page 1 1 Wednesday, 11th November 2009 2 (Morning session) 3 (9.30 am) 4 THE CHAIRMAN: Before we begin this morning I should say 5 that at 11.00 I think it is appropriate to mark the two 6 minutes' silence. We will come to the break at 11.00, 7 observe the two minutes' silence and then have the break 8 immediately after that. 9 Good morning, Mr Mackenzie. 10 ROBERT MACKENZIE 11 Examined by MR MOYNIHAN (continued) 12 A. Good morning. 13 MR MOYNIHAN: Mr Mackenzie, we went through some of the 14 detail yesterday of QI2 and in particular we have been 15 through some principal areas I was going to ask you 16 about. There are some other points I want to ask you 17 about but it is better now if I set a scene and a theme 18 for what I had been asking about yesterday and for 19 today. 20 First of all, I wanted just to understand the 21 thought processes and the standards that were being 22 applied. We understand that a Fingerprint Examiner, 23 when reaching a conclusion of identity, will reach a 24 conclusion of identity only when 100 per cent certain; 25 is that correct? page 2 1 A. Correct. 2 Q. We understand that that can be expressed at an even 3 higher level because the expert is not only 100 per cent 4 satisfied himself but believes that any competent expert 5 would reach the same conclusion. 6 A. Given they were looking at the same material, yes. 7 Q. So it is, therefore, not just 100 per cent personal 8 satisfaction but equally satisfaction that 100 per cent 9 of the pool of competent experts would reach the same 10 conclusion, yes? 11 A. I would expect that to be the case, yes. 12 Q. What I am interested in is whether that is either a 13 conclusion or the standard to which you're working; in 14 other words, whether it is the test being applied or 15 simply the conclusion. If I explain to you what I mean 16 by that, if we are looking at a mark (such as QI2), you 17 could be looking at it as an expert thinking, "I have to 18 attain a level of certainty here that means not only am 19 I satisfied but I am certain that any other competent 20 expert would arrive at the same conclusion as me." 21 So that's the standard. So even though you are 22 satisfied, you would have to go a step beyond and 23 envisage what another expert could do. 24 The alternative is that it is a conclusion; namely, 25 at the point when you have seen 16 points because page 3 1 16 points are indicative of a unique identification, 2 having seen 16 points, you would therefore conclude that 3 you are certain of a unique identity and equally, 4 because 16 points is indicative of a unique identity, 5 you are therefore certain that any other expert would 6 arrive at the same conclusion as yourself. 7 Do you understand the distinction I'm driving at? 8 A. Yes, there's a whole lot of questions within that I'm 9 trying to remember. Basically, each expert doing their 10 analysis, then their comparison, then coming to their 11 conclusions must always bear in mind that within the 12 system there will be, even within obviously the checking 13 procedure there's going to be experts coming thereafter, 14 but they should not ignore the fact that they are 15 independent practitioners who, at any time, could come 16 and look at a case be it marks that are insufficient or 17 marks that are identified or marks that are eliminated 18 or whatever. So before you -- well, as soon as you come 19 to your conclusions and you sign a document or the 20 examples of marking the screen, you're confirming your 21 findings. 22 Now to what I meant by other independent experts 23 could come and they do come and ask to look at cases, 24 I've always said to staff in the Department that they 25 should be conscious of such and the reason I'm pointing page 4 1 this out is that it's very easy for people, particularly 2 if they were actually making a mark insufficient or 3 marking it as insufficient detail for comparison, you 4 could appreciate that it might be an easy way out of 5 working their way through a number of impressions, a 6 large number of impressions, that obviously you've got 7 your guide as to what you think is a level that you're 8 satisfied you could analyse a mark from and a level 9 below but it's a personal thing. 10 I think it's been pointed out by other witnesses 11 it's down to each individual mark and how unique the 12 features in that or the clusters of features in that may 13 be as to how low you would go, et cetera. I know we've 14 explored the possibilities that you could go down to, 15 now, zero looking at the detail in a print. 16 So I've always made sure that experts knew that you 17 need to be very careful in your decision-making, not 18 just saying something's negative or something's positive 19 but also saying, "I think this is insufficient detail 20 for comparison", because equally an independent expert 21 can come in and look at the marks in the case and their 22 opinion may be that what you have marked as insufficient 23 is actually comparable. So, yes, I am conscious of that 24 and it's down to every expert should know that what they 25 are signing for, their findings, be it insufficient, page 5 1 negative, positive, eliminated, identified, you're 2 signing for that's your opinion and you've got to bear 3 that in mind. 4 Q. If I look at it from the reverse point of view and start 5 just as a standard, I appreciate the McKie case is 6 unusual, highly unusual, perhaps even unique in the 7 experience of the Fingerprint Officers we are dealing 8 with, but if the standard is 100 per cent certainty of 9 the individual involved and 100 per cent support from 10 Fingerprint Examiners of competence, then in relation to 11 QI2 the fact that we have heard from three Fingerprint 12 Examiners, Mr Wertheim, Mr Zeelenberg and Mr Grigg, and 13 putting aside Mr MacLeod because he didn't speak of 14 QI2 -- 15 A. Sorry, what did you say about Mr MacLeod? 16 Q. Sorry, putting aside Mr MacLeod because he didn't look 17 for us, he didn't give evidence about QI2 to the 18 Inquiry. 19 A. Well, he did some mark-ups for the comparative exercise. 20 Q. I am putting him to the side. 21 A. Okay. 22 Q. We have at least three experts who have come forward and 23 said their opinion is that QI2 is not Marion Ross. If I 24 look at the standard of certainty being a standard so 25 high that 100 per cent of competent experts would all page 6 1 agree on an identification, it would follow that that 2 standard cannot be attained in relation to QI2, Marion 3 Ross, because three experts of competence have 4 disagreed? 5 A. If you start with Mr Grigg, I think I pointed at 6 yesterday I was under the impression Mr Grigg was one of 7 three practitioners at Durham who had examined both Y7 8 and QI2. So Mr Grigg has clarified the first he'd seen 9 of this was the comparative exercise and I've already 10 made my comments on the difficulty I had looking at 11 trying to accommodate your requirements of everybody 12 looking at the same material. So I had difficulty with 13 the images on my home computer actually trying to give 14 you answers to the questions. So if Mr Grigg, if that's 15 all he has seen -- did he get hard copy? 16 Q. Yes. 17 A. Well, obviously, I didn't have hard copy of the ones 18 that were used for the comparative exercise so again I 19 don't know what that looks like compared with the 20 material I had. So, as far as Mr Grigg is concerned, it 21 seems to be just at the comparative exercise he has 22 first seen that. 23 As for Mr Zeelenberg and Mr Wertheim, they have 24 given their opinions. I've seen how they have marked up 25 what they consider as differences, et cetera, and I've page 7 1 also seen -- well, I've made a note yesterday of the way 2 that Mr Wertheim approached it actually covering up some 3 of the characteristics that I used and also that 4 Mr Zeelenberg in his PowerPoint presentation was marking 5 points in the wrong places and also marking ridges on 6 the ridge flow contrary to what my opinion was. 7 But, again, we've talked about this confirmatory 8 bias and I touched on it yesterday, about the negative 9 bias within this, and I'll probably talk at some later 10 stage about Mr Wertheim and QI2 to start with, but 11 there's a confirmatory bias at work, as far as I'm 12 concerned, with these two particular gentlemen. 13 Q. The alternative way of looking at this question of the 14 approach is you're not, in fact, applying a standard 15 that 100 per cent of experts must agree. Rather what 16 you are doing is the alternative I've suggested, which 17 is a process of thought which is a conclusion; namely, 18 because you have seen a minimum of 16 points, therefore, 19 you believe that to be indicative of unique identity 20 and, equally, following from that you also believe that 21 any competent expert examining the material must reach 22 the same conclusion as you. So it is a process of 23 reasoning. It is a conclusion; do you follow me? 24 A. Yes. 25 Q. I'd suggest from having heard what you have said page 8 1 previously that, in fact, the preferred approach would 2 be that you are applying this 100 per cent certainty as 3 a conclusion and not a standard by which you work. 4 Would that be fair? 5 A. Absolutely. It's down to every individual mark. If I 6 could take you back just one step to the McNamee case 7 where I gave my conclusion on 11 characteristics and I 8 signed a statement to that effect. So it's down to the 9 individual marks. 10 I know what you said about 16, et cetera, but as an 11 expert -- and I've said experts need to be open-minded 12 that maybe even once or twice in their career they may 13 come across something that's alien, if you like, to the 14 rigid 16-point standard but be able to stand up and be 15 prepared to go to court and say, "This is my opinion and 16 I'm signing for that", and be able to demonstrate it as 17 well. 18 Now, you may well say, well -- and you may be coming 19 to this -- why did you mark up 29 characteristics in 20 this mark? One, there had been a challenge to it back 21 in May 2000 and it wasn't until July 2001 that I was 22 actually able to look at material cold and give an 23 opinion one way or another, negative or positive, to 24 Mr Gilchrist and the sheer volume of ridge detail and 25 very fine detail within Marion Ross's ridge structure page 9 1 that was present in mark QI2 compelled me, if you like, 2 to basically mark everything that I could see that was 3 in sequence and agreement and also that was taking 4 account of the very important incipient ridges. So it 5 was the whole process and I was, if you like, 6 articulating that into my enlargements, et cetera, and 7 my findings for Mr Gilchrist. 8 The last point on that is because also the Danish 9 experts -- and I touched on it yesterday -- were 10 actually, and I didn't know about this until 11 Mr Gilchrist -- the information came out from 12 Mr Gilchrist either in his statement or whatever it 13 was -- that he had actually sent my marked-up 14 enlargements back to the Danes who had originally given 15 an opinion. In fact, the opinion they gave at the time 16 was that -- and I think it came out the other day -- 17 that they couldn't give an opinion on the mark of David 18 Asbury which was immediately or I didn't know at the 19 time but it's the one immediately along the bottom 20 left-hand corner of Marion Ross's part of QI2, that they 21 couldn't give an opinion on that because of the poor 22 lighting, yet they were able to give an opinion 23 originally as to whether Marion Ross's part of the mark 24 was identified. 25 But astonishingly -- and that's why I brought it out page 10 1 yesterday, that this is then sent back to the Danes. 2 Now, again, this is further down the line after I would 3 have thought that Mr Gilchrist may have come back, even 4 on a precognition-type basis and discussed my findings. 5 That never happened. Yet he chose to then send it to 6 the Danes who then come back and say, no, they were 7 still satisfied it's not Marion Ross's print and to be 8 quite honest totally astonished because I signed up for 9 that and stand by that 100 per cent what I put. 10 So there obviously is a difference of opinion but is 11 there some bias at work in the background? We keep 12 getting bombarded with this suggestion of SCRO officers 13 were subject to bias, basically saying they agreed with 14 this and the other one agreed with it, et cetera. 15 There's definitely within this particular case bias at 16 work of a negative nature and I'm really surprised that 17 this went to the Danes and that was what their findings 18 were. 19 So, yes, despite signing up to this and expecting 20 that other people could look at any of your work and on 21 this occasion for some strange reason we have the Danes 22 in particular having actually been shown the mark-up, 23 which is quite astonishing what they are coming out 24 with. 25 Q. If I progress this argument one stage on, so far as even page 11 1 reaching a conclusion yourself, you have to have 2 observed a minimum of 16 characteristics in sequence and 3 agreement? 4 A. Obviously at this stage, Mr Gilchrist having come for an 5 opinion, I gave my opinion based on what I could see and 6 it was on, obviously, at least 16 but I went that stage 7 further and marked everything I could see that was in 8 sequence and agreement. 9 Q. What I am interested in is one starts then with the 10 question whether experts would agree on even the 11 identification of -- first of all, in the recognition of 12 the presence of features and on their interpretation. 13 That's the first level of this, to see whether there is 14 even a consensus that there are 16 points in sequence 15 and agreement in any mark. 16 A. Well, we've seen cases being put. What they're actually 17 suggesting is where there's an event, as we've talked 18 about, in the print and different experts having an 19 opinion as to what the interpretation of that is. So to 20 say that you would find the exact same characteristic 21 it's already been demonstrated, but that also 22 illustrates the pure independence of one expert doing 23 their own thing and with no reflection from what any 24 other expert has done. So that actually demonstrates -- 25 and the points were made about Mr MacPherson and myself. page 12 1 There's no better example of how independent you were. 2 I didn't now what the officers had done. The first time 3 I've seen what the officers have marked up is basically 4 this comparative exercise, where they were actually told 5 to put exactly where they had marked on the charting PC, 6 put them on. That's my understanding, they were told to 7 put it on the exact place on these photographic copies 8 that you put on the charting PC. So this was the first 9 time that I was actually asked to look at this and 10 actually give comment on, as with the others. 11 So, I say it demonstrates total independence of it. 12 I hope that's taken on board by the Inquiry that the 13 allegations that have been made over the years by 14 certain individuals that there was collusion and a lot 15 of that was shot down by, basically, the ignorance and I 16 presume that's where a lot of these statements sort of 17 were expanded from, the ignorance of Durham in how the 18 processes were within the SCRO Bureau and I think 19 they've now admitted to that. 20 But very scathing accusations and not a shred of 21 evidence that there's any collusion and, equally, you 22 can see even doing this exercise now and you're now 23 comparing me against SCRO officers as opposed to really 24 the emphasis on people who have a different opinion on 25 the conclusion, it's just been demonstrated, basically, page 13 1 the total independence of it all. 2 Q. Well, it's the total independence of it all is the theme 3 I'm wanting to run when I go through the remaining 4 points I'm looking at. 5 What I suggest to you is the challenge of looking at 6 this as a matter of 100 per cent certainty. The object 7 of yesterday, looking at you and Mr MacPherson, was that 8 two individuals of competence both looking at in fact 9 similar material, it turns out, not the same material, 10 similar material, can reach the same conclusion but at 11 stages along the way can have reached mutually 12 incompatible decisions in relation to the particular 13 features. 14 A. You're talking about the interpretation of bifurcations 15 or ridge endings, basically. That has been demonstrated 16 throughout the Inquiry by people of both sides, if you 17 like. 18 Q. I will say it a little bit further and take the point 19 about an event. Before ever there is a question of an 20 event, first of all the question is: does an officer see 21 an area which is reliable for study and we will see 22 there are differences in view even in relation to that, 23 some people will steer clear of areas because they think 24 there's movement or disturbance that makes it 25 unreliable, so they won't even recognise an event in a page 14 1 certain area. 2 Would that be fair? 3 A. I think you said they would there was a serious a 4 difference of view. How did you mean? 5 Q. Sorry, we will see that there was a -- 6 A. We will now see, thereafter? 7 Q. That there's a difference of view among experts about 8 whether they would even recognise the presence of an 9 event. 10 You accept that there can be that difference of 11 view? 12 A. Absolutely. I need to take you back again just one step 13 as an illustration of it. In the McNamee case, for 14 example, Alan Dunbar and I came to the same conclusion 15 but we were actually looking at different parts of the 16 mark that was attributed to McNamee and we actually 17 found -- and no-one will believe it to this day -- but 18 we actually gave our evidence and signed up to 11 19 characteristics in sequence and agreement but it was two 20 different lots of 11. I think other witnesses have 21 spoken to you, you don't know what the previous expert, 22 what area they have gone into for their starting point 23 or to satisfy themselves. 24 Q. If I could just move it on because even where experts 25 agree that there is an event in an image, they may then page 15 1 differ as to whether that event is something, a feature 2 in the background substrate in the wood or whatever, as 3 opposed to a ridge characteristic. That's the first, 4 yes? 5 A. Okay. 6 Q. Even experts who think that there is a ridge 7 characteristic, so it's not part of the background 8 substrate, so the event is a ridge characteristic, may 9 differ as to whether it's a ridge ending or a 10 bifurcation? 11 A. If they have both looked at that particular area. 12 Q. If? 13 A. Yes. 14 Q. Therefore, what is running here is a complex series of 15 judgments in which, at one level, looking at you and 16 Mr MacPherson, two experts, may make in fact in this 17 complex series, they may make some individual judgments 18 that are mutually incompatible and yet arrive at the 19 same eventual conclusion? 20 A. Again they wouldn't know, when they were doing it 21 independently, whether they were incompatible with 22 somebody else or not. They would just be, "That's my 23 conclusion and here's what I see". 24 Q. But we know from just comparing your evidence with that 25 of Mr MacPherson that two experts must have arrived, did page 16 1 arrive at the same conclusion in relation to QI2 and we 2 have observed yesterday that you have individually 3 arrived at interpretations of the same event in mutually 4 incompatible ways for some of them? 5 A. We now see that as mutually incompatible. When we're 6 doing that we don't know we're incompatible with someone 7 else. 8 THE CHAIRMAN: But does that present any difficulty or is 9 that, in your view, acceptable that two experts have 10 come to the same conclusion but have mutually 11 incompatible views on the way to reaching that 12 conclusion? 13 A. By the example I gave with Alan Dunbar and I, for all I 14 know, and we haven't discussed it, but for all I know 15 Alan Dunbar obviously didn't put forward any evidence in 16 the area of the McNamee mark that I did so it could have 17 been that he didn't like that area and likewise the area 18 I chose because, again, it was a very complex mark, 19 very, very similar, in fact, to the Y7 mark. 20 THE CHAIRMAN: It is one thing not to like an area; it is 21 another thing to say that area is not suitable for 22 comparison because there's a lot of movement in it. 23 A. That's how I would describe -- maybe it's the wrong term 24 to use "not like" but because I maybe recognise -- well, 25 I had recognised, particularly in the McNamee mark, page 17 1 areas of distortion. So, again, unless you actually sit 2 down with somebody and say, you know ... but by that 3 time, I mean, I've made my findings known and that's it 4 and that's what I was signing up to, what my personal 5 opinion is. It's highly unusual, I would think. 6 The only other time it would come in is when you 7 were actually doing these -- the one mark-up for court. 8 Obviously, there's got to be agreement between the four 9 experts as it was and now three but they don't even do 10 enlargements. So at that point there may be -- there 11 would be a discussion and the experts would say, "Well, 12 I would rather put this as opposed to this", and then 13 that's when ... there would never be any discussion, 14 certainly of those who were of the same opinion, but 15 that's the only occasion I can think of where you would 16 actually discuss with another expert once you had given 17 your conclusions. 18 MR MOYNIHAN: What I, in fact, was going to suggest, 19 Mr Mackenzie, as I did when I was examining 20 Mr MacPherson suggest that in this highly unusual 21 situation, McNamee may be another example of the same 22 thing, in a highly unusual case where even two experts 23 with the same conclusion have reached mutually 24 inconsistent judgments in relation to some of the 25 intermediate points that it may not be difficult to see page 18 1 that another expert looking at the same material would, 2 in fact, go just that little bit further and say, "Such 3 is my judgment in relation to some of these points that 4 I, in fact, do not agree the match", so that he is 5 seeing differences rather than similarities. 6 Do you see where I'm coming from? 7 A. Yes. 8 Q. The judgments, particularly in a complex mark, are so 9 fine that it is, at least in theory, perfectly easy to 10 understand why two experts might in fact find themselves 11 arriving at different conclusions, such as the 12 difference in relation to these intermediate 13 characteristics. 14 Do you understand? 15 A. I understand that but I need to add that those in the 16 comparative exercise again are pointing to certain 17 features they think are dissimilarities or whatever, 18 then throughout this there's a thread of a mindset. 19 Now, the Durham people, and I think Mr Sheppard 20 probably mentioned it, I can't remember Mr Grigg, but 21 certainly they had knowledge, they were being asked to 22 look at something and they didn't need to be rocket 23 scientists to understand that it was obviously a 24 suggestion there was something wrong with these 25 comparisons. page 19 1 Obviously, Mr Wertheim kicked this off so we know 2 what his opinion was. Mr Zeelenberg I'm not quite sure 3 where in the events in relation to QI2 came into it. I 4 wasn't aware he had ever done any report on QI2 but 5 ended up in this comparative exercise but, again, 6 Mr Zeelenberg at Tulliallan admitted to actually having 7 seen materials and knew about the opinions of Pat 8 Wertheim before he was employed by the HMI and that came 9 out clearly at Tulliallan. So it's against a background 10 of there may be an element of mindset in some of this 11 process. 12 Q. If I move this on to the area that I am going to then 13 look at, the particular points to illustrate, my 14 understanding of Mr Zeelenberg's conclusion in relation 15 to QI2, and we could look at some of his slides, it 16 happens to be slide 168 that I am thinking of but we 17 don't need to bring it up, Mr Zeelenberg's conclusion is 18 that QI2 is a mark that is of poor quality? 19 A. If I could mark-up 29, now 30, characteristics on it 20 then I've got to totally disagree but again was 21 Mr Zeelenberg looking at, at any stage has he seen 22 photographs or photographs taken from the original 23 negatives of QI2? I don't know. 24 Q. The answer to that is, yes, he has because that is the 25 comparative exercise material that you are choosing not page 20 1 to refer to. 2 A. I'm not choosing not to refer to it. The way that that 3 has been printed and whatever methodology has been used 4 and the contrast, et cetera, I could not work with it on 5 the screen and compared with the original material I 6 had, so it may well have come from the original 7 negative. How it's been reproduced -- but certainly the 8 detail that's present in the photographs I have, to get 9 back to the original question, the quality of the mark, 10 it's complex in nature because of the fine detail of 11 Marion Ross's ridge structure but no more than that. 12 There's very minor pressure in about the core area and 13 then in Marion Ross's control print, as I described 14 yesterday, there's a bit of pressure when the tape has 15 actually been applied over to the right of 16 the forefinger. 17 But as far as the mark is concerned, it's not a mark 18 of poor quality. It might be a mark of poor quality in 19 relation to what the Dutch are normally -- will accept. 20 I know that their thresholds, obviously, they obviously 21 make a lot of stuff insufficient. From my experience 22 and the experience of SCRO staff over many, many years 23 of looking at many hundreds of murder cases where marks 24 could be in the hundreds per murder case, very complex 25 marks, this is not a difficult mark or a poor quality page 21 1 mark but it needs careful study. 2 I don't know how long some of the individuals 3 involved in making comments, including like the Aberdeen 4 three, et cetera, how long did they actually spend 5 making the comparisons. So I know that I actually -- I 6 think it came out in my earlier evidence, that I locked 7 my door in the office and using the various materials 8 available to me and that was colour reversals, various 9 enlargements, formulated my opinions on the detail that 10 was present within this and then went about deciding how 11 I was going to illustrate it. And that was over a 12 period of two days and concluded with, by the morning of 13 the third day, having done the report and then 14 personally actually taking it to Mr Gilchrist's office 15 in Paisley. So I spent the best part of two days 16 actually working out all the very fine detail in this 17 and I don't know of anybody that's actually gone into 18 the detail in this mark that I have. 19 But there shouldn't be any time constraint on how 20 long you take to look at a mark of this -- but certainly 21 as far as the quality's concerned, there's obviously 22 nothing wrong with the quality if you're looking at a 23 good image of it. 24 Q. Mr Zeelenberg also said that there were few reliable 25 Galton points in QI2. page 22 1 A. Absolute nonsense. 2 Q. Therefore, it led or was capable of what he called 3 "guided interpretation"; in other words, it was capable 4 of being interpreted in whichever way one chose, in 5 particular capable of being interpreted consistent with 6 Marion Ross if one started with Marion Ross's print or 7 capable of being interpreted as incompatible with Marion 8 Ross if one chose to adopt that bias? 9 A. I'm glad you did the second bit there because I was just 10 going to come back to you and say, yes, it works both 11 ways. 12 Q. That's the difficulty, Mr Mackenzie. What I am trying 13 to do is approach this in a neutral way. It works in 14 both ways, does it? 15 A. It obviously has. 16 Q. The thesis here is that such is the lack of clarity in 17 QI2 that the judgments that I have been suggesting to 18 you the expert has to make along the way are, indeed, 19 very fine because the clarity is not there and it is, 20 therefore, perfectly possible for a range of experts to 21 reach different judgments along the way and arrive at 22 conclusions -- conclusions -- which are incompatible. 23 Do you understand that? 24 A. Yes. 25 Q. What is your comment on that? page 23 1 A. This just gets back to what I said a few minutes ago. 2 It depends on how much time you are prepared to actually 3 study the mark and gather the information from that mark 4 and then compare that against the controlled image. 5 I don't believe anybody -- I've seen no evidence 6 from anybody that has actually gone into that particular 7 detail. You might say that, well, Mr Zeelenberg has 8 produced a fancy PowerPoint presentation with his 9 interpretation and we've seen examples of that where 10 he's marked the points in the wrong places, he's marked 11 the ridge flow as how he sees it, basically, to give the 12 impression of this is how it is. That's his opinion but 13 it certainly some of -- well, as I say, there were 14 definitely parts were marked in the wrong place and 15 different detail was obscured by doing these lines, et 16 cetera, the dotted lines, et cetera. 17 Q. You see, the reason for the starting it as I did 18 yesterday afternoon is that one can actually see in 19 relation to some of these judgments that in fact, on 20 occasion, you agree with Mr Zeelenberg and, therefore, 21 you and Mr Zeelenberg disagree with Mr MacPherson. 22 You have seen that? 23 A. I've quite open and I've said it because it's -- we're 24 transparent here and, for example, my point 4 and SCRO's 25 point 15, it's my judgment that that particular page 24 1 bifurcation was marked a little too low down on mark 2 QI2. Where I put it, I'm satisfied is the correct 3 position where I see it. So there's a difference right 4 away. So -- 5 Q. Mr Mackenzie, in relation, for example, to the lake that 6 we looked at yesterday afternoon, Mr MacPherson draws it 7 in the same way as Mr Zeelenberg, as an open-ended bell 8 shape. 9 A. Okay. 10 Q. Whereas you draw it -- and it is critical to your 11 analysis -- as an enclosed lake? 12 A. Could I ask the question because I don't know what the 13 process was for the comparative exercise but was it not 14 the case or was it done in two parts? Was it -- 15 Q. Mr Mackenzie, if I can stop you. What we are looking at 16 is Mr Zeelenberg's evidence. So he has progressed 17 beyond the comparative stage. He has actually gone into 18 considerable detail in his presentation to the Inquiry 19 and he has gone through every single point and we will 20 look at some of these. So he has progressed beyond 21 that. 22 A. I'm clarifying you're clarifying it. That is the point 23 that was his evidence so, basically, by that stage, he 24 had seen Mr MacPherson's version, yes? 25 Q. No. page 25 1 A. No? 2 Q. No. 3 A. He hadn't seen the comparative exercise? 4 Q. He saw the comparative exercise but the comparative 5 exercise simply has dots and, yes, if we look at the 6 comparative exercise we will see that Mr MacPherson says 7 point 11 is a ridge ending, not a bifurcation, but 8 Mr Zeelenberg did not see, because it did not exist 9 until a date after he gave evidence, Mr Zeelenberg did 10 not see the drawing that Mr MacPherson did that I showed 11 you that has 12 as a bifurcation coming down to 11 as 12 two open-ended ridges. That drawing did not exist -- 13 A. I thought you were talking about the lake. 14 Q. That is the lake. 15 A. The lake to the left of the core? 16 Q. The lake to the bottom and to the left of the core -- 17 give me a second because we have to find it in a 18 slightly different form from the one that I have. It 19 was yesterday at -- I tried to bring up FI2910.24 and, 20 in fact, we had to go to a slightly different version of 21 it. 22 A. The point I'm trying to make -- 23 Q. If you give me a second. (Pause) 24 There is brought up on screen an image 25 FI0166A.001-GS06. You will just have to accept from me, page 26 1 because I have a dated version, that this document that 2 we see on the screen did not exist until 29th October, 3 which was after Mr Zeelenberg gave evidence. 4 The point that I am drawing to your attention, and 5 did yesterday, is that your colleague, Mr MacPherson, 6 draws on QI2 an open-ended, at the bottom, set of ridges 7 descending from the bifurcation which to them is number 8 12, the SCRO, and to you is number 29. 9 All I am suggesting by this is that two experts of 10 competence, acting perfectly properly, can arrive at 11 mutually inconsistent conclusions. It happens that the 12 two experts here you will readily accept are acting 13 properly and of competence, are you and Mr MacPherson? 14 A. But I need to add the point of clarification again. I 15 understand what you are saying that Mr Zeelenberg hadn't 16 seen the one with the green lines drawn on it but 17 Mr Zeelenberg would have had access to, presumably, on 18 the system, my mark-ups for Mr Gilchrist and also he 19 would have had access to Mr MacPherson's comparative 20 exercise with the red -- I can't see where the line is 21 now but basically the one that Mr MacPherson has 22 interpreted as a ridge ending at the bottom of the lake. 23 Q. But, Mr Mackenzie, it's got nothing to do with 24 Mr Zeelenberg. 25 A. Sorry? page 27 1 Q. It's got nothing to do with Mr Zeelenberg. This is you 2 and Mr MacPherson -- 3 A. No -- 4 Q. -- being at odds in relation to point number 11. No? 5 A. One, it's not a matter of "at odds"; we've got a 6 different interpretation. But the point I'm trying to 7 make is Mr Zeelenberg, it is about Mr Zeelenberg, that 8 he has chosen in his exercise to put that as a ridge 9 ending as well, but he also had access to 10 Mr MacPherson's version of it and my version of it, so 11 we don't know what Mr Zeelenberg's processes were or his 12 thoughts were but he had access to that. I didn't have 13 access, when I did my mark-ups for Mr Gilchrist, to 14 anybody's previous opinions. That's the point I'm 15 trying to make. 16 Q. Okay, let us just get back then to looking at some of 17 these points by reference to your images. I skipped 18 over yesterday some of the intermediate points. I 19 looked at the core and I went down to the lake at the 20 bottom. If I go back, QI2 (for SCRO points 3 and 4) are 21 for you on your charting points 18 and 19? 22 A. I can't see any numbers on there. 23 THE CHAIRMAN: What you said yesterday -- 24 A. Let me look ... did you say 3 and 4? 25 MR MOYNIHAN: 3 and 4 are your 18 and 19. page 28 1 A. That's correct. 2 Q. If we bring up then, please, TC0211.05, we are, 3 therefore, looking for points 18 and 19. 4 A. Yes. 5 Q. Again, the numbering does not help. 18 is way off to 6 the right-hand edge and seems to be pointing either at 7 nothing or at a continuous ridge. I understand what is 8 intended by number 18 is the bifurcation in the middle. 9 A. For the reasons I explained yesterday I didn't want to 10 actually interfere with the actual ridge detail and for 11 illustration purposes here, that's why, and it's 12 pointing directly over to point 18. 13 THE CHAIRMAN: I don't think anyone is being critical of 14 that. You have explained it. It is just to make sure 15 we know what 18 is. 16 MR MOYNIHAN: It is okay. I have now just put a yellow 17 arrow in so we know what 18 is. 18 A. Okay. 19 Q. 19, would it be the ridge ending that the pencil is on 20 just now (indicated)? 21 A. That's correct. 22 Q. So, again, if I put a second yellow arrow, just pointing 23 to ... that will do. (Indicated) 24 A. Yes. 25 Q. So those are 18 and 19. 18 is SCRO 3 and number 19 is page 29 1 SCRO 4. 2 A. The upper one is SCRO 3, that's a bifurcation, and the 3 lower one is SCRO 4. 4 MR MOYNIHAN: If I can save that image, please. 5 MISS BAHRAMI: That's saved as FI1111.01. 6 MR MOYNIHAN: If we can bring up Mr Zeelenberg's PowerPoint 7 presentation, please, and go to slide 157. 8 We will see what Mr Zeelenberg is doing in looking 9 at points 3 to begin with. First of all, he's not made 10 any error in the location of point number 3. 11 A. He's not made any error in it. Are you talking about 12 which image? 13 Q. On either image. 14 A. I need to actually look at where I've marked it. 15 (Pause) 16 I've actually marked it lower than where he's got 17 it on QI2. 18 Q. Lower? 19 A. Yes. 20 Q. Let us then run with that and see if that alters 21 anything. 22 It doesn't alter his conclusion because in the 23 bottom left slide he puts a red circle around a general 24 area and he simply finds nothing, no feature that's 25 dependable in that area that's capable of page 30 1 identification. Do you see? 2 A. That's what he's suggesting, yes. 3 Q. Because you found the quality of the images used for the 4 comparative exercise to be not, in your judgment, 5 acceptable, do you question Mr Zeelenberg's conclusion 6 in relation to the material that he is himself studying? 7 A. Again, I say I had difficulty in general with looking at 8 these images on the screen for the comparative exercise. 9 Q. Do I take it then, looking at like with like, looking at 10 Mr Zeelenberg's image on screen, you would not differ 11 and you would not say that there is, in that red circle, 12 a dependable characteristic which can be identified as 13 SCRO feature 3? 14 A. I'm quite happy there's a dependable characteristic 15 in ... 16 Q. I know, Mr Mackenzie, that you are happy that there is a 17 dependable characteristic in that area. What I'm asking 18 you is can you see it on that -- that -- image? 19 A. I think I've already -- I've marked this already in my 20 previous evidence. 21 Q. Yes? We discussed it previously as your point 18. 22 A. That's right. (Pause) 23 Yes, I've marked it within that area. 24 Q. Are you having difficulty seeing it in relation to this 25 particular image? page 31 1 A. It's ... this particular image, I'm finding it 2 quite ... it's probably because I'm conscious he's 3 marked it in the wrong place because there's no markings 4 on this, I'm trying to just clarify it for myself. 5 (Pause) 6 He's certainly marked -- he's marked it too high up, 7 in the wrong position. 8 Q. That's in the upper left. 9 A. Yes. 10 Q. But in the lower left he hasn't marked it at all. 11 A. That's right. 12 Q. He simply has a clear field for you to view. Do you in 13 relation to the image that we have on screen, do you see 14 the feature that you have as number 18 which SCRO have 15 as feature SCRO 3? (Pause) 16 A. Yes, I can see where I've got the point in that area. 17 Q. Okay. Use the cursor just to tell me where you see the 18 point. We will have to go to a different image so that 19 we can actually mark it. Where do you see it? 20 A. Is there a colour ...? 21 Q. No, you just have to use the cursor to show me. We 22 can't mark because this is a PowerPoint presentation. 23 A. Okay. It's here (indicated). 24 Q. So it is that position there. We will come back and let 25 you mark it. So you are indicating a position -- page 32 1 A. See the white dot there? 2 Q. Yes. 3 A. Just in here (indicated). 4 Q. Just below the white dot? 5 A. Yes. 6 THE CHAIRMAN: That is the top of it, so to speak, at the 7 white dot? 8 A. Below the white dot -- 9 THE CHAIRMAN: Just below the white dot. 10 A. -- whereas Mr Zeelenberg has got it up about 2 o'clock 11 above the white dot. I'm talking about below the white 12 dot here. 13 MR MOYNIHAN: We will come back and we can mark that in due 14 course. 15 First of all, just for the avoidance of any doubt, I 16 think by your left side on the stand is a photographic 17 copy, photographic original marked up by SCRO, with the 18 point 3 marked by them. 19 A. Okay. They have got it marked in the wrong place as 20 well. 21 Q. They have got it marked in the wrong place? 22 A. Yes. 23 Q. This is something that we, in fact, discussed on the 24 previous occasion. Have they got point 3 marked where 25 Mr Zeelenberg has it marked in the upper left image? page 33 1 A. Yes. 2 Q. I will move to point 4 in a second but just before I do 3 perhaps I should bring up a digital version, AZ0061, 4 slide 157. Because of some way this operates when 5 PowerPoint presentations are taken on to the Trial 6 Director system we can only capture one of many images. 7 The one that has been brought up on screen has the red 8 circle. However, it is not an uninterrupted image. 9 There are some yellow dots intervening. However, can 10 you mark just on this where you would put point number 11 3? 12 A. With a dot or with a line or ...? 13 Q. As you, please. Whatever is easier for you. 14 A. Here (indicated). 15 Q. Let's maybe a line. 16 A. I'll put a dot on. I think that will be easier rather 17 than cover up. 18 Q. Okay. 19 A. Have I got control of it? 20 Q. Yes, you have. 21 THE CHAIRMAN: It's very small to see. 22 MR MOYNIHAN: Perhaps if I may make it slightly larger it is 23 in the area that ... can you give me just a second. 24 I've put a blue circle around some red dots just to 25 assist us to see where that actually is. page 34 1 That is where you would place it? 2 A. Yes. 3 Q. Your colleagues at SCRO, along with Mr Zeelenberg, his 4 charting, would have put it above and to the right of 5 the white area as shown by Mr Zeelenberg? 6 A. I don't know whether Mr Zeelenberg is intending the top 7 image to be a copy of SCRO or whether -- I don't know. 8 MR MOYNIHAN: I think he is, I think he is. So if we save 9 what we have on screen, please. 10 MISS BAHRAMI: That's saved as FI1111.02. 11 MR MOYNIHAN: Before I look at Mr Wertheim, I will go on to 12 point number 4 and if I can return to Mr Zeelenberg's 13 PowerPoint, slide 158, he is going to deal with point 14 number 4. I think we will find point number 3 remains 15 as a point of reference. Point number 4 again you will 16 be correct as he is commenting on SCRO chartings. This 17 will be his attempt at the top to pick up point number 4 18 as marked by SCRO of the Marion Ross and on QI2. 19 First of all, so far as SCRO charting is concerned, 20 which you have to your left-hand side, are you content 21 that Mr Zeelenberg has correctly marked point 4 on both 22 Marion Ross and QI2? 23 A. Yes, I am. 24 Q. Then what he does is, in copy images at the bottom, i 25 think we will see that he tries to comment on that. So page 35 1 he is using point number 3 as a common reference point 2 and already we have the difference relative to you that 3 on QI2 he is using the SCRO position of point number 3 4 not, in fact, the true position for your point number 5 18? 6 A. Correct. 7 Q. Subject to that -- and we will see if that affects the 8 analysis at all -- he is picking up point number 4. He 9 is seeing point number 4, if I would understand it, as a 10 section of the ridge structure where either there is a 11 bifurcation or, at the very least, an area where the 12 ridge comes in to close proximity to the ridge to the 13 right and then terminates at the point of point number 14 4. So it is either a ridge in close proximity at its 15 end or a bifurcation. I would understand that what he 16 is saying by the ridge structure he observes in QI2 that 17 he does not find that corresponding detail on QI2. 18 Can you comment on that? 19 A. Is he commenting on the area around about 4 or are you 20 talking now to the right of point 4? 21 Q. Let us see if it progresses: 22 "Point 4, like point 3 in the reference print, is 23 inserted in the mark in a distorted area of very poor 24 quality. An adjacent point that falls in the mark X in 25 an area of better quality is ignored." page 36 1 Let us go back. If I would understand it, just 2 stopping there, what as I have said to you Mr Zeelenberg 3 is seeing in relation to point number 4 is what is shown 4 as the ridge structure in the bottom right and he has 5 attempted in QI2 to reproduce what he sees as the 6 underlying ridge structure and does not see anything 7 corresponding to point number 4 in QI2. 8 Do you see that? 9 A. I'm just ... this is the area I attached on myself, just 10 below the red circle, where his suggestion of the ridge 11 flow differs from mine in that that is covering up the 12 spur feature but as far as the one where he's got X, my 13 point 3, that's also quite clear on the mark QI2 and the 14 intervening ridges are correct, as we know. 15 Q. What he says about his point 3 is it's actually absent? 16 A. It's not absent at all. It's quite clear to the right 17 of that white area which is -- I think we've covered 18 before -- is some of the fascia on the tram car. 19 Q. Let us concentrate then on what we are talking about 20 here. Is Mr Zeelenberg correct or incorrect in what he 21 draws so far as the ridge detail for point number 4? I 22 will get back to it just now. Then we have, the ridge 23 detail drawn for point number 4 on QI2 which is 24 inconsistent with Marion Ross. Is he wrong? 25 A. He's wrong. Basically, again, I say wrong, he's page 37 1 interpreted it as a bifurcation. There's an event there 2 which I am quite happy is a ridge ending and it's 3 present on QI2. 4 Q. Again, I am trying not to be unfair. All I am trying to 5 do is follow through this thesis that such is the lack 6 of clarity in QI2 that it is open to interpretation. 7 First of all, you would accept that? 8 A. There are areas, obviously, that've been commented on 9 where there's background noise, like bits of the tram 10 car, et cetera. 11 Q. This is not background noise due to the tram car, is it, 12 in this area? 13 A. The ridge detail is very clear to me. I can actually 14 see point 4, looking at this image on the left here, I 15 can actually see where that ridge ending is and the 16 background doesn't interfere with it at all. 17 Q. Do you say, therefore, that it is not even one where it 18 is a tenable alternative interpretation to draw what 19 Mr Zeelenberg has drawn? 20 A. As far as point 4 and him suggesting on Marion Ross's 21 print it's a bifurcation, that's his interpretation, but 22 that's basically taking away from the fact that it's a 23 clear ridge ending, as far as I can see, on QI2. So I 24 wouldn't have marked where he's marked that as -- well, 25 I haven't done -- as a bifurcation but it is a ridge page 38 1 ending and that feature is present on both QI2 and 2 Marion Ross's forefinger. 3 Q. We will leave that there because we could go over it for 4 a while. 5 If I take down Mr Zeelenberg and show you what 6 Mr Wertheim has to say about points 3 and 4, bring up 7 FI2309.17. 8 You will see here that what he is looking at is 9 point 3, which is the point that I am just indicating 10 just now. That is point number 3 from the SCRO drawing. 11 It is there (indicated). And point number 4? 12 A. Yes. 13 Q. What he is actually seeing in relation to point number 3 14 is by the blue lines an area of disturbance coming 15 through that, for him, makes the area in yellow around 16 point number 3 unreliable. 17 A. I think the disturbances are the creation of all these 18 coloured lines actually is more confusing than looking 19 at the image without that ... 20 Q. We will leave it at that. 21 A. It's just totally confusing. 22 Q. Points number 7 and 8, if I bring up TC0211.06, points 23 number SCRO 7 and 8 are for you number 22. In fact, I 24 have the wrong -- 25 THE CHAIRMAN: 8 is 22 and 7 is the green arrow. page 39 1 A. Yes, correct. 2 MR MOYNIHAN: Yes. Sorry, sir, I have the wrong reference. 3 I don't see 22 on the screen. Give me a second. 4 (Pause) It is TC0211.05. 5 Number 22 we see as the ridge ending? 6 A. Yes. 7 Q. And that would be SCRO point number 8? 8 A. That's correct. 9 Q. You have marked an additional green point with a green 10 arrow which you came to refer to as your point number 11 30, which would be SCRO point number 7? 12 A. 7. 13 Q. What Mr Zeelenberg says about points 7 and 8, SCRO 7 and 14 8 so your 22 and 30, is that this is simply an area 15 where the ridge detail is not sufficiently clear and, if 16 anything, the paramount structure is horizontal, not 17 vertical, and therefore he would not see dependable 18 features in that feature? 19 A. Two points I need to make there: again I didn't know 20 what SCRO had done originally when I was doing this for 21 Mr Gilchrist and my point 22 I'm totally satisfied with. 22 Point 23, having obviously examined this more recently 23 I'm quite -- sorry, my point 30 I'm also quite satisfied 24 with. Now this takes us back to when these first false 25 allegations were made in the Frontline Scotland page 40 1 programme. I don't know whether the Inquiry has a video 2 of it but what stuck out in my mind was there was Pat 3 Wertheim and Allan Bayle standing over a table pointing 4 to what purported to be the mark and they were talking 5 about something being horizontal and it should be 6 vertical. So I'm presuming that this is exactly the 7 area that we're talking about at the time and, 8 basically, they were rolling out the whole comparison 9 that that difference alone was enough to say that this 10 wasn't Marion Ross's print. But it wasn't until 11 14 months later after I first got to see this that I 12 remembered what had been said in that programme and that 13 was then when I actually was able to note that there 14 were other fingers interfering with the bottom of the 15 image and that's why I had stated it in my report to 16 Mr Gilchrist and that's what I was referring to, these 17 areas, and that was one of the areas where there was 18 other fingers running across, hence the reason for the 19 horizontal and the vertical. But I'm totally satisfied 20 that the vertical ridge endings at 22 and now 30 are 21 correct. 22 Q. So this is, at the very least, in proximity to an area 23 of disturbance caused by superimposition of another 24 print? 25 A. Yes, but it doesn't negate from the actual page 41 1 characteristics in sequence and agreement. This is 2 really an example of the type of marks that we were used 3 to working with on a daily basis, check frauds, for 4 example, you get multiple fingers crossing over. Its 5 being able to actually relate one characteristic to the 6 other, regardless of superimposition, so it can be 7 explained and that is the explanation. It's other 8 fingers coming across in that area. 9 Q. If I then bring up just so that we can what 10 Mr Zeelenberg says, it's in his PowerPoint slide 161, 11 he's got 7 and 8 as charted by SCRO and you've got the 12 chart beside you. 13 Are you content that he has got 7 and 8 properly 14 marked? 15 A. I think so, yes. 16 Q. We will then proceed as we do normally now to see how he 17 reproduces it in the lower images. He says: 18 "The dominant direction of this grey scale 19 information is horizontal! To claim that a regular 20 system of vertical lines is present AND that ridges can 21 be seen as ending is beyond good practice!" 22 I've brought in another image just to be clear: 23 "One general requirement is demonstrability; you 24 should be able to demonstrate what you see. If you 25 cannot see something, it is not there!" page 42 1 We talked yesterday about demonstrability to a 2 juror. Now here what we have is an expert who is 3 himself saying, "I cannot see the ridge detail that the 4 SCRO officers are seeing". This is why I have been 5 asking you just about the standard or approach you are 6 adopting. If you are looking for 100 per cent certainty 7 to the extent that any other expert of competence would 8 arrive at the same conclusion as you, does it not cause 9 you some doubt when you see that Mr Zeelenberg is 10 demonstrating his inability to observe the ridge detail 11 that you rely on? 12 A. All I can say is that my independent assessment and 13 conclusions on this, including that area, absolutely 14 correspond from what was independently done by 15 Mr MacPherson. So I'm totally satisfied with my 16 conclusions and that that area can be used and is 17 consistent with and is in sequence and agreement with 18 the other characteristics and can be demonstrated. 19 Q. Okay. If I then take you on, please, to points 14 and 20 15, SCRO 14 and 15. I understand that these are your 21 points 3 and 4? 22 A. That's correct. 23 Q. If we bring back up TC0211.03, so your points 3 and 4 on 24 screen, number 3 is SCRO point 14 and number 4 is SCRO 25 point 15? page 43 1 A. That's the features, the same features, yes. 2 Q. We will start in a slightly different order perhaps. We 3 discussed this yesterday by reference to the magenta 4 circle. I will not go back there. 5 If I understand Mr Wertheim's position correctly, it 6 is that the ridge detail in this area again is so 7 lacking in clarity that he cannot give a dependable 8 interpretation. If I show you his drawing, which is 9 FI2409.04, we will see that he has attempted to 10 interpret points 14 and 15. 14 and 15, just for the 11 avoidance of doubt, are the two points where the blue 12 long arrows come in from the left, the lower of the two 13 being 14, the upper of the two being 15 and you will see 14 again he has had difficulty marking this area with a few 15 circles showing judgment calls he's in doubt about. 16 Again, just at the simple level of an expert coming 17 and saying, "I don't see sufficiently reliable detail in 18 that area to draw the conclusions about points 14 and 19 15" do you at least see that as being a tenable view? 20 A. Could you let me study this for a minute because again 21 the green lines are totally confusing and I would say 22 suggestive, but let me just check so I can make proper 23 comments on it. 24 (Pause) Am I correct in saying that it's SCRO 25 point 14 is this one with the blue and what's got a red page 44 1 line going across and that's presumably meant to be or 2 suggesting ... I don't know what it's suggesting. 3 Q. Point number 14 -- just for the avoidance of any doubt, 4 I will show you -- is the lower of the two long blue 5 arrows coming in. You will see that that long blue 6 arrow actually ends at the position of a red pen line 7 coming in which would be the SCRO way of highlighting 8 point number 14. So point number 14 is the conjunction 9 of the lower blue arrow and red line within the red 10 circle. 11 A. Basically under that confusion of the red line and the 12 blue arrow and the red circle, he's put two 13 interpretations in there. He's got the bit to the right 14 with what's purporting to be a bifurcation in green down 15 the way and then he's got, like, a purple curve going 16 back to the points. It's a complete misrepresentation 17 of the structure of that. It's completely wrong the way 18 it's being suggested. 19 Q. Let us look at Mr Zeelenberg then in his PowerPoint. 20 Mr Zeelenberg will begin at slide 151. For 21 Mr Zeelenberg we will see he is marking in points 14 and 22 15, I trust, or certainly point 14. For him it is 23 point 9. 24 Again, he draws the ridge structure below. He is 25 trying to bring in point 9 which is point number 14. He page 45 1 says: 2 "Point 9 is similar by type and location." 3 So he accepts that your point 3 is similar by type 4 and location but he finds other ridge detail in the area 5 that's inconsistent. So he says: 6 "Point 8, a ridge ending in the mark fails in the 7 reference print. Another upward ending ridge may be 8 assumed in same area. This is at least one distinct 9 discrepancy." 10 A. To deal with point 9, first of all. He's got that 11 marked in the wrong place. I think that's probably one 12 that I observed already and I think Mr -- 13 Q. Give me a second; I have lost the picture. Point 9 is 14 in the wrong area? 15 A. It's the wrong position in the ridge. Again, the colour 16 dotted lines are suggesting a completely different ridge 17 flow from actually what it is on the mark. The actual 18 ridge ending is to the left of where he's got point 9 19 marked on the lower left. Sorry, did I say to the left 20 then? 21 Q. Yes, left. 22 A. To the left of where the red dot is that's meant to be 23 point 9. 24 Q. If we then look to the next one of Mr Zeelenberg's 25 images dealing with this, 165, he is dealing with point page 46 1 number 14. He is using a point which SCRO have marked 2 as 13, a feature you have not picked up in your 3 charting. What he is suggesting is that the ridge count 4 from point 13, SCRO point 13, to SCRO 14 are wrong. 5 A. Can I point out, first of all, from what I can see I 6 think on the top right-hand slide is he's claimed that 7 that's SCRO point 14. It's actually one ridge to the 8 left of that. So again -- 9 Q. Mr Mackenzie, if I just stop you, because this arose 10 with Mr MacPherson, if that is correct then that makes 11 the problem worse because that makes in the bottom left, 12 if it's incorrect -- and it's probably not -- that the 13 dot for point number 14 moves one further ridge out to 14 the left from point number 13. So it exaggerates the 15 difference. 16 A. Are you now talking about below that area? 17 Q. No, all I'm saying to you is the further to the left you 18 move point number 14, the greater the number of ridges 19 that you are assuming intervening. So you're not 20 actually eliminating the problem, you are in fact 21 increasing it. 22 A. I don't know what the problem you are actually alluding 23 to is but the problem below that area is again what I 24 put in the report to Mr Gilchrist. It's subject to the 25 superimposition and I now understand that from that page 47 1 bottom corner out is a mark that was identified as David 2 Asbury. In my initial analysis I had taken cognisance 3 of that whole area and I've also commented on it in the 4 comparative exercise that that area is subject to 5 superimposition. 6 Q. In other words, what you are saying is that you can't 7 get a reliable ridge count in this area because of the 8 superimposition of the David Asbury mark in that area? 9 A. In the bottom left-hand corner. 10 Q. If I then proceed on to 166 and we will look at number 11 15, this is where we looked before in a slightly 12 different way at the question of the ridge structure. 13 What Mr Zeelenberg is observing is a series of parallel 14 lines by the magenta dots which he is indicating are 15 ridge features on which he can find some points, but he 16 says there's inconsistency. In this area what is being 17 highlighted is one red dot, point 15, when the other 18 blue dots are being ignored as an area of disturbance, 19 and consistency suggests if you are going to ignore any 20 of the dots in this area because of disturbance, then 21 you ought to ignore them all. 22 What is your comment on that? 23 A. I have already looked at this area in my previous 24 evidence and, again, I find that magenta dots or 25 whatever colour they are confusing. But if you actually page 48 1 look at the overall shape of the dots he has put in, if 2 you look at the left-hand one, it's more or less 3 straight but if you look up to the top and then follow 4 that round down the right-hand side and then back in 5 again, that's in the area of the step on the tram -- 6 MR MOYNIHAN: Mr Mackenzie, if I just stop you. I have 7 noticed the time. 8 THE CHAIRMAN: If we just interrupt you, if you don't mind 9 and we will observe the two minutes'. 10 (11.00 am) 11 (Two minutes' silence observed) 12 (11.02 am) 13 (A short break) 14 (11.25 am) 15 MR MOYNIHAN: Mr Mackenzie, what I think we will do is go 16 back to Mr Zeelenberg, I think. This is slide 166. 17 What I will do is go back to the point where I was 18 asking you the question and then just give you just an 19 uninterrupted opportunity to answer and then we will 20 move on to the area at the top. 21 What I had been suggesting to you was Mr Zeelenberg, 22 by the magenta dots, is indicating what he perceives to 23 be an area of disturbance in the vicinity of which he 24 has marked some potential points as blue points. 25 I think, if I understand him correctly, what he is page 49 1 saying is that to be consistent, if one is using the red 2 spot (SCRO 15, your 4), then one ought to consider 3 equally the blue dots that may not be consistent with 4 Marion Ross and if we are ignoring the blue possibly 5 because of disturbance one should also ignore the red. 6 What you were saying the complication is that you 7 see the magenta dots as being, in fact, a reflection of 8 the underlying image the Victorian carriage? 9 A. That's the first part of my answer to what you were 10 talking about, yes. Also I have already highlit that my 11 point number 4, which is the one that is being referred 12 to there, both on the upper left and the lower left 13 where SCRO has marked that point in that I've already 14 said that they should have marked it a little further 15 up. So that may -- if there's an image, obviously, 16 without the magenta dots but the -- once that's taken 17 away I'll be able to mark -- I think I've already marked 18 it. 19 Q. If you give me just a second, we can take the magenta 20 dots away. 21 A. Okay. The left-hand row of the magenta dots has 22 definitely been established as the bottom edge of one of 23 the steps on the tram and then there's a arc-type shape, 24 a dark image. So I'm satisfied that that accounts for 25 what Mr Zeelenberg has suggested as interference or page 50 1 whatever. Basically, it's background noise but it does 2 not interfere in any way with the ridge flow. I'm 3 satisfied about that. 4 The next point is that point 15 of SCRO has been 5 marked in the wrong position and it's a little higher 6 up. I may have marked it already but I'm quite happy to 7 mark it again and that may obviously answer the point of 8 what Mr Zeelenberg is saying about putting the blue dot 9 on then should be considered, that if you actually take 10 account of how SCRO has marked it in the wrong place 11 then the blue dot doesn't come into the argument, I 12 would suggest. 13 Q. I may be picking up incorrectly because there are two 14 different possibilities here. First is that 15 Mr Zeelenberg might have reproduced SCRO point 15 in the 16 wrong position? 17 A. (Nodded) 18 Q. The alternative is that SCRO itself, your colleagues, 19 have marked point 15 (your point 4) in the wrong 20 position? 21 A. (Nodded) 22 Q. Of those two which is it that -- 23 A. SCRO's marked it in the wrong position. 24 Q. If we can then move beyond these points and this takes 25 me round now to the top of the mark -- page 51 1 A. Sorry, do you want me to mark that point again? I think 2 it might have been marked in my earlier evidence. 3 Q. I think we have your charting which we have seen with 4 your point number 4 on it. 5 If I move then to the top, what I want to do is 6 bring up your image TC0211.04. In the area of the top, 7 first of all, within the core we discussed yesterday the 8 islet which begins with its top as the bifurcation 9 number 12. 10 A. Okay. 11 Q. We have mentioned that your point number 11 is the ridge 12 ending of the chilli pepper, so-called. 13 A. Correct. 14 Q. Then I am going to look at that plus the features that 15 you have also indicated above. So you have in light 16 blue some incipients? 17 A. Yes. 18 Q. You also have a ridge ending in green. Is that your 19 number 10? 20 A. Yes. 21 Q. Then two further incipients, your ridge end number 8? 22 A. Yes. 23 Q. Then we go out then to 6, 7 and 9? 24 A. Correct. 25 Q. So far as the chilli pepper itself is concerned (number page 52 1 11), is there any significance or not in the fact that 2 what you have drawn immediately below the dot is a small 3 green line? 4 A. Basically that's point -- it's a ridge ending upwards at 5 that point where the red dot is. I'm trying to indicate 6 where the flow of the ridge is going downward. 7 Q. You may remember -- and this is why the phrase has come 8 to be used from Mr Wertheim -- that the chilli pepper is 9 said to have a characteristic shape reminiscent of a 10 chilli pepper. But you have not yourself attempted to 11 draw anything of that sort, you simply have what would 12 appear to be an ordinary conventional ridge coming up at 13 that stage? 14 A. All I can see on the mark, because I think I've already 15 pointed out towards the end of my evidence yesterday, 16 that there's a slight crushing in that area to the left 17 of the core and what's visible to me is the top of 18 what's been described as the chilli pepper. 19 Q. Does that mean because of the slight crushing that you 20 can't observe the remaining length of the chilli pepper? 21 A. It's a difficult area in there and if I had seen 22 anything in there I would have been marking it in there. 23 Q. If I understand correctly -- and this is with a view to 24 testing the same hypothesis -- that different experts 25 might be looking at the same area in different ways, page 53 1 whether they reach the same ultimate conclusion or not. 2 I don't know are you are aware of Mr MacPherson's 3 position about this particular area as, in fact, an area 4 that has disturbance of some description extending out 5 from the core and up left in the area where you would 6 have perhaps -- perhaps -- in the area where you would 7 have the ridge ending 10 and some of these incipients. 8 Do you want to see what he has -- 9 A. Sorry, the ridge ending? 10 Q. Your ridge ending number 10 and some of these 11 incipients. If I bring up the image that is 12 Mr MacPherson in relation to this matter, if I bring up 13 FI2910.16 you will see that what he has drawn is a red V 14 entering into the core area and that red V is the area 15 of disturbance, as he views it. 16 If I understand his evidence correctly, what he said 17 on 29th October was that, given that area of 18 disturbance, he in fact avoided the whole of the top 19 area above the chilli pepper in QI2 and you will, 20 accordingly, observe that there are no features marked 21 on the SCRO chart of QI2. 22 A. Okay. 23 Q. What I am just wondering is whether you have any comment 24 on that proposition that because of this area of 25 disturbance it is an area where features could be page 54 1 unreliable and, therefore, better avoided? 2 A. I can't obviously say better avoided because I have, as 3 you say, further up towards 8 and 10, basically, I've 4 included in that area certainly 10, but I say I have 5 observed a minor crushing of the ridges immediately to 6 the left of the core but I'm satisfied with what I've 7 marked that I can trace down -- virtually with the 8 exclusion of that area immediately from the chilli 9 pepper out just one or two ridges basically I'm 10 satisfied I can trace the ridges in sequence and 11 agreement. 12 Q. If we, therefore, return to your own image, which is 13 TC02111.04, what I am interested in is the first 14 incipient, that long incipient that you draw, and if I 15 can perhaps mark it in some sort of way. (Indicated) 16 I've put a yellow arrow to it. This would seem to be a 17 feature which ends in a dot on the image? 18 A. Yes. 19 Q. And you have drawn as an incipient coming from right to 20 left and ending at that dot, yes? 21 A. Yes. 22 MR MOYNIHAN: If we could save this image, please. 23 MISS BAHRAMI: That's saved as FI1111.03. 24 MR MOYNIHAN: If we can put that just to the side for a 25 moment, please, for a reason and bring up also FI2409.06 page 55 1 to begin with. 2 There's a reason for looking at this. I appreciate 3 this has all the imperfections of a manuscript drawing 4 but what Mr Wertheim drew as the configuration, as he 5 saw it, of QI2 was above the core two ridges, continuous 6 ridges, then immediately above it he has a ridge that 7 ends at a dot. 8 What I am wondering is, just using for the moment 9 all the imperfections that this is a manuscript drawing, 10 if it would seem that Mr Wertheim is, in fact, observing 11 what you have observed as the incipient that ends at the 12 dot that I have indicated by my yellow arrow. 13 A. That's correct. 14 Q. If we then go -- 15 A. While you've got that slide out there, can I just point 16 out, obviously, that is Mr Wertheim's interpretation of, 17 one, this image on the right-hand side of how he sees 18 the core of the mark and also how he sees the core of 19 Marion Ross's right forefinger. 20 What jumps out at me right away in the right 21 forefinger is immediately to the right of the chilli 22 pepper there's no suggestion of the islet or that shape 23 in that area so I know he's highlighting the points 24 above it but the drawing of the core of Marion Ross's 25 right forefinger's not correct. page 56 1 Q. What, in fact, we will see, so I am not misleading you, 2 Mr Mackenzie, what I am going to come to look at is the 3 fact that in the area where there is the ridge that ends 4 in a dot, you have drawn it as an incipient but 5 nonetheless as a continuous piece of ridge structure, 6 right to left, above the core. A continuous piece of 7 ridge structure? 8 A. It's the incipient ridge and it's got little breaks in 9 the incipient ridge as well but that's my illustration 10 to tell you that's one incipient ridge coming across the 11 top. It's also, because I obviously noted in this in 12 the comparative exercise, a number of individuals, it is 13 noticeably thinner in nature than the ridges on either 14 side of it, which assists in my conclusion that that is 15 an incipient ridge and it's my -- I call the core, the 16 top of the chilli pepper, the ridge ending up. So it's 17 four intervening ridges or it's on the fourth what has 18 been suggested should be a ridge but the actual, 19 counting up, the fourth one is the incipient ridge. 20 Q. If we look at Mr Wertheim's drawing on the images 21 FI2409.07, he has marked, if I begin on QI2, an area of 22 ridge structure. The red line, the red arrow, is 23 pointing at an area of ridge structure that he sees 24 coming in from the right and ending at the point of the 25 red arrow. page 57 1 A. Yes. 2 Q. What I am wondering is whether that corresponds in 3 position and in shape to the incipient that you have 4 marked that for me ends in the yellow arrow? 5 A. Basically that's what I'm saying, that in mark QI2 is an 6 incipient ridge. 7 Q. So the two do correspond? 8 A. The one where Mr Wertheim's arrow is pointing to the end 9 of the incipient ridge that you have marked with the 10 yellow. 11 Q. The reason for doing this is, on this occasion, you and 12 Mr Wertheim would agree that there is a continuous piece 13 of ridge structure -- I will use that generic term, 14 ridge structure -- coming from the right and ending at 15 the point that you both see. 16 If I can take down Mr Wertheim, because I could 17 demonstrate the same with Mr Zeelenberg and Mr Grigg, 18 but in fact now take you to Mr Swann. For Mr Swann, it 19 is TS0004 and it is chart P (for Peter). 20 If I highlight that, what Mr Swann draws or 21 highlights, charts, I understand that he is referring to 22 the same corresponding area as his point 4 and 10? 23 A. Yes. 24 Q. What he tells us is that there is not continuous ridge 25 structure but, in fact, a break so that number 10 is page 58 1 itself a small piece of ridge structure. I can't 2 remember whether he called it an incipient or what but 3 nonetheless a small, independent piece of ridge 4 structure with, separated from it, point number 4? 5 A. Okay. 6 Q. Again, there would seem to be a difference of 7 observation among experts. Do you see that? 8 A. Well, I would agree there's a bit of ridge structure in 9 there and, yes, interpretation of a break is fine. 10 Q. When you say it's fine, you would regard it as a 11 terrible interpretation that there is a break? 12 A. Within, just like any other ridge and how they are 13 recorded there can be breaks occur but I'm identifying 14 that particular structure from the left over to the 15 right as an incipient ridge. It may or may not have a 16 break in it but that is what it is. It's an incipient 17 ridge. 18 Q. I see what you are saying but this would be a point of 19 definitional difference between Mr Swann on the one hand 20 and Mr Wertheim, Mr Zeelenberg and Mr Grigg on the 21 other, a point of definitional difference that Mr Swann 22 says there is a gap there and if there's a gap it's just 23 simply wrong to ignore that gap and draw in one 24 continuous piece of ridge structure; whereas 25 Mr Zeelenberg, Mr Wertheim and Mr Grigg say, "No, our page 59 1 preferred interpretation is a continuous piece of ridge 2 structure ending at the point", and by sheer coincidence 3 what we observe on your chart TC0211.04 is that, as you 4 say, in a completely untutored way, because you are not 5 studying anybody else, in a completely untutored way, 6 you happen to draw it in a way that is consistent with 7 Wertheim, Zeelenberg and Grigg. 8 A. What I'd actually marked on my original you will see 9 that I actually put the blue dots as the end of it. 10 When I did this a week past Monday, basically to try and 11 assist, basically I was saying that is the area. I see 12 that curving round there as an incipient ridge. So in 13 my original for Mr Gilchrist I hadn't traced blue lines 14 on them, obviously, but I put the blue dots. So I'm 15 still totally satisfied you can see what Mr Swann's 16 interpretation is of it -- you can -- you can't(?) have 17 breaks on full ridges and incipient ridges. 18 He's satisfied to put that as a break then that's 19 his interpretation but my interpretation of the whole 20 feature is that is the incipient ridge. 21 Q. I suppose, Mr Mackenzie, one final attempt just at this 22 hypothesis, this proposition: we have gone round the 23 clock and at each point where we have stopped there are 24 questions of interpretation; do you accept that? 25 A. Okay. page 60 1 Q. What I have actually been demonstrating by calling up 2 various different individuals that, in fact, in a 3 completely neutral way -- completely neutral, as you 4 say, you are not trying to score points -- sometimes you 5 agree with Mr MacPherson, yes? 6 A. Yes. 7 Q. Sometimes, in fact, you agree with Mr Wertheim or 8 Mr Zeelenberg in relation to the particular points? 9 A. Certain points may have been marked in the wrong place 10 and I've said that; so absolutely, yes. 11 Q. This is just a final point, that if one looks at 12 drawings side-by-side, it would so happen, if I were 13 trying to categorise the experts, that in fact I would 14 have you more closely aligned, in relation to this one 15 feature, more closely aligned to Mr Wertheim, 16 Mr Zeelenberg and Mr Grigg rather than Mr Swann? 17 A. In general terms, just because a week ago I decided to 18 put that on there, there was another reason for me 19 actually, although I've -- 20 Q. Mr Mackenzie, I think you are misunderstanding -- 21 A. No, no, but while we are on this slide, because I think 22 Sir Anthony actually pointed to that, where I had a blue 23 dot in my previous evidence, and what I found in the 24 comparative exercise and nearly everybody had the end of 25 that, whatever, they were interpreting that as the end page 61 1 of a feature, that they actually had it further back 2 towards the top. This is the left-hand side of the 3 incipient ridge and what I have as point 10 they 4 actually had further down to the left. I think I tried 5 to possibly articulate that in my responses in the 6 exercise and I noticed that nearly everybody was, again, 7 had a different interpretation from me but I was quite 8 satisfied I could actually see point 10 coming up a bit 9 further and the incipient ridge two below it coming down 10 to the left a bit further. It's just down to that 11 finest -- that's the kind of finest detail that I was 12 looking in, even in the comparative exercise. 13 So just because I've now drawn that blue line, then 14 that's me basically indicating this is how I see the 15 formation of the incipient ridge coming across in that 16 area and, as I have said, it is thinner in nature than 17 the others which makes it consistent with being the 18 incipient ridge. 19 Q. I am just trying to look really at what Mr MacPherson 20 said in relation to this and I'm looking at 21 3rd November. For me it is page 27 of the transcript 22 but others may actually want to see this and I will see 23 if I can get the corrected transcript. I do think for 24 once I have not brought up the corrected transcript. We 25 will proceed with it. page 62 1 He is being asked about, just beginning at page 26, 2 Mr Swann's points 4 and 10, at line 25 on page 26 he is 3 asked: 4 "Are you more in favour of one or other of these two 5 interpretations of that area or is yours a third 6 interpretation?" 7 He says: 8 "Well, looking at it, it looks quite strong, the 4 9 and the 10 but, as I say, the point 1 for me is in the 10 area that I marked where I wouldn't have gone into, 11 whereas I said I believe I said in the comparative 12 exercise that I thought it was a continuous ridge up 13 there. So, again, it's the interpretation of Mr Swann 14 and Mr Wertheim." 15 I say: 16 "Sorry, I think what I had asked you, first of all, 17 take it this way: you are seeing continuous ridges up 18 there and concentrating on points 4 and 10 if you are 19 seeing continuous ridges, do I take it you would not 20 agree with Mr Swann that there's a significant break so 21 that he can discern two different ridge characteristics 22 4 and 10? 23 "A. I would have to look at it again and the way 24 it's been marked, but it looks quite strong so, yes, you 25 could take it as that. page 63 1 "You say looking at it. Are you looking at your own 2 photograph [obviously indicating something] so you could 3 take it as that? 4 "Yes." 5 So he seems to be taking it as a continuous ridge. 6 Question: 7 "However, what has been suggested by the others is 8 that the preferred interpretation of that area is that 9 they have drawn it, whereas Mr Zeelenberg has drawn it 10 in the right-hand image which would have a continuous 11 ridge coming to a point, a ridge ending at the 12 right-hand red dot on the image. Could you see that as 13 an interpretation? 14 "A. Yes, I could in terms of the ridge ending, 15 yes. 16 "Q. Suppose it would tend to be taken as a ridge 17 ending which would mean that there was no separate 18 characteristic number 4, number 4 would simply fall as 19 an intermediate point on that ridge coming down to 20 point 10 to the end. 21 "A. I think it's been mentioned before how built 22 up the resources were on this mark. 23 "Q. So I suppose this takes us to the position we 24 were talking about on Wednesday and Thursday, that such 25 is perhaps the lack of clarity in this section of Marion page 64 1 Ross's print that the same appearances are in fact 2 capable of a variety of interpretations. 3 "A. Yes and that was one of the reasons I didn't 4 go there." 5 That is just a full reading of a difference of -- 6 A. I have got to agree from looking at the comparative 7 exercise and that's why I was trying to make the point 8 that other people were obviously coming up with a 9 different interpretation of what I had marked on my 10 original to Mr Gilchrist and I'm still satisfied with 11 the continuity of the ridge flow, the characteristics in 12 sequence and agreement and knowing the amount of time 13 I've actually spent on that actually working out the 14 various features on it and I fully explained it in the 15 illustration to Mr Gilchrist and tried to do that now 16 by ... as I say, I have put that blue line from one to 17 the other but that is basically indicating that is all 18 incipient ridge, whether it's got a break in it or not 19 really doesn't matter to me. I'm quite satisfied that 20 that is all incipient ridge, that flow round there. 21 Whether it's got a break in it or not, it's still the 22 incipient ridge. 23 Q. Just to complete this so that we understand where 24 perhaps you would part from Mr Zeelenberg, Mr Wertheim 25 and Mr Grigg, if I understand it correctly what they are page 65 1 saying is that that continuous ridge structure, you are 2 saying an incipient, they are perhaps saying a ridge, 3 they say is present on QI2 but absent in Marion Ross 4 and, therefore, is a definitional point of difference 5 leading to the conclusion there cannot be a match. 6 So if I bring up to show you -- and we will still 7 leave your image on the left -- bring up to show you 8 what I have already shown you, Mr Wertheim on this 9 occasion, FI2409.07 -- you may want me just to, in fact, 10 take your drawing down but, first of all, we have seen 11 the continuous ridge flow or ridge structure, the 12 incipient as you describe it in QI2. If I then take 13 that down so I can just concentrate on Mr Wertheim has 14 shown, you will see that on the left, the charting of 15 QI2, he has the same ridge structure coming in and 16 ending at the large red arrow and he has charted on QI2 17 the ridge flow in the area with a substantial number of 18 incipients marked in yellow but he is marking continuous 19 ridges in green and the point is that within the purple 20 oval in QI2 and Marion Ross he does not observe the same 21 ridge structure. So he has a ridge ending in QI2 but 22 continuous ridges in Marion Ross. 23 What is your comment on that? 24 A. I think you can actually -- can I mark on this? 25 Q. Yes, you can. page 66 1 A. This will maybe clarify what I meant by -- 2 Q. I can even take you back to a clean image of this if you 3 want completely start marking afresh. 4 A. No, it's okay, I'll just ... (indicated) this is what I 5 was meaning by this is the incipient ridge, 1, 2, 3, 4. 6 I think I've marked the wee break here and then I've 7 continued this round but I've marked to -- it comes 8 round to here (indicated), approximately, is where I've 9 marked it on mine and what I was saying was that the 10 ridge -- if you miss one ridge above that -- now, I'll 11 change the colour -- 12 Q. In fact, can we do something just now and again what you 13 have done is put on a very faint blue dot in Marion 14 Ross's print. So what I am going to do is simply to 15 highlight that in some way, with luck, not to lose the 16 detail, highlight it in some way. Again, it's just to 17 the upper part of a blue circle that I've inserted. 18 Okay? 19 A. Yes. 20 Q. So you would see, therefore, if I understand it 21 correctly, what Mr Wertheim has marked as three yellow 22 lines in the same space as the blue circle with blue 23 dot? 24 A. Yes. 25 Q. You would see it as part of the same incipient ridge page 67 1 structure that you have drawn in your drawing coming 2 round and ending at the blue dot inside the blue circle? 3 A. Yes. 4 Q. First of all, can we save that image, please. 5 A. Before you actually come away from that just if you 6 look -- 7 Q. It is okay, we'll just -- 8 A. I'm not going to touch it. I'm just going to explain 9 while it's there. 10 MR MOYNIHAN: It's okay. If you give me just a second. 11 MISS BAHRAMI: That's saved as FI1111.04. 12 MR MOYNIHAN: Sorry, Mr Mackenzie. 13 Yes? 14 A. If I just explain, immediately to the right and flowing 15 up towards Mr Wertheim's first yellow part of the 16 incipient ridge you can actually see the structure where 17 the grey scale has changed again, so immediately going 18 about 2 o'clock up from your blue circle on to the first 19 yellow and that was basically what I was trying to 20 illustrate with the blue line was that it was continuous 21 down there. It was nothing other than saying that that 22 whole area in between the two full ridges is incipient 23 ridges. 24 THE CHAIRMAN: These are three fairly faint dots, you can 25 see at roughly 1 o'clock or 2 o'clock. page 68 1 A. If I just use the cursor, I'll not mark it. 2 MR MOYNIHAN: You can mark it because it's saved. 3 A. If you just watch where I'm putting the cursor. 4 THE CHAIRMAN: That's the first one. 5 A. From there (indicated) following up you can see the 6 structure there (indicated). 7 THE CHAIRMAN: Yes, that's what I was asking about. 8 A. And it follows round on to there. I think I've actually 9 left the break in here (indicated) but I'm satisfied 10 that that matches what's on QI2, which is very important 11 because coming to my point 10 I noticed on the 12 comparative exercise, as I said, that others we're 13 marking what was my point 10 -- or in that area they 14 were marking them in a different interpretation from us. 15 So I was basically illustrating there was an overlapping 16 like that (indicated) whereas others had it like this 17 (indicated) and I thought, well, that's not what I see 18 on the image I have. So I was at pains to do that on 19 the comparative. I thought it was worth mentioning. 20 MR MOYNIHAN: Okay. 21 Sir, that would be the conclusion of my questions. 22 Thank you. 23 THE CHAIRMAN: Once again, it is probably Mr Smith first. 24 MR SMITH: Thank you, sir. I do have a number of questions. 25 I explained to Mr Moynihan at the break that although I page 69 1 reserve my position regarding simply QI2, I think it is 2 quite clear the witness has gone beyond that so it is 3 not just limited to QI2, some of the things that were 4 raised in the course of evidence. 5 THE CHAIRMAN: Yes. 6 MR SMITH: If I perhaps indicate what they are: first of 7 all, it's some questions regarding the suggestion that 8 there was confirmatory bias in operation. 9 THE CHAIRMAN: Yes. 10 MR SMITH: Second, a point of detail about the PSNI audit 11 that was referred to yesterday and the third is relating 12 to QI2 and the presentation that has been given and, in 13 particular, the methods of analysis. I have one or two 14 questions of detail from the images but literally just 15 one or two of them. 16 I would also like to ask the witness about 17 something, there is a document that came to my attention 18 fairly recently concerning evidence given previously. 19 It's in an article that may provide some assistance to 20 the Inquiry. 21 THE CHAIRMAN: Evidence given by this witness? 22 MR SMITH: No, it wasn't. The evidence was given previously 23 by the witness -- it is about the grid method of 24 analysis and I gave a document to the Inquiry 25 team yesterday for placement on the database that might page 70 1 provide some assistance. 2 The next matter is to ask some questions about the 3 other QI2 presentation relating to QI2 (Asbury), I think 4 it's been known, just a few questions to see if this 5 witness feels able to comment on one or two points. 6 Finally, to ask some questions regarding criticism, 7 as I understand it, of the system operated by 8 particularly Mr Zeelenberg and some criticism that has 9 been levelled about his methods of analysis. 10 THE CHAIRMAN: Obviously, I think we have had a fairly 11 careful examination of QI2 so if you could keep it to 12 the minimum. 13 MR SMITH: Of course I will. 14 MR MOYNIHAN: Sorry, Mr Chairman, I am aware from 15 conversations I have had about this question, the issue 16 of QI2 (Asbury) being raised with other witnesses. I 17 know we have had a presentation by Mr MacPherson in 18 relation to that. As you are aware, Mr Logan of the 19 PSNI is looking at this matter, was here on Friday, has 20 gone away with further work having completed only phase 21 1 of his analysis. 22 What I would be suggesting, sir, is that it is not 23 appropriate, until we have received the information from 24 Mr Logan, to go into any detail in relation to QI2 25 (Asbury) with Mr Mackenzie and, indeed, Ms McBride who page 71 1 is not come on later today. I would suggest it is 2 premature until we know what Mr Logan has to say. 3 THE CHAIRMAN: The only problem I have is we certainly don't 4 want to ask Mr Mackenzie to have to come back again, if 5 we can avoid that. 6 MR SMITH: Sir, perhaps I can put everyone's mind at ease. 7 I am not intending to carry out a full analysis of it 8 with this gentleman. It is probably just relating to 9 one or two questions. That's all I'm intending to do. 10 THE CHAIRMAN: Bearing in mind that that is what has just 11 been explained then, as I say, I am anxious that 12 witnesses shouldn't be troubled being brought back 13 again. Yes. 14 MR SMITH: Thank you, sir. 15 Cross-examined by MR SMITH 16 Q. Mr Mackenzie, I wonder if I can ask you just to clarify 17 something at the outset. You indicated earlier in your 18 testimony today that an explanation for a difference of 19 opinion -- and I am summarising this -- between yourself 20 and other experts regarding QI2 is that you had a very 21 good quality image to work from. 22 Do you remember suggesting that to Mr Moynihan 23 earlier? 24 A. All I could do is, because I still had possession of 25 copies of the quality of enlargements that were page 72 1 submitted to Mr Gilchrist, I had obviously to make a 2 comparison with that and other materials that was asked 3 to be looked at and, absolutely, and still the case that 4 what I had was better than I was asked to work with with 5 the comparative exercise. 6 Q. But you are not suggesting, are you, that you know that 7 other experts had inferior quality images which 8 permitted you to see things that they couldn't see? You 9 are not suggesting that? 10 A. No, all I'm suggesting is that the material that I had, 11 compared with what was being given to me for the 12 comparative exercise, was, for me, better to use my 13 original in the comparative exercise. All I'm saying is 14 that what other experts have had, obviously they've 15 given their opinion on but, you know, if they haven't 16 seen any other images, then they can only give their 17 opinion on what they have seen. 18 Q. I understand that but you say you are in possession of 19 better quality images than you think the Inquiry team 20 has had access to? 21 A. No, I'm not. Mr Gilchrist -- the images that are in the 22 book, the original glossy photographs from Mr Gilchrist 23 are identical to what I have. 24 Q. I would like to ask you about the question of 25 confirmation bias and, again, I think you were page 73 1 suggesting earlier on that it may well be that those who 2 are contradicting the analysis, in particular relating 3 to QI2, are somehow falling into the trap, if I put it 4 that way, of confirmation bias. 5 Are you sticking with that? Is that your position? 6 A. I'm saying that can't be ruled out because the first 7 instance of that was highlighted at Tulliallan when 8 Mr Zeelenberg was asked a question directly by myself, 9 had he, before being employed by the HMI, had he seen 10 images on the Internet? And he basically said he had 11 and the reason that question was asked was because the 12 presentation, and that was his very first presentation, 13 the one at Tulliallan, he had chosen to use the images 14 from Mr Wertheim claiming that they were the best 15 images, over and above the Strathclyde Police images. 16 So that was -- basically, the question was put to 17 Mr Zeelenberg and he said, "Yes, I have", and obviously 18 from the ongoing dialogue that was going on on the 19 Internet and then obviously he knew of the opinions 20 contrary to SCRO. 21 So that was my first experience of what could be 22 construed as a bias being introduced and my suggestion 23 was that that should have been admitted to the HMI and 24 Mr Zeelenberg shouldn't have taken part in the exercise. 25 Q. My question was really whether you were just sticking page 74 1 with that position. I think the answer is, yes, you 2 are. You think that there is some degree of 3 confirmatory bias but you are talking about Y7 there, 4 aren't you? 5 A. Yes. 6 Q. I think certainly from the evidence of Mr Wertheim, when 7 he was first asked to look at Y7, he formed the view 8 himself, as it were, from scratch, no-one had been 9 before him and said, "This is wrong", so I take it you 10 would agree he couldn't be engaged in any confirmatory 11 bias, could he? 12 A. I don't know what the circumstances were about 13 Mr Wertheim being appointed and what knowledge he had of 14 the case or anything. 15 Q. Do you know if anyone predating Mr Wertheim had said 16 SCRO were wrong about Y7? 17 A. No. 18 Q. So on what basis could he be confirming an allegation 19 that SCRO were wrong? He couldn't, could he? 20 A. Have I suggested that Mr -- where have I suggested that 21 Mr Wertheim had the bias to start with? 22 Q. Maybe I misunderstood your position. Are we agreed that 23 Mr Wertheim could not be engaged in confirmatory bias? 24 Are we agreed about that? 25 A. Not Mr Wertheim, no, but others coming thereafter. page 75 1 Q. What about Mr Grieve, David Grieve? 2 A. Again, I don't know what the circumstances were, other 3 than hearing about photographs being handed over in a 4 hotel room but again obviously I -- I mean, we weren't 5 able to hear what the dialogue was but obviously, from 6 what I understand, Mr Grieve was aware that the visit to 7 Scotland obviously wasn't just a visit to Scotland for a 8 holiday. There was a reason for coming to Scotland and 9 that Mr Wertheim obviously had been in dialogue with 10 solicitors and, thereafter, distributed, I can't 11 remember what it was, but some kind of copies of mark Y7 12 to himself and I think it was Mr Ashbaugh. 13 So, again, not being party to the conversations, I 14 don't know what knowledge as to whether, you know, what 15 Mr Grieve had or whether he had knowledge of claims of a 16 mis-identification. So I can't speak to that. 17 Q. Of course. That is the point. You can't speak to it 18 but if Mr Wertheim is correct that he just handed over 19 the images without comment to not just Mr Grieve but 20 Mr Ashbaugh and they went away and did their own work on 21 it, they all independently came to the view it was a 22 mistake, if that is correct there's no indication of 23 confirmatory bias, is there? 24 A. As I say, I can't -- and, again, I'm not specifically 25 saying Mr Grieve but I know that there obviously have page 76 1 been a trail of other individuals having knowledge of 2 the accusations that have been made in this case, have 3 entered into, without being asked by official parties, 4 to make comments and produce so-called reports on this. 5 Q. Again, my question was if it is correct what I put to 6 you, if it is correct that these images were handed over 7 without comment, deliberately without comment, to 8 Messrs Grieve and Ashbaugh, there is no basis for even 9 thinking that there would be confirmatory bias at work 10 with their opinion, is there? 11 A. As I say, I don't know the exact -- all I can rely on is 12 how these events were recorded at the initial time 13 Mr Wertheim was asked to or instructed to have a look at 14 Y7. As to the conversations and what was suggested or 15 otherwise, I can't say. 16 Q. Exactly. You have no basis for suggesting there's 17 confirmatory bias -- 18 A. I've never suggested these names -- 19 Q. Well -- 20 A. -- so don't take it as a blanket, you know, everybody 21 involved in this but I'm saying there is the likelihood 22 of bias somewhere along the line because all we've 23 getting banged out in the press is -- and we'll come 24 possibly to Dr Dror shortly -- that there's always been 25 this suggestion and the work that's been done on page 77 1 confirmatory bias, it always has been -- it's funny how 2 it actually has all arisen at the time of the McKie and 3 onwards but from my observations I've never seen 4 anything written to the effect that takes account of 5 confirmatory bias of a negative nature; in other words, 6 that people have been suggesting that something is wrong 7 and then others have come along on the back of that and 8 also suggested it's wrong. So that's the point I'm 9 trying to make and I have also brought it out to Dr Dror 10 as well. 11 Q. On the question of confirmatory bias, would you accept 12 that it's possible at least that Mr Swann, Mr Leadbetter 13 and Mr Berry might have fallen into the trap of 14 confirmatory bias? Do you accept that's a possibility? 15 A. All I know is that Mr Swann was asked as an independent 16 expert to view materials and came to his own 17 conclusions. Sorry, who are the others? 18 Q. Mr Leadbetter and Mr Berry? 19 A. Mr Leadbetter and Mr Berry. Mr Leadbetter obviously 20 has, at various times, looked at materials and come to 21 his conclusion and Mr Berry -- I do know from speaking 22 to Mr Berry a number of years ago that the driving force 23 for Mr Berry's involvement in this case was that he had 24 seen a news report where it was recorded that 25 Mr Wertheim -- I think it varied twice but was round page 78 1 about the time of the trial and his evidence that he had 2 come to a conclusion within 90 second and then I think a 3 later report said or a conflicting report said in less 4 than a minute. 5 This was something that John Berry had said to me 6 that this stuck in his mind that how could somebody look 7 at such a mark, which we now know has been described as 8 a complex mark, and come to such a conclusion within 9 such a period of time. So, as far as Mr Berry's 10 concerned and unknown to me, this was a driving force 11 for him to become involved and do his own analysis. 12 Q. I am sorry -- 13 THE CHAIRMAN: The point, you were being asked about 14 confirmatory bias on his part. I am not sure that you 15 have really answered that question. 16 A. Well, all I'm describing, because Mr Berry was 17 mentioned, that's the particular knowledge I have, that 18 I didn't know how he had become involved but he 19 was actually explaining to me. So, again, he was doing 20 his own independent work. He wasn't working with any 21 materials anybody else had given an opinion on. So I 22 don't -- he wasn't actually shown, well, as far as I 23 know, he wasn't actually working from marked-up 24 enlargements which a lot of subsequent experts have 25 actually been viewing marked-up enlargements rather than page 79 1 working from the blank canvas, as I describe it. 2 MR SMITH: Mr Mackenzie, I am sorry to press you on this. 3 It is actually a very simple question that I asked you. 4 It is whether you thought it possible that Mr Swann, 5 Mr Leadbetter and Mr Berry might fall victims to 6 confirmatory bias. That question is capable of an 7 answer yes or no. Would you like to answer it with one 8 of these words? 9 THE CHAIRMAN: I am not sure that it is capable of it 10 because it depends at what stage Mr Swann's evidence is 11 being asked. 12 MR SMITH: I am happy to clarify -- 13 THE CHAIRMAN: Whether at the initial stage -- 14 A. I can't speak -- did you ask Mr Swann about this? 15 Because I can't speak for Mr Swann's involvement, his 16 being employed by the defence et cetera and what his 17 background knowledge was of the case. 18 THE CHAIRMAN: If you can't answer a question, just say so. 19 A. Well, I can't. 20 MR SMITH: You see, Mr Mackenzie, you seem to be capable of 21 suggesting that those who contradict the SCRO position 22 might be guilty of confirmatory bias but you seem to be 23 unwilling or unable to affirm that on the other side of 24 the coin those who agree with SCRO may be guilty of 25 confirmatory bias. page 80 1 Do you understand the problem that at least I am 2 having with that? 3 A. I understand where you're coming from but, again, it 4 depends on each individual's involvement and what the 5 background was to it and how they came to either report 6 officially or unofficially on what their findings may 7 have been. 8 Q. Very well, you told me a few minutes ago that you had 9 never said Mr Wertheim might be guilty of some 10 confirmatory bias. 11 Do you remember telling me that? 12 A. I was asking can you point me to it, if there's some 13 suggestion. I don't know how -- we're talking about Y7? 14 Q. Mr Mackenzie, the question is this: do you recall 15 telling me a few moments ago that you have never said 16 Mr Wertheim might be guilty of confirmatory bias? Do 17 you remember saying that? 18 A. I don't recall saying anything about Mr Wertheim because 19 you were asking about, basically, his involvement 20 with -- he was the first expert to look at Y7. 21 Q. Let us speak of QI2 then. Let me just ask you this: are 22 you suggesting that Mr Wertheim at any time might be 23 guilty of confirmatory bias, whether regarding Y7 or 24 QI2? 25 A. Well again, come to QI2, I don't know other than reading page 81 1 within a paragraph, I think it was of Allan Bayle's 2 statement, where he suggested that he had become 3 involved with Pat Wertheim. They were asked by, I think 4 it was David Asbury's lawyers to go to the gaol and take 5 his fingerprints or something along these lines and then 6 the next part he starts referring to a tin but, again, 7 it wasn't clarified where this tin became available from 8 and also that Pat Wertheim had taken his own photographs 9 of the tin and, thereafter, gave Allan Bayle a 10 photograph to go away and compare against David Asbury 11 fingerprints. So I don't know what the background was 12 to Mr Wertheim's involvement and subsequent assertions 13 which were turned into a BBC programme. 14 Q. Again I think the question was roughly: are you 15 suggesting that at any time, whether regarding Y7 or 16 QI2, Mr Wertheim may have been guilty of confirmatory 17 bias? 18 A. Well, mr Wertheim's history of, obviously, suggesting 19 that Y7 was wrong, he then expanded upon that by then 20 making the outrageous claim that QI2 was wrong. As to 21 whether you can read between the lines in there of some 22 confirmatory bias in that he was wanting to find QI2 to 23 be wrong, I don't know, but I'm not conscious of me 24 saying at any time that Mr Wertheim was involved in 25 confirmatory bias in the general sense. page 82 1 Q. I will just read back to you what was said earlier in 2 your evidence to Mr Moynihan. This is on page 7 at 3 line 10 for those with LiveNote. 4 What was said by you was: 5 "But, again, we've talked about this confirmatory 6 bias and I touched on it yesterday, the negative bias 7 within this, and we'll probably talk at some later stage 8 about Mr Wertheim and QI2 to start with, but there's 9 confirmatory bias at work, as far as I'm concerned, with 10 these two particular gentlemen." [NB: Quoted from first 11 draft transcript] 12 I don't suppose you remember saying that, do you? 13 A. No, I don't remember saying that but maybe it's 14 been ... well, maybe the form of the answer's been 15 turned ... it's not, as I've explained already, I don't 16 know what the background was but certainly my references 17 to individuals coming after these assertions that have 18 been made by the initial contradicters, if you like. So 19 if I said that, that's not what I meant to say. 20 Q. Very well. You made some comments I think yesterday 21 about the Aberdeen Bureau, in particular, was it, 22 Mr McGregor, I think his name is, and Mr Dempster. Do 23 you remember saying that yesterday? 24 A. And Mr Dingwall. 25 Q. And Mr Dingwall, and Mr Dempster, can you tell us who it page 83 1 was that you made comment about? 2 A. I made comment about two reports that were penned by 3 these three individuals. 4 Q. And you were critical of that, were you? 5 A. I pointed to the suggestion that they had been in 6 contact with Mr Wertheim on both occasions seeking 7 materials so that they could carry out comparisons, but 8 this had been in the knowledge of the accusations that 9 had been made by Mr Wertheim, initially, and then 10 Mr Wertheim and Bayle obviously in QI2. So against the 11 background knowledge of these suggestions having been 12 made that SCRO was wrong, these individuals took it upon 13 themselves to seek out and be in correspondence with 14 Mr Wertheim to obtain materials knowing fine what his 15 opinion was so I think I've got every right to suggest 16 that there could well be an element of confirmatory bias 17 of a negative nature within that. 18 Q. Are you aware that they sought permission to, as it 19 were, officially obtain the materials via their own 20 Bureau? Are you aware of that? 21 A. Sorry, could you repeat that? 22 Q. Are you aware that these individuals, Mr McGregor, 23 Mr Dempster and Mr Dingwall, sought to officially 24 acquire the materials through their employers so they 25 could carry out an analysis? Did you know that? page 84 1 A. Sorry, I still -- could you clarify the question again? 2 Q. I am not sure I can -- 3 A. I am not quite sure what you said about employers. 4 Q. Are you aware that Mr Dempster, Mr McGregor and 5 Mr Dingwall requested from their employers that the 6 materials relating to Y7 should be provided to them 7 officially in order they could carry out an analysis? 8 Do you understand the question? 9 A. I understand the question, yes. 10 Q. Were you aware of that? 11 A. I wasn't aware of that, no. 12 Q. As far as they are concerned, I think what you said 13 yesterday was that they engaged in, "a deliberate 14 attempt on their part to destabilise the Glasgow 15 Bureau". 16 Do you remember saying that? 17 A. Yes. 18 Q. A very serious allegation, Mr Mackenzie, a deliberate 19 attempt to destabilise the Glasgow Bureau. You are 20 maintaining that position? 21 A. Yes. 22 Q. Why on earth would they want to destabilise the Glasgow 23 Bureau? 24 A. Basically they saw this opportunity, basically, based on 25 a history of ... how would I put it? They didn't like page 85 1 the idea that -- and this goes back very many years -- 2 of Glasgow being the national bureau and they were in 3 smaller bureaux in Scotland and then that, in due 4 course, various technologies were brought in, various 5 things over the various years, they always looked down 6 on Glasgow and I saw this as quite clearly as -- or they 7 saw it as an opportunity to have a kick at the Glasgow 8 Bureau. And that's my perception of it and I stand by 9 that. 10 Q. They didn't like you because you'd, what, better 11 equipment, better procedures or something? 12 A. A whole range of things over the years. It was actually 13 inbred, even before these individuals had come into the 14 Bureau, some of them, and it was common from other 15 bureaux from Scotland as well and I can go back to the 16 '60s -- well, there was a regime of senior police 17 officers controlling, basically, the fingerprints within 18 Scotland and even back at that time -- it wasn't 19 actually unique to the Fingerprint Service. It was 20 actually within the Police Service there was a great -- 21 people have a pride in the areas that they work in and 22 in these days and up to more recent times they actually 23 didn't share information and I worked very hard for 24 nearly 40 years at trying to build bridges and dispel 25 these unhealthy relationships that seemed to develop page 86 1 between various departments actually working to the same 2 end, to provide fingerprint evidence to the justice 3 system. 4 Anybody that's in the bureaux and even the other 5 bureaux will know that, that I specifically tried very, 6 very hard but with this being inbred in -- and we've 7 heard this word "culture", this is definitely a culture 8 issue but it was with other bureaux, et cetera, and 9 obviously then when the Scottish Fingerprint Service was 10 born and this is pre-SPSA, this is round about 11 2000/2001, there was, again, a reaction and it could be 12 seen throughout a number of years that the idea of the 13 control coming from officials that were actually based 14 in Glasgow didn't go down well with the other bureaux. 15 So that's how I viewed this, and here comes an 16 opportunity to have a kick at SCRO, never mind 17 individuals, et cetera, and there was a very hostile 18 reaction after the ... I'm sorry, the Shirley McKie case 19 for starters. 20 THE CHAIRMAN: You really saw it as, where there was 21 rivalry, an opportunity to -- 22 A. Yes. 23 THE CHAIRMAN: -- gain advantage? 24 A. I got to see their point of view. If I was in a smaller 25 bureau I might have felt the same but I didn't take that page 87 1 into the work forum or into meetings, et cetera, and I 2 always tried to be totally professional when we were 3 working together but I also tried to, as I say, build 4 the bridges. It's very, very difficult trying to change 5 a culture of outsiders in the view of the bigger bureau 6 and I don't think that's actually any different in 7 England and Wales how bureaux actually viewed Scotland 8 Yard. 9 MR SMITH: Was it the same with the Lothian & Borders and 10 Dundee Bureau? Did they feel the same about SCRO? 11 A. There were elements within Lothian & Borders and, again, 12 I probably said it somewhere along the line, they very 13 foolishly wrote a letter that purported to be from 14 14 individuals. It turns out that at least one of those 15 had no part to play in this letter that was sent, I 16 think, to the then Lord Advocate back in about the 17 beginning of 2000. It, as my understanding was, was 18 based on images that had been seen on the Internet. 19 Q. As far as that attitude that you mentioned, did that 20 continue for some time after, first of all, right up to 21 the formation of SPSA, this rivalry within the different 22 units within the SPSA? 23 A. From about 2000/2001, I say, the efforts, certainly on 24 my part and any people from my Bureau, as I understand 25 it, we were trying very, very hard to create the page 88 1 Scottish Fingerprint Service and I would say there was a 2 lot of things introduced to try, you know, like forums 3 or bringing more staff together, et cetera, to -- and I 4 think at the grass roots level new staff, et cetera, 5 were actually welcoming of this, that they were actually 6 able to meet up with their colleagues from the various 7 bureaux, et cetera, and try and -- on their part even 8 this was a way of dispelling some of the, basically, 9 what had been inbred into the various bureaux. 10 But I know that throughout my time within SCRO I 11 have tried 100 per cent to try to make us work as one 12 big organisation and, as I say, it wasn't an uncommon 13 thing actually within the Police Service of rivalry, if 14 you want to put it that way, but at times it could 15 become unhealthy, particularly in the justice system you 16 want to be sharing the information and we actually -- 17 it's been talked about backlogs of cases had built up in 18 SCRO due to basically the introduction of LiveScan 19 service and we had to work our way through that. 20 But I know the Grampian Bureau, in basically the 21 year or a couple of years before I retired actually had 22 built up back logs as well and through basically the 23 pulling together and the sharing of resources, 24 et cetera, we actually assisted the Aberdeen Bureau in 25 addressing their casework. page 89 1 So we were looking at it as the big picture. They 2 might be in four locations but we were certainly looking 3 at -- and I think I can speak for nearly everybody in 4 the Glasgow Bureau -- was looking to be part of this one 5 big unity service under Scottish Fingerprint Service. 6 This was before SPSA was born. 7 Q. I understand that, Mr Mackenzie. I understand what you 8 are saying, that there was a desire to pull together to 9 really consolidate the Fingerprint Service throughout 10 Scotland. I follow that. But what I am just trying to 11 understand is whether we can imagine, at least during 12 your time when you were employed, notwithstanding the 13 very vociferous and public disagreement by Aberdeen 14 Bureau and the Lothian & Borders with SCRO and the 15 history of it, whether we can imagine that that all was 16 resolved and everybody was comfortable with the entire 17 organisation? Are you able to comment on that? Maybe 18 you can't but -- 19 A. The last part of what you actually said there, what was 20 it, something about resolve within ...? 21 Q. Resolving the issues which had existed. Let me start 22 again and try to put it in a more simple way. 23 You have explained to us there was a very public 24 disagreement between certain people within the Grampian 25 Bureau and certain people within Lothian & Borders about page 90 1 the position regarding Y7. I think what is very clear 2 to all who have heard you speak is that that caused a 3 great deal of -- I suppose bitterness is probably a fair 4 word to use. You didn't like what was being said. You 5 felt you were right. You felt they were wrong and you 6 resented the fact, perhaps justifiably, about them 7 making it public. 8 I am right about that general feeling? 9 A. I would disagree with the word "bitterness". At no time 10 have I had any bitterness towards any individuals that 11 were part of that organisation. 12 Q. That's fair enough. It was my word. I don't wish to 13 try and -- 14 A. Don't put words in my mouth, please. 15 Q. Well, I am not trying to do that, Mr Mackenzie, please. 16 I am just trying to summarise what I took as an 17 impression. If that is wrong I am happy to be 18 corrected. Are you suggesting that you felt absolutely 19 nothing, as it were, bad towards the individuals who had 20 written to the Lord Advocate and the Justice Minister 21 and those individuals who had publicly said that SCRO 22 were wrong? You were entirely comfortable with that, 23 were you? 24 A. I am entirely comfortable. I had no bad feelings 25 towards any of these individuals. What they had done, I page 91 1 didn't agree with. It was out in the public, couldn't 2 be undone but as far as day-to-day working -- remember 3 by the time I had retired this was something like ten 4 years after the murder of Marion Ross, which a lot of 5 people seem to have forgotten about, and even through 6 the period of suspension of the four officers, myself 7 and Alan Dunbar continued to work and manage that 8 Fingerprint Bureau on a daily basis and you could not 9 let any of that interfere with your daily work and 10 that's where my focus was. 11 The little asides and events during these years were 12 down to these individuals stating opinions which they 13 chose to do and they need to live with that but there's 14 certainly bitterness. I have no bad feelings against 15 any individuals and they were treated just the same way 16 as I would treat every individual in my own Bureau and 17 how I would like to be treated. So at no time did I 18 hold any bitterness against any of these individuals. 19 Q. Very well, I understand your position that, despite a 20 further deliberate attempt on their part to destabilise 21 the Glasgow Bureau, you say there was no bitterness, 22 nothing of that kind? 23 A. Not on my part. 24 Q. I would like to ask you about the PSNI audit. You 25 mentioned something yesterday, I think in response to page 92 1 some comments by Lord Boyd? 2 A. That's correct. 3 Q. I wonder if you can help with this: if I call it the 4 audit by PSNI for the sake of clarity, first of all, I 5 take it that, as far as the PSNI's ability to carry out 6 fingerprint analysis, you have never had any complaints 7 about their qualifications, experience and expertise, 8 have you? 9 A. Not at all. 10 Q. The methodology of the audit, are you able to help us 11 with this: did they come in and, as it were, take 12 everything from the timescale that was involved or were 13 there some cases that were not handed over? 14 A. Sorry, the last -- just clarify that again, did they 15 take everything? 16 Q. Yes. I hope it is reasonably clear what I am asking. 17 They carried out an audit. They had to look at some 18 documents, didn't they, Mr Mackenzie? 19 A. Some documents, no. Let me turn the clock back to 20 yesterday and explain there was two different lots of 21 comparisons went on and there were a number of 22 individuals involved. There were staff of the previous 23 RUC Fingerprint Bureau came for a period of time, 24 actually different individuals, they changed. They 25 stayed in Glasgow all week, went home at the weekends page 93 1 but there was different individuals from the Bureau 2 employed over a period of time by -- or seconded, if you 3 like, to come in and independently look at new cases but 4 also they were part of, from my memory, the actual 5 checking of the cases of the four officers and Alan 6 Dunbar and myself along with there were possibly a 7 couple of individuals from Scotland Yard were based in 8 Glasgow for a period of time and one of the staff in the 9 Fife Fingerprint Bureau, which was still in existence at 10 that time, actually assisted as appropriate depending on 11 the workload of that Bureau. 12 So there were two different things going on. There 13 was all the cases and I think I explained it wasn't just 14 a few documents. They virtually had -- it was a major 15 resource implication as a result of this, in that a 16 significant number of the clerical stuff, now the 17 clerical stuff in the Bureau probably ranged up to maybe 18 around about 15 or 18 staff at that point and I'm quite 19 sure there was at least about half a dozen of these folk 20 taken off their duties, again potentially creating a 21 backlog of other work to actually go through all the 22 case envelopes stored at SCRO in Glasgow for the period, 23 as I say, I think it was one year either side of the 24 year of the Shirley McKie or the Marion Ross, but 25 basically, as far as I can remember, it was about a page 94 1 three-year period. 2 But to do that they had to go through and actually 3 individually check every case envelope checking for any 4 recording of the six officers' names and then all these 5 files had to be pooled, they had to be marked in the 6 filing system that they were taken out for this and then 7 were gradually worked through by these independent 8 officers. 9 Then thereafter, or it might even have been at the 10 same time -- I can't remember -- but certainly from 11 about August 2000 through to about September 2001 every 12 case where there was an identification made, as far as I 13 can remember, was checked independently by RUC/New 14 Scotland Yard experts who were resident for that period. 15 Q. I was really just trying to understand how it happened. 16 I will try and summarise what I think you said, that the 17 identified cases, the first sift was to find out what 18 cases the SCRO officers in question, if I put it that 19 way, had been involved in and then the cases that they 20 had been involved in were checked on a technical basis, 21 checking the identifications. Is that the way it 22 worked? 23 A. All the marks in the case would be kept with the case 24 envelope and that was the other part of the exercise of 25 course, a major part of the exercise, that obviously the page 95 1 elimination prints would be in the case envelope but if 2 it was an accused person, you know, or a person 3 identified -- whether at the end of the day they were an 4 accused person -- but the persons identified that were 5 on file within the collection, all these fingerprint 6 forms had also to be pulled and markers put into the 7 collection so that if somebody was coming along looking 8 for an individual, then they would be able to know that 9 they were removed for this checking process. 10 Q. On one other point of detail, I would like to go back to 11 something you said on the previous occasion you gave 12 evidence which was 6th October and in particular on 13 page 23, line 1 and following. I want to ask you what 14 you were telling the Chairman about this about the 15 question of Mr Zeelenberg turning up at Tulliallan with 16 the grid that we saw some evidence of. 17 A. That's correct. 18 Q. You will understand that Mr Zeelenberg, of course, 19 indicated that the grid was not used as a method of 20 analysis; it was used, he said, as a way of identifying 21 a particular point for discussion, "Let's talk about C4, 22 there's some (inaudible) let's discuss it". It wasn't 23 being used as taking one grid to the other. Do you 24 recall that evidence he gave? 25 A. Sorry, do I record(sic) ...? page 96 1 Q. Do you recall the evidence he gave about the purpose of 2 the grid at Tulliallan? 3 A. Sorry, are you talking about his evidence to the Inquiry 4 or are you talking about at Tulliallan? 5 THE CHAIRMAN: His evidence to the Inquiry. 6 A. Well, I wasn't here when he gave his evidence to the 7 Inquiry. 8 THE CHAIRMAN: It is just whether you had seen it or not. 9 A. No. 10 MR SMITH: What Mr Zeelenberg advised the Inquiry of was 11 that the grid method was not used as a method of 12 comparing the latent with the inked print. He said it 13 was used so that they could have fingerprints up on a 14 board or whatever, have it available, and it was a 15 reference point. Rather than saying, "Do you see 16 there's something going on just a bit down an inch or to 17 the left and across a bit" which would get confusing, 18 you could say, "Do you see something in the square A1? 19 Let's talk about that" and everyone round the table 20 would know what was being talked about. 21 A. No -- 22 Q. You're shaking your head. You're saying that's not what 23 happened? 24 A. No, it wasn't up on a board. It was on his laptop 25 computer which possibly was projected -- I can't page 97 1 remember at the time -- it may well have been projected 2 on to a screen, but it was on his laptop anyway. This 3 grid system went over the mark Y7 and one over Shirley 4 McKie's left thumbprint and I'm quite clear in that what 5 was intended by it and what came across from my memory 6 of Tulliallan was it was, as you said, "Look at the box 7 reference C4" or whatever "there's a ridge ending in 8 this particular box. When you look at the corresponding 9 grid over the thumb of Shirley McKie, there's no 10 characteristic in that area" and that was the 11 methodology that was used for the presentation. 12 Q. So it wasn't simply reference; it was actual analysis? 13 A. That was what -- that was used to actually suggest but 14 you've got to go back to again that Mr Zeelenberg 15 considered that this or initially considered that this 16 mark was in one piece and obviously, as we have seen 17 from the areas in the top of the mark to the areas in 18 the bottom of the mark, there's no way that if you were 19 to put a grid system over one and over the other you 20 were going to actually be able to pick out points in the 21 top area because of the twists and the double touch. So 22 it was a complete distraction, I would say, to actually 23 suggest you should be able to find one characteristic in 24 one and that should be in the appropriate box on the 25 other side. page 98 1 Q. Mr Mackenzie, Mr Zeelenberg gave evidence to the Inquiry 2 that I have just outlined to you that it was reference 3 rather than analysis. If he gave that evidence are you 4 saying that he has frankly told us lie here when he said 5 that? 6 A. No, I'm just -- well, what I'm saying is why would he 7 need to put a grid over it to make a reference to it 8 when he could just point to it? 9 Q. However, he wished to present it, maybe for the purposes 10 of posterity, rather than having to record something 11 like we do in this Inquiry, so that someone can note 12 down, "We talked about a point within box C5 and it was 13 agreed that that ..." or whatever. Now you understand 14 there might be a reason for it rather than just pointing 15 at it, don't you? 16 A. No, I think that just added to the confusion, as we've 17 seen with other methods of presentation, that there's an 18 element of confusion being brought in. 19 Q. So what about the grid method? Let us talk about that 20 as a method of analysis. We will part company about 21 what Mr Zeelenberg was intending to convey. 22 The grid method, is that something that you have 23 ever -- 24 A. Never come across it, never heard of any training school 25 suggesting that it's a good idea to do this. The page 99 1 nearest I've seen to it is TV programmes where they have 2 a transparency and they say lay this transparency over 3 the top of the other. So it was in a similar mode, this 4 was, "Here's a grid system. You we find it in there, we 5 should find on the other side or if we don't", or 6 whatever. So not a method that I've ever heard of, 7 never heard of it since and I doubt if anyone in the 8 world has ever used it but that's certainly what 9 Mr Zeelenberg brought to Tulliallan. 10 Q. Have you ever heard of the Osborne Grid Method? 11 A. The what? 12 Q. Osborne Grid Method? 13 A. No. 14 Q. Have you heard of the Osterburg -- O-S-T-E-R-B-U-R-G -- 15 Grid Method? 16 A. This is in relation to? 17 Q. Have you hearing of the Osterburg Grid Method? 18 A. No, but -- I haven't heard of it but what is it in 19 relation to? Is it in relation to fingerprints? 20 Q. Yes, in relation to fingerprints. 21 A. Never heard of it. 22 Q. Have you heard of a book called Advances in Fingerprint 23 Technology, published, second edition 2001, by Henry Lee 24 and a Mr -- I think, it is Gaensslen, G-A-E-N-S-S-L-E-N; 25 have you heard of that? page 100 1 A. Yes. 2 Q. I have provided a copy of some pages to the Inquiry 3 yesterday. I regret don't have a note of the reference 4 number. I wonder if we could bring up ... perhaps while 5 that is being brought up -- 6 THE CHAIRMAN: I think it's about to appear. 7 MR MOYNIHAN: Sorry, sir, I don't know if it is about to 8 appear. It was taken yesterday for copying. I don't 9 know what has happened to it since. We will need to 10 make some enquiries. 11 MR SMITH: I can probably come back to that. Perhaps I can 12 ask you this: you have heard of the book. Have you seen 13 the book? 14 A. Yes. 15 Q. In fact, the illustrations, the line drawings of 16 individuals who are now all deceased, Mr Bertillon and 17 so on, are drawn by Mr Berry so Mr Berry's undoubtedly 18 aware of the book and Mr Leadbetter gets a mention in 19 the book on a number of occasions. 20 Do you recall that? 21 A. Do I recall ...? 22 Q. Do you recall seeing Mr Berry's name appearing in that 23 book and Mr Leadbetter's name appearing in that book? 24 A. Yes, I think I do. 25 Q. I am going to suggest to you -- and we will get the page 101 1 images brought up shortly -- that what it shows, and I 2 will show you the page numbers in due course, is that 3 there were two individuals, a Mr Osborne and a 4 Mr Osterburg, and Osterburg apparently was using this 5 method from 1977 to 980 and it is a method of analysis 6 of grids, comparing one to the other. 7 Have you seen anything like that in the book 8 Advances in Fingerprint Technology in 2001 when you 9 looked at it? 10 A. I don't recall. 11 Q. If it is there in that book, how does that square with 12 your evidence that you have ever heard of anything like 13 that if it is a book known to you? In fact, here we 14 are. Let us just look at it. You can see the front 15 page of it. 16 Can you go to -- not all of the pages, of course, of 17 the book are copied but -- 18 MR HOLMES: Sir, I hesitate to interrupt but this is 19 something that I've not seen or not seen a copy of. I 20 don't understand it yet to appear on the database and 21 the witness -- 22 THE CHAIRMAN: I'm not sure, is it going on the database 23 or ...? 24 MR MOYNIHAN: I think in fairness to Mr Holmes, this was 25 drawn to my attention yesterday. I took a copy. I gave page 102 1 it to Mr Whitehead to copy but I did actually ask that a 2 copy be given to Mr Holmes so that it could be looked 3 at. Plainly Mr Holmes has not seen it. 4 THE CHAIRMAN: Would it be possible to move to a different 5 topic and to return to this after lunch and then 6 Mr Holmes can be provided with it in the meantime? 7 MR SMITH: Of course I am happy to do that, sir. 8 I would like to move on to the question of your 9 analysis now of QI2, Mr Mackenzie. 10 I take it that you subscribe to the ACE-V 11 methodology? You agree that that is how something 12 should be done? 13 A. That's in line with the way I would have always done it 14 anyway. It's just now been given this acronym, if you 15 want to call it. 16 Q. I take it in conformity with that, when you set about 17 analysing QI2 you would only work from the latent when 18 you were marking up points before you then turned to the 19 reference print of Marion Ross to see what marks could 20 be identified as being similar? 21 A. What you mean by "only", basically, I would find my 22 target area, as I've already explained. There was some 23 suggestion from some individual -- I can't remember 24 which witness it was -- that you would actually memorise 25 every ridge characteristic you could see on the mark page 103 1 before you went near the control print. That is, I 2 would say, a nonsense. Certainly a target area that you 3 were satisfied with, with clear ridge detail, then you 4 would, whatever number of ridge detail that was, you 5 would take that information forward to looking at 6 control prints. 7 Q. So as I understand it, the nonsense that you have 8 referred to spoken to by some individuals is that the 9 proper way of approaching this is to look at the latent 10 print, you then try and identify as many dactyloscopic 11 points, any Galton points, that you can and then and 12 only then -- you don't have to memorise them. You can 13 mark them or note them down or something of the kind, 14 you then and only then move across to look at the 15 reference print to see what you have come up with and 16 see if there are, in that target group, the same points 17 that are there? 18 A. This follows on the initial analysis that you would be 19 looking actually to see if there was sufficient detail 20 in the first place within the mark. Then when you had 21 assessed the mark and identified a suitable number of 22 characteristics, it was comparable, then you would go 23 ahead and make a comparison. 24 Q. Let us accept that you come to the conclusion from the 25 latent that there is sufficient to make a comparison. page 104 1 Let us take that as a given. Then, as I understand it, 2 the suggestion given by some witnesses is the 3 appropriate way is that you analyse, without looking at 4 the inked print, what Galton points, what points there 5 are on the latent and you mark them up or somehow record 6 where they are before you look at the reference print. 7 So far, is that different to the methodology that 8 you traditionally would use? 9 A. Yes. I don't know of anybody in SCRO -- it may have 10 changed now under SPSA and I think I explained it 11 yesterday, that taking it back to where you don't have a 12 known, I did have experience and again I painted a 13 picture of years ago when we did murder searches, that 14 you had your target area and, although you're taking 15 that in in your brain, because we were turning through 16 thousands of pieces of paper and paper forms I did use a 17 marking down of my target area but I would never, ever 18 and I've never known anyone in SCRO, certainly up to the 19 time I retired, to actually make an illustration of 20 every Galton detail they found in a mark and, by the 21 same token, when you were taking that forward to the AFR 22 system, which is much the same idea you would have the 23 mark captured in the AFR system, blank, and then you 24 would mark on to that what you thought was a sufficient 25 number of ridge characteristics to enable you to send page 105 1 that combination of information to the computer for 2 search. 3 So the manual methodology was taken forward to the 4 computer technology that came in in '91 and, again, at 5 no point would you mark up every single characteristic 6 you saw in the mark because you've got to take into 7 account there could be distortion, et cetera. And I 8 think I've already explained in earlier evidence that 9 there were guidelines for searching AFR that you were 10 cautious in that you only put in the ones that you were 11 totally satisfied with this because at that stage you 12 didn't have a control print to look at. 13 So, as far as marking them down, the answer is no, 14 but I also need to point out to you a methodology that 15 possibly exists somewhere, certainly maybe in England, 16 that it came to light that -- and I think it was 17 explained in -- well, there was an inference, I think it 18 might even be by yourself, Mr Smith, that the competency 19 tests that were developed within SCRO, the material of 20 which was gathered by myself and Alan Dunbar, was on 21 every occasion sent to Durham so that they could 22 actually validate the material, do the comparisons and 23 also come back and say whether it was a fair test or 24 not. 25 So, as far as suggesting that it was a purely page 106 1 in-house test was wrong but the point I'm going to come 2 to is that on one of the last occasions before the plug 3 was pulled in the internal tests by the HMI suggestion 4 that it should go outwith was that material sent to 5 Durham -- and sometimes it would take weeks for them to 6 actually have a look at, possibly up to ten marks 7 against maybe ten individuals' forms, first of all, they 8 charged us of the level of about £400 a time for them to 9 actually check and validate that material but on one 10 occasion it came back and, unknown to us actually, they 11 came back saying it was a fair test and we actually put 12 the test marks into the system and the first expert that 13 came back, again, because we had no reason to believe 14 that the marks would have been interfered with in any 15 way, but all the marks coming back from Durham -- and 16 this would be checked by people like Mr Grigg, 17 et cetera, who were the trainers in the training 18 school -- and there were pin pricks put into the 19 photographs actually on where the characteristics were. 20 In fact, what happened with that -- and that's my 21 only knowledge of somebody actually trying to mark 22 characteristics on an actual size photograph but -- 23 Q. Mr Mackenzie, I am sorry to interrupt but the question 24 wasn't really just an invitation to tell us about all 25 the various tests that have been carried out. I asked page 107 1 if the methodology that I described to you was something 2 that you would have traditionally have used. That's all 3 I was asking about. 4 A. Well, I think it's of value because we've had experts 5 come along or people come along and saying, yes, you 6 should do drawings. We have had, I think it was -- it 7 might even have been Mr Sheppard that had actually said 8 it wasn't practical. We have had others have said that 9 said it was not a practical thing you could actually do. 10 So I think it was valid to say that, from my experience, 11 the only other experience I have of an outside agency 12 recording what they saw was this instance where all the 13 marks in this test had pin pricks put in them and 14 basically invalidated all the material. We had to pull 15 the test and we couldn't use it. 16 THE CHAIRMAN: But what you were being asked was: was the 17 methodology that was being described to you one that you 18 used? It is either, yes, it was or, no, it wasn't. 19 A. Basically, I have never -- other than the instance I 20 gave you of the murder search -- I have never done 21 drawings of and I'm not aware of anyone in SCRO ever 22 having done drawings of the characteristics, be it every 23 characteristic on the mark or a target area. 24 MR SMITH: Sir, I see the time. 25 THE CHAIRMAN: Yes, I think it would be convenient now. We page 108 1 will rise until 1.50. 2 (1.00 pm) 3 (Luncheon Adjournment) 4 (1.50 pm) 5 MR SMITH: Mr Mackenzie, I would like to move on to 6 something else now, please, and that is the question of 7 the reference print of Marion Ross and, in particular, 8 the question mark over the difference in thickness of 9 the bifurcation to the right of the core. You 10 understand the part of the print I'm talking about. We 11 don't need to go to it unless you wish to do so, but I 12 think your explanation for that is that there was 13 probably less of the powder attached to the finger or 14 some difference in pressure when the tape was used to 15 lift the print. 16 Is that your evidence, that that accounts for the 17 thin ridge compared to the thick ridge? 18 A. I think what I said yesterday was that when the fingers 19 were powdered, then there would be white adhesive tape 20 applied to each finger and the tape would be rolled 21 round the finger and where it has come to the right-hand 22 side of the core there, at the point where there's a 23 thin and a thick, from the thick side, the right-hand 24 leg, if you want to call it that, and going further out 25 the ridges become thicker, which suggests to me that it page 109 1 was nothing more than down to pressure of the tape being 2 applied to the powdered finger and that was the 3 explanation for the thick and the thin. 4 Q. As far as the application of powder is concerned, what 5 kind of powder was used to apply to the finger of Marion 6 Ross? 7 A. I understand it was black powder. 8 Q. As far as the difference in pressure is concerned, which 9 I think is what you are suggesting, either a difference 10 in application of powder or a difference in pressure 11 whenever the tape was removed or placed on, as far as 12 that is concerned, can you help us with this: if there 13 was a difference in pressure accounting for that 14 difference in thickness would it not be a reasonable 15 expectation there might be other ridges showing a 16 similar thin quality compared to the main run of play? 17 Is that not a fair comment? 18 A. On Marion Ross's right forefinger there is consistency 19 from that right-hand leg out across to say probably 20 about a dozen ridges or so anyway where they are thicker 21 and more dense in colour than they are to the left of 22 the core area. 23 Q. Perhaps we should have the image up, just in fairness to 24 everyone, FI0102, please, and the right-hand image, if 25 we can have that brought to the front as it were. I page 110 1 think that size of image is probably sufficient. 2 Would you agree with the suggestion that if we look 3 at the thin ridge that we're talking about, which I 4 think is approximately in that position, it's just under 5 the line that goes from point 10, if you follow that 6 line up, the red line sort of crosses it just before it 7 terminates, would you agree with the suggestion that to 8 either side of that thin ridge the ridges appear to be 9 of a reasonably thick quality and consistent with the 10 rest of the print? Would you agree with that? 11 A. Sorry, can you repeat the question? 12 Q. Yes, I will repeat the question. I am suggesting that 13 on either side of the thin ridge -- you know which is 14 the ridge we're talking about? 15 A. The one immediately to the right of point 16 is the thin 16 ridge you're referring to. 17 Q. Let me try it this way: point 3 on the chart, follow the 18 line right down. 19 A. Point 3? 20 Q. I beg your pardon, I am having trouble seeing the 21 colours on this. Yes, it's point 2, if you follow the 22 red line down you get to a bifurcation, correct? 23 A. Yes. Sorry, no, well ... what's been interpreted here 24 as a bifurcation but I interpret that differently but 25 what's been marked here as a bifurcation at 2. page 111 1 Q. Yes. I am really interested not so much in the 2 description of it rather than the point of reference. 3 So we get to what may be a bifurcation or it may be a 4 ridge ending -- let us not argue with that much at 5 least -- but we can see from that point going down to 6 the left-hand side of that point as we look at it is a 7 ridge going down and curving around the core -- 8 A. Okay. 9 Q. -- and to the right-hand side a ridge that follows 10 roughly the same path but slightly to the right of the 11 one I've just described. 12 A. Okay. 13 Q. What I am suggesting to you is that if we follow down 14 the thinner of the two, the one to the left, on either 15 side of that, if we come down to a position maybe about 16 5 o'clock, if the core is a clock, about 5 o'clock, if 17 we look either side of that the ridges are relatively 18 thick in quality compared to the thin one between. 19 Would you agree with that suggestion? 20 A. Relative to the first thin one? They're all thicker to 21 the right of the first thin. Going in the direction of 22 5 o'clock they are all thicker. 23 Q. Do you have control of the mouse just now, Mr Mackenzie? 24 A. Yes. That one, that one, that one, that one, that one, 25 that one (indicated) and that one and probably another page 112 1 one or two. 2 Q. Yes. Let us look at it. Go back to the thin one, 3 please, and just hover over that. If you go to the 4 left, one ridge -- 5 A. One here? 6 Q. Yes, and indeed again to the chilli pepper, if you go to 7 that, and then next one and the next one and right the 8 way across they appear to be of relatively uniform 9 thickness, don't they? 10 A. On this group, these are of relatively the same 11 thickness, yes. 12 Q. The point I am trying to make is that the distance 13 between the thin ridge and each of the adjacent ones 14 must be less than half a millimetre in real life, isn't 15 it? 16 A. I've never measured between ridges so I wouldn't 17 actually know what millimetres were or whatever. 18 Q. On the image we are looking at it must be no more than a 19 centimetre between the two thick ridges either side of 20 the thin one; agreed? 21 A. As I said I've never considered and I wouldn't know what 22 a millimetre was, actually. 23 Q. Sorry, you wouldn't know what a millimetre was? 24 A. No, I don't. I don't measure in millimetres. 25 Q. The simple point, Mr Mackenzie, is this: the image we page 113 1 are looking at on the screen is a considerable 2 magnification of real life. We know that much. I think 3 even the non-experts in here might have worked that out. 4 It's a considerable magnification, isn't it? 5 A. Sorry, it's a considerable ...? I can't hear you. 6 Could you speak up? 7 Q. The image we're looking at, Mr Mackenzie, on the screen 8 is a considerable magnification of real life, isn't it? 9 A. Considerable magnification of real life, yes. 10 Q. Yes. Therefore, if we were to imagine the real life 11 version of this it would be much smaller and distance 12 between the ridges would be much narrower, wouldn't it? 13 A. Obviously. 14 Q. What I am saying to you is that if we did that exercise 15 then the real life distance between the thin ridge and 16 each of the adjacent ridges would be a tiny distance, 17 wouldn't it? 18 A. Yes. 19 Q. What I am suggesting to you is that it would be somewhat 20 surprising if it was as an application of incorrect 21 pressure that resulted in the ridge either side being 22 corrected applied with powder, being correctly 23 pressurised but somehow in between these two ridges that 24 appear to have come out properly there is one that comes 25 out that gives an incorrect version of how it exists. page 114 1 Is that not a reasonable point to make? 2 A. I see the theory you're putting but in the area to the 3 right of the thin ridge the gaps between the ridges are 4 actually smaller than they are on the left-hand side 5 because the ridges are themselves thicker. 6 Q. A point the Chairman made yesterday was that, in the 7 course of the investigation in to the murder of Marion 8 Ross, it is likely, isn't it, that somewhere else she 9 would have left her own fingerprints in her own house. 10 That's a fair assumption, isn't it? 11 A. I would understand that a number of marks identified in 12 the house would be attributed to Marion Ross, yes. 13 Q. If we wanted to track down photographs of these other 14 marks left by Marion Ross, which may indeed have 15 included the digit that we're looking at on the screen 16 just now, where would there be a record of that so that 17 we can go and dig them up and have a look and see 18 whether there's a thin ridge? 19 A. I presume the case envelope will be retained somewhere 20 and there will be photographs in it but remember the 21 photographs are of chance impressions. What we are 22 talking about here is the finger of Marion Ross taken by 23 powder and applied on to sticky tape so we wouldn't be 24 talking like-for-like anyway. I think I've explained 25 already you'd never get two marks recorded the same or page 115 1 two fingers in a control print taken the same. 2 THE CHAIRMAN: Yes, but if there's a peculiarity or was in 3 Marion Ross's print of a thin line at that point, then 4 one might see it on some of the other examples of her 5 mark? 6 A. It's possible, but on QI2 it doesn't appear thinner so I 7 don't know what other marks would look like. 8 MR SMITH: All I am trying to find out is where we might 9 find them so we can go and look -- 10 A. Sorry, I won't be going to look at anything. 11 Q. But the point is if we were able to discover that latent 12 prints of Marion Ross of that digit showed the thin 13 ridge compared to the others then that, frankly, would 14 cause a bit of a problem for your theory about 15 difference in pressure, wouldn't it? 16 A. It's another theory and you would be quite welcome to 17 actually try and source the material and look at it but 18 I'm only giving you what I think is my explanation of, 19 you know, what this is, the thin and thick, and I don't 20 know how I termed it yesterday but I think it's a 21 complete red herring that's been put in here. 22 Q. Well, it's not a red herring though, Mr Mackenzie, is 23 it, if we mange to track down latent impressions of 24 Marion Ross in her house that showed us a thin ridge in 25 that position? That's not a red herring then is it? page 116 1 A. Sorry, you have tracked down, did you say? 2 Q. Please listen. Attend to the question. The way it 3 works is that I ask the questions and the question is 4 this: if we were to track down latent prints of that 5 digit belonging to Marion Ross which showed a thin ridge 6 between the two thick ones just to the right of the 7 core, then your theory about difference in pressure 8 would be one that would have no validity, wouldn't it? 9 A. It's a possibility. You would need to make a detailed 10 comparison between the control prints and the marks but 11 it's an exercise if you wish to try and do it then you'd 12 maybe come up with another reasoning but my reasoning is 13 as I've suggested. I'm only just giving my explanation, 14 that's all. 15 THE CHAIRMAN: If the print comes out that both are the same 16 thickness then your theory would be confirmed. 17 A. Equally, yes. I mean, I don't know why -- 18 THE CHAIRMAN: One way or the other it might resolve it. It 19 may not. 20 MR SMITH: Of course. 21 But you say there'd be a case envelope somewhere 22 that will probably contain the other analyses relating 23 to Marion Ross's latents within the house? 24 A. I'm presuming, unless it's been lost with the Fiscal's 25 file. page 117 1 Q. Whatever. 2 The one matter I wanted to return to, the final 3 matter I wanted to ask about was the one that we stopped 4 in the middle of. 5 During the lunch break did you have the opportunity 6 of looking at the extract from the book by Lee and 7 Gaensslen? Did you have a chance to look at it? 8 A. Yes, I did and I actually to -- you mentioned about 9 Mr Berry and Mr Leadbetter. Actually this book I found 10 to be very useful, not saying in its entirety but there 11 were very useful chapters within this book, particularly 12 the first one by Mr Berry was used within the Bureau as 13 a good condensed history of fingerprints. But,yes, the 14 answer to the question is I have looked at it. There's 15 the two grids one by -- 16 Q. I think the first one is by Osborne on page 46. 17 A. Yes. 18 Q. And the other is by Osterburg on page 47? 19 A. That's correct and I think the difference it suggests is 20 it's a different size of grid and the theories of 21 applying this are mentioned and about the relativity, I 22 think, of one characteristic to another but, again, it's 23 suggesting that the box within the boxes, you would 24 actually highlight the characteristics and then relate 25 them one to another. page 118 1 What I did find, because you asked me to look at it, 2 was in the last two sentences under the Osterburg grid 3 it said: 4 "No agency has officially adopted this method of 5 establishing the identity of latent prints. Its 6 application in latent print comparison is entirely 7 theoretical at this time." 8 So I certainly don't recall having seen it in the 9 book but it's obviously in the book and I must have seen 10 it at some point but, equally, it talks about it being 11 theoretical and it's certainly nothing that I, in my 12 time as a trainer in SCRO, considered the relevancy of 13 it, bearing in mind, as I've already explained, the 14 distorted marks, et cetera, and the likelihood of one 15 grid containing a sequence of characteristics and the 16 same of the other grid having the same sequence in the 17 same boxes would be very slim, particularly with 18 distorted marks. 19 Q. That's not really the point though is it, Mr Mackenzie? 20 I wonder if we could have the reference number for 21 that? 22 MISS BAHRAMI: It is DB0767. 23 MR SMITH: Thank you. 24 The point is, Mr Mackenzie, as I understood your 25 evidence earlier, you indicated that you had never seen page 119 1 a method of analysis like the grid method that you 2 assume Mr Zeelenberg was using. That is my 3 understanding of what your evidence was. I am not 4 entering into a debate with you as to whether it's a 5 good method but the fact is that there is in published 6 literature two people who have adopted a grid method of 7 analysis in a book that you say you have familiarity 8 with. 9 Would you like to tell us how it is you can give 10 evidence to the effect that you have never seen such a 11 thing but it's in a book that you tell us you have 12 actually seen? 13 A. I remain corrected and I've said it's obviously in the 14 book. It's 20 years since this book was written. In 15 that 20-year period I'm still not -- have any knowledge 16 of anyone using this, obviously other than 17 Mr Zeelenberg's attempt to use it, but as far as saying 18 I hadn't seen it before, obviously, if I've seen this 19 book 20 years ago, which when it came out I did, then, 20 yes, technically, I've seen it before but I haven't -- 21 and, again, it doesn't say about anyone using it. It 22 just says it's a theory. 23 Q. The book is published, the second edition, a copy of 24 which I think is in your hand, was published in 2001, 25 not 20 years ago. The second issue was published in page 120 1 2001. 2 Are you aware of that? 3 A. No, but the book -- the edition I looked at in 19 ... in 4 fact, it says it on here ... 19 -- there's a date on 5 this somewhere. It talks about Robert Olsen and it says 6 date of birth 30.40.89 (sic) so ... 7 THE CHAIRMAN: Well, is it enough to say you read it a long 8 time ago? 9 A. It's of that age because -- the reason I know is that -- 10 sorry, when did you say the second edition was 11 published? 12 MR SMITH: It was published in 2001, Mr Mackenzie. 13 A. I used this book so it must have been the first edition 14 when I became the trainer in 1993. So whether this was 15 in the first edition or -- this is presumably the first 16 edition, and if it was there I did see it but I'm not 17 aware of it being used and even in the interim period 18 from when I first saw it, this book, obviously, I've 19 never seen it used and the only time I've ever seen that 20 used is -- 21 THE CHAIRMAN: Well, I don't think we need to go into a lot 22 of detail about it. The point that was being made, as I 23 understand it, is you were saying you've never heard of 24 such a thing and it looks as if there is such a thing -- 25 A. Again, I say -- page 121 1 THE CHAIRMAN: -- whether you have forgotten it or not -- 2 A. 20 years ago and certainly I used chapters out of it in 3 1993. So we're talking 16 years ago and I don't recall 4 it, so apologies if I've seen it in the book then it's a 5 moot point but if that's the point you're trying to make 6 then, yes, I must have seen it. It was in the book, but 7 it hasn't been recognised as an actual method that had 8 been used and it basically talks about it being a theory 9 at that point. 10 MR SMITH: Thank you, sir. I have no further questions. 11 THE CHAIRMAN: Mr Holmes? 12 MR HOLMES: There's just one matter I would like to clear up 13 with Mr Mackenzie, sir, that relates to a question that 14 was asked by Inquiry Counsel. 15 It is the question of whether points defined 16 differently by two examiners can be described as 17 mutually inconsistent. 18 THE CHAIRMAN: Yes. 19 Cross-examined by MR HOLMES 20 Q. Mr Mackenzie, you have been asked if two experts acting 21 properly could come to mutually inconsistent 22 conclusions. 23 Is one expert interpreting a unique event as a 24 bifurcation and another expert interpreting that same 25 unique event as a ridge ending, for example, something page 122 1 that you would describe as mutually inconsistent? 2 A. Mutually inconsistent, no. I would basically say they 3 are describing the same event in the ridge structure but 4 their interpretation of it can quite easily differ, as 5 we've seen from a number of experts coming before the 6 Inquiry and I think if we turn it back to my first day 7 of evidence in my presentation on Y7, I actually was at 8 pains to point that out within the demonstration booklet 9 that actually two images of Shirley McKie's print, one 10 taken by the police and one taken by Mr Wertheim, 11 actually showed examples of bifurcations that were 12 looking as ridge endings in the other. So it's the same 13 event and that's been consistent, I think, through most 14 of the experts' evidence. 15 MR HOLMES: Thank you very much. 16 THE CHAIRMAN: Miss Grahame? 17 MISS GRAHAME: No, thank you. 18 THE CHAIRMAN: Miss Jones? 19 MS JONES: No. 20 THE CHAIRMAN: Have you any ...? 21 MR MOYNIHAN: Sir, I have no further questions. 22 THE CHAIRMAN: I just want to ask you, I can understand the 23 last point that is being made, the difference between a 24 bifurcation and a ridge ending because I think in the 25 course of the Inquiry we have heard experts agreeing page 123 1 that that's a difference, but when you get a major ... 2 is there no difference, so to speak, between two 3 interpretations between a lake and something that is 4 open and not enclosed, is that sufficient to be a 5 difference or would you say that's the same? 6 A. I said, I was being referred to Mr MacPherson's 7 yesterday and that particular lake that we were talking 8 about in this mark, then I don't have a problem with, if 9 Mr MacPherson's interpreted that as that, that feature, 10 the whole lake, and that's quite easy because, again, a 11 lake is made up of two bifurcations so it could be open 12 in some instances and closed in another. So I really 13 don't have any great problem with two different 14 interpretations of that. 15 THE CHAIRMAN: That is really what I want to know. You 16 don't see any difficulty about that? 17 A. No, not at all. 18 THE CHAIRMAN: We have had a lot of discussion in the course 19 of the Inquiry about being 100 per cent sure and so on. 20 Would you say or would you agree that it is 21 sufficient if you are confident that no other person 22 could have made this mark other than the person in the 23 print? 24 A. I think, as I probably answered earlier, that when you 25 commit yourself to signing for your decision-making, be page 124 1 it whatever number of points and you commit yourself, 2 then you would expect that another individual coming 3 along later on would agree with the identification. As 4 to how many points they saw or not ... but if you are 5 signing up to that as identification then you've got to 6 be sure, just as I said if you were saying it was 7 negative or insufficient, you've got to be sure in your 8 decision-making when you sign up to that that an equally 9 qualified expert would come to the same conclusion. As 10 I say, it didn't need to be the same amount of points, 11 et cetera, but as far as what the answer to what you 12 were actually saying before. 13 THE CHAIRMAN: Thank you very much and thank you for coming 14 back. I know you have done a great deal of work 15 producing your examples that you have given us and I am 16 grateful to you for all the time that you have given to 17 it. 18 A. Can I make a couple of minor points and -- 19 THE CHAIRMAN: Yes. 20 A. -- I won't go on at length but just a couple of points? 21 One of them was that I produced this for 22 Mr Gilchrist, marked up 29, over the last two days I've 23 added a 30th. It wouldn't have mattered -- well, first 24 of all, Mr Gilchrist asked me to look at this cold. If 25 it had been negative then Mr Gilchrist would have been page 125 1 told it was negative. If it had been 11 or 12 2 characteristics that I saw, I would have produced 11 or 3 12 characteristics but, as I've explained today, the 4 sheer volume and very fine detail within QI2 and Marion 5 Ross's control print made me want to actually illustrate 6 everything I could see there. 7 There was one more point, if I could just touch on 8 it, because I don't think it's been clarified. It might 9 have been touched on by Mr Padden and I think he was 10 asked about the anonymity process. 11 THE CHAIRMAN: Yes. 12 A. Basically we've been getting told about would it not be 13 better doing it blind. Now, round about -- I'm guessing 14 here if somebody could maybe clarify -- but round about 15 maybe about 2005 time, certainly a good bit after HMI 16 had reported and there was various items being ticked 17 off, that Mr Bell, along with Mr Innes, the head of the 18 Scottish Fingerprint Service, Mr Dunbar and myself met 19 one afternoon. Mr Bell basically said he wanted us to 20 find a method whereby we could bring in what has now 21 been termed an anonymity process. So, in other words, 22 keep it as blind as possible between one expert and the 23 next. We actually put that in place. 24 It was somewhat bureaucratic but any kind of change 25 to the system we had there was an element of that could page 126 1 come in. What I mean by that was we used clerical 2 officers to actually hold on to the case paperwork and 3 the experts from the start were given the blank 4 fingerprints and the fingerprint form for comparison and 5 then, when they had concluded their findings, they would 6 go back to the clerical officer and record that I think 7 it was on paperwork and I think it actually also went on 8 to an electronic system. Then when it came if it had to 9 go to a second person, then again the photograph and the 10 fingerprint form would be given to the second person. 11 The only difference at that stage would be -- and I 12 think it's come out already -- that there would be a 13 label put on where there were fingers identified 14 indicating the finger number. Now, that is the only 15 pre-information, if you like. 16 To take that to the extremes -- and, again, I don't 17 know whether it came out with Mr Geddes's evidence but I 18 do know that Mr Geddes had experience of dealing with 19 major fraud work and it was, like, company fraud where 20 it was A4 documents. If you could imagine the thickness 21 of a telephone book of A4 documents, each of them 22 covered with fingerprints, particularly round the edges, 23 superimposed prints, et cetera, et cetera, the amount of 24 time it would take Mr Geddes or an individual to go 25 through 500 sheets and examine all these prints thereon page 127 1 (negative, positive, insufficient, et cetera), to start 2 from scratch and not have put labels on it for a second 3 expert coming along is just absolutely not practical. 4 So that was, if you like, the only key to someone 5 knowing that something had happened before, there was a 6 label on it. 7 But my understanding is and the reason for raising 8 it is I have been told that since I retired that 9 virtually overnight when SPSA came in or not long after, 10 then the anonymity process was dropped. So it's maybe a 11 question you might want to ask SPSA because I don't 12 know. 13 THE CHAIRMAN: I think there is a witness who will deal with 14 this but, I mean, I had rather gathered from reading the 15 statements that another problem is in the very small 16 bureau with a very few people -- 17 A. I also had that on I know that other witnesses -- 18 THE CHAIRMAN: It's an artificial exercise? 19 A. -- and basically they've said it was unworkable but it 20 did work for the Glasgow Bureau be it ... 21 THE CHAIRMAN: Time consuming? 22 A. Time consuming and, you know, made use of another 23 person, a clerical officer, but it did work and that's 24 really in the spirit of how progressive SCRO, the 25 Glasgow Bureau and the Scottish Fingerprint Service page 128 1 were, they were willing to move on, try these things and 2 introduce these things. And I just found that, I just 3 heard second-hand, it was a bit of information that 4 came, that apparently that has now been dropped. So it 5 was really a bit surprising because it was such a major 6 change but fair enough. 7 THE CHAIRMAN: I think we are going to hear about that soon. 8 Thank you very much again for giving up so much time 9 to the Inquiry. 10 (The witness withdrew) 11 FIONA MCBRIDE 12 Examined by MISS CARMICHAEL (continued) 13 Q. Good afternoon Ms McBride. 14 A. Good afternoon. 15 Q. I know it must seem like a long time ago now but when we 16 broke on Friday you were telling us about a time around 17 about the trial of Shirley McKie and about when you 18 became aware that there were defence experts who would 19 be saying that you and your colleagues had 20 mis-identified Y7. 21 Do you remember the point we had got to? 22 A. I thought we'd got to the point where I said that we had 23 meetings with Sean Murphy, was my exact recollection. I 24 don't know if that's any help. 25 Q. I think what you had started to tell us, and you no page 129 1 doubt will put me right if I am wrong, is that the first 2 that you learned of an allegation of mis-identification 3 was when you were sitting in court listening to 4 Mr Wertheim's evidence and I think you quite graphically 5 put it you just about fell off your chair. 6 A. Yes, that's true. 7 Q. I would like to just explore some of that a little bit 8 further with you, Ms McBride. Had you heard anything in 9 the office about what the line of the defence evidence 10 would be in the trial? 11 A. No. Other than I'd heard about planting. There was a 12 possibility that they were going to say it had been 13 planted and I think the IB were involved in some way to 14 do with that obviously but, no, it didn't occur to me 15 that someone was going to say that it was a 16 mis-identification -- not at all. 17 Q. Were you surprised to be cross-examined? 18 A. No, not really. I was surprised in this case that I was 19 called in the first place but not surprised to be 20 cross-examined, no. 21 Q. Had you been cross-examined before? 22 A. Yes. 23 Q. It is perhaps fair to say to you that the 24 cross-examination in this case didn't last very long 25 because you and Mr Findlay came not to have a meeting of page 130 1 minds perhaps? 2 A. That's true. 3 Q. You said when you were cross-examined by Mr Findlay, I 4 think, that you had not seen the production that he was 5 putting to you before when he showed it to you in the 6 trial. 7 A. The Wertheim production: no I hadn't. 8 Q. Did you have any idea when you saw it what it might be 9 meant to be denoting? 10 A. Not at all -- not at all. In fact, that's something -- 11 in fact, it's okay I'll come back to this point later 12 on -- but talking about having items handed to you when 13 you are in a court situation and it's the first time 14 you've been able to see it or comment on it, I wouldn't 15 do that anyway but I had never seen it before and there 16 really was no way I could take all that information in 17 in that short time in that forum. So there was no clue. 18 I just saw overlays, et cetera, and I really would have 19 had to have taken it away and looked at it properly to 20 know what exactly it was supposed to mean. 21 Q. Just to be quite clear about it, is it your position 22 that nobody, whether someone in your own office or 23 someone from the Fiscal Service, took you aside and 24 said, "You should know, Ms McBride, that there's going 25 to be some kind of challenge to the identification page 131 1 here"? 2 A. Challenge to the identification, there had been 3 challenges to identifications before but they had been 4 in the form of they are insufficient or they didn't 5 agree with particular characteristics, but it never got 6 as far as someone saying it was actually not that 7 person. 8 Q. I am sorry, my question was unclear. I meant in 9 relation to the Shirley McKie trial? 10 A. Oh, I see. 11 Q. Nobody took you aside at all? 12 A. No, not at all. 13 Q. Or gave you any indication? 14 A. No. 15 Q. I think you have given us perhaps more than a hint of 16 what your reaction was when you heard Mr Wertheim's 17 evidence but perhaps you could explain a little bit more 18 about your reaction to the Chairman. 19 A. I don't know exactly what you mean. What sort of -- 20 just because I was in shock; I was in total shock. 21 Q. You said you just about fell off your chair. 22 A. I did. I really didn't expect that and I looked 23 immediately to Charlie who just shrugged -- as Charlie 24 would he would shrug regardless of whatever happens 25 so ... I was in shock. I looked at him to go "wow" and page 132 1 he ... (Shrugged) That was it. 2 Q. So we should understand that Mr Stewart had given 3 evidence before you in court? 4 A. Yes. 5 Q. There had perhaps been a couple more minor witnesses in 6 between the two of you and at some point the two of you 7 come to be listening to Mr Wertheim's evidence in court 8 together? 9 A. Yes, that's true. 10 Q. After you had given your evidence, by which time of 11 course Mr Stewart had already given his, there hadn't 12 been any discussion between you, even after the event of 13 your evidence, about what the defence line was? 14 A. No, because Sean Murphy had said that he wanted us in 15 court to listen to the evidence of the other experts, 16 the defence witnesses, and I wasn't entirely sure how 17 helpful we could be but we were there and Charlie and I 18 did listen to the evidence but Sean Murphy didn't say 19 that Wertheim was going to say it was a 20 mis-identification -- 21 Q. Should I have -- 22 A. -- although I'd spoken to him briefly prior obviously 23 when we had turned up at court Charlie had met him 24 before. We were introduced. He said that he would like 25 us to sit in the court and listen to the other evidence page 133 1 and give him our opinion, so that's what we did but he 2 didn't intimate at that point or at any point that 3 Wertheim was going to say it was a mis-identification -- 4 not to me, anyway. 5 Q. So should we understand that you had spoken, albeit only 6 in those very brief terms, to Mr Murphy before you gave 7 evidence or was that a conversation that only happened 8 after you had given your evidence? 9 A. I think he just said hello when I first arrived in 10 court, maybe prior to giving evidence. After that he 11 had a very brief chat. He was very busy and always on 12 the run, so a very brief chat, he'd be quite happy for 13 us, if we didn't mind, to sit in the court and listen to 14 the defence. 15 Q. When you say when you first arrived in court, maybe 16 prior to giving evidence, do you know whether that 17 happened before you gave evidence or not. Again, if you 18 can't remember at this distance in time -- 19 A. I have a recollection which might be wrong and that is 20 that, basically, we were hastened along a corridor to 21 the witness room and Mr Murphy said hello at that point 22 and then rushed off. He didn't actually say anything 23 other than hello, although that might, even in itself, 24 not be accurate but I think that's what happened. 25 Q. I would like to ask you at what stage you became aware page 134 1 of a Mr Swann having been involved in the case at an 2 earlier stage? 3 A. I didn't know his name. I had heard that -- there was a 4 rumour, while we were at court, I think, because of 5 course we were up and down to the office, you know, in 6 between days and I had heard that there were two other 7 independents who had verified it. Having said that, 8 that wasn't even definite. It was just that we thought 9 there might be another two independents that might have 10 verified it, because when I was giving -- that was prior 11 to evidence. 12 Q. This is at a stage before you were giving evidence? 13 A. Yes. 14 Q. And there's conversation in the office about Mr -- 15 A. Not in the office. I think it might have been ... this 16 is just my memory and it might be wrong but it might, I 17 believe it was probably Charlie Stewart that said or it 18 could have been -- in fact, it would probably have to be 19 Charlie and the reason I'm thinking that I had a vague 20 idea that there might be someone is because in my 21 evidence I named the people who had identified mark Y7, 22 the ones in the case and Robert Mackenzie and Alan 23 Dunbar, I think, from memory. I can't remember. I 24 can't remember from reading the transcript, if that's 25 what it says. page 135 1 But at that point I was wondering whether to add on 2 the fact that I thought there were another two people 3 that had identified it. I wasn't sure whether I was 4 allowed to or not because of legalities and I didn't 5 know their name or I had a vague ... I think I might 6 have known Malcolm Graham's name but I certainly didn't 7 know Peter Swann's name. I didn't know about him at 8 all. So that's what stopped me because I didn't know if 9 I was allowed to say because I'm not a lawyer so I 10 didn't know about hearsay or whatever else. 11 So when I was asked are you sure or whatever it 12 was -- I can't remember the exact question -- and I 13 listed the people that had identified the mark, I did 14 wonder whether I should stick the other two on the end 15 but I was sufficiently unsure not to do so. 16 Q. Who is it that's asking you at this stage to stick names 17 on the end? 18 A. Nobody's asking me to stick names on the end. I think 19 it was in response to a question. It would be either 20 Mr Findlay or Mr Murphy and my answer was that I was 21 sure it was Shirley McKie's print -- obviously, I don't 22 know the exact words -- and I listed the people who had 23 seen it and I didn't list ... is that not in the 24 transcript? I know that that happened because I did 25 wonder about saying it, so ... page 136 1 Q. I am struggling myself to identify a part in the 2 transcript where Mr Findlay or Mr Murphy asked you a 3 question that gave rise to any answer about Mr Mackenzie 4 or Mr Dunbar? 5 A. Did I not put in that the training officer had viewed 6 it? 7 Q. We can perhaps just check that, Ms McBride. 8 A. I could be wrong. This is from recollection. 9 THE CHAIRMAN: It is a long time ago. 10 MISS CARMICHAEL: You think that possibly when you were 11 asked a question in court, either by Mr Murphy or 12 Mr Findlay, it occurred to you that you might have 13 mentioned Mr Swann or Mr Graham at that point but you 14 did not do so because you weren't sure whether you were 15 allowed to do so. 16 A. I didn't know whether I was allowed to do so, I didn't 17 have any definite information in any case. I just 18 thought that another two had seen it. I just found out 19 while I was at court. I wasn't sure even -- I'm pretty 20 sure that Charlie -- he didn't know; I didn't know; we 21 heard that there might be someone else that 22 independently verified it. I possibly knew Malcolm 23 Graham's name because he had verified it for David 24 Asbury, I think, but I certainly didn't know Peter 25 Swann's name, so I don't know -- I didn't have page 137 1 sufficient definite information to pass that on in that 2 forum, I thought. 3 Q. Did a time come when you did become aware that Mr Swann 4 had examined Y7? 5 A. A very long time later. 6 Q. Can you tell us when that was? 7 A. (Shook head) 8 Q. Was it during the trial? 9 A. No, absolutely not, no. 10 Q. I perhaps do not need to pursue that aspect of it 11 further with you. 12 I think just on the theme of the time round about 13 the trial and who knew what when, I think you heard 14 Mr McKenna giving evidence about a meeting with Mr Hogg. 15 Is that something you remember happening? 16 A. I didn't remember it before it being pointed out to me 17 just the other day that perhaps our evidence was 18 slightly different in that Tony remembered a meeting 19 with Mr Hogg and I spoke to him and said, "I don't 20 remember a meeting", and he said it wasn't really a 21 meeting, it was a brief, a very brief, I think 22 information exercise or something and when he described 23 it to me, I had a vague recollection, very vague 24 recollection. I couldn't have said it was in the Chief 25 Inspector's office. page 138 1 Having said that, it would have been normal to have 2 been taken into the Chief Inspector's office because 3 it's a very open office so if you were going to discuss 4 anything you would just want to be there for peace and 5 quiet, if nothing else. 6 I do remember Ian Hogg in the vicinity and I do 7 vaguely remember him saying something but I couldn't 8 have told you what the meeting was about. I didn't 9 recognise it because I didn't recognise it as a meeting 10 until Tony said that and then I thought, "Gosh, I think 11 I recollect that". But, again, it's very vague. I 12 couldn't give you any details on it. 13 Q. You said that it had been pointed out to you that 14 perhaps your evidence was slightly different from 15 Mr McKenna's. 16 Who pointed that out to you? 17 A. My lawyers. 18 Q. But in any event, if this happened you can't help us 19 with what Mr Hogg may have said? 20 A. No. When Tony said it, it sounded familiar but that's 21 not to say that it just sounds familiar and it's 22 something else. 23 Q. I won't trouble you further with that either. I do 24 appreciate we are asking you to remember events from a 25 long time ago, Ms McBride. page 139 1 I would like to ask you about paragraph 138 of your 2 statement. The fingerprint Inquiry reference is 3 FI0039-02 and the page number is page 32. If we look at 4 paragraph 138, I have been asked to clarify with you 5 here what it is you are referring to. You say that 6 after your evidence at the trial Mr Murphy said to you 7 that a witness had been lying and that Mr Wertheim was 8 brought in at the last minute and whilst he, Mr Murphy, 9 could have asked for more time he didn't want to hold 10 the trial up. 11 When is it you say Mr Murphy, as he was, said that 12 to you? 13 A. I'm not sure about the term, maybe I should have changed 14 it, the term "lying", I couldn't say exactly precisely 15 so the chances of him actually using the word "lying" 16 are pretty -- I don't know if they are pretty low or 17 whatever, however it is true that between witnesses -- 18 he said he couldn't -- he knew -- in fact, he might have 19 used the term "lying" but I can't think of another word 20 for it so I will use that just now, that he knew that 21 one of them was but he couldn't separate them in 22 evidence. It was between two. He had an idea of who it 23 was but he couldn't separate them in evidence and that 24 was said at one of the meetings. In fact, when I say 25 one of the meetings, Mr Murphy was often in a hurry so page 140 1 we would be running along a corridor with him as he 2 headed off to another meeting chatting, "What do you 3 know", and that sort of thing and we did have a meeting 4 with him after, on a particular day, where we waited for 5 him for about half-an-hour because he was caught up in 6 something else and then we spoke to him. So it would 7 have been in one of those times. 8 Q. What I would like to clarify with you, Ms McBride, is 9 whether it is possible that what you are recollecting is 10 what Mr Murphy said to you at the debriefing meeting 11 after the trial where Mr Crowe and other representatives 12 of Crown Office and SCRO were all present? 13 A. No, I don't think so. 14 Q. If I could take you to CO0034 and if we perhaps move to 15 the -- in fact, on the first page here we can see a 16 summary of case by the Advocate Depute who is Mr Murphy 17 and if we go to the paragraph starting, "He noted", what 18 is recorded here from the meeting of 20th May 1999 is 19 that: 20 "... comments had already been made regarding future 21 challenges to fingerprint cases. His opinion was that 22 it was unlikely this case would cause serious damage to 23 the fingerprint evidence and the case was a one-off, 24 containing circumstances which were unlikely to be 25 repeated." page 141 1 If we take that paragraph down the next paragraph 2 starts: 3 "In respect of this case, difficulties existed prior 4 to the presentation of fingerprint evidence relating to 5 surrounding matters, access to a secure locus and the 6 need to prove that two people were lying." 7 Seeing that recorded in that way might suggest your 8 recollection is actually coming from this meeting? 9 A. No, that's not true. I do -- again, the caveat being it 10 was a long time ago but as far as I recollect it would 11 have been ... it was after the log keepers gave 12 evidence. We were at the trial. We were there 13 throughout the trial until it was time for summing-up, 14 which I thought was the exciting bit but Charlie said we 15 had to go back to the office, so we didn't get to hear 16 that part. 17 But I'll concede that I could be wrong, of course, 18 because it was such a long time ago but my recollection 19 is that it was something that was said while we were at 20 court because I thought that it was the log keepers that 21 he was referring to and, in fact, I think -- and, again, 22 I could be wrong -- but I thought that he said that it 23 was the log keepers and he doesn't say there that it's 24 the log keepers that he's referring to. 25 Q. I will leave that topic, Ms McBride. There is just one page 142 1 more thing I want to ask you about and that is how you 2 came to be in contact with Mr ... it has just been 3 pointed out to me that, in fairness to you, Ms McBride, 4 there was a passage in your evidence where you refer to 5 a Quality Assurance Officer in the course of your 6 evidence at trial. So that may be what you are 7 referring to. 8 A. Thank you. 9 Q. I can perhaps take you to that passage before I move on. 10 I'm sorry. If we go to SG0528 at page 32 and if we look 11 to line 13, you have just been making a reference to the 12 system rather than your judgment being infallible: 13 "Have I got that right? Is it infallible"", and you 14 say: 15 "So far, yes. I would say the system is infallible. 16 One person can make a mistake but four people and the 17 Quality Assurance Officer -- it is not possible." 18 So it looks as if you are making a reference there 19 possibly to the involvement of the Quality Assurance 20 Officer, Mr Dunbar, at that stage. 21 A. Yes, that's true. 22 Q. That may be what you were thinking of when answering the 23 question earlier. 24 A. That's exactly -- that's when I thought of the other two 25 and I thought I don't know enough, so ... page 143 1 Q. I will leave that, Ms McBride, and turn to the topic of 2 Mr Brown. 3 How is it you came to be in contact with him? 4 A. I telephoned him and at the time -- I'm trying to 5 remember why, what the catalyst was. Basically I had an 6 e-mail saying I should contact, telephone this number so 7 I did and it was Les Brown and he explained, very 8 briefly, who he was and he said -- at the time there was 9 something in the media or something going on that was 10 hugely negative as usual and I telephoned him and he 11 explained that he would try and help and I asked him -- 12 I told him what had been going on with us. Then he 13 invited me to visit him, so I went with Alister Geddes. 14 Alister Geddes had no idea. I phoned him at the 15 last minute and said, "Will you please come with me", 16 rather than go alone, and Alister came with me and I 17 just explained the position that we were being accused 18 of all sorts, criminality, et cetera, and it wasn't the 19 case. I think Les Brown -- in fact, it is the case that 20 Les Brown just wanted to speak to me to find out if I 21 was actually being truthful and he was satisfied that I 22 was. 23 I think the catalyst may have been the Newsnight 24 programme, I think, when I was on Newsnight and it was 25 the first time anyone had appeared for our side -- well page 144 1 not for our side but for us. So that might have been 2 the time and that would have been the catalyst, I think. 3 Q. You said that somebody had e-mailed you a telephone 4 number. 5 A. Yes. 6 Q. Who had e-mailed you the telephone number? 7 A. David Russell. Having said that, there was no 8 instruction and it was my choice and he just -- I just 9 thought I'd be clear. 10 THE CHAIRMAN: Just giving you the number if you wanted to 11 use it. 12 A. Yes, that's precisely it. 13 MISS CARMICHAEL: Thank you, I think you have answered all 14 the other questions I was going to ask you about that in 15 the course of your last answer, Ms McBride. I don't 16 have any further questions for you. 17 THE CHAIRMAN: Do we begin again? 18 MR SMITH: Thank you, sir, I had intended to ask a number of 19 questions but most of the matters have already been 20 covered by witnesses and, indeed, by the 21 examination-in-chief. 22 There are only two matters I would like to ask 23 about. They both relate to Ms McBride's position 24 concerning a single answer that was given in the course 25 of the trial of Shirley McKie concerning, first of all, page 145 1 the quality of the mark Y7 and also the purpose of the 2 cross-examination, if I can deal with that narrow 3 territory. 4 THE CHAIRMAN: Yes, if you'd like to ask those. 5 Cross-examined by MR SMITH 6 Q. Can I have an image up, please, which is SG0528 and 7 digital pages 36 and 37 together, please. 8 Ms McBride, if you take it from me, please, that 9 this is a transcript of the evidence and in particular 10 the cross-examination by Mr Findlay. I am interested in 11 the left-hand page, which is page 34, from line number 12 16. You see the line numbers at the left. Mr Findlay 13 is asking a question: 14 "Just looking at it from what might be the top of 15 the mark" -- and then he obviously is trying to count 16 down ridges -- "on either side of that you may see just 17 below kind of halfway, a third of the way up ridge, 18 ridge [et cetera] why can't you look at them? What is 19 wrong with them?" 20 The answer is: 21 "Because with 14 years of experience I know that 22 that cannot really be properly interpreted. There is 23 too much wrong with it and I will avoid it and only 24 someone who was not an expert would attempt to interpret 25 those ridges." page 146 1 Can I ask if you still maintain the position that 2 the top part of the print would only be looked at by 3 someone who is not an expert? 4 A. Well, perhaps I should have answered in more detail and 5 that is to say that I wouldn't expect someone who was an 6 expert to expect to get it to the 16-point standard in 7 that part. So that's a more qualified answer, I would 8 say. 9 Q. I am simply reading what is said here -- 10 A. I know -- 11 Q. Hang on a moment, please. 12 "There's too much wrong with it and I will avoid it 13 and only someone who was not an expert would attempt to 14 interpret those ridges." 15 That is not anywhere near suggesting they might not 16 get to the 16-point standard, it is saying it would be 17 dismissed out of hand as being of any use. Can you not 18 agree with that? 19 A. As I made clear the other day, I did not dismiss 20 anything out of hand. I know what an SCRO does; so 21 clearly that's not what was meant there. In fact, I 22 would say I would not attempt to interpret those ridges 23 to the evidential standard, to the 16-point standard. I 24 would say that would fit in the end there quite well. 25 Q. The words at the bottom the last line on the left-hand page 147 1 side page: 2 "I will avoid it ... " 3 What did you mean by that? 4 A. Clearly, I had done a full analysis, as I explained the 5 other day, because we do that on every mark. I avoided 6 looking for Shirley McKie's palm-print against mark 7 Z7(sic). Having already analysed it as insufficient for 8 court purposes, I didn't bother to take it any further. 9 I could have spent a long time on it and I didn't. I 10 avoided that and that's what I did with the top of the 11 mark. 12 Q. I am still trying to work out are you clarifying that or 13 changing any of it, withdrawing it as far as -- 14 A. I'm clarifying it. 15 Q. Let me finish the question, please -- as far as it can 16 be, it would be avoided "I will avoid it" and the second 17 part is: 18 "... only someone who is not an expert would attempt 19 to interpret those ridges" can you explain if any of 20 these just require explanation or if you are prepared to 21 withdraw either of these parts of the answer? 22 A. As I said, I'm clarifying it. 23 Q. The other matter I wanted to ask you about was this: the 24 response by Mr Findlay to your answer at the top of the 25 next page, page 35, he says from line 3: page 148 1 "Well, the defence will produce evidence from the 2 two people who have been doing this job for an awful lot 3 longer than 14 years who take a very different opinion 4 about this?" 5 You can read the answer if you wish: 6 "Well, I cannot comment on the standard of other 7 fingerprint experts." 8 What I am interested in, Ms McBride, is this: when 9 you were standing in the witness box and Mr Findlay 10 asked you that or made that comment to you, and indeed 11 all the other comments that he made, what did you think 12 he was trying to achieve in his cross-examination? 13 A. I've no idea. I answered the questions that were put to 14 me. I don't try to figure out what the strategy is of 15 the defence counsel. 16 Q. The reason I am asking you is because of your evidence 17 to this Inquiry that you say it was after you left the 18 witness box that you nearly fell off your seat when you 19 realised what the defence was. Was it not perfectly 20 clear from what Mr Findlay was doing was, first of all, 21 challenging your evidence? That much was clear, wasn't 22 it? 23 A. Every time that a QC questions us, the questions are 24 very similar. There was nothing to indicate that there 25 was anything about this case that was different from any page 149 1 case that had gone before. 2 Q. I am interested in what Mr Findlay says about line 6, 3 the words "very different opinion about it". I take it 4 you picked up at that point there were other people who 5 had at least a very different opinion than your opinion. 6 You understood that much? 7 A. Well, their opinion may have been on a couple of 8 characteristics for all I knew; so I didn't comment, and 9 I still can't comment, on the standard of other 10 fingerprint experts because during the comparative 11 exercise I checked Mr MacLeod's work and was very 12 shocked at what he produced and couldn't understand it. 13 Then later on it transpired that he had taken the 14 instructions another way and produced something entirely 15 different. 16 So I can't judge -- without actually having spoken 17 to the person or understanding how they came to their 18 conclusion, I can't be sure what another expert's been 19 doing, so ... 20 When I checked the comparative exercise, I was 21 surprised. I couldn't understand how he came to that 22 conclusion. I wondered about his ability. Then I heard 23 him give evidence and he sounded pretty good, I thought, 24 and it turned out that the comparative exercise had just 25 been completed in another way and that then made sense. page 150 1 So I can't possibly comment on the standard of other 2 fingerprint experts, certainly not people I don't know 3 anything about. 4 Q. I am not asking you about your comment regarding the 5 standard of other fingerprint experts, I am simply 6 asking you to explain whether you had any inkling at all 7 that there was going to be a challenge to your 8 identification. I think your answer is no, you didn't. 9 A. That's true. 10 Q. No doubt we can all look at the entire cross-examination 11 in due course, but as someone who had received training 12 in appearing in court, training in knowing what the 13 rules were in court, challenges by defence counsel, 14 you're telling us here before this Inquiry you had no 15 idea what the nature of the challenge was that was 16 presented by Mr Findlay? 17 A. Absolutely. 18 Q. When you were shown the acetate sheet, the document, did 19 you actually take it from Mr Findlay and look at it? 20 A. What do you mean, did I take it? I think it was handed 21 to me by a court clerk and it was put in front of me, 22 although that could be wrong. 23 Q. Very well. I am hardly going to pick you up and say it 24 was a court clerk rather than Mr Findlay. 25 A. It may have been a court clerk. page 151 1 Q. Did you have it available to you actually in your hand 2 at some stage, did you? 3 A. In my hand? It would have been on the lectern or 4 whatever you call it in front of me. 5 THE CHAIRMAN: Well, available to you? 6 A. Yes. It would have been available to me, yes. 7 MR SMITH: Did you see the handwritten entry that's been 8 before this Inquiry when Mr Wertheim has written in his 9 own hand in green writing an indication that there were 10 parts at the top of the print that do not exist in the 11 mark of Shirley McKie in the fingerprint. Did you see 12 that writing? 13 A. Could you show me the production, please? 14 Q. Of course. Give me one moment and we will get the 15 number. 16 Sir, I see the time. 17 THE CHAIRMAN: Yes, I was just wondering if it is convenient 18 we will take the short break now and sit again at 3.05. 19 (2.55 pm) 20 (A short break) 21 (3.05 pm) 22 MR SMITH: I think the reference number for the purpose of 23 the screen is DB0172 if we can have that, please. I 24 think if we go through this and keep flicking through 25 and stop there. Thank you. page 152 1 Ms McBride, I think you have the original or maybe 2 not the actual one but a similar version of the acetate 3 sheets before you just now. Can you perhaps confirm to 4 us that you had available to you a document like that 5 when you were giving your evidence? 6 A. I can't remember and, specifically since you're saying 7 it might not be the actual one, I'd rather not comment 8 on it at all. 9 Q. Come over with me on this one for the moment. Let us 10 presume that what you have is a document that contains 11 the same written information as appeared in the one that 12 was available at trial. Just take that as a given for 13 the moment. Do you agree that it is clear from this 14 document, particularly the electronic page that we're 15 looking at, where it says "target group and" written in 16 black and then for purposes of clarity: 17 "Points in crime scene mark which clearly do not 18 exist in left thumb of Shirley McKie." 19 Would you agree with me that it makes it abundantly 20 clear from that document that what is being suggested is 21 there are bits of Y7 that do not appear in the inked 22 mark of Shirley McKie? 23 A. I'd like to say that I can't take it as a given that 24 this is the case and I'll tell you why. I noticed you 25 made several errors during this Judicial Inquiry. One page 153 1 of them was when you said that a document had been 2 redated by Hugh MacPherson and in fact it hadn't 3 happened. So while of course the Inquiry team will have 4 sorted all that out, I can't possibly take anything that 5 you say as a given. 6 Q. Ms McBride, I know you want to make a speech but I would 7 like an answer to the question which -- 8 A. You have an answer to the question. 9 Q. Please let me finish. Please let me finish. 10 The question that I put to you is whether is it not 11 abundantly clear from this document you are looking at 12 that it is being said that there are points in Y7 that 13 do not exist in the left thumb of Shirley McKie? 14 A. In court I think I asked to see this at the office. I 15 wouldn't have gone as far as even reading all that. To 16 be handed that in a High Court case to -- how would I 17 say -- decipher is not something that I would do. I 18 would take it away and look at it. So I wouldn't have 19 read it and, in fact, I think I mentioned something 20 about the overlays. Of course, I could be wrong so you 21 would have to check the transcript but I think they 22 said, "Well, just push the overlays back and look at 23 that then" because I didn't recognise it. I didn't know 24 what it was that they were giving me. 25 So, in fact, the chances of me even attempting to page 154 1 read that are practically nil. 2 Q. Let us just look at another bit in the evidence to see 3 if the light wasn't coming on about the purpose of the 4 challenge. Could we have SG0528. Can you go to page 31 5 electronically -- I am sorry, it is the electronic 6 page 31, page 29 -- and the next page for completeness 7 as well. Just reading what Mr Findlay said, reading 8 from the bottom of the left-hand page, line number 22. 9 He says this: 10 "You see, because when we go into the evidence in 11 this case -- and I have no doubt you have been told or 12 heard -- there is evidence that says out of the 16 13 illustrated in, for example, 152 at least ten of them 14 don't exist or are faulty." 15 You say: 16 "I cannot comment on someone else's opinion and I 17 have no idea what their qualifications are and I don't 18 know how long they've been looking at fingerprints but 19 I'm happy that the author of these prints has had the 20 fingerprints taken on that form." 21 Ms McBride, is it abundantly clear from that 22 question, isn't it, that it was being said that the 23 examination you carried out was faulty and that at least 24 ten points either didn't exist or were incorrectly 25 identified. That's what he said to you, isn't it? page 155 1 A. No, the only way I could have commented on that would 2 have been if I'd been given time to take it away and 3 verify or otherwise what the claims were. 4 Q. Ms McBride -- 5 THE CHAIRMAN: That is not quite the point. The point is 6 whether you were being put on notice, to say the least, 7 that somebody else didn't agree with your conclusion. 8 A. Yes. I'm wondering whether this is after there are 9 differences, alleged differences, pointed out at the top 10 of the mark and whether I would have thought that at 11 least ten of them -- you're saying the "16 illustrated 12 don't exist or are faulty", so ... 13 It didn't occur to me. It didn't occur to me. It 14 just sounded like some, an argument being led by a QC 15 and they do have a tendency to go off on a tangent and 16 not exactly represent what's in front of you, so ... 17 MR SMITH: Just finally, in fairness to you, Ms McBride, as 18 I understand your position, that despite us seeing this 19 question, the other question and answer that I directed 20 you to a few moments ago and the acetate, you are saying 21 you did not know that a challenge was being placed to 22 the identification by SCRO and that is your evidence 23 before this Inquiry, is it not? 24 A. I did not know that anyone was going to say it was a 25 mis-identification. page 156 1 MR SMITH: Thank you. I have no further questions. 2 THE CHAIRMAN: Perhaps I should ask Miss Grahame next. Have 3 you any questions? 4 MISS GRAHAME: I have no questions. 5 THE CHAIRMAN: Mr Holmes? 6 MR HOLMES: No thank you, sir. 7 MISS CARMICHAEL: There is one further item from the trial 8 transcript that, in fairness to Ms McBride, I would like 9 to draw to the attention of the Inquiry. 10 THE CHAIRMAN: Yes. 11 MISS CARMICHAEL: I think we are still on SG0528 and it is 12 page 40 on to 41 that I would like to look at, please. 13 That is in terms of electronic numbering. 14 We see on the left-hand of the screen here we have a 15 part where Mr Findlay is asking you about defence 16 production number 2, which I think is the item you're 17 looking at today. You are asked to look at it and to 18 move the acetate sheets and, at the end of the question, 19 we see at line 15 the answer: 20 "I really couldn't express an opinion. I have not 21 seen this before and I haven't studied it and I can't 22 say in Court here." 23 Mr Findlay says: 24 "You must have seen it before with respect because 25 it is the mark that you looked at? page 157 1 "Well, it appears to have had -- I have not seen it 2 in this format and I would like to check." 3 What then seems to happen is that there is an 4 exchange of some sort between the Advocate Depute and 5 Mr Findlay. 6 A. Yes. 7 Q. Do you recall what happened there? Were you able to 8 tell? 9 A. I thought at the time -- well, not at the time, it must 10 have been after that -- Mr Findlay seemed to believe 11 that I had seen the production before and I think 12 Mr Murphy was telling him that I hadn't. So I'm 13 imagining that Mr Findlay thought I was with Hugh 14 MacPherson and Charlie Stewart at the earlier meeting. 15 Q. We go on to see the next question from Mr Findlay gives 16 you a little bit more explanation about what it is he's 17 showing you, which might tend to indicate that something 18 of that sort had been explained by Mr Murphy to 19 Mr Findlay. 20 A. Yes. 21 MISS CARMICHAEL: Thank you. I don't have any further 22 questions for you, Ms McBride. 23 A. Thank you. 24 I don't know whether it's worthwhile, I was just 25 thinking about the discussion earlier on about page 158 1 differences if you're interested. It won't take very 2 long. It's with regard to the differences between Hugh 3 MacPherson and Robert Mackenzie, but I won't go into the 4 characteristics. 5 THE CHAIRMAN: This is really you commenting on somebody 6 else's evidence. 7 A. No, no, it's on the format. It's on this forum and 8 whether it's a good idea to have someone commenting on a 9 diagram against a diagram and the fact that the lines 10 that were drawn at the time they said they weren't 11 particularly good with the mouse and that there were 12 photographs of slightly different contrasts on the 13 screen. I think at one point there was a bifurcation 14 which was said to be a difference and when I looked at 15 it, to me it looked as though they were marked in 16 precisely the same place and it would have just been the 17 way they were using the mouse. 18 What I'm thinking about is, while it might be useful 19 of course to the Inquiry to go into these things 20 in-depth in that way, it's not what an expert would do. 21 They would take it away and do it. We could have drawn 22 these diagrams far more accurately, of course, away from 23 this forum -- and that's for all the experts that 24 appeared here. I'm thinking particularly of 25 Mr Wertheim. He gave evidence on the Rosetta page 159 1 characteristic and he got a bit mixed up. 2 All I'm saying is in an office or in the right 3 environment with an opportunity to speak to the other 4 expert, he would have looked at that and thought there 5 was something wrong with it, gone to the other person or 6 someone else and they could have put him right and he 7 wouldn't have had to make the mistake he did in this 8 forum. 9 So all I'm saying is that while it might be useful 10 to you, it's not a reliable representation of what a 11 Fingerprint Expert sees. The type of questions, which 12 are fine but they were directed in a particular way to 13 suggest differences, that's the sort of thing that would 14 be ironed out in debate between experts. That's also 15 why I can't comment on other experts' work because, 16 without actually speaking to them, we don't know 17 precisely what they meant. 18 So, while I notice that while Robert Mackenzie was 19 giving evidence, Hugh MacPherson's away for the week so 20 you didn't have the opportunity to ask Hugh "Is that 21 really what you meant or was that drawn in the right 22 place or is that sufficient for your purposes and is 23 that really a difference" and that's all I wanted to 24 point out. 25 THE CHAIRMAN: Among other things, I can well understand page 160 1 trying to draw in a witness box live is a totally 2 different exercise to in a laboratory under quiet 3 conditions -- 4 A. Thank you. 5 THE CHAIRMAN: -- and it must be very difficult but it's 6 more or less so that I can try and follow the transcript 7 of people have been doing it and I certainly will pay 8 attention to the warning that you have given about 9 accurate it is. 10 A. Thank you. 11 THE CHAIRMAN: Had you any other questions? 12 MISS CARMICHAEL: No thank you, sir. 13 THE CHAIRMAN: The one matter that I was going to ask you, 14 and it is just so that I can be more familiar with the 15 practice from your point of view as an expert giving 16 evidence in a trial, when there is an opposing expert, 17 if I can call it that, the defence is calling an 18 expert -- and you have had experience of that from what 19 I gather -- would you normally get advance information 20 as to what the other expert was going to say? 21 A. No. I can't remember ever having advance notice of what 22 the other expert -- perhaps for other people, but I've 23 never had advance notice of what the other expert ... I 24 think it's expected that we go to court and we give our 25 evidence; it's straightforward, we have nothing to hide page 161 1 and therefore there ought not to be anything too 2 difficult. 3 THE CHAIRMAN: It's really attached to the point that you 4 were just making. It's very difficult when you haven't 5 an opportunity to look at something calmly and in the 6 right environment to check what the evidence would be. 7 We have heard a bit about disclosure and I am just 8 wondering whether the defence disclose their expert 9 evidence so that you would see it and have an 10 opportunity to consider it before you actually have to 11 come and give evidence. 12 A. I think back in the days when I was allowed to give 13 evidence in court, I don't think that was an issue but I 14 could be wrong. I don't think they had to disclose 15 anything. 16 THE CHAIRMAN: It wasn't your experience anyhow? 17 A. No, it certainly wasn't. 18 THE CHAIRMAN: Of being the evidence to go away and look at 19 before the day you came to the trial? 20 A. That was the first time it had happened. I think in the 21 office we've received a phone call, I've received a 22 phone call and they have said they are going to -- there 23 is a defence expert looking at this and I've gone over 24 what I've done to make sure that I'm happy with it 25 before I go in, but I don't recall. I may be wrong but page 162 1 I don't recall ever being given any productions and I 2 think that the information that the defence had a 3 defence expert didn't come from the defence, it came 4 from the prosecution services who had had the 5 productions requested of them. 6 THE CHAIRMAN: I just was trying to inform myself about what 7 the practice was, certainly from your experience as an 8 expert. 9 Thank you very much and I apologise for the 10 disruption. 11 A. Not at all. 12 THE CHAIRMAN: Well, it's not agreeable giving evidence, I 13 am sure, and having it disrupted makes it worse but you 14 have been very accommodating. Thank you very much. 15 A. Thank you. 16 (The witness withdrew) 17 MISS CARMICHAEL: Sir, the next witness is to be Miss Joanne 18 Tierney of SPSA. Because of a pessimistic estimate of 19 where we would get to today arrangements were not made 20 for Miss Tierney to come this afternoon. However, we 21 can make some progress because there is a DVD or CD-Rom 22 which I would otherwise have played in the course of her 23 evidence. I don't think it is essential she is here 24 while it is played. 25 THE CHAIRMAN: No, she knows what it is; she provided it, page 163 1 did she? 2 MISS CARMICHAEL: In fact, it came from Crown Office. It's 3 an item that was prepared by an SPSA predecessor, SFS, 4 it is referred to in Mr Scott Patterson's statement, the 5 witness from Crown Office, and it occurred to me this 6 might be an opportune time to play it before the SPSA 7 evidence and before Mr Patterson's evidence. 8 THE CHAIRMAN: I think there is no harm if we spend the time 9 looking at it now, but if she wants to see it played 10 presumably arrangements can be made for that? 11 MISS CARMICHAEL: Yes, indeed. In fact, I suspect a file 12 can be prepared in electronic form as well to be passed 13 on if necessary. I think this was distributed yesterday 14 to representatives. 15 (Electronic presentation played) 16 ELECTRONIC PRESENTATION: The introduction of the 17 non-numeric standard of presenting fingerprint evidence 18 has been brought in following agreement with the Crown 19 Office and Procurator Fiscal Service, the Scottish 20 Executive and the Association of Chief Police Officers 21 in Scotland. 22 Chapter 1: why is the Scottish Fingerprint Service 23 moving to the non-numeric standard of presenting 24 fingerprint evidence in court? There are many benefits 25 of operating the non-numeric standard. The main benefit page 164 1 is that it allows fingerprint evidence to be presented 2 on every occasion where identity is established. It 3 allows the expert to offer a fuller explanation of how 4 they arrived at their conclusion. They discuss all the 5 features revealed rather than simply focussing only on 6 the number of points. So this will be more easily 7 understood by the court and in particular the jury. All 8 fingerprint evidence will be presented across Scotland 9 in a clear and consistent style of reporting agreed with 10 the Crown Office and Procurator Fiscal Service. The 11 expert will also be able to provide more information 12 within the report about their experience, detailing 13 their training, relevant qualifications and registration 14 with professional bodies. The court can then assess all 15 the information presented to them and make an informed 16 decision on the fingerprint identification. 17 In 1953 The Home Office standardised the 18 presentation of fingerprint evidence across England and 19 Wales it was agreed that fingerprint experts should 20 demonstrate a minimum of 16 points in agreement between 21 any two prints. Scotland also adopted this standard. 22 The number of points was only a consideration for 23 presenting the identification as evidence in court not 24 in making the identification. It has long been a 25 recognised fact that there is no scientific or logical page 165 1 requirement why a certain number of points need to be 2 demonstrated to present evidence in court. Indeed, many 3 countries from America to certain states in Australia 4 have operated the non-numeric standard for a number of 5 years. England and Wales introduced the non-numeric 6 standard in 2001. 7 Chapter 2: what does this mean for the reliability 8 of fingerprint evidence? Fingerprint experts come to 9 conclusions based on the quality of prints under 10 examination. The way a fingerprint expert makes an 11 identification is no different when operating the 12 non-numeric standard. Remember, the number of points 13 was only a consideration if the identification was to be 14 presented in court. The reliability of the 15 identification is demonstrated by a strict verification 16 process. The conclusions are proven to be valid through 17 consistent results from different examiners. A minimum 18 of three experts must each carry out their own objective 19 and independent analysis, comparison and evaluation of 20 the print. This verification process, along with 21 stringent quality procedures means that fingerprint 22 evidence will continue to be a robust and reliable means 23 of establishing identity. 24 "Chapter 3: does this change how the fingerprint 25 expert makes their identification? The way the page 166 1 fingerprint expert makes an identification remains the 2 same. Fingerprints have been used as a means of 3 identification for over 100 years and are unique to 4 every individual. Fingerprints are unique because of 5 the nature of their formation in the womb prior to birth 6 and the unique cycles of growth which determine foetal 7 development. It is a scientific fact that not even 8 identical twins will have the same fingerprints. A 9 person's fingerprints will remain the same throughout 10 their life. If superficial damage occurs the skin will 11 grow back in exactly the same arrangement as at birth. 12 This is why fingerprints are a reliable means of 13 identification at all stages of a person's life and even 14 for some time after death. 15 Fingerprints are made up of an intricate system of 16 ridges which creates an uneven surface on the palms of 17 the hand and the soles of the feet. It's the 18 arrangement of the ridges and their certain unique 19 property which a fingerprint expert will use to make the 20 identification. The ridges of a fingerprint will flow 21 into discernible shapes or patterns. There are three 22 main pattern types named after the general shape they 23 resemble: arch, whorl and loop. All fingerprints will 24 fall into one of these types with each type 25 having consistent elements. Fingerprint experts will page 167 1 use the patterns to narrow down their examination. For 2 example, if they are looking at a loop pattern they will 3 be able to exclude arch patterns from their examination. 4 The ridges are subject to certain breaks or 5 interruptions which are called ridge features or 6 characteristics. There are two main types of 7 characteristics. A ridge end is when the ridge stops 8 suddenly and a bifurcation is when a single ridge flows 9 along, forks in two and then continues into two separate 10 ridges. Every fingerprint will contain these ridge 11 characteristics. However, it's the sequence in which 12 these appear in a fingerprint which makes that 13 fingerprint unique. The shape of the ridges and pores 14 are also unique and may play a part in the examination 15 process. 16 All fingerprint experts undertake the same 17 methodology when carrying out a fingerprint examination, 18 generally referred to as ACE-V: analyse, compare, 19 evaluate and verify. Fingerprint experts have always 20 followed this fundamental process when carrying out a 21 fingerprint examination. This process will not change 22 with the non-numeric standard. Indeed fingerprint 23 experts look forward to offering the court more 24 information by discussing fully the identification 25 process as opposed to the previous requirement to page 168 1 demonstrate a proscriptive number of points in 2 agreement. 3 The first step, analysis, is an 4 intelligence-gathering process. The fingerprint expert 5 will study the fingerprint impression retrieved from a 6 crime scene to establish the quality and clarity of 7 detail and the suitability of the impression for further 8 examination. They will look at all of the available 9 information on the photograph or fingerprint lift taking 10 into account the surface on which the fingerprint was 11 left. The surface may affect the appearance of the 12 fingerprint. The substance that the unknown mark was 13 left in, for example, sweat, blood, oil, et cetera. A 14 fingerprint impression left in sweat may not be visible 15 to the naked eye and will require the use of fingerprint 16 powders or suitable chemicals in order to make it 17 visible. The development medium used may have an effect 18 on the appearance of the ridges and the quality of the 19 print. If there was any pressure placed on the 20 fingerprint when it was deposited or movement this can 21 affect the appearance of the ridges. The fingerprint 22 expert will then analyse the print in more detail 23 looking at the actual flow of the ridges to determine if 24 there is any discernible pattern type. They will 25 consider any clues in the print that may indicate which page 169 1 finger, thumb or area of palm could have left the 2 impression. Pattern and digit determination allow the 3 expert to prioritise those fingerprints to be compared. 4 The expert will also look at the quality and clarity of 5 the unique features and characteristics that are 6 revealed in the print. At the conclusion of the 7 analysis stage, the fingerprint expert will have made a 8 decision as to the suitability of the print for further 9 examination. 10 The second stage of the process is comparison. 11 Having analysed the unidentified print recovered from 12 crime scene, referred to as a mark, a fingerprint expert 13 will compare this unidentified mark with fingerprint 14 impressions taken from persons whose identities are 15 known. They will look at the unknown print or mark and 16 having already accounted for the ridge flow and pattern 17 will seek to highlight an initial sequence of 18 characteristics. In this instance, the sequence would 19 be one ridge ending, a bifurcation with three 20 intervening ridges. The expert will then refer to the 21 known fingerprint and look for this initial sequence to 22 be duplicated, always looking for any element of 23 disagreement between the two. If any unaccountable 24 disagreement is found, the identity cannot be 25 established and the known print will be discounted from page 170 1 the comparison process. However, if the initial 2 sequences agree in both impressions the expert will 3 proceed to compare the relative position and location of 4 further characteristics in both prints, all the time 5 looking for any disagreement in the sequence of 6 characteristics. The expert will also be taking into 7 account the unique features of the ridges themselves, 8 looking for agreement between any visible distinctive 9 ridge edge shapes and minute detail. This process will 10 continue until the expert is satisfied that the 11 comparison process is complete. 12 After comparing the unknown and known marks, the 13 fingerprint expert will make their evaluation. They 14 will weigh up all the information available as a result 15 of the comparison process and come to a conclusion. The 16 fingerprint expert can only come to one of three 17 possible conclusions: they can conclude that there is 18 complete agreement in the sequencing of the unique 19 features visible in both impressions with no areas of 20 disagreement. In that case, identity is established and 21 both impressions have been made by the same person. If 22 the sequence of features visible in both impressions 23 disagrees, then identity is not established and the 24 fingerprint expert can be confident that both 25 impressions could not have been made by the same person. page 171 1 Or they will have decided that the clarity and quality 2 of information available in either impression is such 3 that it's not possible to come to a conclusion. 4 The most crucial aspect of the identification 5 process is the verification element. This is an 6 independent and complete analysis, comparison and 7 evaluation of both prints, which is carried out by a 8 minimum of a further two fingerprint experts. The 9 verification process is the key to the reliability of 10 fingerprint evidence. It demonstrates that the original 11 conclusions are valid through consistent results 12 achieved from the different experts who have analysed, 13 compared and evaluated the information available in both 14 impressions. 15 We've just demonstrated how a fingerprint expert 16 makes an identification. Under the numeric standard, if 17 this identification was to be presented as evidence in 18 court the expert would then demonstrate 16 points in 19 sequence and agreement. Under the non-numeric standard 20 the expert will have the opportunity to explain fully 21 how they established identity and allow the court to 22 decide on the identification considering the evidence 23 submitted. 24 Chapter 4: why the Scottish Fingerprint Service is 25 confident in the introduction of the non-numeric page 172 1 standard. For many years the Scottish Fingerprint 2 Service has been undergoing a period of continuous 3 improvement focussing on processes and procedures, 4 training and quality management systems. Since 2001 all 5 four bureaux in the Scottish Fingerprint Service have 6 achieved ISO accreditation. This is ensures our 7 standards are internationally recognised and respected 8 and maintained through regular six monthly external 9 audits. Our training programmes and peer review 10 processes have received UK-wide recognition as examples 11 of best practice within the fingerprint profession. All 12 individual officers are subject to annual external 13 competency testing and continuous professional 14 development. This includes court skills training 15 sessions facilitated by external specialists. All 16 experts are encouraged and supported to obtain 17 membership with the Council for Registration for 18 Forensic Practitioners, the profession's independent 19 regulatory body. 20 With such quality management systems in place and a 21 commitment to continuous improvement now is the time for 22 the Scottish Fingerprint Service to introduce the 23 non-numeric standard. The introduction of the 24 non-numeric standard brings the process in Scotland in 25 line with England and Wales and follows agreement by the page 173 1 Scottish Executive, the Crown Office and Procurator 2 Fiscal Service and the Association of Chief Police 3 Officers in Scotland. 4 To summarise, the non-numeric standard is a proven 5 system operated internationally for many years. The key 6 benefits are: it allows fingerprint evidence to be 7 presented on every occasion where identity is 8 established. The fingerprint expert can offer a much 9 fuller explanation of how they arrived at their 10 conclusion establishing identity. This will be more 11 easily understood by the court and the jury. The court 12 can then assess all the information presented to them 13 and make an informed decision on the fingerprint 14 identification. All fingerprint evidence will be 15 presented across Scotland in a clear and consistent 16 style of reporting agreed with the Crown Office and 17 Procurator Fiscal Service. 18 If you would like to find out more about the 19 non-numeric standard and how a fingerprint expert makes 20 an identification you can to the Scottish Fingerprint 21 Service at www.sfs.police.uk. 22 (Electronic presentation ended) 23 THE CHAIRMAN: I needn't invite anyone to cross-examine the 24 CD. We can leave it at that. 25 MISS CARMICHAEL: I am afraid we've a slightly early finish, page 174 1 sir, but we should be ready to resume at 9.30 tomorrow. 2 THE CHAIRMAN: So we will sit again at 9.30 tomorrow 3 morning. Thank you. 4 (3.40 pm) 5 (Adjourned until 9.30 am the following morning) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25