert without going 5 back and giving them an opportunity to comment. 6 Q. Assume for the moment that the Advocate Depute consults 7 two of the four, is led to believe that they are 8 confident of their ability to meet the challenge. Would 9 you have any concern about the Advocate Depute 10 proceeding with the trial in that situation? 11 A. No. 12 Q. By this stage, there plainly is at least the 13 anticipation of a conflict of evidence among experts. 14 Would you, as the Law Officer who carried 15 responsibility, although you weren't consulted, have any 16 difficulty about the Advocate Depute proceeding in that 17 situation to trial? 18 A. No. I think the -- I was always very clear that once 19 the case had passed to an Advocate Depute, it really was 20 Crown Counsel's responsibility to take the decisions in 21 relation to it. There were, as you say, special 22 considerations in certain cases (murder and rape) but, 23 by and large, I took the view that it was not for others 24 to interfere in the discretion of counsel and, you know, 25 as somebody who had been an Advocate Depute myself I page 32 1 didn't think it was right to have that degree of 2 control. 3 Q. I'm sorry, it is my question. I had not in fact put it 4 correctly. What I was thinking was -- and we're not 5 looking here at the prosecution decisions, we're looking 6 at the question of the appropriate approach to expert 7 evidence -- what I was thinking was perhaps a more crude 8 thing: just because two experts come in and take a 9 contrary position, is it understandable that the Crown 10 would nonetheless proceed to trial? 11 A. Yes. Experts often disagree with each other. It was 12 highly -- would have to be said -- it was highly unusual 13 to have a challenge of this nature to a fingerprint, but 14 it was not unusual to have experts disagreeing and it 15 then became a matter for the jury. 16 Q. One subtlety to this, if I could take a step back, you 17 are now aware and indeed we are all now aware, that if 18 we had frozen the scene just at that point, had gone 19 back into Scottish Criminal Record Office and had 20 carried out a thorough investigation of others involved 21 that it might have come to light that though a number of 22 individuals agreed that Ms McKie's fingerprint was to be 23 identified as Y7, a number of them could not identify it 24 to the 16-point standard and, indeed, one had withstood 25 discussion and had said, no, he could not find more than page 33 1 ten. 2 First of all, just for the record, were you unaware 3 that there had been that background difference of view 4 within SCRO at the time of the prosecution decisions? 5 A. Completely unaware. 6 Q. It is a very difficult question to ask you, given all 7 that has gone on: is it just impossible now to say what 8 attitude you would have taken at the time, had you known 9 about that fact? 10 A. I think it's very difficult because actually you're 11 making an assessment or trying to make an assessment 12 without the influence of other factors that you know 13 about. 14 On one view, you might have said that by and large 15 the others were supportive, albeit that they didn't 16 reach the 16 points but were supportive of the print 17 being Shirley McKie's. 18 On the other hand, I think that certainly one would 19 have wanted to disclose that issue to the defence and 20 the Advocate Depute might have taken that into account 21 at the point where he knew that there was an allegation 22 that there had been a mis-identification. So it may not 23 have influenced the original decision to prosecute, 24 although one would want to make sure that there was 25 disclosure, but it might have influenced a later page 34 1 decision. Again, I think it's very difficult to say, 2 even with the benefit of hindsight, what might have 3 happened. 4 Q. I think the notes will not record your facial and hand 5 gestures. You do see this as a very difficult to answer 6 now, given all the complications of hindsight? 7 A. Yes. 8 Q. If I can then take you to the point after the trial, 9 Ms McKie as we know was acquitted, were you involved in 10 the immediate aftermath as Solicitor-General? We know 11 of one letter that in fact came out written by others in 12 the name of the Lord Advocate. Do you have any 13 recollection of whether you were involved or the 14 Lord Advocate, Lord Hardie? 15 A. Well, first of all, we were aware of the result. I have 16 sort of vague recollections of discussions and it being 17 talked about. I can't remember any sort of specific 18 meetings which were targeted at that issue, as it were, 19 but that may have happened. But certainly as 20 Solicitor-General I would have been informed of what the 21 result of the trial was. 22 My recollection is that -- I am pretty sure that I 23 perhaps would have spoken to the Advocate Depute and got 24 their perspective on it. I don't remember being in a 25 sense -- if I say particularly surprised that might page 35 1 sound the wrong note. I'm not sure that at that stage I 2 was particularly concerned about it because juries often 3 reach decisions which aren't perhaps readily 4 explainable. 5 In this case, there was a conflict of evidence and 6 one might have thought the jury would find it difficult 7 to decide one between the other and they would obviously 8 have to give the benefit of the doubt to the accused. 9 So I don't think that I would have been particularly 10 concerned at that stage about the outcome of the trial. 11 Q. At that stage, I'm just now trying to plumb your memory 12 just a little bit more, do you have a recollection of 13 difficulties over matters other than the fingerprints in 14 the background to the case? I'm thinking particularly 15 of logs and that sort of thing. 16 A. Sorry, would you repeat that. 17 Q. I'm thinking of logs. 18 A. Logs. I remember thinking -- and I suspect this was at 19 the time when I read the precognition before the 20 decision was taken -- I remember looking at the logs and 21 wondering how these fitted in with the fingerprint 22 evidence and taking the view that this was a matter for 23 the jury. I may have rationalised that as another way 24 in which the jury would have found it perhaps difficult 25 to find beyond reasonable doubt that Ms McKie was page 36 1 guilty. So that may very well have played a part in my 2 rationalisation of the verdict at the time. 3 Q. At that time, in the immediate few days and weeks after 4 the verdict, were you thinking that this was something 5 that would fundamentally challenge the reliability of 6 fingerprint evidence or did you think there were a 7 number of complicating factors? 8 A. I don't think that I thought that at the time, no. 9 Q. We know and we have seen records of a meeting that took 10 place with Mr Murphy and the by now Deputy Crown Agent, 11 Mr Crowe, and some members of the SCRO in May 1999. We 12 have minutes of that. We also have a note that 13 Mr Murphy prepared for internal use within Crown Office. 14 Do you have recollection of these events or is that 15 something you are simply dependent on the documentation 16 for? 17 A. No, I think I probably was aware that there were 18 meetings taking place and considerations but I don't 19 remember seeing any paperwork or being asked to take any 20 decisions or any view on any matters. I, frankly, can't 21 recall now. 22 Q. If I move from May and going into June, a letter came in 23 from Mr McKie that I won't take you to addressed, 24 naturally enough, to the Lord Advocate in the case. 25 We then have a letter from or written by someone on page 37 1 behalf of the Lord Advocate. If I take you to DB0582, 2 there are two pages to this letter. 3 A. It's not a particularly -- I think someone writing, 4 "Dear McKie", is quite inappropriate if I may say so. 5 Q. So it is inappropriately addressed? 6 A. Inappropriately addressed. 7 Q. It happens to be referring in the first paragraph to the 8 letter that is dated 9th June to the Lord Advocate and 9 the Lord Advocate has asked Mr Miller to respond. 10 Do you have any recollection of being involved at 11 this stage in this correspondence? 12 A. None. I've no recollection of seeing it until it was 13 shown to me by the Inquiry team and there was no reason 14 for me to have seen it. 15 Q. If I can just ask you, because if I simply explain in 16 fairness to you, since Lord Hardie is a serving High 17 Court judge, we thought it more politic to ask you 18 rather than summon him to discuss this letter. 19 What I am interested in is the last paragraph on the 20 first page and then the penultimate paragraph of the 21 letter. You will see that what is written on behalf of 22 the Lord Advocate is: 23 "Turning to your daughter's trial, I would stress 24 the significance of the fact that the charge against 25 your daughter reached the jury. As a matter of law, it page 38 1 follows from this that the prosecution evidence, to 2 justify the jury in returning a verdict of guilty." 3 I'm sorry, something is wrong with the syntax of 4 that. 5 A. Yes. 6 Q. Are we perhaps to understand that what the Lord Advocate 7 is saying is that there was what is technically known as 8 a sufficiency of evidence; in other words, there was 9 enough evidence which, if the jury had accepted it, they 10 could have convicted? 11 A. Yes. 12 Q. However, it was entirely a matter for the jury whether 13 they accepted the evidence or not and plainly, looking 14 at the totality, the jury must have been left with, at 15 the very least, a reasonable doubt. Is that fair? 16 A. Yes. Sorry. 17 Q. Then the point that I was asking you earlier on, if I 18 can just bring up the last -- we will look at the last 19 two lines perhaps we don't need to highlight. It says: 20 "There were however other areas of the evidence 21 which were in dispute and may have influenced the jury's 22 verdict." 23 A. Yes. 24 Q. So, in other words, matters other than just the 25 fingerprint evidence. Was that your understanding at page 39 1 the time? 2 A. Yes. 3 Q. We have touched on some of that, namely the log and that 4 there no doubt were other matters. 5 What I want to ask you about is the penultimate 6 paragraph in light of that. Mr Miller on behalf of the 7 Lord Advocate says: 8 "I can confirm that the Lord Advocate does not 9 propose to prevent the citation as prosecution witnesses 10 in appropriate cases of the officers from the Scottish 11 Criminal Record Office who gave evidence for the Crown 12 in this case. The Lord Advocate does not propose to 13 instruct review of the findings of those officers in 14 relation to other cases." 15 A. Yes. 16 Q. I appreciate you were not involved in it at the time. 17 Things changed later. Can you understand what the 18 thinking was at this time that the Lord Advocate was not 19 going to do, what in fact within in a year the 20 Lord Advocate was doing? 21 A. Yes. Well, think that the general view, which changed 22 later, but the general view was that there wasn't any 23 particular reason to doubt the overall reliability of 24 fingerprint evidence or to question, for example, SCRO 25 procedures or anything of that nature. I think it was page 40 1 thought at the time that this was a one-off decision, 2 that it was explicable, there were views being expressed 3 about the defence witnesses and, at that stage, no-one 4 was suggesting that there were other miscarriages of 5 justice -- or any miscarriages of justice, put it that 6 way. 7 So I think that perhaps is the thinking at the time. 8 Certainly it was the view that I, as Solicitor-General, 9 had and I am almost certain that, you know, I would have 10 discussed this with the Lord Advocate at the time. That 11 was just the generally accepted view between the Law 12 Officers and officials. 13 Q. Of course, as you indicated or as my question indicated 14 things changed, changed within in fact six months really 15 of this, certainly within a year. 16 From your perspective, what was it that effected 17 that change? 18 A. Well, I can't recollect exactly when that changed but I 19 think it is fair to say that the Frontline Scotland 20 programme was the catalyst for the reassessment of what 21 had happened in the trial. 22 As you know, Crown Office themselves instructed a 23 review of the two prints, Y7 and QI2. That certainly 24 took place alongside the request from the 25 Justice Minister to William Taylor, the Chief Inspector page 41 1 of Constabulary, to undertake a review and he instructed 2 his own experts, with Mr Zeelenberg and Rudrud, and it 3 was at that time really that, it was over that period 4 that things changed. 5 So I can't actually say exactly when these things 6 were all instructed but I'm certainly clear in my own 7 mind that it was the Frontline Scotland report -- 8 programme that was the catalyst for it and I think it's 9 fair to say also the political debate that came out of 10 that. 11 Q. So Frontline Scotland, having raised a question that the 12 McKie case did have peculiarities relating to the 13 reliability of fingerprint evidence, caused a 14 reassessment? 15 A. Yes. 16 Q. Not only by the Association of Chief Police Officers, 17 who I think started perhaps to some extent in 18 conjunction with Crown Office but then latterly with 19 Crown Office itself involved? 20 A. Yes. I mean, I think that there would have been very 21 close discussion. I can't really speak to this because 22 it would have been between officials but I'm pretty 23 certain that the Deputy Crown Agent, for example, would 24 have discussed it with the president of ACPOS. 25 Q. Since we have had evidence from the officials involved page 42 1 and, in particular, we have had evidence from now 2 Sheriff Crowe in relation to these events I will not 3 take them up with you. 4 So far as the situation actually ultimately becomes, 5 about Y7 and QI2, plainly you are not in a position to 6 reach your own personal view on these matters about the 7 reliability of the fingerprint identifications. It is a 8 matter for expert evidence. Would that be fair? 9 A. Yes. 10 Q. You did, or the Crown Office did, take advice from in 11 fact Mr Rasmussen and Mr Rokkjaer? 12 A. Yes. 13 Q. You would have been aware previously Mr Zeelenberg and 14 Mr Rudrud had also been consulted by Mr Taylor? 15 A. Yes. 16 Q. Did you yourself, in the light of that advice and the 17 work that was done by Mr Gilchrist also in considering a 18 prosecution, did you ever yourself come to a personal 19 view about the reliability of Y7, first of all? 20 A. To be honest, I find that difficult to answer. 21 Certainly the report from Bill Gilchrist in relation to 22 the allegations of criminal conduct that had been made 23 by Mr McKie against the SCRO officers, I recollect he 24 came to the view that there had been mis-identification. 25 I think we had that view from Bill Gilchrist. We had page 43 1 the two sets of experts who had independently come to 2 the view that there was mis-identification. I don't 3 think that I ever challenged that but it didn't seem to 4 me that I would have had to ever reach a view one way or 5 another whether Y7 was right or wrong. 6 In a sense, as prosecutor, you are interested in 7 what would be acceptable to or accepted by a court as 8 evidence. So that, I think, was the way that I looked 9 at this. 10 Q. What was your perception of the attitude of the court to 11 the matter? 12 A. Well, I've no doubt that at the very least a court would 13 have found it extremely hard to accept that Y7 was 14 Shirley McKie's print or the other way round, I think: 15 would probably find it difficult to find that Y7 was not 16 her print. By the time we got towards the end of this 17 process, we had a range of opinions and my view was that 18 persuading the jury, if we ever got to that point, that 19 this was definitely not her print might have been a tall 20 order. That was certainly one of the considerations in 21 deciding not to prosecute the SCRO officers. There were 22 others but that was certainly one of the views, a view 23 that I reached. 24 Q. As I say, I am not myself going to ask you about the 25 decision not to prosecute but I wanted to see what your page 44 1 attitude was to the evidence. 2 I want to carry this on now from a different 3 perspective because what I want to ask you about is the 4 handling of the six officers involved. Initially, the 5 Lord Advocate, Lord Hardie, had said he was not going to 6 prevent them from giving evidence again. 7 A. Yes. 8 Q. We know that that changed. The first four (that is 9 Mr MacPherson, Mr Stewart, Mr McKenna and Ms McBride) 10 were suspended, I believe, in August 2000. 11 A. Yes, that would have been right. 12 Q. In August 2000 and Mr Dunbar and Mr Mackenzie, the 13 management superiors, were taken off active duty. 14 A. Yes. 15 Q. As far as I'm aware, no one of those six ever after that 16 gave evidence in a criminal case. What I want to look 17 at is what it was that had changed so that they were not 18 going to give evidence. If I take it that where we've 19 arrived at is perhaps, if one pushed it, the official 20 view might have been that there had been a 21 mis-identification but there were still some individuals 22 of authority who were saying it had been correctly 23 identified. So there was still a range of view. Is 24 that a fair summary? 25 A. I'm sorry, could you just repeat that question? I think page 45 1 I missed the thrust of it. 2 Q. I have perhaps taken it too far. What I have said is, 3 just stopping, one might say given the advice that had 4 been received from the four continental experts that 5 Mr Taylor had accepted that Crown Office had received, 6 that the official view might have been -- might have 7 been -- that there had been a mis-identification. 8 However, Crown Office knew that there was a range of 9 opinion on the matter and, as you have said, it would be 10 difficult to know what view a court would have taken in 11 that situation. 12 First of all, is that a premise that you accept or 13 is it overstating? 14 A. I think I would accept that. I've obviously lost at 15 some point the thrust of the question but, as I 16 understand it, what you are suggesting is that although 17 there were six who were primarily involved (that is the 18 four who signed the report plus Mr Mackenzie and 19 Mr Dunbar), there were others who had expressed a view 20 in support. 21 Q. I am sorry, I apologise. Yes, there were others who 22 expressed a view. For example, we know Mr Swann and 23 Mr Graham and indeed behind them there were others in 24 the SCRO of a similar view, albeit slightly different on 25 numbers. page 46 1 A. Yes, that is right and there were a range of views 2 beyond the immediate six, shall we say. Yes, that is 3 certainly true. 4 Q. I am not looking at the decision to prosecute, I am more 5 looking at the decision to use officers in future. 6 A. Yes. 7 Q. Where there has been a difference of opinion, and even 8 if the official view is one body of opinion is correct, 9 the other is wrong, one would not necessarily think that 10 an expert whose view on one matter has not been accepted 11 by a court would be precluded from giving evidence ever 12 again? 13 A. Yes, that's absolutely right and indeed I suppose that 14 was the initial view which was reflected in the 15 Lord Advocate's letter. 16 Q. What was it that changed then that had these 17 individuals, at least taking it in stages, at least 18 sidelined for a period? What was it that had changed? 19 A. I think the start of it was the fact that the four 20 officers were suspended and the other two were placed on 21 non-operational duties. That wasn't -- so far as I'm 22 aware, that's not a decision that Crown Office had any 23 input into. It happened. 24 I think it's fair to say that after that there was a 25 public campaign which targeted the SCRO officers and, of page 47 1 course, there were the civil proceedings which were 2 going on at the same time plus, it has to be said, the 3 disciplinary proceedings against the officers. 4 Although the Crown was not involved in the decision 5 to suspend, it seems to me that it was obvious that that 6 would happen if there were disciplinary proceedings 7 pending. We couldn't have used them during that time. 8 As things progressed and the campaign, as it were, 9 took momentum, then I think we couldn't have used them 10 at that point. While the civil proceedings were 11 outstanding, I don't think that one could have used them 12 at that stage. 13 Afterwards -- well, there were two things. I mean, 14 first of all, the Scottish Executive had settled the 15 case and that, I suppose, would have had some bearing on 16 the credibility of the officers involved, but also there 17 was the leak of the Mackay Report and whatever what view 18 one might have taken of the Mackay Report, it did 19 recommend criminal proceedings against four of the 20 officers at least. So I think I have used the phrase 21 before the Justice Committee that they became notorious 22 and I'm afraid that's the way things progressed. 23 Putting on one side whether or not there was a 24 mis-identification, I think it would have been extremely 25 difficult for the Crown to have used these officers and page 48 1 then to have turned a trial into a kind of another trial 2 of the McKie case. They would have been immediately 3 subject to cross-examination about the contents of 4 Mr Mackay's report, which was in the public domain, and 5 it would have been very difficult, I think, for the 6 Crown to have suggested that they should be accepted as 7 credible and reliable witnesses at that point. 8 Although one might have sympathy with the particular 9 officers involved, in the public interest we simply 10 couldn't use them. 11 Q. This is where we encounter the difference between your 12 original statement and the revised one. The original 13 statement at least carries the implication that a 14 decision was taken at an early date in the sequence that 15 these officers would never give evidence again. The 16 correspondence suggested a more protracted period of 17 debate about what to do about the officers. 18 Would you like just to explain, now you have had the 19 benefit of reviewing the correspondence, which is the 20 better recollection of the sequence of events? 21 A. I think it's fair to say that I was being pressed to say 22 when was the decision taken on the first occasion and I 23 linked it into the receipt of Mr Gilchrist's report in 24 August 2001. I mean, it is actually clear that there 25 wasn't a decision taken back then and I'm now clear in page 49 1 my own mind that we did defer the decision, first of 2 all, actually for the disciplinary proceedings and, now 3 that I've seen the papers, I recollect being somewhat 4 surprised at the outcome of that although, having 5 thought about it, I can understand perhaps why the 6 disciplinary proceedings went the way they did. 7 I think we were always conscious that the decision 8 not to use the officers again was likely to result in 9 them losing their careers and so the decision was taken 10 to defer the final decision, as it were. I regret the 11 length of time that that took, frankly. It might have 12 been better for them had they been finally told earlier 13 but, having said that, had the civil proceedings gone a 14 different way then one might have contemplated a 15 situation where they might have worked themselves back 16 into that position. So it was very difficult to deal 17 with and, as I say, on a human level one has some 18 sympathy with them but I've no doubt that was the right 19 decision to take. 20 Q. In relation to this, I have given you the date the 21 officers were suspended in August 2000. My 22 understanding is that they continued to work in the 23 Fingerprint Service until March 2007. So more than six 24 years. That is the area of your regret, that it hung 25 over these individuals for more than six years? page 50 1 A. Yes, the civil proceedings were rather protracted. I 2 think that's unfortunate. 3 Q. If I can just bring up one particular document that fits 4 with that, if I bring up CO4090, this is a document 5 written in March 2004, so therefore part way through. 6 By March 2004 were you the Lord Advocate? 7 A. Yes. 8 Q. This is an e-mail written by an individual, Chris Orman 9 written to the Deputy Crown Agent by then Mr Gilchrist. 10 It says: 11 "The Lord Advocate has seen your minute of 12 10th March and agreed with your suggestion." 13 One can go back and look at that. That was 14 deferring the decision to the outcome of the civil 15 proceedings. Then it says: 16 "However, he would not wish matters to be delayed 17 too long." 18 Is that consistent with what you are saying? 19 A. I think I was frustrated at just how long these 20 proceedings were taking. 21 Q. Again from the point of view of the individual officers 22 themselves, from what you said earlier, did you at least 23 envisage there might be some outcome to the civil action 24 that would be beneficial to their careers? 25 A. Well, I thought that that was a possibility but, beyond page 51 1 that ... I think it's fair to say that I hoped, for 2 their sake, that we might have reached a situation where 3 they could have continued to be employed by SCRO. 4 Q. Sir, I am conscious of the time but there is one part to 5 finish and then we will stop. 6 One of the reasons for having gone over some of the 7 history of this is, in particular, you had asked me 8 about other individuals, without naming them because I 9 don't want it to be too invidious, I know that there are 10 other individuals within SCRO who, if one looked at the 11 background paperwork, would be associated with the same 12 opinion that Y7 was correctly identified as Ms McKie. 13 They were not sidelined. They were not suspended. They 14 were not stopped from giving evidence in court and 15 indeed they were the subject of some correspondence from 16 Mr McKie to Crown Office. 17 Can you rationalise why the Crown Office would have 18 treated people of the same view, in the same profession, 19 differently? 20 A. Yes. I think that the difference is that the four who 21 had signed the report and I think -- I've now 22 forgotten -- I think three of them gave evidence, but 23 they had been prepared to sign a report and go and give 24 evidence to the effect that this was Ms McKie's print, 25 plus Mr Mackenzie and Mr Dunbar had been in supervisory page 52 1 positions and closely associated with them. They were 2 themselves the targets, as it were, of the campaign and 3 indeed for that matter the civil proceedings and the 4 others had continued to work without really any undue 5 difficulties, as I think we saw it. 6 So the notoriety, as it were, attached to the 7 individuals who had signed the report and Mr Mackenzie 8 and Mr Dunbar rather than to the others. That is not to 9 say that we didn't have some issues in some cases where 10 defence counsel might bring up the McKie case, but I 11 think the view was taken that we were able to deal with 12 that and that they had not themselves been associated 13 with the decision to identify it as a mark and to give 14 evidence. 15 Q. Let me see if I understand that correctly. First of 16 all, there were cases where defence counsel, even with 17 other Fingerprint Officers, were questioning the 18 reliability of fingerprint evidence because of McKie so 19 it was being used in a collateral way? That was first 20 off all a concern? 21 A. Yes. 22 Q. Secondly, so far as any of the particular officers who 23 had expressed an opinion on Y7 was concerned, there was 24 a difference in degree, you used the word "notoriety", a 25 difference in the notoriety that separated out the four page 53 1 who'd signed the original report, three of them gave 2 evidence and their supervisors, singled them out 3 relative to anybody else who may in fact have shared the 4 same view? 5 A. Yes, that's right. 6 THE CHAIRMAN: I suppose on that point it was inevitable or 7 is inevitable that any fingerprint case, counsel for the 8 defence is likely to refer to mistakes are said to occur 9 and that is an example of it. That is bound to happen? 10 A. Yes. 11 THE CHAIRMAN: What we normally do is take a short break and 12 if that's not inconvenient we will stop now until 11.25. 13 (11.05 am) 14 (A short break) 15 (11.25 am) 16 MR MOYNIHAN: First of all, I apologise to people in the 17 public benches. I have been told off that I cannot be 18 heard, let alone Lord Boyd not being heard which is 19 perhaps more important. So I will try to do better. I 20 have just said we have to keep the microphone perhaps 21 uncomfortably close so it's picked up. 22 If I can just complete, in fact, what we were 23 talking about before the break, my attention has been 24 drawn to a document which might in fact assist in 25 presenting a summary of the position in relation to the page 54 1 four officers. My attention has been drawn to a 2 document CO4096 which will be brought up on the screen 3 for you. 4 A. All right, yes. 5 Q. This is a document which is dated in typescript, from 6 the Deputy Crown Agent, by now Mr Brisbane, on 27th 7 March 2006. You have written in manuscript on 28th 8 March 2006 and do we see the conclusion that you 9 yourself reached? 10 A. Yes. 11 Q. You say: 12 "I consider it would not be appropriate to use the 13 SCRO personnel involved in the McKie case as witnesses 14 in criminal trials in the future for the reasons 15 discussed today." 16 A. Yes. I think I recollect that there was a discussion 17 which involved actually both Law Officers, the Deputy 18 Crown Agent. I suspect the Crown Agent may very well 19 have been involved as well and Leanne Cross. 20 Q. First of all, at this date you are the Lord Advocate? 21 A. Yes. 22 Q. Leanne Cross would be a member of the Procurator Fiscal 23 Service? 24 A. She was, I think, the Deputy Crown Agent's assistant. 25 Q. One of the reasons -- first of all, we can see that page 55 1 perhaps this is the decision being taken and it is 28th 2 March 2006? 3 A. Yes. 4 Q. The second thing is it happens that this is at a time 5 just immediately after the conclusion of the civil 6 proceedings? 7 A. Yes, and from recollection that was either January or 8 February 2006. 9 Q. Therefore, we can see written in the report the factors 10 that were at least in the minds of the officials who 11 were bringing this matter to your attention; is that 12 fair? 13 A. Yes. 14 Q. Among the things that are referred to in the discussion 15 section at paragraph 4 is the question of the leaking of 16 the Mackay Robertson Report that you yourself have 17 mentioned; is that correct? 18 A. Yes. Yes, I think it says: 19 "It is hard to envisage any circumstances in which 20 these witnesses' evidence would not run the risk of 21 challenge on the basis of Mackay's allegations of 22 criminality, notwithstanding how remote of or irrelevant 23 that may seem to be. It would ... become a side issue 24 and a distraction in any proceedings." 25 Q. You have been given an opportunity to consider this page 56 1 particular document over the break. 2 Are you content that this document reflects the 3 factors that were underpinning your decision as at 4 March 2006? 5 A. Yes. 6 Q. The next and final topic that I wanted to consider with 7 you is the question of the move that occurred to the 8 non-numeric standard. 9 A. Yes. 10 Q. In 1997/1999 the understanding was the national standard 11 was a 16-point standard. That now is no longer a 12 requirement and I want to look at the practice concerned 13 there. 14 First of all, as a Law Officer did you at least have 15 some involvement in the process that resulted in that 16 change? 17 A. Yes. 18 Q. One thing that I would like to ask, just again I started 19 by asking you about the function of Law Officers in 20 relation to prosecution, it might be thought that since 21 this is a matter of expert evidence that the content of 22 the evidence and indeed the standards to which the 23 evidence is addressed are a matter for the witness -- 24 are a matter for the witness' discipline. 25 Why would you have any involvement in relation to page 57 1 this particular matter as a Law Officer? Perhaps more 2 generally, why would the Crown Office have any 3 involvement in this? 4 A. I think there might be two answers to that. The first 5 is that in Scotland the Lord Advocate's role goes beyond 6 the simple prosecution and has a role in directing the 7 investigation of crime and often that is done through 8 the issuing of guidelines to the police. But I suppose, 9 more generally, it is important that the Crown are 10 satisfied that if the evidence is presented in such a 11 way that it will be accepted by the Court. So these I 12 think are the two reasons that I would suggest there was 13 a role for the Lord Advocate. 14 Q. In fact, what I am going to do is to begin at an earlier 15 period, that is before you were a Law Officer, so a 16 previous generation of Law Officers to see if the matter 17 had been under discussion. 18 I am going to go to 1994 and I think by coincidence 19 you were an Advocate Depute at this particular time in 20 1994? 21 A. That's right. 22 Q. What I am going to begin with is just to look at a 23 document CO4427. If we go to the end of that document, 24 we will see the date. It is a document dated 25 22nd August 1994. If I go back to the start. It is page 58 1 from a standing committee on expert evidence. It is a 2 report to the Crown Agent regarding fingerprints and it 3 relates to the question of the 16-point standard. 4 A. Yes. 5 Q. I will look at that particular part of this report 6 slightly later but do you recollection as an Advocate 7 Depute in about this time of debate concerning the 8 16-point standard? 9 A. Certainly about fingerprints, I suspect it was this 10 report that stimulated that debate. My recollection is 11 that the Advocate Deputes and Crown Counsel -- sorry, 12 the Law Officers, Crown Counsel together, had a 13 discussion about this at our away weekend and that 14 fingerprints was an issue. 15 I recollect seeing this document. I can't remember 16 whether or not it would have been at that time or at a 17 later stage when I became a Law Officer but one of the 18 concerns that we had as prosecutors was that we did not 19 know when comparisons had been made but the 16-point 20 standard had not been reached because that information 21 was simply never given to the Crown. 22 I notice reference to Wick and the case that came 23 from Wick where I think it was 12 points of similarity 24 had been found. That I think was an exception. People 25 were not generally told -- the Crown was not generally page 59 1 told where some lower threshold had been reached. 2 That meant that where you had a trial and 3 fingerprints had been taken and often that fact might 4 have been brought out by defence counsel in the course 5 of the investigating officer's evidence, and then the 6 question would then go something along the lines of, 7 "And were any comparisons made?", and, "Were my client's 8 prints found on the particular object". So, for 9 example, if it was a packet of drugs or a weapon or 10 something of that nature and the answer would be no. 11 For all you knew as a prosecutor, there had actually 12 been a comparison, there might have been 7, 8, 9 points 13 of -- or even 15 of similarity but you didn't know that 14 and then that meant that it was an opening for defence 15 counsel to go to the jury and say, "Ladies and 16 gentlemen, you have heard that there were prints found 17 but they are not my client's", and you would be able to 18 get away with that because there was no evidence to 19 suggest otherwise. Now it might be perfectly consistent 20 with it being their clients and it just hadn't reached 21 the 16-point standard. 22 So that was a concern at that time and I have to say 23 it was one that was never really satisfactorily resolved 24 and worried me because, you know, the basis upon which 25 the Crown take decisions is on the basis that all the page 60 1 fruits of the investigation are handed over to the 2 Crown. That was the case of Smith, the whole issue of 3 disclosure was predicated on that taking place. 4 Of course, it could be that the defence would have 5 an interest in this as well, if there were prints that 6 perhaps, although they didn't match another individual, 7 might be consistent with another individual being 8 involved. So it was a point of concern at that stage 9 and I don't think was satisfactorily resolved at that 10 time. 11 Q. If I step back just for the purposes of those who are 12 listening from the public bench, first of all, what you 13 are indicating is that at this time in particular the 14 Crown would have responsibility to in gather all of the 15 evidence, whether favourable to the prosecution or not? 16 A. Yes. 17 Q. And the Crown had the responsibility to disclose to the 18 defence all relevant evidence whether favourable or not? 19 A. Yes. I mean, that was -- in Scotland, that was an issue 20 that was being gradually established, the MacLeod case 21 in 1998, Holland and Sinclair v Privy Council going back 22 now to 2004 or so but certainly the Crown always 23 accepted that it had an obligation to disclose evidence 24 which undermined the Crown case. 25 Q. What you are suggesting, namely, that -- let us take an page 61 1 easy example, Fingerprint Officers have checked a print 2 and have found ten points in sequence and agreement, let 3 us say, because we have heard evidence of this type, 4 that they themselves are privately convinced to the 5 point of certainty that that can be identified as a 6 certain individual but because it has not reached the 7 national standard they would not expect it to be used in 8 evidence, so that evidence would at that time have been 9 lost. 10 A. Yes. 11 Q. Are you indicating that that evidence might, depending 12 on the case, have been of significance not only to the 13 Crown if, for example, it was the suspect's print, it 14 may have been of significance to the Crown, but equally 15 there might be a case where it would be of significance 16 to the defence if, for example, it was a potential 17 incriminee's print that was found? 18 A. Yes, potentially. 19 Q. So you had a concern about the loss of that type of 20 evidence? 21 A. Yes. 22 Q. In addition, because what you are talking about is 23 consistent, did you have a concern about the loss of 24 evidence where Fingerprint Officers, though they did not 25 see enough to be satisfied of unique identity, did see page 62 1 enough pointers so that they could at least say it's 2 consistent with the suspect or the incriminee, they 3 can't say it is uniquely him but it is consistent with, 4 were you concerned at the loss of that type of evidence? 5 A. Yes, I was. I think it's fair to say that it was a fact 6 that you really never knew because that disclosure was 7 simply not made to the Crown and it was always seen as 8 either was an identification or it wasn't. There was 9 never any, as it were, halfway house and I think that 10 that really was a concern. I think philosophically it 11 was -- fingerprints were thought to be infallible and 12 sometimes there was a mixture of Fingerprint Officers 13 being infallible and one had the impression, fairly or 14 not, that there was a sense of preservation of that. 15 Q. If I can understand that -- you see it is important and 16 I will use, unfortunately, an expression we use here 17 about teasing it out -- you are saying there was a 18 confusion between fingerprint identification being 19 infallible and Fingerprint Officers being infallible. 20 You, first of all, saw that as -- 21 A. I think that was a concern. The way we kind of tried to 22 analyse that, I think that really was a concern, that 23 one of the reasons for saying we will not give evidence 24 where we don't reach the 16 points is in case we kind of 25 give ground on fingerprint evidence generally and our page 63 1 own credibility. 2 Q. So in other words there was a perception that such an 3 extraordinary high standard had to be maintained in 4 order to preserve the aura of infallibility? 5 A. That's a fair way of putting the perception that we had. 6 It is for others to judge whether that was a fair 7 perception or not but that was certainly a perception 8 that we had. 9 Q. Again, this is before your time as an officer so you are 10 simply speaking as a prosecutor amongst other 11 prosecutors discussing this, if I understand, what you 12 are saying is that the prosecutors both for their own 13 interest, if it favoured the prosecution, and also 14 conscious of their duty to the defence, if it favoured 15 the defence, would be looking for the lesser evidence, 16 namely evidence of consistency and not just unique 17 identity? 18 A. Yes. 19 Q. If I move on from 1994 and take the period when you 20 become a Law Officer, was that in 1997? 21 A. Yes. 22 Q. We know that the system was not changed until 23 September 2006 and in part that is influenced by the 24 McKie case that comes in in 1997 to 1999. 25 Do you have any indication yourself of what might page 64 1 have happened had the McKie case not occurred? Might 2 the change have occurred earlier than it did? 3 A. Undoubtedly, but I think I have a recollection of 4 effectively a decision being taken. I can't give the 5 exact date but 2001, 2002 ... well not beyond 2002, to 6 move to what is generally referred to as a non-numeric 7 system. 8 I think the tragedy in many ways of what happened 9 with McKie was that actually, although the Frontline 10 Scotland television programme highlighted difficulties 11 and then led us to question the procedures and processes 12 that were used, in actual fact thereafter we were kind 13 of frozen in what we could actually achieve because 14 everything was judged against the McKie case and getting 15 the political (with a very small P) will and impetus 16 behind change was, to my mind, very difficult indeed. 17 I think you should remember that this was a time 18 where a lot of things were changing within the Crown 19 Office and Procurator Fiscal Service as a result of 20 other cases and other reports and this was one area 21 which almost was impossible to touch. 22 Q. In trying to understand the thinking behind the change 23 to the non-numeric system, if I have in mind now the 24 discussion we have just been having about 1994, the two 25 potentially different things, first of all, a positive page 65 1 identification to the point of uniqueness? 2 A. Yes. 3 Q. That might be attained to a standard below 16, let us 4 say 10. That is one thing. 5 The other thing that we were discussing is where 6 Fingerprint Officers might say they've not seen enough 7 to persuade them of unique identity but they can at 8 least say the suspect or the incriminee is one of the 9 possible donors; it is consistent with his fingerprint. 10 When the system was under consideration for change, 11 did you have in mind dealing with just one of those or 12 both of those? 13 A. That's a fair question and I have to say that I can't 14 now recollect what the answer would be. My concern I 15 think was very much that we needed to see a change in 16 culture where the service was seen as being more open 17 and accountable, first of all to the Crown, frankly, and 18 I saw the move to the non-numeric system as being a way 19 of addressing that particular issue. 20 On the issue of getting marks which were consistent 21 I cannot now recollect how we were dealing with that. I 22 am pretty certain I would have asked the question -- I 23 remember we had briefings and so on -- but I now can't 24 recollect what the response to that was. 25 I think it is fair to say that my first concern was page 66 1 to get a system where the SCRO and their successors were 2 frankly more open and accountable than they had been and 3 processes within the service where it was less 4 hierarchical and where there was more of a culture of 5 challenge. 6 Q. I am grateful to you. If I leave then out the lesser 7 evidence of consistency with an accused and look at 8 unique identity as something that the non-numeric 9 addresses. I think you touched just in your final few 10 remarks there about what you meant by a difference in 11 culture. 12 Just to be clear about this, you mentioned something 13 about this hierarchical approach. What was your concern 14 there? 15 A. Well, I think that, again, what I should say is that 16 it's a wee while since I've read in detail, for example, 17 HMIC's report but the perception was that the way in 18 which SCRO operated at that time -- and I emphasise at 19 that time, rather than now -- was one where there was 20 perhaps more of a deference to more senior people within 21 the service, Fingerprint Service, and perhaps a feeling 22 that people might be reluctant to challenge. 23 You know, I was influenced, I have to say, by 24 reading some work from a psychologist Dr Dror in 25 2005/2006, as well as the Interpol report, that page 67 1 emphasised to me the need to have systems in place where 2 the people were free from influence, in terms of making 3 an identification and psychological pressures that can 4 be there. 5 Within the police you have a hierarchical approach 6 of necessity. Discipline is important. But actually 7 when you come to fingerprinting and the identification 8 of marks, you actually want the opposite. You want a 9 much more collegiate approach where there is less 10 deference, I think, to the senior officer and more of an 11 ability to say, "I don't agree". 12 Now, the perception -- again, I emphasise the 13 perception -- at the time was that one was less able to 14 do that than perhaps now is the case. 15 Q. As you say, for the perception what you are doing is 16 referring to the official reports that were commissioned 17 and made available at the time that the Inquiry has 18 access to as well? 19 A. Yes. 20 Q. Beyond the culture, as you say, the hierarchy in 21 creating a culture where individuals can openly, in 22 effect, not just challenge but openly express 23 differences of view, what was your concern so far as 24 transparency to the Crown was concerned? 25 A. You know, we didn't know in the McKie case about the page 68 1 other people who had been involved. I think, you know, 2 frankly, we should have known about that and my view is 3 that the Crown should be told the processes that the 4 Fingerprint Officers go through and who has looked at it 5 and who has expressed a view, whether that's consistent 6 or inconsistent with the evidence that is being given by 7 others. That judgment is actually a matter for the 8 Crown to take as to whether or not it's to be disclosed, 9 for example, or used in evidence. So that the issue of 10 transparency is that they ought to tell us and going 11 back to 1994, they weren't. 12 Q. If I look at one chapter of the HMIC report, that is 13 chapter 8, the reference is SG0375 and if I go to 14 page 82, please. 15 If you have not had a chance to consider this 16 recently, just indicate. I was going to bring this up 17 just for your comment because what I was going to ask 18 you about was the detail of consideration in relation to 19 the Crown Office and the lead up to the change to the 20 non-numeric. Reading paragraph 8.1.1, perhaps if we can 21 highlight this, and I do apologise the photocopy is poor 22 you see that the Taylor report begins: 23 "The application of a standard is very important to 24 maintaining a safe and reliable method of fingerprint 25 comparison. Experience and expertise enables a page 69 1 fingerprint expert to 'know' that a mark has been made 2 by a certain finger but it is necessary that a standard 3 is applied to translate that view into a reasoned 4 argument on which the conclusion can be based. The 5 application of a recognised and accepted standard 6 protects the fingerprint expert from inappropriate 7 pressures and influences and allows the generation of 8 safe and positive conclusions." 9 My reading, at least in context, was that Taylor, 10 anticipating the move to the non-numeric system, had 11 nontheless in mind a non-numeric standard, that is to 12 say some standard set for the evidence. 13 Do you have any recollection of a consideration of 14 that being given at the time? 15 A. Well, I looked at this again last night. I have to say 16 I'm not entirely clear what he means by standard in this 17 context. I'm not sure whether he means some equivalent 18 of the 16-point standard or whether he is referring, for 19 example, to some kind of quality assurance and I think 20 that I would be reluctant, frankly, to comment on it 21 without some interpretation from him. 22 Q. That is fine. 23 The other factors that come through, without taking 24 you to the specific passages in chapter 8, with a view 25 to transparency even to the Crown, let alone almost from page 70 1 the Crown to the defence, was some attention to be given 2 to the keeping of contemporaneous working notes? 3 A. Yes. 4 Q. Do you have any comment in relation to that? 5 A. Personally, I would have thought that was desirable. 6 Q. But you would not know how that actually fed through 7 into the actual implementation of the non-numeric 8 standard? 9 A. I have been told how it is working now. I think other 10 people will no doubt give evidence about that. My own 11 view is that that would be desirable and would be 12 consistent with the view that I took from an early stage 13 about transparency. 14 Q. Progressing up again, I don't wish to take it beyond 15 matters that you are comfortable commenting on, up 16 beyond working notes into the report which is produced 17 to the Crown and through that to the court, a question 18 requiring detailed reporting, do you have any comment on 19 the need for detailed reporting, in other words 20 something that is beyond an assertion of a conclusion? 21 A. I think I am beginning to get beyond my comfort zone, if 22 I may say so, to be honest. I haven't been involved in 23 this for three years and I haven't seen what a report 24 looks like now. So I would decline to answer that, if I 25 may. page 71 1 Q. No, that's fine. 2 The final point that I was going to ask you about 3 was that in the lead-up -- as you said, a decision had 4 been taken in principle at an early date, delayed as you 5 have said for the reasons you indicated, systems 6 eventually introduced in September 2006. 7 We happen now to know, again with hindsight, that in 8 March of that year, 2006, a report was published in the 9 United States concerning the handling of fingerprint 10 identifications in the case of an individual called 11 Brandon Mayfield? 12 A. Yes. 13 Q. In fact, we have check with the officials in the Crown 14 Office and the officials in the SPSA. There is 15 apparently no record of that case having been considered 16 by Crown Office in the run-up to the change to the 17 non-numeric system. 18 Did you yourself have any knowledge of Brandon 19 Mayfield? 20 A. I don't recollect that. I think I've heard of it since, 21 if I'm honest. I've certainly never read it. We had a 22 presentation in Crown Office some time in 2006 and I 23 don't recollect the case being referred to and I don't 24 recollect it being drawn to my attention at any time. I 25 think probably because of -- you know, I've read about page 72 1 it since but it's just in general interest rather than 2 anything else. 3 MR MOYNIHAN: I have no further questions. Thank you. 4 THE CHAIRMAN: I think it is appropriate once again, to ask 5 you, Mr Smith, first of all if you want to apply to ask 6 any questions. 7 MR SMITH: Yes, thank you, sir. I would like to ask some 8 questions and these relate to essentially to topics that 9 have been covered but one or two additional questions. 10 Principally, it's the decision to indict Shirley McKie. 11 I have one question relating to that and the response to 12 the acquittal, but I will again endeavour not to cover 13 the same ground that has been covered by Mr Moynihan. 14 THE CHAIRMAN: Yes. If you can avoid covering aspects that 15 have already been dealt with. 16 MR SMITH: I shall try to do so, sir. 17 Cross-examined by MR SMITH 18 Q. Lord Boyd, I wonder if I can ask you, first of all, 19 about the decision to prosecute Shirley McKie. 20 In your statement in paragraph 23 -- I don't need to 21 take you to it necessarily -- but you indicate, as you 22 told us, you were aware of the decision being taken and 23 the instruction, I think from yourself, to place Shirley 24 McKie on petition. Obviously from that would follow the 25 indictment in due course. page 73 1 Did you consider at any stage whether it might be 2 prudent to get the papers back in the period between 3 petition and indictment to consider whether there were 4 any major issues that might arise? 5 A. I simply can't -- I certainly don't recall seeing the 6 papers. I don't recall asking to see the papers. I may 7 have done but it doesn't surprise me if I didn't see 8 them. 9 Q. I understand but there must have been a point in time 10 when you did become aware, and it may of course have 11 been after the trial had been completed, that there was 12 actually, if I put it this way, not an issue confined to 13 the four corners of that case, there was a bigger issue 14 that had arisen which was a challenge to fingerprint 15 experts used regularly by the Crown. 16 Can I ask when it was, as far as you can recollect, 17 you were first aware that the big issue was one that had 18 developed? 19 A. As I think I said in answer to Mr Moynihan, I can't 20 recollect when that was but I'm clear, as I said, in my 21 own mind that the Frontline Scotland programme was very 22 significant and, you know, I think it's fair to say it 23 flowed on from that and from the political concern that 24 there was at the time. 25 Q. On a point of detail, I take it that SCRO, as an page 74 1 organisation, as far as you are aware, was one that the 2 Crown regularly used to provide expert information in 3 investigation and ultimate prosecution of crime? 4 A. Yes, that's obvious, yes. 5 Q. What I am interested in is when, as it were, the balloon 6 went up and there was a concern over SCRO. I take it 7 that it would be obvious the concern that the Crown 8 Office should have is not so much whether defence 9 counsel were able to cast a reasonable doubt by 10 reference to the McKie case but the fundamental question 11 of, "We are paying these people and relying on these 12 people to provide evidence. Can we have confidence in 13 their ability to do so?" That must have been the first 14 thing that was thought about. Is that fair? 15 A. That was certainly a concern and we addressed that by 16 having an independent check, not from SCRO but from an 17 outside force. From memory, it was the RUC or if it was 18 PSNI by then I can't recall, but from memory it was they 19 who provided that check. 20 Q. As far as the PSNI is concerned, I take it they were 21 chosen because of a belief that they had a particular 22 quality and experience to be able to provide that 23 independent check? They were respected as examiners? 24 A. Well, I can't recollect why they were chosen rather than 25 others and, indeed, I may not have actually had been page 75 1 asked about this. I think maybe they said, "Well, we 2 can get so and so in there", and no doubt the view was 3 taken that they were respected and able to provide the 4 service. 5 Q. Do you know who chose the actual prints to check for 6 that exercise? Was it SCRO who surrendered, as it were, 7 the documentation to the PSNI or did they go in and 8 demand everything or was it someone Crown Office that 9 directed which cases -- 10 A. I'm sorry, I can't tell you how that worked. I think 11 other witnesses would no doubt be able to assist you in 12 that, Mr Smith. 13 Q. Very well. 14 I would like to ask if I can, under reference to a 15 document, as to the position adopted principally by 16 Lord Hardie. 17 Can I have first on the screen document DB0576, 18 which should hopefully, as we can see, be a letter 19 addressed to Lord Hardie, the then Lord Advocate on 20 9th June 1999 just immediately following Shirley McKie's 21 acquittal. 22 I am sorry, if this is unfair asking if you 23 recognise ever having seen this letter but do you recall 24 a letter being brought to your attention, a letter being 25 written by Mr McKie shortly after the acquittal? page 76 1 A. I haven't seen this -- well, I don't believe I've seen 2 this letter before. 3 Q. Very well. Perhaps you can just take it from me rather 4 than read through it that what Mr McKie was doing was 5 drawing the Crown's attention to his concerns in 6 particular relating to the SCRO experts still continuing 7 to act as Crown experts in the case and I'm guessing you 8 would agree that would fit in with the pattern of your 9 understanding? 10 A. I'm sure, yes, absolutely and I don't know if the letter 11 that I saw earlier was a response to this particular 12 letter. 13 Q. It's possible -- perhaps if I can go on to another 14 document, which is CO0034. 15 Again this appears to be a minute of a meeting that 16 took place and we can see amongst others at the bottom 17 of the list Mr Sean Murphy, the Advocate Depute, and 18 Frank Crowe, the Deputy Crown Agent, were present along 19 with a number of individuals from SCRO, the Fingerprint 20 Bureau. 21 Again, do you have any recollection of having seen 22 this minute at any time? 23 A. I can't really say, to be honest. I mean, it's possible 24 that it was in some background material that was given 25 to me at some point when we were discussing it but -- page 77 1 well, I think the short answer is, no, I can't recollect 2 seeing it but what I'm suggesting to you is it's not 3 impossible that I would have. 4 Q. Very well. Can I ask for a further document to be 5 brought up, which is DB0718. 6 This bears to be a letter of 12th July 1999 to 7 Mr McKie? 8 A. Yes. I see it is actually a response to the letter 9 which you have just shown me. 10 Q. Can I ask to go to the next page of it, please. I am 11 interested in the first full paragraph on that page. 12 Could we have that expanded. 13 We can see, in fact, in the image beneath that that 14 it from Andrew Miller at the Policy Group but it refers 15 to the Lord Advocate's position. Just reading it out: 16 "It is the Lord Advocate's duty to look into matters 17 of apparent concern arising from the prosecution of 18 crime generally and from individual prosecutions in 19 particular. I can confirm the various issues raised by 20 this case have been the subject of investigation by the 21 Lord Advocate, including of course the issue of the 22 conflict between the evidence of the Crown and defence 23 witnesses as to the interpretation of fingerprint 24 evidence. The Lord Advocate does not propose to publish 25 the details of his investigations." page 78 1 Can I ask this: are you aware of what investigations 2 had been carried out? What was being referred to there? 3 A. Well, I have to say it's difficult for me to comment on 4 another person's letter. All I can say is that, so far 5 as I can recollect afterwards -- and this is just my 6 recollection -- there were discussions which involved, 7 as you have pointed out, the Advocate Depute who 8 prosecuted the case and the Deputy Crown Agent. It is 9 possible that -- in fact, quite probable -- that the 10 Lord Advocate and I discussed it but I have no 11 recollection of any conversations. 12 I don't believe "investigations" refers to any 13 formal process and I certainly wasn't aware of that and 14 I think I would have been aware. 15 Q. I think it is fair to say the matter was gathering speed 16 in a very public way almost immediately following the 17 trial. 18 Is that your recollection of the circumstances? 19 A. Yes. I mean, it's so long ago to be honest, I really 20 can't recollect the sequence of events. 21 Q. Can I ask for another document, please, CO4065. Can we 22 go on to the next page, please, and hold it there. 23 Thank you. 24 I am interested in the fifth line on the first 25 paragraph. There are obviously some parts of it that page 79 1 have been redacted so it is hard to place it in absolute 2 context. This we understand to be a minute to the 3 Lord Advocate from Mr Gilchrist and this is being said: 4 "Although we are not prosecuting these officers, our 5 position must be that they made serious mistakes in the 6 Asbury/McKie cases." 7 I don't think I need trouble you with the rest of 8 it. Particularly, it deals with the question of 9 dismissal and so on. 10 Obviously, by this case it was identified that there 11 had, in fact, between two errors which is why the 12 reference appears to be, I think, if I've got my dates 13 right, the Asbury and McKie cases. 14 Again, there appears to be an acknowledgement at 15 this point in time, in 2001 -- we can see the date of 16 the minute -- that there were serious mistakes made with 17 regards to -- that was the Crown position -- that there 18 appeared to have been serious mistakes that had been 19 made. 20 I take it we can agree that, at least at 21 September 2001, there was a very clear Crown position 22 and there must have been a very clear concern within 23 Crown Office as to what had happened and what I suppose 24 could happen in the future. Is that fair? 25 A. Yes. A slight hesitation is I wonder if that is perhaps page 80 1 a bit of an overstatement in the end of the day, 2 although it's written by Bill Gilchrist who did the 3 report. I just wonder if -- I think I would need to go 4 back and look at the Gilchrist report again but I wonder 5 whether or not there was a feeling that the errors might 6 have been more as a result of the processes rather than 7 the individuals. I mean, I think ultimately the Bill 8 Gilchrist position was that there were 9 mis-identifications and there were mis-identifications 10 in two cases, so I can see why he wrote that. 11 Whether I actually fully adopted that or some 12 position which was a little short of it, I can't now 13 recall. 14 Q. I think I understand your position that I suppose you 15 are really saying you would have to read it in the 16 context of other documents and this document to be clear 17 about what was being said. 18 A. I think it is fair to say that Bill Gilchrist's position 19 was that there were errors in both Asbury and McKie and 20 I didn't challenge that. I'm not sure that I went 21 through a process of saying I agreed with it or I 22 disagreed with it. It didn't seem to me to be 23 particularly relevant to the issues that I was dealing 24 with. 25 Q. Can I ask for another document up. It is one, I think, page 81 1 you might find easier for you, this one, CO4073. 2 I think this is, as we can see, a document 3 initialled by yourself addressed to the Deputy Crown 4 Agent. You refer in the second paragraph, what you say 5 is: 6 "To be blunt, I find it difficult to understand how 7 the Tribunal ..." 8 That is, I think, a reference to a -- 9 A. A disciplinary tribunal, that they were referred to, 10 yes. 11 Q. Yes, the Black report, I think it has been described as: 12 "... I find it difficult to understand how the 13 Tribunal came to its conclusions standing our own view 14 of what went wrong." 15 You say: 16 "The Board is making it difficult for us in not 17 showing us the report." 18 Again, what I would like to understand is this 19 appears to be indicating almost a firm decision within 20 Crown Office that there was a major problem, as at April 21 2002, with regards to your satisfaction on the quality 22 of information that had been provided in the McKie and 23 Asbury cases. Is that fair? 24 A. Yes. I think that my initial response to hearing that 25 the Tribunal had found that there wasn't a case for the page 82 1 officers to answer was: how did they reach that 2 decision? 3 I think probably on reflection, it is possible that 4 it was because the thought that the processes which the 5 officers were following were more at fault than the 6 individual officers but since we didn't see -- we never 7 saw the report, that was really speculation. 8 I also, I suppose, thought that the Tribunal, if 9 they had found the SCRO officers guilty of a 10 disciplinary offence, would have made it easier in the 11 sense for us to have taken the ultimate decision that we 12 did take. 13 Q. Did you know at any time that the Black Report did not 14 actually analyse the fingerprint? It was more -- if I 15 put it this way -- an employment matter rather than a 16 technical matter? Were you aware of that? 17 A. As I say, we never saw the report so I don't know what 18 approach they took but I can now rationalise it, as I 19 said, as to why they may have come to that view but if 20 they had shown us this then I might not have written 21 that particular sentence. 22 Q. You mentioned that -- I think the word you used was 23 "catalyst" was the Frontline Scotland programme report 24 for doing something, if I put it that way, for really 25 taking a very clear and close look at things. page 83 1 I take it you would agree that, as far as David 2 Asbury is concerned -- and for your information I also 3 represent his interests in this Inquiry -- a catalyst 4 for something to happen with regards to David Asbury was 5 a Panorama programme which had paid for Mr Wertheim to 6 analyse the QI2 print. 7 Can you recall that? 8 A. Yes, I'm happy to accept that. I now can't recall it. 9 Q. Just to fill in a little more information, the position 10 of David Asbury was that he was trying to -- I know the 11 Crown wouldn't necessarily aware of this but he applied 12 for Legal Aid repeatedly in order that after his 13 conviction he could have all of the fingerprints be 14 analysed in the case against him, which was 15 predominantly a fingerprint-based prosecution. He 16 didn't get Legal Aid. Panorama, as I understand it, 17 then agreed to pay for the analysis of QI2. It was said 18 to be incorrectly identified and thereafter when that 19 report was given to the Crown, the Crown obtained the 20 report from two Danish gentlemen on QI2 who affirmed the 21 position there had been a mis-identification of QI2. 22 Does that ring bells with you? 23 A. I certainly recollect that the Crown independently 24 commissioned the report from the Danish. My 25 recollection is that they also did the same -- that it page 84 1 was at the same time as the Y7. I may be wrong about 2 that but that's my recollection and as for the Panorama 3 having commissioned Mr Wertheim, yes, if you say that 4 happened, I'm happy to accept it. 5 Q. You see, if it is right, under the basis the Crown did 6 not resist the appeal by David Asbury, recognising that 7 there, one presumes, would probably have been a 8 miscarriage of justice without that evidence being 9 before the court on QI2, which was an extremely 10 important piece of evidence, would you agree with the 11 suggestion that without the involvement of Panorama, at 12 least, at that stage, there was a real risk there could 13 have been a miscarriage of justice continuing with 14 Mr Asbury continuing to serve a life sentence for 15 murder? 16 A. No, I don't think so because we had done the Danish one 17 and I think that given that Y7 was being looked at, I 18 think we would have done QI2 as well. But ... 19 Q. Is my understanding not right that the Danish report was 20 commissioned as a response to the suggestion from Mr 21 Wertheim in the Panorama programme that there had been a 22 mis-identification? It was my understanding that the 23 Danes were instructed because of that. It wasn't 24 coincidental. 25 Do you have any recollection of that? page 85 1 A. I don't and I think probably, you know, Mr Gilchrist 2 might have been the better person to ask that question 3 from, if I'm honest. 4 Q. You see one thing that I am having trouble with is this: 5 that after the acquittal of Shirley McKie and after the 6 position that it becomes very clear that there is a 7 question mark hanging over the quality of the 8 fingerprint evidence provided in the McKie case, would 9 it not have been relatively clear that the murder trial 10 of David Asbury and the investigation ought to have been 11 fully reinvestigated by an independent body of some kind 12 looking at all the images, all the evidence, to then 13 decide if there had been failings in the Shirley McKie 14 case had there also been failings in the David Asbury 15 case? Do you understand the point I am making. It is 16 almost -- 17 A. Yes, and I fundamentally disagree with it. David Asbury 18 was convicted of murder. The appropriate course of 19 action is for him to challenge that conviction through 20 the appeal process. He did that. I'm not responsible 21 for whether or not he gets Legal Aid but the Crown -- 22 and whether it was prompted by the Panorama programme or 23 not -- the Crown commissioned their own investigation 24 and gave that to the defence. So that was the 25 appropriate way to do it and ultimately the conviction page 86 1 was quashed. To have some other body doing it I think 2 would be highly inappropriate because that could not 3 have resulted in the acquittal of Mr Asbury. 4 So, I'm sorry, but I fundamentally disagree with the 5 proposition that you put to me. 6 THE CHAIRMAN: Just one point for me. Was there a Criminal 7 Cases Review Body in Scotland at that time? 8 A. Yes there was but they could only come in after the 9 appeal process had been ... now he'd already -- my 10 recollection -- and Mr Smith will correct me if I'm 11 wrong -- but my recollection is that there was already 12 an outstanding appeal at the point when the issue of 13 fingerprinting came to the fore and, having got the 14 Danish report, the Crown made it available to the 15 defence. It took, I think, quite some considerable 16 time, possibly because of Legal Aid considerations, I 17 don't know, for the grounds of appeal to be amended to 18 include the fingerprint evidence. 19 THE CHAIRMAN: So because the appeal was still 20 outstanding -- 21 A. The appeal was still outstanding at that point. 22 THE CHAIRMAN: -- the Criminal Cases Review Body couldn't 23 look at it. Yes, I quite understand. 24 MR SMITH: If I have understood your position correctly, 25 Lord Boyd, it is that the Crown would really react to an page 87 1 appeal rather than be proactive in looking for problems. 2 Is that fair? 3 A. No, we were proactive. They actually commissioned the 4 Danish report and gave that to the defence so that they 5 could bring it to the court's attention and that is the 6 appropriate way of doing it. 7 Q. With respect, as I understand it, that was reactive, the 8 Danish report was reactive to the, as it were, the 9 privately commissioned report by Panorama and without 10 that being obtained are you suggesting that would have 11 been obtained anyway? Are you saying that it would have 12 been obtained in any event? 13 A. My recollection -- and I'm afraid this is going back 14 some time, but my recollection is that the issue of 15 Shirley McKie's print, Y7, and QI2 went in tandem and at 16 the point at which the Crown were alerted to the Y7 17 problem, the investigation covered both QI2 and Y7. 18 Q. Why was the audit carried out of the, I think, two 19 years' worth of work by SCRO? Why was that carried out 20 by the Crown? 21 A. Why? 22 Q. Yes. 23 A. Because there was clearly a public concern and a concern 24 within the profession about the work of SCRO. 25 Q. If it had been discovered by PSNI or the RUC, whatever page 88 1 the title was at that time, if it had been discovered 2 that there was another mis-identification in another 3 case, I take it that is something the Crown would 4 immediately have disclosed to the defence in that case, 5 would they? 6 A. Well, there was an issue about a case ... what was the 7 name of it? Mark Sinclair, I think. 8 Q. It is certainly a name I've heard before. 9 A. And now I can't remember -- somebody else I think would 10 be better able to tell you the details of that. As far 11 as I'm aware, that was the only issue during that time 12 that was brought to our attention and my recollection is 13 that we didn't use that print and Mark Sinclair was 14 convicted of a number of armed robberies but it didn't 15 include that particular issue. 16 Q. I follow. It may be my fault but what I am really 17 asking you is in the review exercise by PSNI you have 18 referred to, if there had been an error popped up that 19 had been, according to PSNI, committed in another case I 20 take it that is something the Crown would have 21 immediately disclosed to the defence, if the individual 22 had been convicted? 23 A. Well, I think before you get there there is the issue of 24 do you use the print in the trial? Because remember the 25 PSNI process wasn't a review of past cases. It was of page 89 1 evidence that was going to be used in cases after 2 June 2001 -- I think it would be June 2001. So the 3 issue would be do we use the print? Do we disclose it? 4 Do we disclose information to the defence before the 5 trial? I think it was highly unlikely we would have 6 waited until there had been a conviction and then done 7 it. That would have been wrong. 8 Q. I am sorry, it may be my misunderstanding as to what had 9 been reviewed. I had understood it was review cases in 10 which there had been work carried out there were 11 historic cases rather than current cases? 12 A. No. 13 Q. That's wrong, is it? 14 A. That's wrong. There was consideration given to whether 15 or not we should do that and it was thought to be an 16 exercise that really could not properly be done. 17 Q. You will forgive me for this comment but we seem to have 18 had a greater reaction to the Frontline Scotland 19 programme than the complaints being presented by Iain 20 McKie. Would you agree with that as a valid comment? 21 A. I don't really think I could comment, to be honest, on 22 that. 23 Q. You have seen some correspondence from Mr McKie which 24 appears to have resulted in a response saying, I think, 25 very shortly "business as usual, we've looked at this, page 90 1 we'll carry on, these people will continue to give 2 evidence" but the Frontline Scotland comes along then it 3 was the catalyst I think as you put it? 4 A. That's fair. 5 Q. Why would it be there would be a greater reaction to 6 Frontline Scotland than the concerns presented by 7 Mr McKie? 8 A. Well, I think there are a number of reasons for that. 9 To be blunt, Mr McKie is one individual. He was, not 10 unnaturally, concerned about the prosecution of his 11 daughter and upset about the way in which she had been 12 dealt with. I mean, to be honest, it's not unusual for 13 Crown Office to get a complaint of that kind. 14 I think that it was at the point where the -- and I 15 said publicly in a lecture that I gave that I paid 16 tribute to the media when they went after cases where 17 there had been either a miscarriage of justice or some 18 injustice and that Frontline Scotland was an example of 19 that. I think that it is right to say that the work 20 that they did brought together the key strands and I 21 think it's also fair to say that Mr McKie's campaign 22 highlighted public concern, greater public concern, than 23 just one individual. 24 Q. I take it you would agree that from what we seem to know 25 now about a number of things regarding Y7 and QI2, even page 91 1 if we just talk about the question of Crown concerns 2 about the lack of disclosure, all of that is something 3 that would not have happened had, frankly, Iain McKie 4 had not been tenacious, got the media interested and 5 pushed it forward and, whatever else happens, there is 6 considerable benefit from having to analyse the systems 7 in place. 8 Would you agree with that as a comment? 9 A. Yes, and no. I think I would agree that there was a 10 catalyst in terms of bringing this to the attention of 11 the public. Thereafter, it frankly froze any progress 12 until we got past the end of the civil proceedings and I 13 think that was a great tragedy. 14 Q. Why did that stop change? What was it that the civil 15 case prevented the Crown Office from saying, "Well, we 16 need to face up to this, we need to take a position on 17 it, we need to restore public confidence in the entire 18 system of fingerprinting in Scotland"? Why did the 19 civil case inhibit that process? 20 A. Because quite simply there was no movement that could be 21 made, for example, on non-numeric without it being 22 judged being made against the Shirley McKie case and, 23 frankly, the campaign that was waged by Mr McKie against 24 the SCRO officers made it very, very difficult for 25 anybody to move. I can quite see why you and Mr McKie page 92 1 may feel that they brought this to the public attention 2 and I'll accept that, but thereafter I am quite clear in 3 my own mind that it was impossible to get the kind of 4 movement that was required while that campaign was going 5 on. 6 Q. You see, Lord Boyd, I realise you do not perhaps know a 7 great deal about the Brandon Mayfield case in 2006 but 8 my understanding of that is that, in short, there was an 9 apparent mis-identification by the FBI of a fingerprint 10 and the reaction of the American authorities, in 11 particular I think the Department of Justice, was to not 12 only face up to it and accept there had been a mistake, 13 to set up an inquiry into how it happened, how it could 14 be prevented and to publish in its entirety (with I 15 think one redaction of one name in a report of several 16 dozen pages) to make it public, accessible online, to 17 restore public confidence in an acceptance that mistakes 18 had been made. 19 Do you not agree that that is perhaps a very hard 20 thing to do, it may be embarrassing for some people, but 21 it is something that can allow the public to have 22 confidence in the system? Would you agree with that? 23 A. I don't think that could have possibly have been done 24 while the civil proceedings were continuing and that is 25 to 2006. I simply don't see how you could have run both page 93 1 some kind of inquiry which was published in advance of 2 the conclusion of the civil proceedings. 3 Q. Because it would have prejudiced the Executive's 4 position in the civil case; is that what you are saying? 5 A. Well, it certainly would have -- the case was sub 6 judice. 7 Q. In fact on that point of detail, just to be clear about 8 it, once the pleadings are closed, the record is closed, 9 it's not sub judice is it in terms of the Contempt of 10 Court Act? 11 A. I think that the difficulty would have been that we 12 would have been running some kind of inquiry while there 13 were outstanding civil proceedings and I think that that 14 would have been virtually impossible. 15 Q. But it wasn't sub judice, was it, after the record was 16 closed? 17 A. Well, it may not have been at that point. I can't 18 remember the sequence of events, Mr Smith. 19 Q. Can we deal with the question of what was going on with 20 regard to disclosure. Again, for those who perhaps 21 don't know as much as you do, and maybe even as I do, 22 about issues of disclosure, the question of disclosure 23 you have mentioned the case of HMA v Smith (I think it 24 was in the 1950s or so) which related to questions of 25 disclosure, but by 1998 the case of MacLeod was the most page 94 1 important case. Again, I may be wrong about this but I 2 think you actually appeared in MacLeod; is that right? 3 A. Yes. 4 Q. Of course, between 1998 and I think 2004 or 2005 the 5 cases of Sinclair and Holland reached the Privy Council 6 and disclosure was a pretty hot topic, wasn't it, 7 throughout that period 1998 onwards? 8 A. I think it is fair to say the law and practice were 9 developing during that time and -- yes, that's fair. 10 Q. By the time the Mackay Robertson Report came to your 11 attention, and perhaps I can just ask you this, when do 12 you recall first having seen the Mackay Robertson 13 Report? 14 A. Well, I mean, the Mackay Robertson report wasn't really 15 the catalyst for anything, it was the Bill Gilchrist 16 report which accompanied in 2001. So all I saw was Bill 17 Gilchrist's report. From memory, it had attached to it 18 part of the Mackay Report -- I think chapter 7. I also 19 saw at that stage the Mackay Report or at least parts of 20 it, if not all of it. 21 Q. But you were aware at some stage that there had been 22 individuals within SCRO who had failed to reach the 23 16-point standard. You became aware of that reasonably 24 shortly after the Mackay Robertson Report became 25 available. Am I right? page 95 1 A. I must have done, yes. 2 Q. What that did was -- and I think you very fairly 3 accepted earlier on that is something that really the 4 Crown ought to have known about for a number of reasons, 5 failure to reach the 16-point standard -- at that point 6 when you knew that there had been a failure to pass that 7 information on to the Crown, you must have realised that 8 there was a systemic problem with regards to the Crown 9 relationship with SCRO? 10 A. Well, yes, there were changes that were going on at that 11 stage and, yes, that's fair. 12 Q. The most important thing that one might think regarding 13 disclosure should have been done once you knew about the 14 failure to identify those failing to get a 16-point 15 standard would be a directive, effectively, that SCRO 16 should be told, "We need to know if there's anyone who 17 fails to meet the 16-point standard. We have to be told 18 about it". 19 Do you agree that is an obvious solution to at least 20 that part of the problem? 21 A. Well, it's one part of how you deal with it. The other 22 way of dealing with it is through precognition and one 23 of the changes that we brought in through a process 24 called solemn renewal was that experts should be 25 precognosced and that is the sort of issue which I would page 96 1 have expected to be dealt with through precognition. 2 Q. Were the instructions issued to precognoscers that they 3 must ask about the, as it were, almost an audit trail? 4 Did the precognoscer what they should be asking is what 5 I am really asking? 6 A. Well, they certainly should do. I can't recollect now 7 what instructions were given to precognoscers but 8 disclosure became certainly more of an issue after 1998 9 and became more important through that time. I can't 10 say that on every occasion they were alerted to this. I 11 just don't know. 12 Q. It is my understanding from other documents available to 13 us is that the precognition system, if I put it that 14 way, did not become effective until this year. 15 Were you aware of that? 16 A. No, I disagree with that. I'm sure that it was done 17 before then because the solemn renewal process came 18 about as a result of the other changes that were being 19 made in Crown Office at the time. The start of that was 20 a report by Sir Anthony on the Chhokar case but then the 21 changes in the working practices of Advocate Deputes and 22 part of that was the precognition of experts. 23 Q. I take it you are not suggesting though that a civil 24 case in some way held up a change in view about 25 disclosure, did it? page 97 1 A. No, I'm not suggesting that. I'm suggesting that it 2 certainly held up some progress in the changes which 3 really had to be brought in, such as a change to the 4 non-numeric system and really inhibited the way in which 5 we could influence change in SCRO. 6 Q. On a point of detail, the Crown regularly obtained, 7 procured, reports from SCRO in the '90s right up beyond 8 the Shirley McKie case, if I put it that way. I am 9 correct in that, am I not? There was a regular 10 procurement of reports from SCRO? 11 A. Procurement would perhaps be the wrong -- the reports 12 would come from SCRO and their successor as part of a 13 criminal investigation. 14 Q. Yes, but nonetheless if it came to the point where a 15 fingerprint report and fingerprint evidence had to be 16 presented before the jury would be a very direct 17 reliance by the Advocate Depute on the information 18 provided by the SCRO. 19 Would you agree with that? 20 A. I'm sorry, could you repeat that? I missed it. 21 Q. I am sorry, yes. It is my fault. 22 I am trying to establish if I can that the SCRO and 23 ultimately the Crown, perhaps the police but ultimately 24 the Crown, were regularly working together, as it were. 25 Is that a fair analysis? page 98 1 A. Working together. Yes, I mean, clearly they got SCRO 2 reports and used they them in criminal trials, yes. 3 Q. Yes. Can you tell me this and thinking back to the time 4 just prior to the civil action being raised, was it 5 known by the Crown who employed SCRO, who their, as it 6 were, vicarious employers were, who had vicarious 7 responsibility? 8 A. I'm not aware of anybody having thought about it before 9 the civil case was raised. I'm not sure that they would 10 have any reason to think about it, to be honest. 11 Q. Other than they were obtaining reports, relying on 12 reports. They did not know who their employer was. Is 13 that not something that the crime might be interested 14 in? 15 A. No, I don't see why it would be of any particular 16 concern to the Crown who employs individuals. It wasn't 17 the Crown. What we would be interested in is the 18 report, not who actually employs them. 19 Q. But surely their employers would be relevant in the 20 sense of being responsible, not just for legal 21 responsibility, legal liability, but also for management 22 responsibility to introduce change to control, to 23 present people of quality and expertise and almost a 24 corporate structure. 25 Is that something that would be important to the page 99 1 Crown? 2 A. Well, clearly there would be conversations with 3 managers. I don't actually see that it was necessary 4 for the Crown to take the view as to who actually 5 employed individuals. 6 Q. Lord Boyd, we are now sitting here some 13 years after 7 the question of Shirley McKie was raised and Y7. Would 8 you agree with the suggestion that public confidence in 9 fingerprinting has undoubtedly been significantly 10 damaged over the past 13 years? Would you agree with 11 that? 12 A. I think I would rather leave it to the judgment of 13 others, frankly. 14 Q. Can I ask your personal opinion then. Do you have every 15 confidence in the position of fingerprinting in 16 Scotland? 17 A. Well, I've no reason to doubt it but, Mr Smith, I 18 haven't been Lord Advocate for three years and I don't 19 practise criminal law so I have not actually seen a 20 fingerprint since I left office and I think it is 21 probably better for those who have responsibility for it 22 at the present time to make these kind of comments than 23 for me to make them. 24 Q. I am not asking you about the past three years. During 25 the time you were Lord Advocate and prior to that page 100 1 Solicitor-General, did you have any inkling that the 2 public perception of fingerprinting and prosecution of 3 cases where fingerprints were involved was something 4 that was really a matter of concern in the public 5 debate? You must have understood that Lord Boyd, didn't 6 you? 7 A. Well, yes, but I think it's easy now to overstate it. I 8 mean, I think it is interesting that this Inquiry is not 9 being reported at all and I think that that perhaps 10 demonstrates that people move on and concerns move on. 11 While I was Lord Advocate, it was certainly a heavy 12 political issue and that was because the issue became 13 politicised, frankly, Party politicised. So it was a 14 political issue. 15 How far that actually reached down into the sort of 16 general public I think is questionable and it was 17 interesting that, you know, we did have in the course of 18 trials defence counsel who would suggest that you could 19 not rely upon fingerprints. But, you know, anecdotally 20 we were not actually aware of any challenge having 21 succeeded during that time and that, I think, begins to 22 put it in perspective. 23 I think you are right that we couldn't have used, 24 unfortunately, the SCRO officers who had been involved 25 in this again because that would have produced its own page 101 1 reaction but I think that one can overstate the sort of 2 issue about public confidence, frankly. 3 Q. What you seem to be suggesting, if I have got this 4 right, is that the fact the public may not be entirely 5 interested means that the public interest suggests that 6 everything was fine. You are not really taking the 7 leap. 8 A. Now you are moving on from public confidence to the 9 public interest, which is a slightly different concept 10 if I may say so. The public interest obviously demands 11 that we have confidence in any evidence that is placed 12 before a court and I have no reason to doubt that that 13 public interest has been served now. 14 Q. Can I just be clear, Lord Boyd, if this had not 15 attracted media attention in the way it has over the 16 past 13 years, would you have been quite content with 17 the way, from what you knew about it, that the system 18 had operated, no change, just ride this one out? Is 19 that an approach we can expect to have heard about? 20 A. With respect, I don't actually think that I ever 21 suggested that you ride this out. What I have in fact 22 said is completely the opposite, that actually we were, 23 to an extent, inhibited in taking this forward because 24 of the McKie campaign, if I put it that way. 25 I am quite clear in my own mind that I would have page 102 1 addressed this issue in the context of the very 2 considerable changes that took place in the Crown Office 3 and Procurator Fiscal Service while I was Lord Advocate. 4 Q. I am right in saying, I think, that the previous 5 Government opposed the Judicial Inquiry we that are 6 sitting in today? 7 THE CHAIRMAN: Is that really a relevant issue? 8 MR SMITH: You are indicating, sir, I should not go there. 9 I will not ask the question. 10 Lord Boyd, do you recognise now that considerable 11 change to a number of systems and in talking about 12 issues about disclosure, procedures about finding out 13 about what should be disclosed to the Crown, perhaps 14 about management issues, about the science of 15 fingerprinting, expert testimony, all these issues that 16 this Inquiry is looking at, do you recognise that is a 17 healthy and a good thing that something like that should 18 be taking place in the context of this matter? 19 A. Are you asking me whether or not I approve of this 20 Inquiry because that actually seems to be the question 21 you are asking me, Mr Smith, and I'm not going to answer 22 that. 23 Q. Very well. 24 Do you consider that things could have been done 25 differently? If you could wind the clock back, page 103 1 Lord Boyd, would you do anything different with regards 2 to the systems that were in place? 3 A. Would I do anything different? I mean, I think that 4 that is a very difficult question to answer, Mr Smith. 5 I mean, my philosophy in life is that one always learns 6 from what one has done in the past and I'm sure there 7 are things that I would approach differently, but I'm 8 also confident that I take the right decisions. 9 MR SMITH: Thank you very much. 10 THE CHAIRMAN: Mr Holmes, I think you would be the next 11 applicant. 12 MR HOLMES: Yes, sir. There is just one topic I would like 13 to cover and that is the decision not to use the six 14 officers to give evidence again. I'm aware there has 15 been -- 16 THE CHAIRMAN: If there is some new aspect of it you want to 17 touch on, I will allow you to. 18 Cross-examined by MR HOLMES 19 Q. Lord Boyd, you said earlier on that the disciplinary 20 proceedings conducted by SCRO identified no disciplinary 21 issues with the six officers. You then went on in your 22 evidence to identify three factors in the decision not 23 to use these officers to give evidence again in spite of 24 that. 25 The first of these was the public campaign against page 104 1 them. By that, do you mean principally the media 2 campaign? 3 A. Well, I think it's quite -- yes, I think there was a 4 campaign which sought to have the Fingerprint Officers 5 prosecuted and that campaign continued after the 6 decision not to prosecute. It came to the fore 7 particularly after the settlement of the civil 8 proceedings, I think, and the public campaign I think 9 was a significant issue. 10 Q. Is this a campaign which, in your view, was largely 11 being conducted by Mr McKie? 12 A. Well, you know, certainly the McKie campaign had a great 13 deal of traction in the media. There's no doubt about 14 that. 15 Q. Were you left in any doubt as to what was being called 16 for in relation to these six individuals? 17 A. Well, initially at least up until 2001 it was for the 18 prosecution of the officers involved, failing which 19 certainly dismissal, disciplinary proceedings and so on. 20 Q. The second factor that you identify in the decision is 21 the decision of the Scottish Executive to settle the 22 civil case. Indeed, one of the reasons that you give 23 for the delay in deciding the fate of these officers is 24 the pending civil proceedings. 25 Was it your view that had they been given an page 105 1 opportunity to give evidence during the civil 2 proceedings and had that evidence been accepted by the 3 court that they could return to giving evidence in the 4 course of their employment? 5 A. I don't think that I or maybe -- I don't think that I 6 ever reached a view on that particular issue. I think 7 it's fair to say that although I was the Law Officer, I 8 have collective responsibility, as it were, for that 9 decision although I was not personally involved in it. 10 Q. The third reason that you identified for the reason not 11 to use these officers again is the leak of the Mackay 12 Report and I think, in fairness, you say, whatever you 13 think of the report itself, the leaking of it did 14 contribute to the decision not to use these officers 15 again. 16 In relation to all three of these matters, can I ask 17 is any of them anything to do with any of the officers 18 themselves? 19 A. I mean, I think that the ... I think that's a good 20 question and let me just pause and think about it. 21 I think one has to say yes, it does because 22 ultimately it was they who made the comparison and 23 certainly, although as I say I didn't actually feel it 24 was necessary to reach a view, the weight of the 25 evidence did seem to support the view that this was not page 106 1 Y7 or Y7 was not Shirley McKie's print and QI2 was not 2 Asbury's. That was the weight of the evidence. 3 Q. You have said yourself that the disciplinary proceedings 4 that were carried out by SCRO did not identify any 5 issues with the conduct of the officers and the three 6 factors that you identified thereafter in the decision 7 not to use them again to give evidence seem, on the face 8 of it at least, to be decisions taken by others, are 9 they not? 10 A. I think that is fair to an extent that meant that we 11 would have had difficulty in presenting them as reliable 12 and credible. I mean, I think it's as fair to say that 13 simply because somebody makes a mistake -- let's assume 14 for a moment that there were errors in the 15 identification -- that officers, people do make mistakes 16 and if they make mistakes, then that shouldn't preclude 17 them from being used again in evidence because, provided 18 that doesn't reflect on their expertise, it might be 19 said that one of the issues or one of the difficulties 20 was that either the officers themselves never accepted 21 they made a mistake. So one could not have gone to 22 court and said we accept that they made a mistake in 23 this case, standing the Mackay Report, and therefore 24 bolstered their credibility in that way. That's a 25 matter for the officers and, as I understand it, they page 107 1 adhere to their view and they are entitled to do that 2 but simply in terms of presenting them as credible 3 witnesses that would be more difficult. 4 Q. A decision must, therefore, have been required on the 5 part of Crown Office as to whether these officers were 6 correct or not because the three other factors that you 7 have mentioned have been decisions that have been taken 8 by people other than these officers. 9 Is that not right? 10 A. Yes, but it might be hard but, ultimately, so far as the 11 Crown is concerned the issue is whether or not we can 12 present witnesses to court to a jury as being wholly 13 reliable and credible and whether or not there was a 14 mistake, whether it went beyond a mistake or whether 15 they were indeed right, the fact of the matter is that, 16 standing the factors that I put, we could not have 17 presented them in that way. 18 Q. I think in fairness the word you use in relation to two 19 of these witnesses at least is "notoriety"; is that 20 correct? 21 A. Yes. 22 Q. Was that notoriety, at least in part, as a result of the 23 media campaign that was conducted against these 24 officers? 25 A. And the leak of the Mackay Report. page 108 1 Q. If there is in the future an acquittal where fingerprint 2 has been led what is there now to stop an accused person 3 then mounting a campaign and ending the careers of the 4 three officers who identified their fingerprint? 5 A. Well, I think that's not really a question for me, since 6 I don't have responsibility for that. 7 MR HOLMES: Thank you. 8 THE CHAIRMAN: It is 1.00 but could I just have an 9 indication, first of all, Miss Grahame do you have any 10 application. 11 MISS GRAHAME: No thank you. 12 THE CHAIRMAN: Mr Macpherson? 13 MR MACPHERSON: No thank you, sir. 14 THE CHAIRMAN: Miss Jones? 15 A. No, sir. 16 THE CHAIRMAN: Mr Kemp, is there any matter you want to 17 raise in re-examination? 18 MR KEMP: No, sir. 19 THE CHAIRMAN: And finally -- 20 MR MOYNIHAN: No, sir, no further questions. 21 THE CHAIRMAN: There is just one point I wanted to ask you 22 about. Disclosure is always very difficult and getting 23 people to understand the need for disclosure, Government 24 departments and so on, sometimes get into difficulty 25 about it. page 109 1 Would it have been an approach to have told the Head 2 of SCRO, I mean, after I'm not saying in advance of 3 this, that in the future where any expert in the 4 department had disagreed with a decision that should be 5 disclosed to the Crown Office rather than relying on 6 individual officers being asked in the course of a 7 precognition? 8 A. Yes, I think that's a fair comment. I don't know 9 whether or not that was done. I can't recollect giving 10 any instruction that it should happen. Possibly with 11 the benefit of hindsight that might have been done. 12 THE CHAIRMAN: But directives of that sort weren't normally 13 given to departments? 14 A. No, there were Lord Advocate's guidelines which were 15 given and I know that there were no guidelines given. 16 Indeed, these were part of what was held up as a result 17 of this process. I think that the Director and others 18 were certainly more aware of the need to have processes 19 in place where both the correct identifications were 20 made and without the processes and things, but also that 21 the Crown was informed as to when there were differences 22 of view. 23 THE CHAIRMAN: Thank you very much and thank you for coming 24 to give evidence. I am glad to say we can release you 25 now. page 110 1 A. Thank you very much. 2 (The witness withdrew) 3 THE CHAIRMAN: We will sit again at 1.55. 4 (1.05 pm) 5 (Luncheon Adjournment) 6 (1.55 pm) 7 ROBERT MACKENZIE, recalled 8 THE CHAIRMAN: Mr Mackenzie, thank you for coming back. 9 I apologise again to Ms McBride for interrupting her 10 evidence but I gather you have been kind enough not to 11 object to that. 12 Examined by MR MOYNIHAN (continued) 13 Q. Mr Mackenzie, you are primarily back to now give us your 14 own view in relation to QI2 and, in particular, to deal 15 with the views of some of the other witnesses who have 16 given evidence. 17 Before we get to that though, because I will 18 otherwise forget, I have been asked to clarify something 19 in relation to Collette Orr. 20 A. Okay. 21 Q. The Inquiry has heard some evidence about a difference 22 of view as between Collette Orr and Mr Luckraft. I 23 don't really want to go too much into the background of 24 that but, so far as any reassignment of Miss Orr within 25 the office is concerned, is that just simply routine and page 111 1 unrelated to any difference of view with Mr Luckraft? 2 A. As the Deputy Head of the Bureau one of my tasks would 3 be, on a yearly basis -- we didn't do moves virtually 4 any other month of the year, it was basically round 5 about September-time we would review staff within each 6 team as to whether or to the length of time they had 7 been at a particular team and obviously the overall 8 needs of the Department as to whether we would move one 9 member of a team to another member of a team and that 10 was down round the September-time, usually about the 11 beginning of September and it wasn't massive changes. 12 It might have been three or four people and maybe the 13 odd trainee because the trainees, it was useful for them 14 to rotate within different teams and have different 15 mentors so that usually happened. The decision on that 16 and the implementation of that was usually round about 17 the beginning of September and the reason behind that 18 again was that people would be planning their annual 19 leave for the following year and round about 20 September-time we would ask them to submit what they 21 would like as preferences in the way of annual leave. 22 So one fell in conjunction with the other. 23 But as far as the suggestion that Collette Orr 24 and -- was there a suggestion it was Collette Orr and 25 Richard Luckraft that were both moved? Certainly, I've page 112 1 no knowledge, and it would be myself that would be 2 directly involved if somebody was moving from one team 3 to another. As a result of any particular discussion in 4 a case I've never known or not had involvement myself in 5 moving somebody because of an issue. 6 The only movements of teams would be, one, for the 7 needs of the Department to strengthen the team. It 8 could be the Special Cases Team had high volume of 9 murders ongoing and they might have to occasionally 10 augment that team, but as far as regular moving of 11 people, it usually occurred round about September and 12 any moves that occurred that have been suggested, 13 presumably by Mr Luckraft, would be to do with the 14 normal rotation. 15 Q. Thank you very much. 16 Having dealt with that matter, we will come now to 17 QI2. For the purposes of this particular session of 18 your evidence, you have yourself prepared some 19 additional enlargements that you are going to talk 20 through. 21 A. Can I explain, basically I think you gave me up the 22 original book the last time and that was the one 23 prepared on 27th July 2001 which had 29 characteristics 24 marked off on QI2 and on Marion Ross's right forefinger. 25 So to try and assist the Inquiry, I suggested that I page 113 1 might actually break this down into four sections of QI2 2 and the same four sections of Marion Ross's right 3 forefinger. 4 To achieve that, I came a week past yesterday and 5 with the assistance of Lynne Allan, great assistance of 6 Lynne Allan as far as the technology was concerned, I 7 was able to produce the illustrations that are now on 8 the system and she actually wrote, she handwrote the 9 numbers on to them. So that was something I couldn't do 10 so between her working the system and putting the 11 numbers on, that's how we've achieved what I'm about to 12 show you. 13 Q. The images you use as the base for this comparison, are 14 they the same images that you used for the exercise you 15 undertook for Mr Gilchrist? 16 A. Sorry? 17 Q. The images that you have used for this afternoon's 18 evidence, are they the same images you used for 19 Mr Gilchrist's exercise, that's the photographs in the 20 book? 21 A. Yes. I think pointed out that I had identical glossy 22 copies the last time of what is in the book, obviously 23 without the lines on them. So these are the ones that 24 were captured onto the system and then I actually 25 measured out exact size squares that would be marked on page 114 1 QI2 and the same size of squares marked on to Marion 2 Ross's right forefinger. So that's the continuity, if 3 you like. 4 Q. First of all, just for the record, what we looked at on 5 the previous occasion was CO2005H. Go to page 1. We 6 see that this is the booklet that is dated 27th 7 July 2001. 8 A. Correct. 9 Q. If we go within page 4 of that document -- 10 A. Page 3. 11 Q. Sorry. Yes, I am looking at the digital references. 12 Page 3 of the book, page 4 digitally, is the charting 13 that you did with 29 points? 14 A. That's correct. 15 Q. In effect, what you have done is used a photographic 16 original of the same image? 17 A. Yes, with the same points marked on that were marked on 18 when I did that. 19 Q. If we then proceed through to the next page of the 20 document, page 5 digitally, there is an image of Marion 21 Ross's fingerprint with the same 29 points charted and I 22 understand it again you have used a photographic 23 original of the same image for this afternoon's 24 exercise? 25 A. Correct. page 115 1 Q. If I can therefore bring up the first of your 2 documents -- and I will let you take control shortly -- 3 TC0211.01, this is the first image. 4 What you have said is that you are going to break 5 this down into, is it four areas? 6 A. Four areas and work with them in a clockwise direction 7 and that's why I have labelled them A, B, C and D. The 8 reason for them overlapping is so there can be 9 continuity between one area to the next so as we move on 10 from A to B we will be able to see where we left off on 11 A and so on and so forth, B will overlap with C and the 12 continuity from C back to B and likewise D overlapping C 13 and the continuity back to C. 14 Q. If I also bring up side-by-side with that TC0211.02, do 15 we see that you have marked on an image of Miss Ross's 16 fingerprint the corresponding rectangles A, B, C and D? 17 A. Yes, the same measurement of the actual rectangles. 18 Q. What you are then going to do is look at your original 19 29 points now broken down into those rectangular areas? 20 A. Correct. 21 Q. In that case, if I let you give the presentation as you 22 wish. 23 A. Could I have up TC0211.03. Could I have the full image. 24 You recall the last time I gave evidence this was 25 the area that was touched on particular characteristics page 116 1 1 to 4. So I thought I would start with the same area 2 again. This is the one marked A. 3 Point 1 is marked as a bifurcation downward. We go 4 two intervening ridges above that and we come to 5 point 2, which is a ridge ending upwards. Then we come 6 back down across five intervening ridges from point 2 7 down to point 3. Then we go up one intervening ridge 8 and then back on to the larger of the two bifurcations 9 marked in green, marked point 4. 10 From point 4, we go seven intervening ridges across 11 to point 5 and what I've actually marked on the fifth 12 intervening ridge within that magenta circle there is a 13 shape within the actual ridge itself which is actually a 14 large pore. This is actually present when you come to 15 look at Marion Ross's forefinger. It's a significant 16 feature in the tracing. 17 From point 5, we go up six intervening ridges to 18 point 6, which is the end of an island and at the other 19 end of that is point 7. The blue arrows and the light 20 blue lines indicate incipient ridges. One of them is to 21 the right of ridge -- sorry, of point 5, one intervening 22 ridge to the right of point 5 and the other two are, 23 basically, vertically above point 5. There's one 24 intervening ridge to the left of point 5. Then there's 25 an incipient ridge ending. There's another intervening page 117 1 ridge between that and the next end of the incipient 2 ridge. 3 If we call up TC0021.07, and start again at point 4 number 1, there's a bifurcation downward. Go two 5 intervening ridges to the right and there's a ridge 6 ending upwards. Go five -- sorry, can we rewind it? I 7 went two intervening ridges to point 3 there. I'll 8 start again. 9 At point 1 we've got a bifurcation downwards. We go 10 two intervening ridges to point 2, which is a ridge 11 ending upwards. We go down from point 2 five 12 intervening ridges to point 3, which is a ridge ending 13 upwards. We go back up one intervening ridge to point 4 14 which is a bifurcation. We go from point 4 across seven 15 intervening ridges down to point 5 and on the fifth 16 intervening ridge we have the prominent pore that I 17 had -- 18 THE CHAIRMAN: So what is point 5? 19 A. Point 5, sorry, is a ridge ending upwards. Sorry, on 20 the fifth intervening ridge between 4 and 5 there is the 21 prominent pore that I spoke about that was circled, I 22 think it was with a magenta circle on the previous 23 image. 24 Immediately -- sorry from point 5 one intervening 25 ridge we go across and we come to the end of an page 118 1 incipient ridge upwards and then going vertically up 2 from point 5 one intervening ridge we come to the end of 3 an incipient ridge and then one intervening ridge again 4 and we come to the end of an incipient ridge, there 5 marked with the blue arrows. 6 If you could call up TC0211.04, I think I may have 7 missed out 6 and 7 in the last slide. Did I mention 6 8 and 7? 9 THE CHAIRMAN: I think you stopped at 5. 10 A. Can we go back? Yes, I stopped at point 5. I should 11 have actually back to 6 and 7. So if we go -- sorry, 12 from point 5 up six intervening ridges, we come to an 13 island. The left-hand end of that is point 6 and the 14 right-hand end of it is point 7. 15 We can now move back to TC0211.04. Starting at 16 point 7, that's the end of the short independent ridge, 17 we go two intervening ridges to ridge ending marked 18 point 8. 19 I should point out at this stage that the ridge 20 structure in Marion Ross's fingers is a combination of 21 very fine detail and within this structure there are a 22 number of incipient ridges present. There's also a 23 tendency for some of her ridges to go from being thick 24 in nature and thinning out nearly to the actual size of 25 an incipient ridge. page 119 1 Now, in particular, these incipient ridges seem to 2 be in the centre of the digit and this would be 3 consistent with the actual pressure at that point of the 4 digit touching the surface and that's the more bony part 5 of the finger, whereas at the edges it's more fleshy. 6 So to actually visualise or for the incipient ridges to 7 actually come to the surface they are more likely to do 8 in the area where there's more pressure and that's where 9 they're presence on the mark and they're also present on 10 the right forefinger. So that's how the incipient 11 ridges become more visible actually under pressure. 12 8 is a good example of that, where the ridge has 13 actually thinned out coming up from the left and it's 14 very close to the immediate ridge above it. 15 We then move three intervening ridges from point 8 16 to -- sorry, yes, three intervening ridges upwards to 17 point 9 and there's a ridge ending coming in from the 18 right marked at the end of the green line with the red 19 dot. 20 If we go back down six intervening ridges from 21 point 9, we come to point 10 and again this is another 22 example of the ridge thinning out and coming in close to 23 the ridge immediately above it. 24 If we go down from point 3 -- sorry, if we go down 25 from point 10, we go across one, two, three, four page 120 1 intervening ridges and we come to point 11, which is the 2 core of the print. It's actually a ridge ending 3 upwards. I think it has been suggested by some as being 4 described as a chilli pepper but that's the end of that 5 ridge ending upwards within the first recurve. 6 I should, again, have mentioned that in between 7 these counts, the light blue lines are indicated as the 8 incipient ridges that are present and you can see 9 there's a proliferation of them in this area, as I've 10 said, immediately above the core and to the side of the 11 core. 12 If we go immediately to the right of point 11, we've 13 got point 12, which I have marked as a bifurcation 14 downwards and immediately to the right of that, we have 15 point 13, which is a ridge ending upwards. I think I've 16 described that in my previous evidence of it had 17 actually come up a little higher than what others had 18 suggested and it's actually again another example of the 19 ridge thinning out. 20 If we go from point 13, five intervening ridges to 21 the right there's a ridge ending upwards marked as 22 point 14. If we go one intervening ridge to the right 23 of 14, we have point 15. 24 If we could have up TC0211.08, again, if we start at 25 the top we have 6 and 7, the independent ridge. We go page 121 1 two intervening ridges downwards to the ridge ending 2 coming in from the left, point 8. You can see what I 3 mean by when I previously described the ridges actually 4 thinning out, that ridge having come up from the left 5 and thinned out and stops at point 8. 6 If we go three intervening ridges upwards from 7 point 8, we come to the ridge ending marked 9, coming in 8 from the right. If we go six intervening ridges 9 downwards, we come to point 10 which is another example 10 of a ridge coming in from the left and then thinning 11 out, stopping at the red dot, point 10. 12 If we go down four intervening ridges to the core 13 area, we come to the ridge ending up, otherwise 14 described by some as a chilli pepper. If we go on to 15 the next ridge to the right and down, we come to the 16 bifurcation downwards. If we go immediately to the 17 right of that, we have a ridge ending upwards, point 13. 18 If we go five intervening ridges to the right of 19 point 13, we come to a ridge ending up, point 14. If we 20 go one intervening ridge to the right we come to the 21 ridge ending up, point 15. 22 Again, in the light blue, you will see the incipient 23 ridges marked. As I say, there's a proliferation of 24 them in that area, typical of a core. 25 Go to TC0211.05. Again, we have the incipient page 122 1 ridges marked in blue above the core. We have the ridge 2 ending up in the core area, number 11. One to the right 3 of it we have the bifurcation down. One to the right of 4 that we have point 13, the ridge ending upwards. Go 5 five intervening ridges to the right, we have 14. One 6 intervening ridge to the right, we have point 15. We 7 come across from point 15 eight intervening ridges, we 8 come to point 16, which is a ridge ending upwards. 9 Sorry, rerun that. We go eight intervening ridges from 10 point 15 to point 16, which is actually a ridge ending 11 down, which is immediately in the ridge detail below 12 point 13. 13 We go two intervening ridges to the right of 14 point 16 and we come to a ridge ending up, point 17. We 15 go one intervening ridge to the right and we have the 16 bifurcation down marked 18. We go down the left-hand 17 leg of that bifurcation and one ridge to the left and we 18 come to point 19, a ridge ending upwards. We go two 19 intervening ridges from point 19 and we come to the 20 bifurcation downwards, which I've described as a spur, 21 and on the right-hand leg of the spur we have the ridge 22 ending downwards, point 21. We miss one ridge to the 23 right, an intervening ridge, and we have a ridge ending 24 upwards, point 22. 25 If you miss one intervening ridge to the right, I page 123 1 have marked a green dot and a green arrow and I'm 2 satisfied that that is consistent with another ridge 3 ending up. So that would take my tally in the end to 30 4 characteristics. 5 If we could have move to TC0211.09, again we have 6 the blue incipient ridges above the core area. We have 7 point 11, which is the ridge ending up in the core. To 8 the right of that, we have point number 12, the 9 bifurcation down. To the right of that, we have the 10 ridge ending up, point 13. We go five intervening 11 ridges across to point 14. We go one intervening ridge 12 to point 15. We come across eight intervening ridges to 13 the left and we come to point 16. We go two intervening 14 ridges to the right and we come to the ridge ending 15 upwards, marked 17. One intervening ridge to the right 16 is a bifurcation downwards. Follow the left-hand leg of 17 the bifurcation downwards and we come to a ridge ending 18 up marked 19. We go two intervening ridges to the right 19 and we come to the spur and the characteristic marked 20 20, the bifurcation downwards. The right-hand leg of 21 that is a ridge ending down below that, point 21. 22 Go one intervening ridge to the right and we have 23 point 22 and we move one intervening ridge to the right 24 of that and I've marked again the green dot with the 25 green arrow which would be point number 30, eventually. page 124 1 THE CHAIRMAN: What again did you say point 30 -- how would 2 you describe it? 3 A. It's another ridge ending that I've since, when I 4 actually did this exercise, was satisfied that I could 5 include that and you'll see in the next slide how that 6 also falls into place. 7 Sorry, could we go back one actually to show the 8 importance of that characteristic. Can we go back to 9 TC0211.05 and I've actually traced the ridges down from 10 the top right-hand corner to the top -- sorry, the 11 bottom right-hand corner. That is point 14 which, you 12 follow it down, ends up between point 22 and what I 13 would now call point 30 with the green arrow. 14 The intervening ridge between 14 and 15 when traced 15 down finishes one ridge to the right of what I would now 16 term point 30. 17 Could we move on to TC0211.06. Again, we have 18 point 11, a ridge ending upwards. Immediately to the 19 right of that, we have point number 12, the bifurcation 20 downwards. Immediately to the right of that we have 21 point 13, the ridge ending upwards. 22 In this slide the next number is 16, the ridge 23 ending downwards at the bottom end of the core area. 24 Move two ridges to the right of point 16, two 25 intervening ridges to the right, sorry, and then we have page 125 1 point 17, which is a ridge ending upwards. 2 The next visible characteristic one intervening 3 ridge from 17 is point 19. Two intervening ridges down 4 from point 19 we have point 23, which is a ridge ending 5 upwards. Four intervening ridges up from point 23 we 6 have a ridge ending up, point 24. One intervening ridge 7 up from point 24 we have a ridge ending to the left, 8 marked 25. Immediately to the left and down is a 9 bifurcation downwards marked as 26. 10 The green line I've marked there is indicating a 11 spur-type shape, the bifurcation being the bifurcation 12 part of the spur. The green line actually because it's 13 thinner than the actual ridges, actually, the shape of 14 it actually comes down a bit further, the lower leg of 15 it, than what's actually marked and I've marked two 16 magenta circles on here of prominent edges of the upper 17 ridge which actually surround a prominent pore 18 immediately between the two magenta circles. 19 If we go two ridge endings down from bifurcation 20 26 -- sorry, two intervening ridges down from point 26, 21 we come to point 27, which is a bifurcation upwards. If 22 we go back up to the left of that bifurcation on the 23 upper ridge, the ridge immediately above is where it 24 ends at point 28 and then if we go back on to the ridge 25 coming up from the lower bifurcation, we trace that up page 126 1 and we come to a bifurcation downward, point 29. 2 Again, in this area, because it's in the centre of 3 the digit where the most pressure is, there are a 4 combination of incipient ridges present shown with the 5 blue lines and the dark blue ends. 6 THE CHAIRMAN: I have to say, I have trouble seeing anything 7 at 27. 8 A. Sorry? 9 THE CHAIRMAN: 27. Is the point at the end of the arrow 10 because I have to say all I can see -- 11 A. It's where the red dot is, within the enclosed green 12 area. 13 THE CHAIRMAN: I'm sorry, it's my fault. I thought that was 14 26 but, no, 26 is outside. 15 A. Can I draw on these images? 16 MR MOYNIHAN: Yes, you can. 17 THE CHAIRMAN: No, I think I've got it now. 26 is outside. 18 27 is the brown dot; is that right? 19 A. 27, it's the lowest point, actually -- yes, that's it. 20 THE CHAIRMAN: Just there (indicated). 21 A. Yes. 22 THE CHAIRMAN: I see. Thank you. 23 A. It may be worthwhile to point out at this stage that 24 this is where I said I remember getting my start as the 25 most prominent area for my target area and I described page 127 1 this as a lake with a bifurcation at either end. 2 Immediately to the right of that, there's a small 3 incipient ridge to the right of the upper bifurcation 4 and then immediately beside that there's two ridges that 5 actually come very close together, the one coming from 6 above comes from the right of point 5 and comes down and 7 actually virtually touches the top of the ridge with the 8 ending of point 28. So they actually come immediately 9 up against each other and that ridge follows its way 10 round and it's point 24, the ridge ending of that. 11 If I could draw on this, there's actually, when I 12 said about when we assess something, in a target area as 13 well, well, actually from my previous evidence, that's 14 taking in everything the eye can see and registering 15 that in the brain. As I say, this area to me -- and I 16 know there was other slides the previous time showing 17 the actual shapes of the ridge structure and shape, the 18 actual edges of the ridges in the lake -- but also 19 within this there are couple of significant shapes I'd 20 actually like to draw in and I'll take you back to the 21 previous slide. 22 I should have also mentioned that these two magenta 23 circles on this -- well, we're actually coming to that, 24 we'll show it on the Marion Ross's right forefinger as 25 well. But on this, if I could draw, first of all, two page 128 1 prominent shapes and I'll try and pick a different 2 colour ... (indicated) 3 That last ridge structure that I was describing 4 where one ridge comes down from between point 5 and the 5 long incipient ridge and comes close to the ridge that 6 ends at point 28, there's actually a very strong shape 7 here sort of jutting out of the ridge, if you like, to 8 point 28. Also in the bottom leg of the spur up here 9 (indicated) there's a prominent shape coming up here. 10 It's that hook-type shape. 11 If you go to TC0211 -- 12 MR MOYNIHAN: We need to save this. 13 A. Sorry, save that one. 14 MISS BAHRAMI: That's saved as FI1011.01. 15 THE WITNESS: If we go to TC0211.10, again starting in the 16 top right-hand corner we've got point 11 showing the 17 ridge ending up. 18 The ridge beside it to the right a bifurcation down, 19 point 12, the ridge immediately to the right a ridge 20 ending upwards, point 13. Then we have point 16 at the 21 bottom end of the core area, a ridge ending downwards. 22 Miss two intervening ridges and we have point 17, a 23 ridge ending upwards. Miss one intervening ridge down, 24 we have point 19. We go two intervening ridges down 25 from point 19, we have point 23, a ridge ending upwards. page 129 1 We go four ridge endings -- sorry, four intervening 2 ridges upwards and we come to a ridge ending, point 24. 3 We go one intervening ridge upwards, we come to a ridge 4 ending to the left, point 25. We go on to the ridge 5 below that and to the left and we have the spur, the 6 bifurcation to the right, point 26. On that upper leg 7 of the spur, we have the two prominent edges of the 8 ridge surrounding the pore that I was describing in the 9 previous image. 10 We go from point 26 down two intervening ridges and 11 we come to point 27, which is the bifurcation upwards, 12 which is the bottom end of the lake. We go back up 13 along the upper leg of that bifurcation, 27, and one 14 ridge to the right and we come to the ridge ending up, 15 point 28. Immediately beside that, there's a short 16 incipient ridge and to the left of that is point 29, the 17 bifurcation downwards. 18 Again, as I did before, you will see that this shape 19 here is very prominent, the jutting out of the ridge 20 just at point 28 and up here (indicated) on the end of 21 the spur is this hook shape as appeared on the previous 22 image. So that area of 27, 28, 29, the shape of the 23 ridge, the incipient ridge -- sorry, the incipient ridge 24 combination, this hook shape, et cetera, the two parts 25 with the magenta circles round them, all that area was page 130 1 my target area and that's the information my brain would 2 have been taking in in looking for a starting point in 3 this particular image. 4 I do remember, I think I will be corrected if I'm 5 wrong, but I think Mr Wertheim actually pointed to the 6 area of the lake formation and said there was 7 insufficient detail in that area, which I found quite 8 surprising because that was, to me, the strongest area 9 to actually find a start in this comparison. 10 I say that, allied to the actual shapes of, the very 11 prominent shapes of the ridge structure in the actual 12 centre of the lake in particular here, is very, very 13 strong and that's also present in the mark QI2. All 14 that information was where I started to formulate my 15 opinion of a comparison being possible from the mark and 16 then transferring that information of the target area to 17 Marion Ross's right forefinger. 18 I should have mentioned as I was actually going 19 along that my point 3 is the same as SCRO's point 14; my 20 point 4 is the same as SCRO's point 15, although I think 21 SCRO should have marked point 15 a little higher up than 22 where they actually marked it but they were marking it 23 as the bifurcation; my point 12 is the same as SCRO's 24 point 1; my point 16 is the same as SCRO's point 10; my 25 point 18 is the same as SCRO's point 3; my point 19 is page 131 1 the same as SCRO's point 4; my point 20 is the same as 2 SCRO's point 5; my point 21 is the same as SCRO's 3 point 6; my point 22 is the same as SCRO's point 8; my 4 point 23 is the same as SCRO's point 9; and my point 29 5 is the same as SCRO's point 12. I have indicated the 6 additional ridge ending upwards with the green arrow and 7 the green dot and that's also SCRO's point 7. 8 I have made some observations on Mr Wertheim and 9 Mr Zeelenberg's presentations for the comparative 10 exercise and if I could just, again, reiterate that I 11 personally found the material for the comparative 12 exercise very difficult and having knowledge obviously 13 of the quality of the images I had available, the only 14 way that I could complete the comparative exercise was 15 to actually make reference to my original material. But 16 I have taken into account that obviously other people 17 have been looking at what I think is not as clear an 18 image as what I had. 19 Mr Wertheim's green circles, he chose to put circles 20 and numbers to areas in the comparative exercise rather 21 than addressing the points in particular and 22 Mr Wertheim's green circle 7 on Marion Ross's right 23 forefinger covers up my point 10; his purple circle 3 on 24 QI2 covers up my point 17; his red circle 4 on QI2 25 covers up my points 20 and 21, which are also SCRO's 5 page 132 1 and 6. 2 Mr Zeelenberg, on the other hand, in his PowerPoint 3 presentation in slide 124, the lower slides in that 4 page, the area of my points 20 and 21 and SCRO's 5 points 5 and 6 are disguised by strong lines drawn over 6 the characteristics. 7 I also noted on Mr Zeelenberg's PowerPoint 8 presentation slide 117, the lower left-hand slide, 9 point 9 was marked wrong and should have been on the 10 ridge to the right and that was my point 3. 11 I also noted on Mr Zeelenberg's slide 129, the red 12 dot he had marked to the left of point 12 was marked 13 wrong and should be marked on the ridge to the left. 14 Also in the comparative exercise -- and I know there 15 have been comments and, from memory, it's Mr Zeelenberg 16 and Mr Grigg who used the same terminology in describing 17 the area where I had marked ridge ending 13. That's the 18 ridge ending immediately to the right of the core and 19 there has been some discussion about that as to whether 20 it was a bifurcation or a ridge ending but they had 21 actually suggested that that ridge in particular, 22 whether it be the left-hand ridge of the bifurcation or 23 as others, including myself, have said it was a ridge 24 ending upwards, they've both mentioned in their 25 terminology that the leg of the bifurcation as they page 133 1 described it was thinner on the left than on the right 2 on Marion Ross's right forefinger and that was claimed 3 to be a difference. There's actually a perfectly simple 4 explanation for that, in that when the prints -- sorry, 5 the fingers of Marion Ross were dusted and then the 6 white tape applied to the fingers to capture the ridge 7 detail recorded by means of the black powder, the 8 pressure was quite even across from the left to the 9 right of the core and then immediately to the right of 10 the core there's more pressure been applied and you can 11 actually see probably about 8 to 12 ridges out to the 12 right of that ridge, that's claimed to be thin, the 13 ridges have become thicker and that's down to more 14 pressure actually being applied on the finger as it 15 touched the tape. That's the simple explanation for 16 that. There's actually nothing of the sort in saying 17 that that is a difference. 18 THE CHAIRMAN: That is the person taking the print is 19 pressing the finger against the tape? 20 A. The prints would be taken in the mortuary and the black 21 powder applied to the fingers and then pieces of white 22 tape pressed round and as the tape has been -- I imagine 23 it must be the tape that would be moved as opposed to 24 the fingers being move, that actually the pressure on 25 the right-hand side of the right forefinger has been a page 134 1 bit more from the right-hand side of the core outwards 2 and you can actually see the ridges thickening. So 3 that's a simple explanation as to why one's thin and 4 then it changes, actually the other ridges all change to 5 be thicker to the right of that. 6 THE CHAIRMAN: Yes. 7 A. So I don't see any issue over that at all. 8 I've made a few observations if it would be possible 9 for me now to add that having completed the actual 10 presentation of the characteristics. Most of them are 11 in relation to QI2, if I may be allowed to expand on 12 that. 13 The evidence of Durham, specifically Mr Sheppard, 14 who stated there was only one identifiable 15 characteristic in relation to QI2, is puzzling to say 16 the least. I'm curious to find out if Mr Mike Thompson, 17 currently the head of the Fingerprint Training at Durham 18 Training Establishment and who it is claimed also 19 carried out an independent analysis of QI2, is of the 20 same opinion as his former colleague re the number of 21 identifiable characteristics in QI2. 22 I also noted that Mr Grigg in his evidence claimed 23 not to have been involved in the analysis of QI2 in 24 2000, the assumption previously having been that 25 Mr Sheppard, Thompson and Grigg had been involved in the page 135 1 analysis of both Y7 and QI2 prior to the report having 2 been written by the former head of the training school 3 at Durham, Mr Peter Ablett who I understand, as with 4 Mr Thompson, is not being called to the Inquiry to give 5 evidence. If Mr Grigg said he wasn't involved in that, 6 I accept that, but I think the assumption was that all 7 three fingerprint practitioners at Durham had studied 8 both marks. 9 The Danes' acute failure to identify not once but a 10 second time having been shown my marked-up enlargement 11 sent to them by Mr Gilchrist -- this is in relation to 12 QI2 -- the apparent reluctance of the Danish officers to 13 recognise this Inquiry and appear before such is, to me, 14 most regrettable. 15 With regard to the Aberdeen report, which only came 16 to light or came to my notice during the Inquiry, the 17 report on QI2, the recipient and date of which are 18 unknown to myself, this report written by 19 Messrs McGregor, Dempster and Dingwall (formerly 20 Grampian Police employees and now SPSA employees) I view 21 as a further deliberate attempt on their part to 22 destabilise the Glasgow Bureau which follows on from an 23 earlier report by the same three individuals on Y7 in 24 2005 which was the first attempt at such. 25 Both reports -- and I use the words loosely -- have page 136 1 never been accompanied by any specific evidence to back 2 up their findings and I consider such reports to be very 3 poorly constructed. I'm not sure if this is the format 4 of report writing reflected in the training received by 5 outside agencies such as Durham. 6 I remain utterly astonished that following a 7 personal invitation to myself from Procurator Fiscal 8 Mr William Gilchrist to examine QI2 and the fingerprints 9 of Marion Ross (deceased), someone in the Crown Office 10 chose to ignore my subsequent comprehensive illustrative 11 evidence of QI2 and Marion Ross's right forefinger print 12 submitted to Mr Gilchrist and decided not to progress 13 such to the Appeal Court. How that decision came about 14 requires explaining to this Inquiry. 15 In November 2006, I attended the National 16 Fingerprint Conference held at Hinckley, Leicestershire 17 organised by the ACPO Fingerprint Board for England and 18 Wales. This was the conference where Mr David Mulhern 19 Interim Chief Executive of the SPSA infamously made a 20 flying visit to give a short presentation on SPSA and, 21 in doing so, showed a PowerPoint slide headed, "Y7 22 mis-identification". No questions were allowed from the 23 audience and Mr Mulhern quickly departed. 24 At the end of the conference, I asked the conference 25 Chairman, Chief Constable Michael Baxter, to have the page 137 1 Fingerprint Board address the subject of fingerprint 2 practitioners working within the police and 3 independently outwith across different jurisdictions 4 within the UK and abroad who make false claims of 5 mis-identification of fingerprints. 6 I would like you, Sir Anthony, to consider making 7 recommendations within your report on how such 8 individuals should be dealt with and how those outside 9 the police should be regulated internationally. 10 Confirmatory bias I would like to say is alive and 11 well in the fingerprint community but not in the 12 negative sense, unlike that being suggested at this 13 Inquiry. The Aberdeen trio of John McGregor, Gary 14 Dempster and John Dingwall sought materials from Pat 15 Wertheim knowing full well his previous claims. 16 The worst case I have witnessed outwith the Marion 17 Ross investigation is undoubtedly the Sutherland case 18 where we know there was a coming together of 19 Messrs Allan Bayle, John MacLeod and Gary Dempster -- 20 MR MOYNIHAN: Sir, I did not know this was coming. We have 21 had passing mention of the Sutherland case but I am 22 conscious we have not gone into -- 23 THE CHAIRMAN: We have not gone into any detail. I think 24 really we should not go into it. If you need a little 25 more time we will certainly give it to you but I think page 138 1 we should take the short break now unless you are just 2 coming to a natural break. 3 A. I think that will do at the moment. 4 THE CHAIRMAN: No, no, we will come back in 10 minutes. 5 A. There was one other point. I know I've strayed off from 6 QI2 and forgive me for that but -- 7 THE CHAIRMAN: No, if you have one other point to make let 8 us -- 9 A. There is one other point and it's a point that's 10 personally annoyed me and it's Lord Boyd mentioned about 11 the adverse publicity this morning and it's actually 12 relative to part of that. I could give countless 13 examples but one of them I would like the Inquiry to 14 seek clarification from (inaudible) MSP Michael Russell 15 as to what he meant by SCRO produced bogus fingerprint 16 evidence. At no time -- and I stress at no time -- has 17 SCRO, whilst I was employed there, ever produced bogus 18 evidence. I consider Mr Russell's allegations to be the 19 most serious and I think I should end there. 20 THE CHAIRMAN: If we take a break now for ten minutes and 21 then I think Mr Moynihan will have questions to ask 22 after that. 23 (2.55 pm) 24 (A short break) 25 (3.08 pm) page 139 1 MR MOYNIHAN: Mr Mackenzie, just before I ask you about QI2 2 I had stopped you for reasons I have explained to you, 3 simply because I don't want to go into Sutherland 4 myself. There were, however, some points or 5 observations you wanted to make on Lord Boyd's evidence 6 this morning, if I give you a chance to say what you 7 want to say about that. 8 A. Just one point, Sir Anthony, there was questioning this 9 morning of Lord Boyd about the checking of cases. I 10 think it was after QI2 had been questioned and the SCRO 11 cases were to be checked, et cetera. There was two 12 things here. There was the cases -- my understanding 13 was it wasn't just the four officers but it was my cases 14 and Alan Dunbar's cases, all six officers' cases for a 15 period of time, I think I am correct in saying it was 16 something like one year either side of the Marion Ross 17 case, roughly about a three year period from what I can 18 remember, and I think the question was what cases did 19 they check? 20 Well, basically staff were taken off, clerical staff 21 were taken off to go through every case file held in the 22 Bureau in that period and identify any cases where any 23 of the six names were signatories to and these cases 24 were all then re-examined and there were teams of people 25 brought in from outside both for that exercise and then page 140 1 for a one-year period all current cases were verified 2 independently by an outside person who was actually 3 accommodated in Glasgow and worked out of the Bureau as 4 a final checker or an additional checker. So there was 5 two issues there. 6 So basically my understanding was that not only the 7 four officers' cases but any cases that Alan Dunbar and 8 I had been involved in were also checked and I think it 9 spanned about a three year period. 10 THE CHAIRMAN: Including a period before as well as after. 11 A. Before and after. That was a massive operation for 12 teams of clerical folk to actually extract all the cases 13 and there were staff from the RUC, as it was then, there 14 were staff from Scotland Yard and there was an officer 15 from Fife, from memory, involved in one or both of these 16 processes and I say for a full year after Lord Boyd 17 asked for all the cases to be looked at, all the new 18 cases from -- I think that was from something like 19 August 2000 onwards for about a year, off the top of my 20 head, were checked until eventually it was decided that 21 was sufficient checking. So just to clarify because 22 when heard that this morning -- 23 THE CHAIRMAN: Thank you for doing that. 24 MR MOYNIHAN: Thank you, Mr Mackenzie. 25 Mr Mackenzie, if I bring up the image TC0211.01, page 141 1 this is your image of QI2 that you break down into the 2 four rectangles as you proceed through the analysis and 3 I will proceed through that analysis in the same order 4 as you. 5 First of all, we have discussed in the past 6 difficulties of superimposition of other prints in this 7 area. 8 A. Okay. 9 Q. And the presence of swiping of smearing through parts of 10 the print. 11 A. Okay. 12 Q. Do you, however, as you progress round the clock from A 13 to D observe, moving from one area to the other and 14 within areas, ridge continuity? 15 A. Absolutely. 16 Q. If we start then in box A, which is for you TC0211.03? 17 A. Yes. 18 Q. This is an area that is in box A, it is the upper left 19 area of the print? 20 A. Yes. 21 Q. The reason I am asking you about ridge continuity is to 22 ask you to comment on the evidence of Mr MacPherson. 23 Do you recollect the evidence of Mr MacPherson? 24 A. Yes, I think he mentioned something in the top left-hand 25 corner. page 142 1 Q. Do you recollect what his evidence was? Did you hear 2 it? 3 A. I remember him pointing to one or two characteristics in 4 that area. 5 Q. If I bring up for you his image, if we perhaps move 6 yours just to the left for a moment, FI0311.05, do you 7 see that he has an area of marking in the upper left 8 section? 9 A. Yes. 10 Q. He marked in the top of the image a bifurcation in 11 yellow? 12 A. The very top, yes. 13 Q. Then, moving across and coming down towards between sort 14 of 9 and 10 on a clockface, another sort of 15 golden-coloured, perhaps, bifurcation; do you see that? 16 A. Yes. 17 Q. Mr Smith pointed out to Mr MacPherson that on QI2 the 18 lower leg of the upper yellow bifurcation is on the same 19 ridge as the gold bifurcation? 20 A. Sorry, the lower leg of the gold ...? 21 Q. The lower leg of the yellow bifurcation, the lower 22 leg -- 23 A. Okay. 24 Q. -- is on the same ridge as the gold bifurcation? 25 A. Okay. page 143 1 Q. Yes? 2 A. Okay. 3 Q. But that is not the case on QI2. 4 A. It doesn't look like it, no. 5 Q. What Mr MacPherson said was indeed it doesn't look like 6 it. They seem to be somehow missing each other on the 7 ridges. The gold is lower relative to the yellow, if 8 they were on corresponding ridges? 9 A. The gold is certainly lower than the yellow, yes. 10 Q. What Mr MacPherson said is that the explanation is that 11 there has been disturbance within the area that's the 12 red shape between the yellow and gold. 13 A. Okay. 14 Q. Do you see that? 15 A. Yes, I can see some vertical black marks. I think 16 that's what he's got in green. Is that correct? 17 Q. Yes. The reason for my questions, if I just give you a 18 chance to study it, is that I cannot do a direct 19 comparison because the images are different but it would 20 seem that some of your points 1 to 7 fall, if not within 21 that red area then certainly in close proximity to it? 22 A. I'd say that -- are we talking about the red area, 23 surrounded by the red line? 24 Q. Yes, the red U-shape on Mr MacPherson's drawing. 25 A. In close proximity but I don't see any -- between my page 144 1 arrows 4 and 6, I don't see any significant other than 2 there are black vertical lines there which I think I 3 explained before may have something to do with the steps 4 in the tram from my previous evidence. I'm nearly sure 5 that's the area we looked at in the colour photograph. 6 Q. In that case, if the area that's the black lines on your 7 print between the point 4 and point 6 are to be 8 understood as the steps of the tram and not ridge 9 structure, then there is something wrong with 10 Mr MacPherson's charting? 11 A. Mr MacPherson maybe wasn't aware or he may have seen my 12 explanation for it but maybe he's not aware. He may not 13 have seen the photograph other than what had been shown 14 here. So, I say, it's background information as far as 15 I'm concerned. It doesn't affect the ridge structure. 16 Q. If this is just simply the underlying picture of the 17 Victorian tram bus and not the disturbance in the 18 fingerprint, the underlying picture of the Victorian 19 tram bus can't explain why the bifurcations have jumped 20 in QI2. 21 A. Again, I haven't gone into that area where the yellow 22 bifurcations are but also out in that left-hand corner 23 there is other ridge detail and that could be the 24 periphery of it where -- well, certainly the area that I 25 didn't go into that area. page 145 1 Q. Mr Mackenzie, what I am really looking at is you to draw 2 what you have drawn, points 1 to 7, and assuming ridge 3 continuity in this area and if there is ridge continuity 4 in this area there is something wrong with what 5 Mr MacPherson has observed? 6 A. The ridge continuity relative to what I've marked I'm 7 totally satisfied is correct. 8 As to what -- I haven't looked in any detail or 9 suggested marking anything like what Mr MacPherson has 10 marked there. That's basically his thoughts on it. So 11 my illustration of the ridge flow, I'm totally satisfied 12 with. 13 Q. What it really comes to -- I'm just putting this up for 14 comment, would you see a basis on which you can both be 15 correct? 16 A. As I say I can't say one way or another about what 17 Mr MacPherson may have marked on QI2 there because it's 18 basically the area immediately below that and up to the 19 top of the core, I'm satisfied with the ridge flow, so 20 Mr MacPherson may have made observations there and 21 marked what he thought using the markers on here. How 22 accurate that is, I don't know. 23 Q. The second point, if I take down the FI0311.05 and just 24 return this to your own charting. 25 We have asked a number of witnesses about a subject page 146 1 that I refer to as demonstrability. What I mean by that 2 is that an expert -- and there's no question about 3 expertise -- it requires an expert to see the point and 4 then to demonstrate it to a lay person such as me or a 5 juror. 6 For fingerprint evidence it obviously needs a 7 trained eye to observe a feature. Do you accept that 8 you must nonetheless be able to point on the image to a 9 feature that's observable even by the lay eye? 10 A. Obviously you make every attempt to do it but I also 11 agree with examples that have been given of very poor 12 marks and having seen some of the illustrations that the 13 best you could do with particular photographs for the 14 lay person or the jury, et cetera, but the majority of 15 occasions the illustrations, you know, obviously you 16 would be attempting to make as good an illustration as 17 you could but obviously there's degrees of the quality 18 of -- well, each individual mark on its merit. So a 19 blanket answer is, yes, you are obviously wanting to do 20 the very best you can. 21 Q. What we have on the screen just now we have heard some 22 evidence of a process under ACE-V where one would 23 analyse the mark before ever one compared it with the 24 known print, in this case Marion Ross. 25 Would it be your evidence that each of the points page 147 1 you have marked on this image are points that you would 2 identify as part of an initial analysis sufficiently 3 clearly before you looked at the corresponding Marion 4 Ross print? 5 A. I'm quite clear that certainly absolutely most of this, 6 the ridge structure, first of all, as we just discussed 7 a minute or two, I'm satisfied I can see the ridge 8 structure and the points that I've actually marked I'm 9 quite happy that I can't -- this going back to say 10 originally when you look at a mark you should take in as 11 much information. Those who go to the extreme and I 12 think there might have been other witnesses who said you 13 should memorise every characteristic within the mark, 14 that's just not feasible and I don't know about people's 15 brain power or could they actually imagine every mark, 16 sorry, every characteristic within a print and taking it 17 from the extremes to a palmar as somebody has said. 18 So you get your target area, my target area would be 19 something along the lines of maybe five or six 20 characteristics in a particular area of the print and 21 that may have been tied down to, well, obviously, what's 22 clearest in the mark but it might be in relation to 23 counting out so many ridges from a delta or from a core, 24 et cetera. 25 I also take on board -- and I think it might have page 148 1 been Mr Stewart that actually said it -- that you do get 2 common characteristics of a type in a particular area 3 round a delta and sometimes in a core so could have to 4 be conscious, yes, there may be a number of people with 5 a similar feature of a small number of characteristics. 6 But you can only treat each mark by itself and to get 7 back to -- this reminds me again about people saying you 8 should maybe take notes or little drawings, et cetera. 9 I think that been explained, I think even by 10 Mr McGinnies that the practicalities are not -- in the 11 volume of marks you look at, the practicalities of 12 recording that for every mark at the ACE-V start is just 13 not a practicality. 14 But I do have first-hand experience of doing it and 15 it goes back to the days of pre computers where again 16 the Glasgow Bureau was probably -- always has been the 17 busiest the Scotland and when we had a murder 18 investigation to do and we'd actually to search actual 19 size photographs -- this is before we even had 20 comparator machines -- but were we actually to search 21 cold marks against a paper collection, the only time we 22 could actually do that in earnest was at a weekend 23 because Monday to Friday we had to basically process 24 prisoners' prints for court, et cetera. So the most 25 concentrated time for murder searches was at a weekend. page 149 1 I can remember doing little drawings for my own 2 benefit of what I thought was the target area and 3 actually having a drawing sitting on a desk within eye 4 shot with actual special magnifiers actually magnifying 5 it so you could actually glance over at it and also 6 homing in on a particular area that you thought that 7 target was in. But, again, that wasn't set in tablets 8 of stone either because you could be at it for a number 9 of weeks and every time you went back to it you could 10 actually be reassessing actually what you saw and saying 11 have I actually got that right. 12 So it's nothing new for people to say we should 13 start doing little drawings of it. I've done it years 14 ago but we have moved on, moved to computers, et cetera. 15 So it is a skill that older experts have done. They 16 maybe haven't put it into notes as been suggested but 17 it's a skill that I know I have applied myself. 18 Q. The reason why I was asking you about whether these are 19 features that you would have observed in the ACE initial 20 analysis of the mark is the area you have circled in the 21 magenta -- everyone's favourite colour -- it seems just 22 to my eye, untrained eye, as simply to be shades of grey 23 in a sea of shades of grey with no feature there? 24 A. I can tell you how I worked with this because, as I say, 25 I hadn't been involved with this initially, this was one page 150 1 only came to me when Mr Gilchrist gave me the 2 opportunity but when I looked at it, my very first look 3 at this and it was in Mr Gilchrist's presence that I 4 actually had a comparator machine, et cetera, and I do 5 remember my target area, which I have already described, 6 was the lake area to the bottom left of the core but, 7 just as other witnesses have said, you don't work with 8 somebody sitting on your shoulder and, basically, I 9 looked at this for the first time and that was my memory 10 of what my target area was but then Mr Gilchrist left me 11 to my own devices. 12 I then got various contrasts of actual sized 13 photographs done; I got enlargements made; but I also 14 got them done in colour reversals, which means the black 15 ridges become white because of the process with the 16 superglue it's possible that you get the ridges in the 17 wrong colour and you have to have the colour actually 18 reversed. It's not the negative that's reversed back to 19 front but it's the actual colour of the ridges. 20 So how I approached this particular comparison was I 21 had my large magnifying glasses, not just my linen 22 testers, and I was using everything that I had available 23 to me, comparator, magnifying glasses and enlargements 24 and when I had my magnifying glass on the 25 enlargements, which again is enlarging it further, I was page 151 1 conscious of this, first of all, conscious of these 2 characteristics I've marked here but I was conscious of 3 this feature within that particular ridge. So I can 4 actually say I did actually see that. 5 Q. But the question I am asking you is where is it on this 6 image? 7 A. It's actually contained within that magenta circle. 8 It's actually like a bulge in the ridge and that's -- 9 it's a large pore that's causing that. 10 Q. Is that because if you took me to a different image in 11 that area I would see something or are you telling me 12 that when I look at this screen just now, within the 13 magenta circle I must see something that you would then 14 interpret as an enlarged pore? 15 A. All I'm saying is that that is an area that caught my 16 eye. I'd looked at the characteristics that I've marked 17 and then again I was looking at the intervening ridges 18 and in doing so I then was conscious of that particular 19 feature within that. 20 THE CHAIRMAN: But as you look at that now, on that screen, 21 can you see this bulge? 22 A. I can actually see it, a curving of it, particularly 23 over to the left-hand side of the magenta circle, an 24 actual bulge to the left of the ridge and equally, 25 obviously, the size the ridges are now blown up to but I page 152 1 can actually see the bulge in there. 2 But these are the things that I say I've never 3 articulated before it's more than we're conscious of all 4 these things now with Third Level Detail and that's the 5 kind of stuff that the brain -- I've never said that's 6 the target area. My target area was where the lake 7 was -- 8 MR MOYNIHAN: I am not asking you about the target area. 9 I'm simply asking you whether, on this image, if you 10 were addressing me as a juror, whether you would be able 11 to say to me, "Mr Juror, you can see what I can see in 12 that magenta circle", because I'm doing what wouldn't 13 happen in court, I'm the juror saying to you, "I'm 14 sorry, Mr Mackenzie, I don't actually see anything 15 there", so what am I missing on this image? 16 A. Again, I'm just basically taking you through the process 17 that when I was continuing my comparison process that 18 I'm indicating to you that that is an area or a feature 19 within the ridges that I saw. 20 Whether you today can see that or not, you know, I 21 can't, you know, I can't make you see it but all I'm 22 indicating is that I was conscious of that using my 23 magnifying glass, a large magnifying glass, on the 24 enlargements and it was consistent with this bulge in 25 the ridge, otherwise I wouldn't have marked it. page 153 1 Q. Let us then move to the next area which I have broadly 2 covering points 8 to 15. If we move to TC0211.04 and 3 also if we could bring up .05 as well, please. 4 It's just a slightly different way in which the 5 points have been numbered in these two different images 6 and I want to be clear. I'm looking at the area now in 7 the core. 8 A. Okay. 9 Q. The area that is the chilli pepper that you have 10 described. Number 4, image number 4, has it with the 11 number 11 to its left; is that correct? 12 A. Yes. 13 Q. It is just that image number 5 has it up to the right. 14 So number 11 is the chilli pepper? 15 A. Yes. 16 Q. Number 12, there is a -- you can see the area of 17 uncertainty about what's drawn in number 5, the number 18 12 is to the right of the ridge ending -- 19 A. No, it's actually -- 20 Q. -- and well away from the core? 21 A. The reason for the arrows was that I wasn't actually 22 wanting to interfere with describing the ridges. That's 23 how the Lynn was helpful in that I actually drew the 24 numbers but I didn't want to be covering up features and 25 that's why it's not done in the traditional way of the page 154 1 line going straight to the point. 2 Q. In that case, Mr Mackenzie, again, it is image number 4 3 which is correct? 4 A. Yes. It's the bifurcation immediately to the right of 5 the chilli pepper. 6 Q. Therefore, the ridge ending is point number 13? 7 A. Correct. 8 Q. What interests me in relation to the feature in the core 9 is that what you have drawn is that the bifurcation at 10 number 12, in fact, comes down to a ridge ending which 11 is number 16? 12 A. Correct. 13 Q. Yes? 14 A. (Nodded) 15 Q. In fact, there has been description of the feature that 16 you have drawn in green in the centre there between 13 17 and 16 as having the shape of an islet? 18 A. Yes. I actually used that term -- I actually 19 Mr Zeelenberg had used the same term. Where I remember 20 this I mean, obviously, we have our independent ridges, 21 lakes, et cetera, but it was during my time on the 22 European Working Group with Interpol that I think it was 23 a German colleague on the group had a list of how in 24 Germany, and possibly some other countries, actually, 25 they had names for a number of features. So I think it page 155 1 was going back to that and also seeing Mr Zeelenberg 2 mention it, the reality is it's a small lake but I think 3 for this term I think it was good to actually use it. 4 I'm not in the habit of using it. I think it was the 5 correct -- it's a good description of it as an islet. 6 Q. An islet, a small lake. Therefore, what that means is 7 since it's a lake to hold water the banks are complete 8 on either side? 9 A. Yes. 10 Q. That then enables me to compare Mr MacPherson and if I 11 take you to FI2910.14 -- if we keep the image on the 12 right-hand side, even though the numbers are wrong, keep 13 the image on the right-hand side and replace the one on 14 the left with FI2910.14 -- 15 A. Sorry, the numbers aren't actually wrong. You are 16 talking about 12 is just a bit further out but it's 17 pointing over -- 18 Q. No, it's okay. It's just it's easier for me now I 19 know what number 12 is because number 12 had confused 20 me. Give my just a second, please. 21 It may actually be that I can't see it. If we can 22 try FI2910.15, what I am going to do is enlarge an area. 23 I'm going to enlarge the charting of QI2. 24 Do you see what I have brought up, the central area, 25 the core, again marked by Mr MacPherson in green and page 156 1 what he observes is the bifurcation that you have as 2 number 12. 3 A. Okay. 4 Q. On the left he draws, as you draw, the inner ridge of 5 the islet or lake coming down, by sheer coincidence, to 6 the same point, ridge ending number 16. If you just 7 take that from me that's it. 8 A. Yes. 9 Q. But on the right-hand side you will see brought up that 10 what he draws is a green line that stops and he does not 11 observe the completion of that which I had marked in in 12 red. 13 A. Okay. 14 Q. You would differ from him in relation to that? 15 A. Yes, on QI2 I see it as a continuation. 16 Q. The second point in relation to this on which the two of 17 you appear to differ and, therefore, I would ask you to 18 comment is the point that you have marked as 13 -- that 19 the ridge ending -- you have marked number 13 as the 20 ridge ending above the bifurcation number 12? 21 A. Okay. 22 Q. Whereas what Mr MacPherson observes in that area is to 23 the right of the bifurcation that you have as number 12, 24 he observes a bifurcation in the ridge structure below 25 and the point about this is that what you observe, as I page 157 1 understand it, is -- and this is this question of the 2 two legs one thinner, one thicker -- you observe that 3 the thinner of the two lines, the inner one, goes up, 4 does not, in fact, touch -- 5 A. Sorry, could I stop you there? It's the thinner of the 6 two in Marion Ross's as opposed to this being QI2. 7 Q. Yes. 8 A. I know that actually you are describing it, it's the one 9 that's been described later it's thinner. 10 Q. What you observe, let us call it the inner of the two 11 ridges then. You observe the inner of the two ridges, 12 in fact, carrying on up, in effect, parallel to the 13 outer one, not coming into contact and ending at a ridge 14 ending, yes? 15 A. I think I explained that in the previous evidence. I 16 saw it slightly curving and it goes fainter and I think 17 I marked it the previous time I appeared. I've actually 18 covered that point. 19 Q. What Mr MacPherson says is occurring is that that inner 20 leg in fact comes in and makes contact with the outer 21 leg to form a bifurcation and he says in Marion Ross the 22 point that you have as the continuation to the ridge 23 ending is, if anything, an incipient ridge absent on 24 QI2. 25 A. Okay. page 158 1 Q. Do you simply disagree with Mr MacPherson? 2 A. No, I don't disagree. That's his interpretation. I 3 said it thinned off and I marked the end of it and I was 4 quite happy it was curving there. Also to the right of 5 it where he's marked it as a bifurcation there is a 6 slight bulge in the right-hand leg there at that point, 7 but I don't think it's anything to get hung up on. It's 8 much like other points that's come out during the 9 Inquiry. There is a feature there and Mr MacPherson, 10 his interpretation is that that's a bifurcation. I 11 differ slightly in it goes a wee bit further up and ends 12 but I don't see it as any major point of disagreement. 13 Q. What I am wondering about -- and again I appreciate we 14 are not in your target area -- if I look and I have now 15 brought up, from FI2910.15, I have brought up the Marion 16 Ross print, if I study the Marion Ross print what I can, 17 in fact, see is what I have been describing to you, that 18 the inner ridge is thinner? 19 A. Yes. 20 Q. It does seem, on this at least, that there is something 21 to be said for the proposition that on this there is a 22 continuation of that thinner ridge either side of the 23 uppermost red line, that must be the ridge that you see 24 continuing and you mark as the ridge ending, that 25 Mr MacPherson construes as, at most, an incipient ridge, page 159 1 yes? 2 A. Two points to make: I wouldn't fall out with 3 Mr MacPherson about that interpretation. I could 4 probably have given that interpretation to it as well 5 but also I've also explained today about the thick and 6 thin ridges and it's the right-hand leg of that that's 7 where the ridges start to thicken out. 8 Q. Mr Mackenzie, if I can stop you. While you may be able 9 to debate with Mr MacPherson the interpretation of 10 Marion Ross as to whether that point is an incipient or 11 the continuation of the thinner leg, if I go back to 12 what is marked on QI2, what I understand Mr MacPherson 13 to say is that the point, the ridge ending that you have 14 marked, is not evident on QI2. 15 A. Is he not saying that's the end of a wee incipient 16 ridge? 17 Q. He says he doesn't see it. 18 A. He doesn't see it. Well, I marked it where I saw it. 19 Like I say there is, at the point where he's made the 20 bifurcation, there is a thickening of the ridge so it's 21 either interpretation, it could be a bifurcation and a 22 small incipient ridge and on QI2 where I've marked it 23 would be the top of that incipient ridge because I've 24 explained it already. It is curving slightly to the 25 left and then it thins out much in the same manner as page 160 1 I've said other of the ridges of Marion Ross have 2 thinned out. They go from thick to thin. So it's a 3 fine line as to, is that a continuation of the full 4 ridge or is it becoming an incipient ridge? And there's 5 other illustrations I've already covered with the same 6 point -- same issues, should I say, not the same point. 7 THE CHAIRMAN: There must be numerous prints of Marion Ross 8 from the house that she lived in or would have been so 9 one would have seen whether she actually had one ridge 10 thinner than the other in the bifurcation. 11 A. Well, I presume -- 12 THE CHAIRMAN: No, I am just wondering -- 13 A. I presume among that there would probably be other of 14 her right forefinger but I wasn't involved in any of 15 these comparisons. 16 THE CHAIRMAN: No, I'm not suggesting you should have done 17 it. I'm just -- 18 A. If somebody was to go back through, they might -- 19 THE CHAIRMAN: I am questioning how one could resolve 20 whether this was a peculiarity in this print or whether 21 it was a peculiarity in her fingerprints generally, 22 that's all, but I think that would be a laborious task. 23 A. Yes. I think the answer to it is, though, the pressure 24 because definitely you can see from the left-hand side 25 over to the right-hand side of the core it's quite page 161 1 consistent and then from that right-hand leg, if you 2 want, then probably out for about a dozen ridges they do 3 get thicker so I think it's quite a feasible explanation 4 when the tape was applied to the finger there was a bit 5 more pressure on that particular side and that's what 6 caused that area to be thicker than the ones immediately 7 to the left. 8 MR MOYNIHAN: On 29th October Mr MacPherson was asked about 9 this (in the LiveNote it is page 76) and it is not a 10 question whether the thickness of the ridges -- he was 11 asked about this point and what he said was: 12 "What I believe you have is an incipient ridge like 13 so to the left-hand side of the bifurcation. 14 Unfortunately, as we've previously discussed on many 15 days, sometimes one feature like an incipient ridge will 16 show in one point but not show in the mark and I believe 17 the incipient would be in the region (indicated) but it 18 doesn't show." 19 I asked: 20 "I am grateful to you. So you do not see whether 21 it's an incipient or a continuation of the left ridge as 22 joining the bifurcation, you simply do not see the ridge 23 structure in that location. 24 "A. No." 25 So there is a difference between the two of you. page 162 1 What he is saying is whether it's viewed as a 2 continuation of the thinner ridge in Marion Ross or an 3 incipient, it's just not on QI2? 4 A. All I know is where I've marked that is the ridge has 5 thinned out at that stage and where I've marked the end 6 of it I'm quite satisfied. 7 Now I agree with what he said about -- and I've said 8 it in my evidence before -- that incipients sometimes 9 show and sometimes don't under the different pressures 10 so at that point, as I've already mentioned, there's 11 more pressure obviously from the right-hand leg 12 outwards. So it is feasible that the -- well, it's not 13 feasible, it is thinner where the tail end of that is 14 and that is the traces of the incipient ridge if you 15 describe that as an incipient ridge. I think it's the 16 end of the ridge following up and thinning off, just as 17 some of the other ridges that came from the left over 18 the top have thinned off. 19 Q. If we can move then to the next area which covers, as 20 you say, because of the overlap 11 to 24 TC0211.05, your 21 points 20 and 21. This is the bifurcation with a spur. 22 A. Yes. 23 Q. Number 21 and is number 20 a ridge ending or is number 24 20 intended to be a bifurcation? 25 A. 20 is a bifurcation, 21 is a ridge ending. page 163 1 Q. So 20 is the bifurcation, number 21 is the spur or the 2 ridge ending? 3 A. Yes. 4 Q. These correspond to 5 and 6 in SCRO QI2? 5 THE CHAIRMAN: Yes, that's what was said. 6 A. Yes. 7 MR MOYNIHAN: On this occasion, what you have drawn is the 8 bifurcation is to the left of a rather large area of 9 black. Is that correct? 10 A. It's to the left of another vertical ridge which is -- 11 21 is actually drawn over that ridge and follows up. 12 Q. I'm sorry, Mr Mackenzie, what I am drawing now with the 13 cursor is an area of black on the image? 14 A. There's a darker area than there is there. 15 Q. So you've got the bifurcation to the left of that area 16 of black or darker area, yes? 17 A. Yes. 18 Q. With the ridge ascending from the bifurcation being, in 19 a sense, parallel to the outer ridge of that darker 20 area, yes? 21 A. Yes. 22 Q. If we can look then at Mr MacPherson FI29 -- we will 23 keep that up -- FI2910.24 and I will highlight what he 24 has drawn. He has drawn the bifurcation within the 25 black area with the ascending ridge going diagonally page 164 1 from the bottom left to the top right through the black 2 area? 3 A. I think we've marked them in the same position. 4 Q. You steer clear of the dark area when he has gone into 5 the dark area. 6 A. I think it's just a matter of where he's drawn a line 7 with the mouse. The feature he has marked is exactly 8 the same. As to the tail of it, I think it's -- that's 9 just the way he's marked it. I'm quite happy we've 10 marked the same thing completely. 11 Q. The tail is indicating where the ridge is coming from 12 that forms the bifurcation and do you not see that you 13 seem to have been able to see, you and Mr MacPherson, 14 different ridge structures hence you are drawing 15 different tails? 16 A. I think it's just the control of the mouse, to be quite 17 honest. 18 Q. You mentioned in your evidence Mr Zeelenberg and you 19 mentioned slide 124. I mentioned to you at least on my 20 copy of Mr Zeelenberg slide 124 relates to Y7. 21 What Mr Zeelenberg has, dealing with SCRO point 5 22 and 6, if I bring up just on the right-hand side, 23 please, AZ0061, slide 159 to begin with -- in fact, we 24 may have to look at the PowerPoint to see what 25 Mr Zeelenberg is looking at. The point you have page 165 1 mentioned in relation to slide 124 was what? 2 A. I think it's certainly something with that bottom 3 left-hand corner. Whether that's the same slide I was 4 talking about but basically it was suggesting a 5 different flow of the ridges because I think what it's 6 suggesting is with the green dots in the centre 7 suggesting that that's one ridge flowing through there 8 in between the two rows of yellow dots; whereas my 9 point 23 is a ridge ending there and then the spur 10 basically hooks out to the left just above point 23. 11 Q. If I bring up perhaps the PowerPoint so we can see, we 12 will bring it up in its PowerPoint form, I don't know 13 what slide 124 was on the draft that we may have been 14 using but it could be either slides 159 or 160 in the 15 original -- sorry, in the final version. I will take 16 over. 17 First of all, do we see that Mr Zeelenberg has 18 marked the SCRO points 5 and 6 in the upper left-hand 19 again adjacent to the area that I call black? 20 A. Okay. 21 Q. What he is going to do -- and has he correctly marked in 22 Marion Ross the bifurcation and spur? 23 A. As marked by SCRO, yes. 24 Q. What about as marked by you as your points 20 and 21? 25 A. Yes, that's the bifurcation within the spur and the one page 166 1 below it is 21, is it? Yes, 20 and 21. 2 Q. So he is looking at the correct area? 3 A. Yes. 4 Q. He is looking at it as the numbers given by SCRO 5 and 6 5 and then we see what he is suggesting. 6 A. Yes, he's suggesting that it's more or less ... I'm not 7 quite sure what the red lines are meant to indicate. 8 Q. He's suggesting, I think, there's a problem of the 9 alignment of the points. 10 A. Again, it gets back to a chance impression against a 11 controlled print. So you're never going to get that red 12 line sitting over the other red line, for example. 13 Q. Then you can begin to see the ridge structure when it 14 comes to point 9, which is presumably your point 23? 15 A. Yes. 16 Q. If I understand it correctly, what he is having a 17 difficulty seeing is that there is a bifurcation with a 18 spur in the area of QI2. What he sees are three ridges 19 coming in from the left to the points that you mark as 20 20 and 21 with perhaps a kink but nothing specific as 21 far as he can see in relation to what you have as 23 and 22 SCRO have as 9? 23 A. I think that describes what I was -- basically it's 24 inferring that basically there's three parallel ridges 25 there, as you say, with a little kink in between. It's page 167 1 a misrepresentation of actually how it is. 2 Q. He sees no ending ridge in that area, no difference in 3 the ridge count is what he is suggesting -- 4 A. The left-hand leg of the spur coming down from point 21 5 curves over in the direction, the flow of the upcoming 6 point 23 but it then curves back down quite distinctly; 7 whereas when he puts these coloured dots on, this may 8 suggest it's straight and actually if you take them off 9 you can actually see it curving back down the spur, the 10 left-hand leg and then going on to the leg below, my 11 point 23. 12 Q. What I am suggesting we take from this is that 13 Mr Zeelenberg is suggesting that to the left of the dark 14 area ridge flow is to be seen but he is unable to carry 15 it through the dark area, which is why I was asking you 16 about you taking the ridge that forms the bifurcation 17 and putting it directly up and parallel to the outside 18 of the dark area and Mr MacPherson, by contrast, taking 19 it across and into the dark area. 20 A. I think it's Mr MacPherson's control of the mouse 21 because they are very sensitive because within some of 22 my own, I've actually got them curving or whatever. 23 It's just getting that control in the mouse. I don't 24 think it's anything other than that. 25 Q. Perhaps the last one for today is the target area, the page 168 1 lake. 2 A. The lake. 3 Q. If you have before you, please, your image which is 4 TC0211.06. 5 A. Okay. 6 Q. The fact that this is a lake is central to your whole 7 analysis. This was the target group, yes? It forms the 8 basis of the tracings that you do as your Level 3 9 detail, yes? 10 A. (Nodded). 11 Q. It is therefore central to your analysis? 12 A. Absolutely, particularly the inner edges of the ridges 13 that form the lake that's so strong, the shapes, 14 et cetera. 15 Q. If we put that to the side then and bring up 16 Mr MacPherson, FI2910.03 ... there seems to be something 17 wrong with the numbering. I will try again. 18 What I have done is brought up a slide 19 FI0166A.001-GS06. Do you see what Mr MacPherson has 20 marked on the image? 21 A. Yes. 22 Q. What he has marked is a bifurcation at the point that 23 you would have as number 29? 24 A. Okay. 25 Q. And at the area where you have 27 (for him it's 11), he page 169 1 has an open area and indeed we can see on his image that 2 there is no enclosure point at that lower end at your 3 number 27, his 11, on this image that I have on the 4 right-hand side? 5 A. I disagree. I can see the actual grey scale basically 6 changing there and the enclosure because that whole 7 inner area of the ridge detail, particularly if you look 8 at the white part within the ridges, the shape of that 9 continues right around and it's common on Marion Ross's. 10 That was part of, I say, what I was taking in in the 11 Third Level Detail. So it actually does curve up there. 12 Do you want me to put the cursor on? 13 Q. Okay. So where are you seeing the feature? 14 A. In here (indicated). I see that curving up here. I'm 15 quite satisfied that this forms a lake and then comes up 16 here at this point. 17 THE CHAIRMAN: What is the end of the lake, as it were, 18 where Mr MacPherson has it open? Where do you say the 19 end lies? 20 A. I see this actually curving back up here and this 21 joining up to it and then curving up to this point. 22 THE CHAIRMAN: So it's a very faint line on that production? 23 A. Yes. 24 MR MOYNIHAN: If we perhaps just finish on this because 25 where Mr MacPherson in fact, as I understand it, joins page 170 1 with Mr Zeelenberg is that there are straight lines 2 running in this vicinity. Do you see where my pointer 3 is just now? 4 A. Okay. 5 Q. The suggestion is that those straight lines are 6 indicative of movement in this area and what you are 7 therefore seeing is not the enclosure of the lake but 8 rather lines of movement? 9 A. There is very minor pressure in the centre of the core 10 there but it doesn't take away from the features. There 11 is that bit of pressure, as I have said already, in the 12 core area, the particularly the bony area, but it hasn't 13 changed the ridge flow in any manner other than it's a 14 very slight crushing in that centre part of the core. 15 Q. Because if we bring up -- and keep in mind these two 16 different interpretations -- and finish today by 17 bringing up Mr Zeelenberg's PowerPoint presentation 18 again, on this occasion slide 162. He is looking the 19 area that you would term the lake. For SCRO it's 20 point 12, at the top 11 at the bottom. He is going to 21 deal with point 11, a point at the bottom, and he has 22 marked it -- do you see -- on QI2 as having something 23 perhaps in the appearance of a lake, maybe even there 24 open-ended, but in relation to Marion Ross, he, like 25 Mr MacPherson, sees the right-hand most side as open page 171 1 with magenta dots running up and down to mark an area of 2 disturbance? 3 A. I see a vertical line just to the right of where it's 4 joined actually. I'm quite satisfied, as I said, with 5 the colour changes but the vertical lines that you're 6 talking about are immediately to the right of where I 7 see it joining. 8 Q. So it would seem, therefore, on this occasion that your 9 interpretation differs firstly from Mr Zeelenberg? 10 A. Marginally, yes. 11 Q. If Mr MacPherson's position is that the feature that 12 closes off the lake in Marion Ross is a piece of 13 incipient that is absent in QI2, your view would differ 14 from his as well? 15 A. I don't think it's an incipient ridge in Marion Ross's 16 print. If you actually look at my TC0211.10 there's no 17 way that's an incipient ridge. It's quite all one piece 18 of structure. 19 Q. If his evidence had been on 29th October at page 56 that 20 on Marion Ross there is a slight incipient that gives 21 the appearance of closing off the lake but on QI2 that 22 feature is absent, you would differ from Mr MacPherson? 23 A. Absolutely. 24 MR MOYNIHAN: Sir, that would be an appropriate moment. 25 THE CHAIRMAN: I think we should stop now. We have had a page 172 1 long day. We will sit at 9.30 again tomorrow morning, 2 please. 3 (4.10 pm) 4 (Adjourned until 9.30 am the following morning) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25