page   1
 1                                     Friday, 13th November 2009
 2   (9.30 am)
 3                   THOMAS ARTHUR NELSON, sworn
 4                   Examined by MISS CARMICHAEL
 5   THE CHAIRMAN:  Your full names, please.
 6   A.  Thomas Arthur Nelson.
 7   MISS CARMICHAEL:  Good morning, Mr Nelson.
 8   A.  Good morning.
 9   Q.  You have provided a signed statement already to the
10       Inquiry.  I think you want to correct a typographical
11       error about the date when the non-numeric standard came
12       in.  I think you said November at one point.  I think it
13       should be 4th September 2006?
14   A.  That's correct.  I apologise for that.
15   Q.  Otherwise are you happy to adopt your statement?
16   A.  Yes.
17   Q.  Mr Nelson, you are currently the Director of Forensic
18       Services at the Scottish Police Services Authority.
19       Your own background, I think, is as a scientist?
20   A.  That's correct, yes.
21   Q.  Would you tell the Chairman a little bit more about your
22       scientific background?
23   A.  I've been a forensic scientist for almost 30 years
24       working in Northern Ireland from 1980 until 1995, at
25       which point I came over to Scotland to take over the
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 1       management of the Chemistry Unit within Lothian
 2       & Borders Police Forensic Science Laboratory.  I was
 3       there for a number of years and became the Director of
 4       the laboratory at Lothian & Borders.  At that stage it
 5       was underneath the control of the local police force,
 6       Lothian & Borders.
 7           I then became implementation manager of the forensic
 8       science project which was to bring together the forensic
 9       science laboratories across Scotland into a new
10       organisation.
11   THE CHAIRMAN:  About what year was that?
12   A.  It all came together under the SPSA (the Scottish Police
13       Services Authority) in April 2007.  I'll maybe explain a
14       bit more about that later on but that brought together
15       the different component parts of forensic, fingerprints,
16       scene examination and the four laboratories that we have
17       in Scotland.
18           In 2007 in January 2007 I then became Director of
19       the organisation, SPSA Forensic Services.
20   MISS CARMICHAEL:  We heard a little yesterday about a
21       Forensic Science Gateway.  That's something you mention
22       in your own statement.  Could you explain for us what
23       that is and how it works.
24   A.  Sure.  Within Scotland, if I may be just go back a wee
25       to talk about the structure we have in Scotland, for the
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 1       first time that we know of in the world we have brought
 2       together the different component parts of the
 3       investigation.  We have brought together fingerprints,
 4       scene examination and laboratories.
 5           In Scotland we have four laboratories.  We have
 6       eight Scenes of Crime departments and we have four
 7       finger print departments or we had those.  They were all
 8       managed differently.  In April 2007, we brought them
 9       together into one organisation called SPSA Forensic
10       Services.
11           That allows me to have overall control and
12       opportunity to manage from the crime scene through to
13       the court and, therefore, it means that we can begin to
14       put standards in place at the crime scene and follow
15       that right through to the court.  It's certainly a model
16       that many other countries are looking to and aspiring to
17       and in Scotland we had that opportunity in 2007 to bring
18       that organisation into being.
19           Obviously, we generate productions at the crime
20       scene and those productions will then come into a
21       laboratory environment for examination.  Up to 2007, we
22       had very little control on the cases coming in or the
23       demand of those cases coming in and it was all really
24       down to the local forces and how much work they asked
25       their Scenes of Crime departments to carry out.
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 1           The Forensic Gateways that you referred to was our
 2       way of beginning to manage and to make sure that we were
 3       getting the appropriate cases coming into the
 4       laboratory.  We found, whenever I did a comparison of
 5       work coming into the Edinburgh laboratory prior to 2007,
 6       that a significant number of biology cases had already
 7       been dealt with, the person had pled guilty, it had been
 8       gone through the court or there was no case to answer
 9       and yet that was sitting in our backlog effectively.
10           The Gateway brings together the police officer to
11       begin to look at what they are asking for in terms of an
12       examination, to bring some clarity on the answer that
13       they want us to begin to look at in terms of the
14       investigation and the Gateway then begins to manage the
15       number of cases coming into SPSA Forensic Services.  So,
16       effectively, it acts as a filter and hopefully a lot
17       of -- the cases that were going nowhere would be taken
18       out quickly so it doesn't create a backlog for us in our
19       laboratory.
20           What we are then doing is we're adding value to the
21       cases where we can add value to, there might enough
22       evidence without it coming into the laboratory for any
23       additional examination.  So we're trying to, through the
24       Gateways, begin to provide a filter to allow us to work
25       on the most appropriate case at the most appropriate
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 1       time.
 2           Our vision for the future is to see that Gateway not
 3       only having police officers there but having some form
 4       of fiscal representation there and that, again, will
 5       begin to allow us to begin to prioritise our casework
 6       and begin to work on the cases where we can add some
 7       significant value.
 8   THE CHAIRMAN:  The Crime Scene Examiners, are those members
 9       of the police force or are they members of your staff?
10   A.  The Crime Scene Examiners are actually members of our
11       staff.  So I manage the eight Scenes of Crime
12       departments around Scotland and the fingerprint units
13       and the laboratories.  So that's now under the one
14       organisation.
15           The police will determine what crime scenes they
16       want our Scenes of Crime Officers to attend and then we
17       will make sure that they are operating to the right
18       standards, following the right procedures, at the crime
19       scene collecting the right evidence to then allow it to
20       go into the Gateway where they then begin to filter and
21       identify what cases are priority for that force and what
22       cases need to come into the forensic service environment
23       to then be examined further.
24   MISS CARMICHAEL:  Thank you, sir.
25           I would like to lead into your evidence really by
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 1       looking at some points that have arisen in previous
 2       investigations.
 3           One of the things that we have seen from the HMIC
 4       investigation back in 2000 is that there was a
 5       recommendation for guidance manuals on fingerprint
 6       standards and procedures.  We have heard from other
 7       witnesses that there are manuals which prescribe in some
 8       detail some of the procedures that Fingerprint Examiners
 9       should be following in your organisation.
10           I am not so interested in the procedural aspect of
11       it, Mr Nelson, but in the standards aspect of it.  We
12       have heard in the past there was a numeric standard with
13       16 points and one can readily understand checking that
14       something's been done against a numerical standard of
15       that sort.
16           I would like to ask you what your view is about what
17       has been described as the non-numeric standard.  In the
18       first place is it really, from the scientific
19       perspective, a standard?
20   A.  I think comparing the non-numeric back to, obviously,
21       the numeric I think it's taken us to a different arena.
22       I think one of the problems with having 16 points is
23       that whenever someone finds 16 points they think they
24       can actually stand up and say that is it, that's
25       finished and, therefore, whenever they go to court it
page   7
 1       can almost create that impression that it is the gold
 2       standard and, therefore, we can't be challenged and I
 3       think that's one of the problems with having a numeric
 4       standard in there.
 5           To me, when we went to the non-numeric -- and I must
 6       admit it's before my time, obviously -- but when we went
 7       to the non-numeric I think that allowed us to get to the
 8       position where, you know, we are not infallible and at
 9       the end of the day our evidence can be challenged.  I
10       welcome forensic evidence being challenged because, at
11       the end of the day, the reason why the scientist is in
12       court to give evidence is to provide the best evidence
13       to the court for the court to make the decision and I
14       think it's good that science is challenged because, at
15       the end of the day, we never want to see the wrong
16       person in court or getting charged.  So I actually
17       believe that moving to the non-numeric is a very
18       positive way forward and I think we need to make more of
19       that and obviously encourage more challenge in court so
20       that we can actually present our evidence better in
21       court and, at the end of the day, I think that's a far
22       better standard to have than a numeric standard which,
23       once you achieve that number, you feel you can almost
24       stop and that it is infallible and that is not the
25       position.
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 1   Q.  I'm going to ask you, if you can, to bring the
 2       microphone nearer because I think others may be having
 3       difficulty hearing, Mr Nelson.
 4   A.  Sorry.
 5   Q.  As a scientist, would you ever be happy with the idea of
 6       somebody coming along and giving evidence on the basis
 7       that it's infallible?
 8   A.  I certainly would not want to be in a position in
 9       court to say that my evidence is infallible.  In
10       forensic science the only evidence I would say you can
11       be 100 per cent certain on is physical fit evidence,
12       where you can actually physically fit, say, two bits of
13       wood together or you can physically fit two bits of
14       paper together.  That's conclusive but to me the other
15       evidence we give is opinion evidence and, therefore, you
16       cannot be 100 per cent certain.
17   Q.  We have heard witnesses say that, regardless of the
18       16 points, and in fact whether they were working under
19       16 points or under the new system that there is a point
20       when they reach personal certainty.
21           I'm wondering where that fits with the idea of
22       coming into court and even before court perhaps being
23       open to challenge?
24   A.  I think this is something we have to address, not only
25       in fingerprints but in other areas.  You know, at the
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 1       end of the day, I think it's good to be in a position
 2       where you can be challenged because you do not have all
 3       the answers.  You are giving opinion based on what you
 4       have seen and what you have observed.  You may be
 5       confident in the result but I do not think you can ever
 6       be 100 per cent certain of the result and, therefore, I
 7       would encourage and I would want my experts to be
 8       encouraging challenge in that because we want to get to
 9       the truth at all times.
10   Q.  What are you doing within SPSA to encourage that sort of
11       attitude, particularly in the context of your
12       fingerprint departments?
13   A.  I believe SPSA, in the short time it has been in
14       existence, has done a lot in trying to look at the
15       culture of the organisation.  I believe in setting up
16       the organisation to be the only single crime scene to
17       court service began to allow Fingerprint Experts,
18       scientists, Scenes of Crime Officers, to begin to meet
19       together, to work together and encourage a closer
20       working relationship.
21           I believe whenever we brought in, at the unit
22       manager level, whenever we replaced business managers
23       with Fingerprint Experts, again, that begins to change
24       the culture because the science, the evidence, is
25       actually at the forefront of the organisation.
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 1           I also believe in terms of the management structure
 2       the unit managers now meet on a monthly basis with the
 3       Head of Operations who manages that local business area,
 4       with the unit manager in chemistry, in biology, the
 5       Quality Manager and also the scene examination managers
 6       and, again, to me that begins to bring people into a
 7       different culture where the norm is challenge, where the
 8       norm is that you can actually challenge one another and
 9       you can question one another.
10           We've also established scientific advisory groups
11       across our organisation and there's one in chemistry,
12       one in biology, one in DNA and one in fingerprints.  In
13       these groups we have the experts in that particular area
14       and they meet on a regular basis discussing the issues
15       and trying to move forward with their particular
16       discipline.  So I think what we have tried to do is
17       create that culture within the organisation.
18           We have also encouraged research.  One of the things
19       I'm very keen on, and I don't think there's enough done,
20       is in research, particularly in fingerprints.  We have
21       actually encouraged and are supporting a member of
22       staff, Isabel Hamilton, to do a master of philosophy in
23       fingerprint examination and she is doing a lot of work
24       on bias, in looking at contextual bias, in looking at
25       probabilistics and I think we need to move on from where
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 1       we are now to what I see is a better environment, a
 2       better world, in which we can begin to explain our
 3       evidence better in court.  So through research, through
 4       even people attending conferences, there was a European
 5       meeting in Glasgow in September and I went along to
 6       chair one of the sessions.  I was pleased to see
 7       Fingerprint Experts, Scenes of Crime Officers and
 8       chemistry and biology staff meeting together and being
 9       in that type of scientific environment where challenge
10       is the norm and where challenge is accepted.
11           So I believe we're doing an awful lot in SPSA to try
12       and change that culture to be more of an open and
13       transparent culture so we can actually identify research
14       projects.  You know, we have a number of research
15       projects where we are actually working with
16       universities.  I work very closely with the Strathclyde
17       University and, in fact, I've just recently set up a
18       meeting, a working group meeting, involving skills for
19       justice.  Charles Welch leads that organisation for
20       forensics, Keith Fryer from Centrex, Professor Jim
21       Fraser from Strathclyde University and we're going to be
22       having a one day seminar where we invite a number of
23       invited guests particularly to look at the area of
24       fingerprints and to see where the challenge is and where
25       the opportunities are to actually allow us to move on to
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 1       where I believe we now need to be.
 2   Q.  What I think you have described is, in part, exposing
 3       people in the fingerprint discipline to the way that
 4       scientists work and working along with scientists,
 5       perhaps meeting with scientists more often than they
 6       would have done under the previous business structures.
 7       That perhaps takes me to a more fundamental question,
 8       which is whether Fingerprint Examiners should in any way
 9       currently be regarded as scientists?
10   A.  That's a very interesting question and universities have
11       spent tens of thousands of pounds with many research
12       students actually trying to answer that question: what
13       is science?  One of the definitions of science is
14       knowledge gained through study and experiment.  That's
15       one of the reasons I think what we need to do is to do
16       more experimental work and more research into
17       fingerprinting.
18           There seems to be a lot of work that has been done
19       in the past on how we develop a mark, how we chemically
20       enhance a mark from the crime scene or how we then
21       transmit that from a crime scene to a laboratory.  I
22       believe we need to do more research now to begin to look
23       at, you know, I've been even just listening to some of
24       the things coming out from the Inquiry, you know, double
25       touch or movement, do we understand that enough?  Is
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 1       there any project we could be doing to actually allow us
 2       to understand that even more than we do currently?
 3           We have that opportunity because in Scotland we have
 4       established the Scottish Institute of Policing Research.
 5       That was developed by ACPOS and 13 universities in
 6       Scotland.  I am on the board for that and involved in
 7       the evidence and evaluation part of that organisation
 8       and we run regular meetings and conferences to look at
 9       these specific issues and to me we also fund projects
10       and that's where we need to begin to encourage the staff
11       to come up with project ideas, make sure we have the
12       funding obviously, secure the funding, and then begin to
13       do that research.  That's certainly something that we
14       need to do more of.
15   Q.  Coming back to your definition of study and experiment
16       as the means to knowledge, what we have heard from
17       Fingerprint Examiners is that the way that they have
18       gained their knowledge is essentially handed down from
19       teacher to pupil through the generations and even in
20       relation to the matters like movement, that the way of
21       learning about that is somebody else saying, "Well,
22       here's a mark and a print I found match each other and
23       my explanation for that is movement", and things like
24       that tend to become accepted, perhaps without the
25       experimental background that you are hinting at here.
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 1   A.  Sure.  I think certainly the training has changed over
 2       the years and I think more emphasis is now being placed
 3       on understanding more of that but I still think we're a
 4       long way off and we need to do an awful lot more in
 5       trying to understand some of these phenomenas like touch
 6       and movement and pressure.  I think there's an awful lot
 7       more work we could do and that's one of the reasons why
 8       SPSA, I believe, Forensic Services was set to encourage
 9       that type of thought process to come out and then for us
10       to allow our staff to get engaged in that and that's
11       where we need to be.
12   Q.  Again coming back to the theme of standards rather than
13       procedures what there doesn't seem to be is, for
14       example, any standard or any scientific guidance that
15       the Fingerprint Examiner can go to in assessing the
16       quality of a crime scene mark that comes to them or the
17       quality and clarity of characteristics that maybe come
18       to them in a crime scene mark.
19   A.  Yes.  Probably where they get that learning from is from
20       the training that they receive, for instance, at Centrex
21       where they are trained in fingerprint identification.
22       So they do get some training and some learning from
23       learned people in that environment but then a lot of the
24       additional CPD at the moment is maybe primarily through
25       mentoring and coaching or staff to pupil type of
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 1       relationship and I think that's where we need to now
 2       take fingerprints within the safe environment of
 3       Forensic Services to allow them to begin to challenge
 4       and move forward and to ask those questions and to go
 5       out and look for answers.
 6           You know, we're also engaged with, for instance, the
 7       Metropolitan Fingerprint Unit under the auspices of Gary
 8       Pugh.  I do a lot of work with Gary.  I know Gary has
 9       been able to do some research within his organisation
10       and we do share that information and do try and learn
11       from each other.
12   Q.  Would it be correct to say that if there are going to be
13       standards developed, for example, on a scientific basis
14       to show what is and is not acceptably explained by
15       movement or distortion, there simply will have to be
16       more scientific research on that topic?
17   A.  I would certainly welcome scientific research.  I think
18       one of the challenges we all have is in an environment
19       where our budgets are being stretched and reduced.  You
20       know, we have to look for external funding for some of
21       these projects and, you know, for projects you have to
22       go to the ERSPC, for instance, which is a funding
23       council.
24   Q.  Perhaps you can explain the acronym for us?
25   A.  I can't give you the total acronym but it's an
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 1       organisation which actually allows -- looks at projects
 2       and then will fund these projects and give them money to
 3       allow the projects to go on to the next stage and you
 4       have to go through a funding process to get the funding
 5       to obviously allow you to do that.  To do that we need
 6       to engage with a university and where's where we'd
 7       partnership a university in a research project.  So we
 8       actually have to apply for grants to allow us to do that
 9       and it is against an environment where there's a very,
10       very tight budget anyway.  But I would certainly
11       welcome -- the more research we can do in these areas
12       the better.
13   Q.  I am interested that you are saying there has to be
14       external funding for this.  You are a publicly funded
15       body and, if I understand you rightly, you do see it as
16       part of your function to help drive ahead the research
17       that might found more scientific standards for
18       Fingerprint Examiners.
19   A.  Yes.
20   Q.  How is it that you are having to look to external
21       funding?
22   A.  Within our normal budget we would not have the funding
23       resources to allow us to develop all these research
24       projects.  So what you would want to do, I think the
25       important thing is we don't just do it by ourselves but
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 1       we engage learned people from universities because that
 2       then brings more knowledge into the pot here.  We engage
 3       with universities to then put forward research
 4       proposals.  There's some limited research you could do
 5       internally but then there's other research that would
 6       benefit from a wider audience and a wider participation
 7       and that's where you would need to go for funding.
 8   Q.  Would I be right in thinking that, effectively, to
 9       provide real standards for people operating the
10       non-numeric standard or perhaps more properly
11       non-numeric approach to assessing, for example, quality
12       of characteristics, that's simply not something that can
13       be done without proper scientific research to back up
14       those standards?
15   A.  That'd be correct, yes.
16   Q.  So at the moment would it be fair to say there is
17       perhaps a gap, if one is saying that there's a
18       qualitative and quantitative approach being taken
19       together, where the qualitative judgments are being made
20       to some extent in a vacuum of scientific information?
21   A.  I think the subjective view has been taken based on what
22       is before them and what staff have been trained in.  I
23       think we can always improve on that and to improve on
24       that, yes, I think we can actually get more universities
25       and knowledgable people involved to begin that debate
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 1       and to begin that discussion and that's certainly one of
 2       the things that I see this group that I've now
 3       established with Skills for Justice, Strathclyde
 4       University and Centrex possibly doing in the future.
 5   Q.  When you refer to Strathclyde University, that's the
 6       reference back to Professor Fraser?
 7   A.  That's right.
 8   Q.  What work has that group done so far?
 9   A.  What I've done is, sorry, I have just established that
10       group.  We have our first meeting coming up in January
11       so it's not actually met yet.  But that group will be
12       working together.  I've just worked with Jim to develop
13       a memorandum of understanding between our organisation,
14       SPSA Forensic Services, and Strathclyde University.
15   Q.  I think you referred in the context of encouraging
16       scientific thought to people going to conferences.  Do
17       you fund people to go to conferences?
18   A.  There are a number of ways people can actually go to
19       conferences.  We will fund people to attend conferences.
20       People will go sometimes along as a speaker and,
21       therefore, they will be funded by the organisation or
22       the company who's actually running the conference or we
23       might even part-fund someone to go to a conference.
24       But, yes, we do.  We have some resources within our
25       organisation where we encourage staff to go and attend
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 1       conferences or at least get some of the papers from
 2       those conference, if they can't attend, to obviously
 3       understand and read from the papers what actually
 4       happened.
 5   Q.  You gave an example of a recent conference in Glasgow.
 6       Can you give other examples of where staff have recently
 7       been sent out into the world to learn more on the
 8       scientific front?
 9   A.  Yes, the conferences happen, in terms of the European
10       ones, maybe only once a year and it was great that the
11       conference was in Glasgow in September because it meant
12       we were able to send an awful lot more people because we
13       didn't have the cost of travel to maybe some other
14       European country or even down to England or Wales.  So
15       that was one that was fairly recent.
16           We have had a couple of Scottish Institute of
17       Policing Research conferences held at the Police College
18       and, again, some members of staff went along to that
19       conference.  These happen not every quarter but maybe a
20       couple of times a year.
21           We also have the Forensic Science Society.  The
22       Forensic Science Society is a body set up with members
23       from the police, from the laboratories, from different
24       forensic disciplines.  They meet under the umbrella of
25       the Forensic Science Society and they are actually
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 1       meeting this month and, again, we have some people down
 2       at that conference.  That will look at a range of
 3       topics.  It's not just one specific topic but looks at a
 4       range of topics where basically people will come
 5       together and give presentations and then in the evening
 6       have some form of social event as well.  So again we do
 7       support staff going to those conferences as well.
 8   Q.  Coming back to what you said earlier about certainty in
 9       fingerprint evidence, we have heard evidence that the
10       Crown were, certainly at one stage, interested in
11       obtaining evidence from Fingerprint Experts not in cases
12       where the Fingerprint Expert has been able to
13       individualise to one individual but where there's
14       fingerprint evidence that's consistent with identity
15       with a particular individual, albeit that they wouldn't
16       give evidence of individualisation and we heard that
17       that was evidence that might be useful to the Crown
18       sometimes and also potentially very useful to the
19       defence if, for example, there's evidence consistent
20       with an incriminee.
21           Is that type of evidence being taken forward or
22       discussed within your own organisation at the moment?
23   A.  I've certainly never been asked by the Crown to consider
24       that.  I do meet regularly with members of the Crown and
25       that's certainly the first time that I've heard that
page  21
 1       being asked for.
 2           What I would say from a scientific viewpoint is that
 3       we need to be very careful and we need to make sure if
 4       we are giving that evidence across that we put it with
 5       all the caveats so that it isn't used in the wrong way
 6       or doesn't mislead the court in any way.  So I think it
 7       is possible.  I'd certainly like to sit down with the
 8       Crown to understand more of what they are suggesting but
 9       I think from a professional and a forensic point of view
10       I would want to make sure we put all the caveats around
11       it so it wouldn't be used in the wrong way or would be
12       misinterpreted.
13   Q.  When you say misinterpreted, does that mean you are
14       concerned about it being treated as more conclusive than
15       it really might be?
16   A.  Correct, yes.  At the end of the day what you seem to be
17       suggesting, but I don't have the detail, it's more like
18       intelligence.
19   Q.  If I can give you the example and perhaps the example
20       that helps the defence is the more useful one, one has a
21       situation where there's a partial fingerprint mark on a
22       knife and what can be said is that it is consistent with
23       somebody that the accused person wants to incriminate,
24       somebody other than the accused.  That is evidence that
25       might assist the defence.  The Crown have to know about
page  22
 1       that, perhaps, because of their obligations of
 2       disclosure to the defence.  So that is part of the sort
 3       of evidence I am talking about, if that assists you.
 4   A.  Again, what I would say, yes, we could do that.  We
 5       would need to sit down with the Crown to understand that
 6       and to make sure it was scientifically correct to say
 7       what we have been asked to say.
 8   Q.  You touch in your statement on the question of
 9       accreditation of experts as distinct from accreditation
10       of laboratories.  We have heard a previous mechanism for
11       that, the Council for the Regulation of Forensic
12       Practitioners is something that is no longer available.
13           I wonder if you could tell us how you are taking
14       that forward?
15   A.  Yes, it is unfortunate that we no longer have the
16       Council for the Registration of Forensic Practitioners.
17       I am actually on the Forensic Science Advisory Council,
18       along with Andrew Rennison who is the forensic regulator
19       for England and Wales and I am also a member of
20       the Association of Forensic Science Providers, which is
21       all the laboratory directors in the United Kingdom and
22       Ireland and we certainly spoke to Mr Rennison and we're
23       concerned that CRFP was actually going to be no longer
24       in existence and we were asking him in terms of
25       regulation what he felt was a way forward and how could
page  23
 1       we actually fill the vacuum or the gap that,
 2       effectively, we have at the moment.
 3           I think the way Andrew Rennison would like to see
 4       things move forward is if you have UKAS accreditation
 5       (which is United Kingdom Accreditation Services), if you
 6       have UKAS accreditation, they will expect you as an
 7       organisation to speak to the quality and standard of the
 8       people that you employ and, therefore, you will have to
 9       have complete and thorough training records kept for
10       every member of your staff and understand what areas of
11       expertise they can actually work within.
12           That has certainly been taken forward but at the
13       moment all we have in Scotland, in fact, we've got more
14       than what they have in England and Wales because they
15       have nothing there at the moment, what we have in
16       Scotland is obviously authorisation but we don't have
17       anything at the moment in England and Wales to take the
18       place of CRFP and certainly if we do move to the
19       position where we can set up a register of experts with
20       UKAS accreditation, to me, that is one way forward.
21   Q.  You mentioned there authorisation and if we can take
22       this bit by bit, I think what you are saying there is
23       that the proposal -- and I think we have heard something
24       similar from Mr Rennison -- is that while there's no
25       mechanism for accrediting individual experts nationally
page  24
 1       at the moment, the gap might be filled by accreditation
 2       of the laboratory and the duties that become incumbent
 3       on the laboratory in relation to their own staff in that
 4       context?
 5   A.  That's correct, yes.
 6   Q.  You mentioned there also authorisation in Scotland.  I
 7       think we have heard that authorisation is a matter for
 8       the Scottish Government, certainly technically in terms
 9       of the legislation.  We have also heard that the
10       criteria for authorisation changed from a purely
11       time-based one to people essentially passing the
12       advanced tests at Durham.
13   A.  In fingerprints, yes.
14   Q.  In fingerprints.
15           Do you have any view as to whether authorisation and
16       some form of accreditation for the expert should be
17       linked together because there certainly was at one
18       stage, I think, a proposal that authorisation might go
19       hand-in-hand with registration with a professional body
20       such as the CRFP?
21   A.  I certainly proposed that a number of years ago, that
22       you would actually link authorisation to CRFP membership
23       because to me what the CRFP membership gave you was
24       external validation of the individuals and, therefore,
25       to me, it actually would support authorisation.  So I
page  25
 1       would have no problems if that was indeed the way
 2       forward.
 3   Q.  When we have, essentially, the gap being filled by
 4       laboratory accreditation, how do we square the circle
 5       there in terms of forming any link with authorisation
 6       under the statutory procedures?
 7   A.  At this moment in time it is up to myself and the
 8       managers within the different units to identify if an
 9       individual has come up to a certain level of competence
10       to allow them to attend court and give expert testimony
11       in court and that will all be obviously documented and
12       if someone does come up to that standard and we
13       obviously take them through training as well, then we
14       would actually allow them to become authorised.  But at
15       the moment there is no register of forensic
16       practitioners.  There is a register, sorry, of
17       Fingerprint Experts and that's obviously held through
18       the training in Centrex.
19   Q.  That leads me into another theme of questions for you
20       here arising both from recommendations of other
21       inquiries and also concerns that have been expressed, I
22       think, particularly by the Crown in the context of this
23       Inquiry.
24           We have heard about competency testing.  One of the
25       recommendations of both HMIC and a review that was
page  26
 1       carried out for you in March 2007 was that there should
 2       be a common procedure to deal with failure in competency
 3       testing.  This has become an area of discussion in the
 4       Inquiry because there have been questions about whether
 5       failure in competency testing would be something that
 6       would be disclosed to the Crown.
 7           Taking those two strands one by one, if I may, we
 8       understand the position to be that there isn't a common
 9       procedure at this stage to deal with failure in
10       competency testing and I wonder if you could tell us
11       about why that is.
12   A.  Okay.  We are revising all our standard operating
13       procedures.  At the moment we are all registered to
14       ISO9001 which is a management standard.  I am very keen
15       to move the whole organisation, in fact, fingerprints
16       from that 9001 to the UKAS 17025 standard and scene
17       examination to the 17020 standard.
18           To me that is a journey that our organisation has
19       embarked on and we are looking at all our standard
20       operating procedures and making sure that where there
21       are gaps or where they are deficient, because the UKAS
22       standard is a slightly higher standard and certainly you
23       do undergo a lot more scrutiny, I think that's where we
24       need to take fingerprints and that's why we've been
25       going through our standard operating procedures to
page  27
 1       review them and to make sure we have got a consistent
 2       approach across Scotland to those standards.
 3   Q.  I am asking particularly about this recommendation
 4       because it's one that has been live since 2000 and I
 5       appreciate SPSA itself is quite a new organisation and,
 6       essentially, you are where you are, but we do have a
 7       recommendation here that comes from back in 2000.  It
 8       appears to have been reinforced by review in 2007.  It
 9       is an area where the Crown would be quite interested to
10       know, potentially, the results of competency testing,
11       but there still isn't a clear position.  I appreciate
12       you're on a journey there but I wonder if you could
13       answer specifically in relation to the absence of a
14       policy on that matter.
15   A.  We will obviously need to complete that policy but I
16       would want to sit with the Crown and understand a bit
17       more about the policy because, at the end of the day, in
18       forensic science we carry out internal tests to make
19       sure that people are working to a certain standard.
20       Now, if you look to the CTS test, it looks to the
21       standard of an individual at one moment in time carrying
22       out that examination.  It doesn't actually reflect
23       casework, in that in casework that work will always be
24       checked and, as far as I'm concerned, my priority is to
25       make sure that organisation doesn't send a wrong result
page  28
 1       out at the end of the day.
 2           So I think there's something around in terms of the
 3       internal workings of a laboratory, using the results of
 4       those trials to actually look at performance, maybe
 5       identify training or maybe there's just been a small
 6       typographical error made which isn't, you know, as
 7       important.  Therefore, I think before we go and agree to
 8       say on every occasion this is what has happened we need
 9       to understand is it a smaller error which can be
10       explained or is there an issue with that particular
11       individual and if there was an issue with that
12       particular individual, then all their work should be
13       reviewed and, obviously, the Crown would be certainly
14       made aware if that was the case.
15   Q.  So there might be room for a more sophisticated policy,
16       one that distinguishes between different types of error
17       or occasional error and consistent error?
18   A.  I think that's certainly something we need to put in
19       place, definitely.
20   Q.  The fact that people undergo competency testing is
21       something, I think it's fair to say, that is relied on
22       to reinforce their expertise in the criminal courts?
23   A.  That's correct, yes.
24   Q.  So it's perhaps only fair that if there is some real
25       difficulty with that that that's something that Crown
page  29
 1       should be made aware of?
 2   A.  If I had any concerns about anyone working in our
 3       organisation and was made aware of that from obviously
 4       unit managers we would certainly make the Crown aware of
 5       that.
 6   Q.  On the theme of matters raised in previous reports, one
 7       of the things we have seen, again from the HMIC report
 8       back in 2000, was recommendations about more
 9       documentation, particularly in the context of the
10       non-numeric method of working being brought in.
11           While we've heard that there are diary pages that
12       perhaps record process in the sense of who saw what when
13       in a better way than had previously been the practice,
14       we don't really seem to have seen the recommendations
15       for note-taking, recording of reasoning, that sort of
16       thing, being taken up and I wonder if we could have your
17       comment on that?
18   A.  We certainly did review the diary page and the
19       examination sheet to actually make them better and
20       improved on what they previously were.
21           We haven't gone down the road yet of detailed notes
22       or the detailed thought process.  One of the things we
23       are looking at with the new group that is established
24       is, as an organisation, how can we bring in a system
25       which allows us to better record.  One of the things we
page  30
 1       need to do is to record our thought processes.
 2           Now, certainly in fingerprints I think this is an
 3       area we need to look at.  In other forensic
 4       environments, the note-taking is mainly all around the
 5       production and what you are observing and what you are
 6       seeing and we don't always record the thought process
 7       but I can understand, because of the peculiarities of
 8       fingerprints, I think that would be very useful and one
 9       of the things I'm actually looking at is could it be
10       done say, for instance, by speech-to-text, so as a
11       person is actually looking at a mark that they are
12       actually recording their thoughts at that moment in time
13       and, again, as I say, this is one of the things we're
14       looking at with this group involving Jim Fraser, Keith
15       Fryer and our own selves and Skills for Justice.
16   Q.  However, while I appreciate you are where you are in the
17       processes we do look back to a report in 2000 which
18       doesn't appear to have been taken up in this respect and
19       I would like to explore just how that has come about.
20   A.  As I say, as an organisation we believe we have done
21       some work in that area.  I'm not saying we're finished
22       there.  We need to move on, we need to address where we
23       haven't completed some work.  We need to do that.  What
24       I will say is we've done an awful lot of work and we
25       have improved some of those areas, maybe not to the
page  31
 1       level or detail that you know you're expecting in
 2       reading that document.  That is something we will take
 3       on and we will address as an organisation.
 4   Q.  In this next question I suppose I am looking for your
 5       response as a scientist to a suggestion in a much later
 6       report, not connected with the McKie case in any way,
 7       the Brandon Mayfield Report from the United States.  We
 8       saw a suggestion that recording work as the person went
 9       along might have made them more aware of what they were
10       doing at the time and of the fact that they were making,
11       essentially, too many value judgments to justify, which
12       might in retrospect or indeed if looked at more
13       carefully at the time, have been seen to be explaining
14       away differences that shouldn't have been explained
15       away.
16           Can you see that as a useful function for
17       note-taking contemporaneously?
18   A.  Very much so.  I think what we just need to understand
19       is in what cases would you do that because obviously if
20       we're being asked to do that on every case, we have a
21       significant workload and it might have a major impact on
22       the productivity and efficiency of the organisation but
23       I can understand in certain cases where you maybe don't
24       have the same level of detail or you don't have as good
25       a quality mark I think there certainly is opportunity to
page  32
 1       have more detailed note-taking and, therefore, more
 2       detailed thought process recorded.
 3   Q.  I appreciate that you may be to some extent reacting to
 4       things that have come out in this Inquiry or been
 5       discussed in evidence in the Inquiry so you may not have
 6       an answer for this question but has any consideration
 7       been given to what the actual resource implications in
 8       the SPSA would be for some increased form of note-taking
 9       of the type that we are discussing?
10   A.  We could only really assess that whenever we knew what
11       type of cases would fall into the category that we would
12       have to do this additional work in.  Certainly we can
13       look at that and see if there's information out there
14       within our own organisation that'd allow us to put an
15       idea of the scope and complexity of that but that's
16       something we haven't done at the moment but certainly we
17       could look at.
18   Q.  Just since we have mentioned the Mayfield Report in that
19       discussion, our understanding from Mrs Tierney yesterday
20       was that there hadn't been specific discussion of the
21       Mayfield Report in the context of the Scientific
22       Advisory Group on fingerprints.
23           Is the matter of the recommendations from that
24       investigation something that your organisation is
25       considering or looking to take forward in any way?
page  33
 1   A.  Obviously, the Mayfield Report has been out since 2006,
 2       I believe.
 3   Q.  2006.
 4   A.  So I believe a lot of the work into the action plan for
 5       excellence would have been influenced by that report.
 6       We as an organisation, I certainly have not asked, at
 7       this moment in time, for my staff to go through each of
 8       the recommendations, but it is certainly something that
 9       we are aware of and we will take on board and we will
10       look at the recommendations and see if there's anything
11       and any other way that as we begin to write these new
12       and developed SOPs that we acknowledge what has happened
13       and learn from elsewhere.
14   Q.  Do you have any personal knowledge that would suggest to
15       you that the Mayfield Report had been taken into account
16       in the action plan for excellence?
17   A.  I actually wasn't involved at that moment in time so I
18       couldn't speak to that, but I know obviously the report
19       was out.
20   Q.  Because, again, it makes quite detailed recommendations,
21       particularly around the areas of standards in standard
22       operating procedures and also around the areas of
23       documentation of analysis particularly -- well, and in
24       fact distinguishes the stage at which it might be done
25       to enable practicability rather than doing it in every
page  34
 1       case.  Is that something that you are personally aware
 2       of at all?
 3   A.  As I say, I am aware of the report but I haven't gone
 4       through it in the detail that would allow me to answer
 5       that question.
 6   Q.  Another matter that was raised I think by HMIC, perhaps
 7       not as a formal recommendation but something they
 8       suggested might be of use, was the question of
 9       undisclosed competency testing.  I apprehend from your
10       statement and we understand from others that there have
11       been some difficulties with implementing that in SPSA.
12       I wonder if you could help us with that?
13   A.  Sorry, could you maybe explain ...?
14   Q.  This is a suggestion that, essentially, a case record
15       would be created containing material that didn't match
16       to test whether examiners and I think particularly in
17       Mayfield verifiers were looking at the material properly
18       and this would not be disclosed on the way past.  People
19       wouldn't know that it was not real case material?
20   A.  Yes, what they are actually talking about there is a
21       blind collaborative exercise where we would try to put
22       into the forensic environment a case which was a made-up
23       case where we obviously knew the results or had made the
24       case up ourselves and then passed that into the
25       laboratory or into the examination area through their
page  35
 1       case management system to allow them to complete the
 2       analysis and then report on the case itself.  That
 3       report would then would be sent to a central group and
 4       they would obviously review the findings.
 5           I was actually Chair of the United Kingdom
 6       Collaborative Exercise Group which reports to the
 7       Association of Forensic Science Providers and we found
 8       it to the point of almost impossible to actually put
 9       cases into the laboratory, to the point that once the
10       cases were in, obviously, staff phone up and ask
11       questions about that case.  You have to have police
12       officers engaged in that process.  They don't always
13       have all the answers and we were finding that in the
14       majority of cases staff knew that it was, in fact, a
15       dummy case.  So, therefore, you lose that opportunity of
16       trying to test the system and people would go into
17       almost like a different mode for that examination.
18           What I feel we have done is introduced a process
19       called dip sampling which allows us to go back and to
20       look at 5 per cent of our cases, those are cases that
21       went into the laboratory and then we can actually track
22       that case and go through all the notes and all the
23       examination procedures to make sure that the result that
24       went out at the end of the day was indeed the correct
25       result.  That's one way, one process that we have
page  36
 1       introduced to allow this to overcome that difficulty.
 2           What we can do is obviously send in declared trials.
 3       That's where you declare to the individual this is a
 4       trial and I suppose CTS is an example of that where
 5       people know that they are carrying out a test on a print
 6       that they have been given.
 7   Q.  Another theme that had come up in previous reports, and
 8       it is something you comment on in your own statement, is
 9       the question of staffing levels.  Earlier reports
10       obviously were about predecessor organisations rather
11       than your own but you provided us, I think, helpfully,
12       with some tables comparing current staffing levels as
13       far as possible with what had been recommended in a 2004
14       report by Graham Jones.  It might be helpful if we just
15       look at that briefly.
16           Your statement is FI0153 and the table is at
17       page 26.  What we see in the upper of the two tables is
18       the comparison in the three bureaux in Aberdeen, Dundee
19       and Edinburgh of recommendations in the 2004 report with
20       the 2009 position.  Would that be right?
21   A.  That's correct.
22   Q.  What we see, if I can look first at the principals or
23       team leaders, is that we appear to have recommendations
24       of 2 against the figures of 0 and I wonder -- that on
25       the face of it suggests some kind of deficiency and I
page  37
 1       wonder if you could explain the position?
 2   A.  Sure.  In the 2004 report that was obviously looking at
 3       what was an aspirational figure of the number of people
 4       that that individual believed that the organisation
 5       needed to carry out the work.  I obviously don't know on
 6       what basis they came to those figures but what I can say
 7       is that, as an organisation, we continually review the
 8       workload that comes into our organisation and our
 9       staffing complements and what I can say is that although
10       we haven't and are not reaching the targets that were
11       set by 2004, the number of cases coming into the
12       laboratories has significantly dropped.  We used to get
13       nearly 13,000 cases in.  It's now just over 10,000.  We
14       have changed process.  We have also changed the
15       management structure and what I can say is that the --
16       what's a good record of how we are doing in terms of
17       performance is the number of cases that are sitting
18       unstarted has fallen significantly in the last, sort of,
19       2/3 years.
20           So I believe as the Director of this organisation
21       that we have the right people, in terms of numbers,
22       doing the work because we're beginning to eat in
23       significantly to the backlog and our turnround of cases
24       has actually improved significantly as well.  So I
25       believe we have got the right number of people but we
page  38
 1       don't stop there.  We do continually review that and we
 2       do continually assess that.
 3           We've just engaged on, in the last four months, a
 4       modernisation programme which is looking at four
 5       specific areas of our business within forensic science:
 6       it's looking at capability and capacity; it's looking at
 7       quality assurance; it's looking at human resource
 8       issues; and, under capability and capacity, we are
 9       actually looking at the number of staff that we have
10       across our organisation and the output of work and if
11       there is a deficiency, that will brought up in the
12       capability and capacity report.
13           We're also engaged with our customers, both ACPOS
14       and the Crown Office, and have held workshops in all the
15       forces the Scotland and within, obviously, Crown Office
16       as well to try and understand what the customer wants in
17       terms of throughput of casework.  Those two reports will
18       come together along with the human resource report and
19       the quality report to allow me to put a document to the
20       Scottish Government identifying, in terms of
21       modernisation, how we are going to deliver a truly
22       national Forensic Science Service to Scottish policing
23       in January.
24   THE CHAIRMAN:  Is there any explanation for the fall-off in
25       requirement for fingerprint identification?
page  39
 1   A.  I think we're actually going out to fewer crime scenes,
 2       which might be part of the reason and, to be honest, I
 3       think DNA has also helped in terms of detection rates as
 4       well.  But maybe the culprits are becoming smarter and
 5       maybe not leaving their prints as often, I'm not sure,
 6       but there are obviously a number of reasons, certainly
 7       we have seen a significant fall in the number of cases
 8       coming in.
 9           It might even be the Gateways are having an impact
10       as well and police are maybe dealing with crimes in a
11       different way.
12   MISS CARMICHAEL:  You tell us in your statement that
13       although the overall case load has fallen there is
14       actually an increase in the average number of marks
15       being processed per case.  I am wondering to what extent
16       that maybe offsets what you are telling us about the
17       reduction of case load.
18   A.  The number of cases has fallen but the number of
19       identifications has gone up as a percentage of that and
20       that probably shows you we are actually getting better
21       at recovering prints and actually getting
22       identifications.  So although the number of cases has
23       fallen we're actually getting more identifications out
24       of that smaller number of cases submitted.
25   Q.  But there is an implication of more work, I suppose,
page  40
 1       with the increased number of marks?
 2   A.  There's more work with an increased number of marks but
 3       there's also less waste in that we're not examining the
 4       13,000 cases but we're actually focussing on the 10,000,
 5       we are able to add more value.  But I can certainly say
 6       that in terms of the amount of profile and the number of
 7       cases we're getting in our backlog is falling month on
 8       month.
 9   Q.  I would like to ask you particularly a bit more about
10       the staffing arrangements for quality assurance and
11       training because what seems to have been envisaged in
12       2004 was that there would be one member of staff in each
13       bureau dealing with training, well training specifically
14       in Glasgow, training and quality assurance in other
15       bureaux, and also perhaps important to this question is
16       that HMIC back in 2000 were keen to emphasise that
17       quality assurance and training were both important and
18       perhaps should be separated out in terms of personnel to
19       allow sufficient concentration on each of those.
20           I wonder if you could tell us just what the current
21       situation is, because on the face of it, again from the
22       bare figures on the table here, it looks as if what was
23       envisaged, at least in 2004, isn't being met.
24   A.  Sure.  Within SPSA Forensic Services we have established
25       a training department and that training team look after
page  41
 1       the training of all the fingerprint trainees at this
 2       moment in time.
 3           In terms of the quality -- and obviously the number
 4       of trainees has fallen as well and we don't have as many
 5       as we had then.  I think we've now only got 6 whereas
 6       then we had ... in the high 20s.  So there has been a
 7       fall-off in the number of trainees that we're needing
 8       trained but also in terms of the quality, we already
 9       have quality managers at each of our four business units
10       in Glasgow, Edinburgh, Dundee and Aberdeen and we're
11       very, very keen -- I don't want quality seen as
12       something that someone in a small unit does.  I want
13       quality to be seen as something that everyone has a
14       responsibility to do.  So by putting the fingerprint
15       managers into those posts at unit manager level we want
16       them to take on some of that ownership and
17       responsibility and the staff to take on that ownership
18       and responsibility for quality.  I don't want quality
19       just in a small team of people, therefore, that's why we
20       haven't got four fingerprint quality managers because I
21       don't think they are needed.  We are dealing with it in
22       a slightly different way and they are also being
23       supported by the four quality managers we have currently
24       in our forensic laboratories who are obviously very
25       skilled in the 17025 nomenclature for UKAS.  So we've
page  42
 1       maybe dealt with it in a slightly different way to the
 2       way this report seen us going forward.
 3   Q.  How much day-to-day involvement do the quality managers
 4       have with the fingerprint side of the business?
 5   A.  The quality managers are now engaged in the fingerprint
 6       side, helping us develop and write these standard
 7       operating procedures.  The quality managers have a
 8       Scientific Advisory Group and they meet to discuss
 9       obviously quality issues and within that we have one
10       representative who is taking forward the quality
11       documents, Joanne Tierney is leading on that with the
12       Scientific Advisory Group under fingerprints.
13   Q.  The training arrangements, should we understand that
14       those are made at SPSA level rather than within the
15       fingerprint bureaux particularly, other than perhaps
16       from what we see here in Aberdeen?  Can you explain how
17       that works?
18   A.  We have, obviously, most of our trainees are based in
19       Glasgow and that's where we've had our training unit,
20       but in Aberdeen we've always had this role where one of
21       the members of staff up there was a training manager but
22       that person doesn't spend all of their time training.
23       They are obviously doing other things as well and doing
24       other casework as well.  So their job isn't full-time,
25       as I understand it, on casework.
page  43
 1   Q.  Can you explain perhaps a little more fully just what
 2       the arrangements for the training team are within SPSA
 3       and how much of their time is devoted to fingerprint
 4       training as opposed to other disciplines within SPSA?
 5   A.  At the moment they are fingerprint trainees.  I want to
 6       move that and change that to develop a bigger team to
 7       take on training within the whole forensic environment,
 8       not that they would necessarily deliver the training but
 9       they would actually begin to manage and plan that
10       training and people have development needs, CPD, then
11       they can actually take that on and source and identify
12       the appropriate courses that staff need to go on.  So I
13       would like to see that unit actually expanding and
14       taking on more of a role across forensic science.
15           We've actually started doing that in one area of
16       presentation of evidence in court where we've worked
17       with the Crown Office and the Scottish Police College
18       and ran a number of training sessions there in training
19       people how to actually give evidence and present
20       evidence in court and although it's been primarily for
21       Fingerprint Experts we have had a number of observers
22       along from other disciplines and we now hope to extend
23       that to other areas of forensic science.
24   Q.  I would like to change themes here and ask you about --
25       we have touched on the question of disclosure in a
page  44
 1       particular context around the competency testing but I
 2       would like to ask you a bit more about that generally
 3       because it has become a theme for discussion in the
 4       course of the Inquiry.
 5   A.  Sure.
 6   Q.  I think it's perhaps --
 7   MISS GRAHAME:  I am sorry to interrupt.  Before you proceed
 8       to this matter, unfortunately LiveNote has stopped
 9       completely and I appreciate this is significant.
10       Everybody here doesn't have it and I understand
11       Miss Galbraith doesn't have it either.
12   THE CHAIRMAN:  We have a note being taken all the time which
13       should be appearing on people's screens and there has
14       been a breakdown in that.  We will interrupt just for a
15       moment.  (Pause)
16   MISS CARMICHAEL:  I was about to move on to the theme of
17       disclosure because I think it's fair to say that in the
18       course of the Inquiry it's become clear that there
19       hasn't in the past been entirely a meeting of minds
20       between SPSA (and its predecessors) and the Crown in
21       terms of expectations of disclosure.  I will perhaps
22       explain a little bit more about that for your comment.
23           The Crown position -- and I will be told if I am
24       misrepresenting this -- is that they were perhaps
25       surprised not to have been told that there were
page  45
 1       differences of view between experts in the historical
 2       context as to the number of points when they are being
 3       identified when the non-numeric standard was in force, a
 4       situation where one expert had only seen ten points, but
 5       also in the present context questions have been asked
 6       about what would happen if there had been an internal
 7       discussion where people weren't sure, maybe a
 8       facilitated discussion, something of that sort, and
 9       agreement had ultimately been reached.
10           The Crown are interested, it appears, in hearing
11       about that information because it is information that
12       might tend to cast some doubt ultimately on the
13       identification or give some inroads towards doubt and
14       that is something that has not been thought, if I've
15       understood the evidence correctly, to be an area where
16       people would have anticipated making a disclosure to the
17       Crown.  So in that sense there hasn't been a meeting of
18       minds and a meeting of expectations.
19           Is that something of which you have been aware at
20       all?
21   A.  To be totally honest, I meet on a regular basis with
22       members of the Crown John Dunn, Liam Murphy, Mike Bayle
23       and other members of the Crown and they have never, ever
24       brought this to my attention.  This is the first time
25       I've actually heard of this potentially being an issue.
page  46
 1           Certainly as far as I'm concerned, we offer and we
 2       do precognitions, we do precognitions to the defence, we
 3       do precognitions for the Crown and on occasions we've
 4       actually approached the Crown and asked them to
 5       precognosce us because there was something in a case
 6       that we felt they should be aware of.  So there were
 7       certainly vehicles there where people can be made aware
 8       of issues.  Whether they have been used fully maybe we
 9       need to look at that but certainly I don't have any
10       problems.
11           As far as I'm concerned, on a number of occasions
12       also our case file has been used in court and made a
13       production.  Forensic scientists have nothing to hide in
14       their case file.  We don't have a problem.  If that
15       should be disclosed in its entirety, we will disclose
16       that in its entirety.  But I would certainly like to sit
17       down with the Crown and just understand how we could
18       better meet their expectations.
19   Q.  In fairness to the gentlemen that you may have been
20       meeting with on a regular basis, I think some of these
21       issues are ones that have become live in the course of
22       this Inquiry rather than being something that had been
23       apprehended at an earlier stage.
24   A.  I am happy to take that away.  I have actually got a
25       telephone conference with John Dunn on Monday so I can
page  47
 1       take that up with John and make sure that we are talking
 2       to one another and sorting it out.
 3   Q.  We have also started to hear that there are discussions
 4       going on between the Crown and your organisation about
 5       guidance to Crown precognoscers perhaps directing them
 6       more to questions that might be relevant to ask of
 7       Fingerprint Examiners.  Is that something that you are
 8       aware of?
 9   A.  Yes.  As I say, we do have regular meetings with the
10       Crown Office and we do, where we can, offer training to
11       the Crown to make them just more aware of the evidence,
12       how we're presenting it and what it means.  I know there
13       have been a number, at least three, in the last few
14       months where we've had members of staff going along and
15       presenting evidence.  I would encourage more of that
16       because the more knowledge that people have, then to me
17       the better we will serve the courts at the end of the
18       day.
19           We're also working on a DVD with Scott Pattison to
20       look at -- one of my concerns in the past has been we
21       expect a jury to completely understand the evidence that
22       is brought before them and I feel that forensic science
23       can play a better role in informing them.  So we're
24       looking at developing a DVD for fingerprints, we're
25       looking at developing a DVD for DNA and we will
page  48
 1       hopefully have this generic DVD that we can play, if the
 2       court wants, to bring everyone up to at least a
 3       knowledge, an equal knowledge, before the evidence is
 4       presented in court.  We're actively working on that at
 5       the moment.
 6           I managed to secure funding from the Scottish
 7       Government.  We have in Glasgow a Scene of Crime
 8       Department.  We have photographic experts who have
 9       developed a crime scene animation and what they do is
10       they actually take photographic evidence from the crime
11       scene and put it into an animation that is quite often
12       shown to the court.  One of the beauties of that is that
13       you can have hot spots on and during this animation.  So
14       say, for instance, I had a blood stain on this bottle,
15       you could home into the bottle and what we want it to do
16       is to allow you to click on a hot spot that might then
17       identify where the DNA was found or where the
18       fingerprint was found.
19           So we do that at the moment.  We've done that for a
20       number of significant High Court murder cases in
21       Edinburgh and in Glasgow.  We've now got the money to
22       run this as a pilot for the year and to understand if
23       this is something that the Crown Office would like us to
24       develop further and to offer that service further to the
25       courts.
page  49
 1   Q.  Just taking you back a wee bit when you were talking
 2       about precognition there you said that on occasion
 3       people had asked to be precognosced.  Is that within the
 4       fingerprint context or some other forensic science
 5       context?
 6   A.  I'm speaking with that from knowledge from my days
 7       whenever I was director of the Edinburgh board.
 8   Q.  Was that in relation to fingerprints?
 9   A.  No, sorry, it wasn't.  I wasn't in charge of
10       fingerprints at that moment.
11   Q.  I see.  So this was a forensic scientist asking to be
12       precognosced about something?
13   A.  It was, yes.
14   Q.  When you're referring to the case file being used in
15       court, again is that in a fingerprint context or in
16       another forensic science context?
17   A.  I certainly wouldn't have any problem with any of our
18       case files appearing in court.
19   Q.  I am sorry --
20   A.  I did give an example where a case file was taken into
21       court.  That was actually a case file in a chemistry
22       case.
23   Q.  But as a matter of principle, if there was something
24       there in a fingerprint case that was going to assist,
25       you wouldn't have any difficulty with that?
page  50
 1   A.  To me, if it's going to assist the court we would have
 2       no problems at all.
 3   Q.  Thinking to the relationship between the Crown and the
 4       SPSA more generally, what do you see as being the role
 5       of the Crown Office and Procurator Fiscal Service, if
 6       any, in the development of fingerprint identification
 7       evidence in Scotland?
 8   A.  I think they have to be fully involved.  We have always
 9       involved them in the past and talked to them as we
10       developed things.  We have different working groups
11       where we meet with members of the Crown and I've
12       obviously mentioned Scott Pattison and how we're looking
13       to develop some of the animation and the DVD.  So, yes,
14       I would welcome -- and we have a very good and a very
15       positive relationship with the Crown.
16   Q.  Has there been at any time in your experience discussion
17       with the Crown, I suppose, around the reliability and
18       the standards involved in fingerprint evidence?
19   A.  I'm not aware of a specific meeting in fingerprints but
20       I know we've had certainly meetings and I've chaired
21       meetings in other areas of evidence, for instance, in
22       drug analysis where we've met and had a workshop with
23       the Crown to identify how we take forward a certain
24       approach to random sampling, for instance.
25   Q.  In terms of taking your organisation forward, one of the
page  51
 1       things that you have mentioned in your evidence was the
 2       business of accreditation under ISO 17025.  Where is
 3       SPSA at the moment in that process as regards its
 4       fingerprint department?
 5   A.  As I say, we're looking at the standard operating
 6       procedures that we currently have.  We're developing
 7       them and improving them where we can.  We are making
 8       sure they are in the different format of obviously UKAS,
 9       which is slightly different, and we're wanting that to
10       move forward.  Hopefully in the first quarter definitely
11       of next year, we will invite UKAS up for a
12       pre-assessment and they will go through the standard
13       operating procedures that we have and give us an idea of
14       how far we are away from the standard they are looking
15       for.
16   Q.  Can you give us any idea of the process involved and how
17       far along the line pre-assessment is in terms of when
18       you might become accredited?
19   A.  As I say, I would like to have -- UKAS are coming up for
20       another matter, to assist us with the migration of our
21       Dundee staff from the current facilities into the new
22       laboratory and I'm hoping that we will be in a position
23       then to give them the documentation to have a look at
24       and see how far we are away from accreditation.
25   Q.  At this point are you able to give any timescale for
page  52
 1       when accreditation might be achieved?
 2   A.  If that visit goes well, then I don't see why we
 3       couldn't aim for -- and obviously it's all down to time
 4       and timetabling here because unfortunately in
 5       fingerprints UKAS do not have a lot of assessors and
 6       UKAS are expanding scope with, as I mentioned, 17025 in
 7       other areas of forensic sciences in England and Wales so
 8       it's all down to their timescale, but I don't see why it
 9       couldn't be achievable by summer of 2010.
10   Q.  Can you tell us at what point SPSA became clear in its
11       corporate mind, if I can put it that way, that 17025 was
12       the appropriate standard to be pursuing for its
13       Fingerprint Service?
14   A.  Yes, I actually went down to UKAS and met with the UKAS
15       assessor, Katherine Monnery and she indicated to me that
16       17025 was the standard that they would be happy with us
17       trying to, obviously, achieve.  It's interesting the
18       question you ask because there are some areas in, for
19       instance, the laboratory, blood pattern analysis, which
20       probably sits better under the 17020 standard but
21       currently sits under the 17025 standard.  I think it
22       doesn't really matter what standard it fits under
23       providing UKAS feel they can come in and properly assess
24       you and accredit you against that standard but certainly
25       Catherine was very clear that she wanted it to go under
page  53
 1       the 17025 standard and that's what we have been working
 2       to.
 3   Q.  You say it became clear when you had met with this lady.
 4       Can you tell us when that was?
 5   A.  It's over a year ago.  Yes, it's definitely over a year
 6       ago.
 7   Q.  The reason I ask is because we saw yesterday minutes
 8       from a Scientific Advisory Group meeting from May of
 9       this year which seemed to be expressing some doubt as to
10       whether 17020 or 17025 was the appropriate standard for
11       fingerprints and I'm wondering how wires have become
12       crossed in that way, if you were clear yourself over a
13       year ago.
14   A.  Obviously staff have a view on that and potentially that
15       was their view coming through that they felt maybe sat
16       better under 17020 but I have a clear steer from
17       Catherine Monery that it fits better under 17025.
18   Q.  We should be in no doubt that that is being pursued?
19   A.  Yes.
20   Q.  We also saw from minutes that we looked at yesterday
21       that there had been some anticipation in the summer of
22       2008 that the pre-assessment might be in the autumn or
23       winter of that year.  I wonder if you could clarify why
24       that didn't come to pass and we're looking at
25       pre-assessment now into next year?
page  54
 1   A.  Sure.  I have obviously a large organisation I need to
 2       take forward and what we have at the moment is four
 3       laboratories working to UKAS 17025 and they are
 4       accredited separately.  We've got eight Scenes of Crime
 5       departments who have no accreditation they are working
 6       to and that is the same around the UK.  We've obviously
 7       got fingerprint staff working to the ISO9001.
 8           What we were trying to do is to move fingerprints
 9       and the laboratory staff to the 17025 standard together
10       and I was in discussions with UKAS how we actually could
11       achieve this because one thing I don't want to do is
12       risk losing accreditation because if you risk losing
13       accreditation, you risk then putting DNA samples on to
14       the national DNA database and I could not allow that to
15       happen.  So I needed to make sure that the journey we
16       are on was indeed the right one and, yes, it has taken
17       longer than probably initially thought.  But I believe
18       now we're on the right road.  Mr Rennison, the forensic
19       regulator, was also at that time putting clarity on
20       regulation across the UK.  I know he only has
21       responsibility for England and Wales but the Scottish
22       Government have said that they would support and expect
23       the SPSA to work to any standards that Mr Rennison
24       developed, providing it didn't have an impact on our
25       legal system.
page  55
 1           So I've been obviously engaged in those talks and
 2       Andrew has just produced in the summer there his
 3       consultation document providing the way forward for the
 4       United Kingdom.
 5           We want to make sure -- I actually held a conference
 6       up here in Glasgow where we invited members of the
 7       quality SAG, members of staff, the regulator.  We
 8       invited Dr Bob Bramley who put the standard together.
 9       We invited ACPOS.  We invited the Fire Service, just to
10       talk about how we might actually take this whole
11       accreditation process forward.
12           I believe now we've got a road map to begin to put
13       that together and as part of the modernisation programme
14       which I've mentioned I did say there was four strands.
15       The HR strand and the quality strand and, at the moment,
16       we have an organisation called OCP who --
17   Q.  Can you, again, explain the acronym, please?
18   A.  It's Organisational Consultancy Partnership.  They are
19       working with us to allow us to understand the migration
20       for our organisation from where we are at the moment to
21       the regulatory standard under Mr Rennison and they have
22       actually met with Mr Rennison in the last week.
23   THE CHAIRMAN:  You said a moment ago and I just want to get
24       it clear, if you lose accreditation what is the effect
25       on the DNA side?
page  56
 1   A.  Sure.  To put DNA samples on to the national DNA
 2       database you must be an accredited laboratory and if you
 3       lose that accreditation you, therefore, can't put
 4       samples on to the national DNA database.
 5           In terms of Scotland that would cost us (a) millions
 6       of pounds but also potentially mean that we wouldn't be
 7       getting hits against the DNA on the database.
 8   MISS CARMICHAEL:  Just so that we can be clear, how is it
 9       that the process of seeking accreditation for your
10       fingerprints would give rise to a risk of losing
11       accreditation on the other side of things, the
12       laboratory side?
13   A.  What I'm trying to create here is an environment where
14       actually fingerprints are part of the greater and the
15       bigger organisation, that they are not seen as a
16       separate identity.  They are actually part of the whole
17       SPSA Forensic Services and I think in terms of culture
18       what I want to say to them is you are actually part of
19       the bigger SPSA forensic family here and we want to move
20       forward on this together and, therefore, if we risked
21       accreditation it could actually mean for instance DNA
22       would be taken off us or would be reviewed.
23   Q.  So should I understand then that you wouldn't be seeking
24       the accreditation for fingerprints as a separate entity,
25       you're bringing them into some other accreditation which
page  57
 1       you might lose by bringing them in?
 2   A.  They would actually come under the umbrella of SPSA
 3       Forensic Services and they would, obviously, be reviewed
 4       separately by UKAS but we want them to move forward with
 5       the same top level management documents as other parts
 6       of Forensic Services.  So it's important that that is
 7       all in place before we actually move across.
 8   Q.  It may be my fault but I am still not altogether
 9       understanding why, if they are reviewed separately,
10       there is a risk to a laboratory accreditation in seeking
11       accreditation for fingerprints?
12   A.  What we're trying to do is develop top level documents
13       that are consistent across fingerprints, laboratories,
14       chemistry, biology and DNA.  Those top level documents
15       need to be in place in our existing quality management
16       systems so I need to make sure that if we bring them in
17       for fingerprints they are not going to have a conflict
18       with what is there at the moment and put that in
19       jeopardy because UKAS will come up in January and assess
20       our laboratories and if I do too much tweaking to what
21       they currently have, we could put at risk their
22       accreditation.  Sorry --
23   Q.  So it's about achieving consistency between the two?
24   A.  It's about making sure that they are all working to the
25       same top level management documents, yes.  That doesn't
page  58
 1       stop UKAS coming up and obviously assessing where we are
 2       and looking at our SOPs to make sure those SOPs are in
 3       fact correct and in place.
 4   THE CHAIRMAN:  Does this mean you want the whole
 5       organisation to be accredited as one --
 6   A.  Exactly.
 7   THE CHAIRMAN:  -- or each part of it must achieve its own
 8       accreditation so that the whole organisation can be
 9       taken as being accredited?
10   A.  Yes.  What we have at the moment, as I said, is four
11       separate laboratory accreditations.  What I want to do
12       is move to one single accreditation.  One of the
13       problems with working under four separate accreditations
14       is it is very, very difficult to move work between the
15       service centres because it's actually seen as
16       outsourcing, even though you are part of the same
17       organisation.  So what I want to move to is a group
18       accreditation where the whole group of SPSA Forensic
19       Services are accredited under UKAS.  That will
20       then allow me to continually move work across Scotland,
21       whereas at the moment for me to move say any casework
22       from Glasgow to Dundee there's a whole process that you
23       have to go through in negotiating with your customer
24       that those cases can actually transfer.  So you are
25       better going for group accreditation to allow that to
page  59
 1       happen.
 2   THE CHAIRMAN:  Yes, I think I understand it now.  It is
 3       complicated but it is to avoid being told you are
 4       outsourcing.
 5   A.  Exactly, exactly.  If we are seen as outsourcing that
 6       does cause a problem with UKAS and does cause a problem
 7       with our customer and, therefore, to overcome that we
 8       decided we are better going for a group accreditation
 9       which allows us to be accredited under the umbrella of
10       the organisation.
11   THE CHAIRMAN:  And it would defeat your plan of having one
12       organisation, a united organisation?
13   A.  Exactly.
14   THE CHAIRMAN:  Would this be --
15   MISS CARMICHAEL:  It is a convenient point.
16   THE CHAIRMAN:  We normally stop for 20 minutes because we
17       begin quite early in the morning so we will take a break
18       now and sit, again at 11.20.
19   (11.00 am)
20                         (A short break)
21   (11.20 am)
22   MISS CARMICHAEL:  You will perhaps be relieved to know I
23       have only two more matters I want to ask you about.
24           We have been talking about the accreditation process
25       and at other points in your evidence you have indicated
page  60
 1       that your procedures are currently in the process of
 2       development towards that.  I wanted to ask you about the
 3       question of publication of procedures because, again,
 4       that was something that HMIC had been keen on and to
 5       date there have been some of your procedures, albeit
 6       perhaps not the absolutely current and up-to-date ones,
 7       published on your website.
 8           You indicate in your statement you don't personally
 9       see the need for publication procedures and I'd like you
10       to clarify why that is?
11   A.  Sure.  I'm not saying that if it is a recommendation
12       that we wouldn't do it.  All I'm saying is we do have
13       some concerns about putting what are standard operating
14       procedures on to a web page or Internet page because
15       these documents are live documents, they do change and,
16       therefore, we need to make sure that at all times we
17       have the right documents on the Internet.
18           I'm certainly not aware of any other forensic
19       organisation that does put their standard operating
20       procedures on to the Internet because, obviously, within
21       it there might be some information which is very much
22       specific to your organisation and, therefore, might give
23       other organisations an opportunity to maybe get an
24       advantage on you commercially.  I know that's one of the
25       issues south of the border.  So certainly we have
page  61
 1       difficulties -- I've certainly asked other organisations
 2       to share their SOPs with us and they will not do that.
 3           What we have done in the past is where defence have
 4       asked to look at SOPs we have obviously allowed them to
 5       look at those SOPs but we have had the situation where
 6       one of my members of staff was in court and was handed
 7       an SOP which didn't have a date on it and was challenged
 8       why that person wasn't working to that SOP that that SOP
 9       was way out of date and had been given to the defence
10       expert to be destroyed and it wasn't destroyed.
11           So I've just some concerns about how we manage that
12       whole process about putting SOPs on the web or on the
13       Internet.  It's not that we want to hide anything.  It's
14       just I have significant concerns about the documents not
15       being used in the appropriate way.
16   Q.  At the moment the position is that there are procedural
17       and quality documents available on your website?
18   A.  That's right, that's right.
19   Q.  Is the proposal to change from that once your procedures
20       are finalised from the point of view of the quality
21       accreditation?
22   A.  I would certainly welcome, maybe from the Inquiry, an
23       idea as to what the Inquiry thinks is reasonable.  We
24       will obviously speak with Crown Office and ACPOS as well
25       to see if they want us to put those documents on to the
page  62
 1       website and we as an organisation will obviously need to
 2       consider that but I just have some concerns.
 3   Q.  Around potential disclosure issues, could we take it
 4       there wouldn't be any difficulty with the Crown having
 5       access to the full range of your standard operating
 6       procedures?
 7   A.  At the end of the day, that's not a problem at all.
 8   Q.  Finally, Mr Nelson, I have some questions for you about
 9       SPSA's position in relation to the marks Y7 and QI2.
10       Again, this is an area where there has been some
11       discussion in the course of the Inquiry.
12           We understand that SPSA as a body itself came into
13       existence by means of legislation in April 2007?
14   A.  That's correct.
15   Q.  So I suppose ten years after the start of all of this
16       affair at the time of the investigation into the murder
17       of Marion Ross.
18           What is your position as to whether SPSA requires to
19       have a position as to whether Y7 and/or QI2 were
20       correctly identified?
21   A.  Sorry, could you repeat the ... what is my ...?
22   Q.  Do you think the SPSA needs to have a position as to
23       whether Y7 and QI2 were correctly identified?
24   A.  I think whenever the organisation, or prior to the
25       organisation coming into being, Mr Mulhern, the Chief
page  63
 1       Executive, gave a position for the organisation at that
 2       time.
 3           With the announcement of the Inquiry and, obviously,
 4       the Terms of Reference towards the early part of this
 5       year and also with the departure of our Chief Executive,
 6       I thought it was right that SPSA review that position.
 7       In the setting up of the Inquiry here we also
 8       established an oversight group within SPSA comprising
 9       members of our Board, our interim Chief Executive,
10       members of SPSA executive and myself and I put a
11       discussion to that group suggesting that we should
12       consider our position, given the Inquiry has been set
13       up, given there's an expectation that the Inquiry will
14       come up with an independent and authoritative view on
15       the mark, I felt it was right that we consider our
16       position and I feel because SPSA has never re-examined
17       the mark, I felt the right position for us to take was
18       it was indeed unsafe.
19           Obviously, we as an organisation would wait for the
20       Inquiry to come out with a definitive answer to the mark
21       itself and I took that to the oversight group and got,
22       obviously, the authority from that and our Chief
23       Executive to put that position to yourselves.
24   Q.  Just thinking about that position a little further, it
25       may be suggested to you that unsafe is an unsatisfactory
page  64
 1       conclusion for one reason or another but, leaving that
 2       aside, let's stay with idea of it being unsafe which is
 3       the position that you have given.
 4           If the identification of one or both of these marks
 5       is unsafe, without an assessment of what may have made
 6       those unsafe, how it may have come about that unsafe
 7       identifications came to be issued, how can SPSA be in a
 8       position to present that the reasons for that happening
 9       are being avoided in current practice?
10   A.  Okay.  Our position in saying that it is unsafe is based
11       on the fact that no member of SPSA has re-examined the
12       mark and, therefore, I as a scientist could not give an
13       opinion on something we have never actually seen or
14       looked at.  So, to me, because there's so much confusion
15       and so many different views on the mark, I felt the
16       position we should take is that it is indeed unsafe and,
17       obviously, the Inquiry, I expect, will have the
18       opportunity to come out with an independent and
19       authoritative view on the mark and hopefully, along with
20       that, some reasons why they've come to that conclusion.
21       We will then take those reasons and make sure that, if
22       there are issues within SPSA, that we address those.
23   Q.  Does it follow from what you say then that there isn't a
24       definitive view within SPSA as to how it is that unsafe
25       identifications may have come to be made?
page  65
 1   A.  I've certainly made it clear to our unit managers that I
 2       was taking this position -- our fingerprint unit
 3       managers, sorry.
 4   Q.  So essentially your position come back to being that you
 5       are waiting to hear what the Chairman of this Inquiry
 6       will say as to whether there has been a
 7       mis-identification in either case and, if so, as to what
 8       the causes of that might be?
 9   A.  That would be correct, yes.
10   MISS CARMICHAEL:  I don't have any further questions for you
11       at the moment, thank you, Mr Nelson.
12   THE CHAIRMAN:  Perhaps I should ask Miss Grahame, first of
13       all.  Have you any application?
14   MISS GRAHAME:  Yes, there are two matters I would like to
15       raise, one relating to the Forensic Gateway and the
16       other relating to the example where a print is found on
17       a murder weapon -- just a very short point.
18   THE CHAIRMAN:  Yes.  Very good.
19                  Cross-examined by MISS GRAHAME
20   Q.  Mr Nelson, you mentioned the Forensic Gateway earlier in
21       your evidence and I just want to ask you are you aware
22       that a member of the Procurator Fiscal Service was
23       seconded to the Forensic Gateway for a while?  And was
24       that Mr Morrison?
25   A.  That's correct.  In discussions with Liam Murphy and
page  66
 1       Mike Bayle we looked at the opportunity that we could
 2       maybe have a Procurator Fiscal seconded to the Gateway
 3       and we actually had that individual, Mr Morrison,
 4       attached to the Gateway in Glasgow for I think it was a
 5       three-month period.
 6   Q.  Was he involved in doing some of the instructions from
 7       Fiscals to assess the quality of those?
 8   A.  He was, yes.  He was fully involved in assessing the
 9       quality of the submissions coming in and assisting us in
10       prioritisation of those marks.  Certainly from the
11       feedback I've had, it was extremely positive and it is
12       something we'd maybe look to do elsewhere.
13   Q.  Is that issue being reviewed now that Mr Morrison has
14       completed his secondment?
15   A.  Yes.  I've a meeting set up with Scott Pattison and
16       we'll be looking at that issue in the next couple of
17       weeks.
18   Q.  The second matter I would like to ask you about is an
19       example has been put here regarding where a print or a
20       partial print is found on a murder weapon and if we
21       assume that has not been positively identified as the
22       accused, can I take it from that that it would not be in
23       the joint report?
24   A.  That would be correct, yes.
25   Q.  But would that, the fact that a print had been found on
page  67
 1       the weapon, be something that would be contained in the
 2       annex attached to the report?
 3   A.  To be honest, I'm not totally sure, sir.  I can
 4       certainly check that up and come back to you but I'm not
 5       totally sure given I don't work on a daily basis on
 6       those cases but I can certainly look into that for you.
 7   MISS GRAHAME:  It is perhaps something we can deal with with
 8       a later witness, Mr Nelson.  I will not trouble you
 9       further in relation to that.  Thank you very much.
10           I have no further questions.
11   THE CHAIRMAN:  Mr Holmes?
12   MR HOLMES:  Yes, sir, there are two matters that I'd like to
13       cover.  The first is the SPSA position on Y7 and QI2,
14       which has already been briefly raised by my learned
15       friend, Miss Carmichael, and the second thing is what
16       would occur now should a dispute arise in the same way.
17   THE CHAIRMAN:  Yes.
18                   Cross-examined by MR HOLMES
19   Q.  Mr Nelson, the question of the SPSA's position on Y7 has
20       already been raised with you.  Is the SPSA's position on
21       QI2 the same?
22   A.  I have actually dealt with those both in the same
23       manner, yes.
24   Q.  Why not have someone re-examined the marks?
25   A.  I think, at the end of the day, with SPSA coming into
page  68
 1       being in April 2007, very shortly after that we
 2       obviously were aware that there was a new Government in
 3       position and as part of their manifesto pledge they said
 4       they would actually have an Inquiry into the mark
 5       itself, sorry into the case.  Then very quickly after
 6       that, obviously, there was announcement made that there
 7       would be the full Inquiry.  During that period SPSA did
 8       not reopen the mark.  A decision was taken at that time
 9       and certainly we would not have had the resources to
10       allow us to put on I think what I see today as the right
11       method of actually coming to the answer in this
12       particular issue.  So that was one of the reasons why we
13       didn't, I understand, ever open the mark.
14   Q.  I am not quite sure I understand what you mean by the
15       right resources.  You employ quite a large number of
16       Fingerprint Examiners, do you not?
17   A.  We do but I think to be honest one thing we would have
18       to have done is to do not just a small inquiry but a
19       major inquiry pulling in people from many different
20       organisations and I think that is the right way to do it
21       and I think this Inquiry has taken the right steps to
22       allow us to come to that independent and authoritative
23       view because even if SPSA had have come up with a
24       conclusion, it would have maybe not been seen as
25       independent.  So I think this is certainly the way to
page  69
 1       deal with it.
 2   Q.  I asked a question of the former Lord Advocate,
 3       Lord Boyd, and I am going to ask you the same thing.
 4       Lord Boyd identified three factors in the decision no
 5       longer to accept evidence from the six experts whose
 6       employment came to an end as a result of this case.  The
 7       first factor that he identified was the public campaign
 8       against these officers, that is to say, what Lord Boyd
 9       described as their "notoriety" in the press and in
10       television programmes, questions being raised by MSPs
11       and Mr McKie and others demanding disciplinary
12       proceedings and criminal investigations against them.
13           The second factor that Lord Boyd identified in the
14       decision not to accept the evidence from these officers
15       was the decision of the Scottish Executive to settle
16       Ms McKie's civil claim.
17           The third factor that he identified was the leaking
18       of the Mackay report.
19           Firstly, do you accept that the three factors that
20       he has identified are all external factors.  They are
21       not related to these particular officers?
22   A.  Sorry, I don't understand your question.
23   Q.  Well, the public campaign against these officers, the
24       decision of the Scottish Executive to settle Ms McKie's
25       civil claim and the leaking of the Mackay report are not
page  70
 1       matters which these officers had any say in, are they?
 2   A.  I think certainly people have an opportunity to either
 3       participate or not and, therefore, maybe there can be
 4       some participation that you could avoid.  So, you know,
 5       I understand what you're saying.  I think I'd probably
 6       say yes to that but with a caveat.
 7   Q.  What I am saying is that none of these officers were
 8       responsible for the public campaign against them
 9       clearly, were they?
10   A.  No.
11   Q.  And none of these officers participated in the decision
12       by the Scottish Executive to settle Ms McKie's civil
13       claim?
14   A.  That's correct.
15   Q.  None of these officers participated in the leaking of
16       the Mackay report, did they?
17   A.  That is correct.  As I say, this was all before my time
18       but I understand why you're asking that.
19   Q.  Well, these are the three factors that are identified by
20       Lord Boyd as bearing on the decision not to accept
21       evidence from these officers and that, again, directly
22       led to the termination of their employment.
23           My question is what is to stop anyone accused of an
24       offence in future challenging fingerprint evidence,
25       mounting a public campaign against the officers involved
page  71
 1       in their case and hounding them out of their employment?
 2   A.  In terms of the suitability or not of a member of staff
 3       to be part of SPSA, we would always have to consider
 4       that individual and (a) their competence and ability to
 5       give evidence but also, in the case you're talking
 6       about, there was significant notoriety associated with
 7       the individuals and, therefore, it was that that became
 8       an issue for the organisation, in that we didn't want to
 9       put that individual or the organisation into a position
10       where they had that notoriety and therefore they would
11       become potentially the focus of a trial.  So if that
12       position ever arose again, obviously, SPSA would have
13       to, as a Board, consider that position.
14   Q.  What I am asking is, is there anything necessarily now
15       that would stop the same thing happening all over again?
16   A.  I don't believe we have any evidence that it is going to
17       happen again.
18   Q.  No but what I am asking is is there anything different
19       about the organisation that would mean the situation
20       could not arise again?
21   A.  If someone puts themselves in a position of notoriety,
22       the organisation would have to consider that.
23   Q.  Or, indeed, if they are put in a position of notoriety?
24   A.  That would need to be a decision of the Board, yes.
25   Q.  So what happens when you are left with an empty bureau
page  72
 1       because this has happened to more experts?
 2   A.  Sorry, I don't understand what you're saying.
 3   Q.  What happens if this does happen to more of your experts
 4       and you are left without Fingerprint Officers?
 5   A.  I believe that the staff that we have are very competent
 6       and, therefore, I don't see that position arising or why
 7       it should arise.
 8   Q.  When this Inquiry eventually makes a decision on these
 9       marks, whether it comes down in favour of those who
10       agree the identifications or those who disagree, there
11       will be others in the employ of SPSA who hold the
12       opposite view.  What's to happen to them?
13   A.  That will be a matter for SPSA when that position
14       arises, if indeed it does.
15   Q.  Who makes that decision?
16   A.  That would be the SPSA Board.
17   Q.  Are you on the SPSA Board?
18   A.  No, but I advise, through my Chief Executive, the SPSA
19       Board.
20   Q.  Have discussions been had as to what is to happen to
21       those officers who hold the opposite view to whichever
22       one this Inquiry ultimately takes?
23   A.  No.
24   Q.  Why not?
25   A.  Because, at the end of the day, we will wait for the
page  73
 1       outcome of the Inquiry and then we will take action, if
 2       any action is needed.
 3   Q.  You must be aware that whatever the result of this
 4       Inquiry there will be a decision to be made?
 5   A.  At the end of the day, we will face that decision
 6       whenever we have to make it.
 7   Q.  What are the options?
 8   A.  To be honest, I haven't even considered the options.
 9   Q.  Is there amongst officers employed by SPSA a reluctance
10       to make difficult identifications since the McKie case?
11   A.  I am certainly not aware of that happening, no.
12   Q.  Is there an unwillingness to meet any potential
13       challenge that a defence expert might raise?
14   A.  I'm not aware of any.
15   Q.  We heard evidence yesterday from Mrs Tierney who was
16       describing the procedures for identifying marks and she
17       made a comment that officers would err on the side of
18       caution in order to protect the innocent.
19           As an institution, SPSA is not there to protect the
20       innocent, is it, nor is it there to ensure a conviction
21       every time an identification goes out of the bureau.  It
22       is there to supply evidence to the Crown who will make
23       of it what they can, is it not?
24   A.  As a scientist I think I'd want to make sure that the
25       evidence I put before the court was of the highest
page  74
 1       standard and you would always give the benefit of the
 2       doubt to the accused but that would need to be made
 3       available and the court would be aware of that.
 4   Q.  The court will always give the benefit of the doubt to
 5       the accused but surely when a Fingerprint Officer is
 6       carrying out an examination, all they have to do is
 7       carry out that examination to the best of their ability,
 8       do they not?
 9   A.  To the point that they are satisfied that they have an
10       ident or not.
11   Q.  On that basis what is the reason for the statement that
12       Fingerprint Examiners ought to err on the side of
13       caution in order to protect the innocent?
14   A.  That statement is a principle that I have known my whole
15       life as a forensic scientist, that you always want to
16       make sure that you err on the side of the innocent and
17       the evidence that you are giving to the court is of the
18       highest standard to allow the court to make the
19       decision.  You don't take risks whenever you are in the
20       witness box.  This can be a very lonely place to be and,
21       therefore, I think you have to make sure and be
22       confident on what you are presenting before the court.
23   Q.  Identifications have always been verified by a number of
24       checkers, have they not?
25   A.  That's correct, yes.
page  75
 1   Q.  They have always been carried out to an accepted
 2       standard, whatever that standard might be at the time,
 3       have they not?
 4   A.  That's correct, yes.
 5   Q.  So have they not always been carried out with the level
 6       of care that you are describing?
 7   A.  I'm not suggesting this is a change.  I was just asked
 8       for my opinion and, you know, I would hope that has
 9       always been there.
10   Q.  What I am asking is why is it now being articulated that
11       examiners must err on the side of caution?
12   A.  I don't know the answer to that but certainly it's
13       something that I am very passionate about and maybe
14       that's the reason but I don't know.
15   Q.  Is there a procedure in place for recording missed
16       identifications?  Firstly, are you aware what I mean by
17       a missed identification?
18   A.  I take it you mean where we don't identify someone
19       whenever someone could have been identified.
20   Q.  That's correct, yes.  Is there a procedure in place for
21       recording those?
22   A.  I honestly am not sure of that.  That would be something
23       the manager unit manager would obviously look after.
24   Q.  So you don't know if there are statistics available for
25       the number of missed identifications that have taken
page  76
 1       place in recent years?
 2   A.  I certainly don't have that information but, again, you
 3       know, I could look for that.
 4   Q.  What is the procedure for disputed identifications?
 5   A.  The questioned identification (the QID) is where
 6       officers don't agree on a conclusion.
 7   Q.  That would be where, for example, the first officer to
 8       compare a mark would identify and then the first officer
 9       to whom that identification is passed on would not agree
10       to identify.
11           Is that the situation you are describing?
12   A.  If they had a discussion around that and couldn't agree,
13       then it would go to a disputed identification.
14   Q.  So how does the discussion come about?
15   A.  Well, that would be through this facilitated discussion.
16   Q.  Am I to understand that there is a formal procedure in
17       place for dealing with a disputed identification of the
18       kind that you have just described?
19   A.  Yes, yes.
20   Q.  What happens?
21   A.  Afterwards, if we can't come to an agreement and
22       therefore it's disputed ... is that ...?
23   Q.  No, what happens at the time?  What happens when the
24       second officer, the one who is tasked with verifying the
25       mark, comes to the view that they cannot identify?
page  77
 1   A.  I feel by going into too much detail here I am
 2       actually -- I'm so far away from that process I can't
 3       really answer that but I can certainly get you the
 4       answer for that.
 5   Q.  Do you know if the process is any different from what it
 6       was previously?
 7   A.  I'm not sure.
 8   Q.  Is it not the case that anyone with a defence expert
 9       willing to give an opposing opinion to SPSA officers who
10       identify a mark and enough media coverage can now make
11       this situation happen all over again?
12   A.  No, I don't believe that would be the case.
13   Q.  Why not?
14   A.  Because the SPSA staff, by that point, will have
15       actually completed a statement and that statement would
16       then go to court and if there was a dispute from a
17       defence agent, that would be dealt with in the court
18       environment.
19   Q.  In the present case, four officers signed the joint
20       report, four officers who were competency tested.  Is
21       that any different in your view to four officers being
22       willing to sign statements?
23   A.  I am aware that four officers did sign a statement but,
24       as I say, this is before I -- so I'm not totally aware
25       of the situation then but I believe that was the case.
page  78
 1   Q.  The McKie case went to trial and there was defence
 2       evidence led.  Are you aware of that?
 3   A.  I was, yes.
 4   Q.  How is it that that situation could not arise again?
 5   A.  If a person puts himself into a position of notoriety,
 6       then that position would need to be looked at.
 7   Q.  So is what you are saying that this case could, in fact,
 8       arise all over again, given the circumstances that I've
 9       described?
10   A.  If someone puts themselves in a position of notoriety
11       and the organisation feels that they can no longer
12       attend court as an expert, yes.
13   Q.  What did the officers in this case do to put themselves
14       in a position of notoriety other than speaking to their
15       findings in court?
16   A.  Whenever the Lord Advocate said he did not wish to see
17       them appear in court I believe that put them in a
18       position of notoriety.
19   Q.  They did not then put themselves in a position of
20       notoriety, did they?
21   A.  They were in a position of notoriety.
22   Q.  They were in a position of notoriety as a result of the
23       media campaign that was conducted against them, were
24       they not?
25   A.  I'm not explaining how we got to that situation.  I'm
page  79
 1       just saying that was the decision, because of notoriety,
 2       that made the organisation take the steps that it took.
 3   Q.  What I am asking you is if an SPSA expert goes to court
 4       and there is a dispute as to an identification that they
 5       have made and if a campaign is conducted against that
 6       expert thereafter, can this situation not arise in the
 7       same way all over again?
 8   A.  I would hope that if an SPSA member of staff went to
 9       court and there was a dispute over the identification
10       that individual would obviously put their position
11       forward and, obviously, if the defence had a different
12       view put that decision forward and, ultimately, we have
13       to accept the position of the court, whatever that would
14       be.  That person would not, therefore, then be pushed
15       out because they are accepting potentially that maybe
16       something went wrong or maybe they made a mistake.  If
17       someone accepts that we can actually look at why that
18       happened and address it through training and other
19       means.  But if someone puts themselves in that position
20       of notoriety I think that's where it does become an
21       issue.
22   MR HOLMES:  Thank you, Mr Nelson.
23   THE CHAIRMAN:  Mr Smith?
24   MR SMITH:  Yes, sir, I have a number of matters I would like
25       to ask about.  These relate, as follows, to the question
page  80
 1       of the culture and morale within SPSA; the definition,
 2       the unsafe definition that has been applied to Y7/QI2;
 3       the current status of Y7, whether it's something that's
 4       available for analysis in unknown or unsolved crimes;
 5       the question of authorisation of experts; and the
 6       question of whether this witness thinks it appropriate
 7       that Mr Geddes has carried out an analysis for the
 8       purposes of the Inquiry on the QI2 (Asbury).
 9   THE CHAIRMAN:  Yes.  I think they are general topics but, as
10       I keep saying, as long as we don't cover something the
11       witness has already dealt with.
12   MR SMITH:  Of course.
13                    Cross-examined by MR SMITH
14   Q.  I wonder if I can begin really with the last point that
15       was being made by Mr Holmes.  As I understand it, what
16       you are saying is that the problem that arose was
17       notoriety with the individuals concerned which led to
18       the Lord Advocate taking the view that they could not
19       give evidence in other cases.  It would be a pretty
20       untenable position, of course, for a fingerprint expert
21       to be in if they couldn't give evidence ultimately.
22           How much do you understand about the process that
23       took place during the trial of Shirley McKie?  Is it
24       something you are familiar with?
25   A.  It is not, no.
page  81
 1   Q.  If I tell you certainly what I understand broadly the
 2       position to be, that when asked in court to justify the
 3       opinion, to actually say how they reached their opinion,
 4       to demonstrate to the jury, there was -- whether an
 5       unwillingness or inability by an expert to actually
 6       explain how it is that they arrived at their conclusion
 7       other than just saying, "Well, I'm an expert.  I found
 8       16 points".  Is that something that you would approve of
 9       as an approach nowadays, the expert just saying, "I'm an
10       expert.  I've been doing it for 25 years or whatever and
11       I'm telling you its a match"?  Is that the way that they
12       give evidence now?
13   A.  I would hope not.  At the end of the day, we train our
14       scientists or experts to go to court and, obviously,
15       answer questions but to be open and transparent in
16       answering those questions and, therefore, if someone has
17       an identification I would expect that they can actually
18       go through the thought process in an open manner that
19       allows them to demonstrate their position.
20   Q.  Just so that you understand the background to this
21       because I don't want you to go away with a feeling that
22       it was just because there was a difference of view
23       between the SCRO and the American experts that the what
24       has been described as a campaign by Mr McKie took place.
25       There were a number of factors in this and one was the
page  82
 1       question of transparency.
 2           We build into that, again, as you probably know
 3       there was an Inquiry that took place, the Mackay
 4       Robertson Inquiry, and my recollection is when they
 5       asked for co-operation from the Fingerprint Officers
 6       involved they -- i think the phrase is, took the fifth,
 7       they decided they did not wish to co-operate on the
 8       detail.
 9           Again, is that something that you consider is
10       appropriate for a Fingerprint Expert to say to an
11       Inquiry, no, I don't see that I should be co-operating?
12   A.  I certainly wasn't aware of that and that's not the way
13       I would expect my staff to behave, no.
14   Q.  We have also heard a good deal of evidence -- and I will
15       come back to the question of disclosure in due course --
16       but we also understand within the office of the SCRO at
17       the material time there were certain individuals who
18       were unable to achieve this then required 16-point
19       standard and that was not disclosed to the Crown or
20       indeed, of course, the defence or anyone else.
21           Again, is that something that you have any comment
22       on as to whether a failure to achieve the appropriate
23       quality of identification is something that, in your
24       view, is acceptable these days?
25   A.  I think, at the end of the day, we're moving into a
page  83
 1       different world here where we need to be open and
 2       transparent and, therefore, we need to make people aware
 3       of it.
 4   Q.  Absolutely.
 5           Just tying in with that, I suppose, in some
 6       respects, I'm not sure if you were in the Inquiry
 7       room yesterday.  Were you in when Mrs Tierney was giving
 8       evidence?
 9   A.  I was only in for a part of yesterday.
10   Q.  I would like you to look at a document, please, which
11       you may have seen yesterday.  It is DB0768.  This is a
12       document, in case you were in yesterday, that is one
13       that was provided by Mr Zeelenberg, which is a
14       translation of a document that they use in their office.
15           Is this something that you were in the Inquiry room
16       when questions were asked about this?
17   A.  It is actually, yes, I was, yes.
18   Q.  Very well, I can deal with it fairly quickly.  Did you
19       hear the explanation or attempt at the explanation
20       possibly by me as to what the various boxes are and what
21       the purpose of this is?  Did you hear that?
22   A.  I did, yes.
23   Q.  As far as this document is concerned, really this
24       permits absolute transparency, if something like this
25       was being operated and a defence lawyer would be able to
page  84
 1       ask to see this from the three different Fingerprint
 2       Officers who would then see how long they spent looking
 3       at it, what their assessment was at every stage and so
 4       on and so forth.  It is a very clear tracking device, if
 5       I put it at that way.
 6   A.  Yes.
 7   Q.  Do you agree that this is a useful document?
 8   A.  I think it's a very useful document and certainly it's
 9       one document that I would like to take forward to this
10       group, when we are meeting involving Skills for Justice,
11       Centrex, Strathclyde University and the SPSA to see if
12       this could maybe a model to take us forward, yes.
13   Q.  At the risk of giving evidence, if I try and help you
14       out a little bit, I certainly understand that
15       Mr Zeelenberg and his department have just this week
16       moved to an entirely new floor in their offices with new
17       equipment, new procedures, everything down to specialist
18       equipment for analysing and developing fingerprints on
19       different media such as plastic bags, new methods of
20       fingerprints, all within the same office.
21           I take it that is something that, generally
22       speaking, you would be very interested to see, what a
23       new system that's looked at it from the ground up has to
24       offer?
25   A.  Certainly, and as we look forward to two new buildings,
page  85
 1       both in Dundee and Gartcosh in Glasgow, I think it gives
 2       us an opportunity to maybe learn from what is happening
 3       elsewhere, yes.
 4   Q.  I'm really just wondering if an invitation was to be put
 5       to you to go and visit these premises to see how they
 6       are operating in a new environment, if that is something
 7       you feel might be worthwhile just to see what they were
 8       doing.  Is that something you would --
 9   A.  We would certainly welcome that, yes.
10   Q.  I would like to ask if I can now about the question of
11       culture and morale within the SPSA.  Again, some
12       questions were asked yesterday and I think the general
13       line has already been touched on by others, but the SPSA
14       of course is comprised of a number of different former
15       individual bureaux and the impression one might have
16       taken from the evidence we have heard quite recently is
17       that prior to this superstructure, if I put it that way,
18       there was a degree of, at least, rivalry between some of
19       the Bureaux and perhaps SCRO.
20           Is that something that you are aware, historically,
21       probably existed?
22   A.  I am aware of that, yes.
23   Q.  Indeed, of course, the entire debate over Y7 is one
24       which I think Lothian & Borders had adopted a position
25       that a good number of individuals there, I think 13 of
page  86
 1       them, had ascribed to an opinion that Y7 was wrongly
 2       identified and, similarly, three individuals from the
 3       Aberdeen Bureau had prepared a report similarly saying
 4       that Y7 was incorrectly identified and I think even the
 5       Dundee branch had indicated, whether officially or
 6       unofficially, but there was certainly a very clear
 7       statement they felt Y7 was wrongly identified.
 8           I am trying to work out, there must be individuals
 9       within these various bureaux who are still there who
10       still hold that opinion; whereas there are certain
11       individuals within the former SCRO, the Glasgow Bureau,
12       who hold the opposite view.  That must happen.  You must
13       be aware that is bound to be the position?
14   A.  Sure, yes.
15   Q.  Is that not something that causes a fairly fundamental
16       difficulty in, frankly, a degree of perhaps animosity
17       because of the very public disagreement between various
18       branches, the SCRO, if I can call it that, on one hand
19       as compared to the other bureaux I've mentioned on the
20       other?  This has not been an easy debate, has it?
21   A.  It certainly has not been an easy time for anyone and
22       what I have been so encouraged by is the professionalism
23       and dedication of the staff that we have and what I am
24       getting back in terms of feedback is that people want to
25       move on.  People want to work together.  People see a
page  87
 1       better future out there and an opportunity, now that
 2       SPSA Forensic Services is in place, to move forward and
 3       certainly I know from speaking to my unit managers
 4       that's the feeling I get.  I've also visited the centres
 5       on a number of occasions and spoke to staff.  I also
 6       hold breakfast meetings at the service centres and,
 7       again, what I hear from the staff is that they want to
 8       move on.  They want to put the past behind them and they
 9       see this as a real opportunity to move on to a brighter
10       future.
11   Q.  I understand that is undoubtedly a desire and one that
12       no-one would quarrel with but do you not understand,
13       though, that one of the practical difficulties is by the
14       organisation not taking a clear and official stance on
15       the question of Y7 in particular and indeed QI2 to an
16       extent as well?
17   A.  What I have said is that whenever the Inquiry come up
18       with the independent and authoritative view on the mark,
19       SPSA will accept that decision --
20   Q.  What happens -- I am sorry to interrupt.
21   A.  -- and will expect the staff to respect that decision.
22   Q.  What happens, though, if the Inquiry in particular, the
23       Chairman, and I am sure he has not come to any
24       conclusion yet, but if he was to, for example, say, "I'm
25       faced with contradictory evidence on this.  I cannot
page  88
 1       come to a conclusion on whether Y7 was correctly or
 2       incorrectly identified", what does the SPSA do then?
 3   A.  The SPSA would have to sit back and look at that and
 4       then reassess our position and what we do next.
 5   Q.  Would the SPSA feel it was obliged then to have an
 6       official position on Y7?
 7   A.  Again, I would want to wait to the outcome of the
 8       Inquiry to be in that position to have to make that
 9       decision.
10   Q.  You see, Mr Nelson, the Mayfield case I am sure you know
11       something about.  It was mentioned in passing.  It was a
12       case in which it was recognised early on that because of
13       the error and it was accepted as being an error in that
14       case, I recognise that of course, but because of the
15       error there was a material risk of public confidence in
16       fingerprinting being seriously damaged.  However much
17       you know about it, if you just take from me there was a
18       very, very quick reaction by the FBI and the Department
19       of Justice to investigate, to acknowledge the error and
20       to publish virtually the entire report online so that
21       anyone who wished to look at it could look at it.
22           You agree with me, I take it, that that is a very
23       proactive way of trying to get public confidence back?
24   A.  It is and I think SPSA need to look at that as a way
25       forward.
page  89
 1   Q.  I realise your position with SPSA is in the relatively
 2       recent past.  I recognise that but here we are ten years
 3       down the line and there has been in the various guises
 4       the Fingerprint Service in Scotland has been formed
 5       under what, frankly, appears to be a varying position.
 6       What I am referring to is Mr Mulhern originally
 7       accepting there had been a mis-identification and then
 8       what appears to be, to some extent, a qualification of
 9       that.
10           Do you understand that this is something that can
11       actually cause public doubt, lack of public confidence
12       in the position?  Do you understand that?
13   A.  Mr Mulhern obviously made a decision based on the
14       information that he had with no knowledge, obviously, of
15       the opportunity of re-examining the mark independently
16       and he made that decision.  I can't speak to
17       Mr Mulhern's decision on that.  What I can say is that
18       SPSA will accept the findings of this Inquiry and will
19       move forward from that position.
20   Q.  I am assuming, of course, that that goes without saying
21       rather than the SPSA saying, "Well, we reject the
22       findings of the Inquiry".  That's inconceivable, isn't
23       it?
24   A.  Well, I think SPSA has certainly supported the Inquiry
25       and will continue to support the Inquiry and we don't
page  90
 1       want our position to in any way affect that and,
 2       therefore, we decided that the best opportunity for us
 3       as an organisation was to say that was unsafe.
 4   Q.  I understand that but would you not agree that a
 5       confident, robust way of almost clearing the air would
 6       be for SPSA to adopt a position one way or t'other,
 7       either saying, "We consider Y7 was originally correctly
 8       identified and we will support our officers, those who
 9       worked for us and those who continue to work for us", or
10       alternatively saying, "Our position is it was
11       incorrect -- full stop.  Now we're going to look at how
12       it happened and how we can stop it happening.  We are
13       going to do it.  We are not going to leave this to an
14       Inquiry.  We are doing it"?  Do you not understand there
15       is maybe a confidence in a service that is prepared to
16       take that responsibility and take that action itself
17       rather than waiting on the Inquiry saying so?
18   A.  I think the only way SPSA could have come up with a
19       definitive, as you are suggesting, is if we had opened
20       the mark ourselves and examined it ourselves.  We didn't
21       do that.
22   Q.  Why not?
23   A.  I have already answered that question in that with --
24       the Chief Executive at that time didn't open the mark or
25       allow the mark to be re-examined.  With the time lines
page  91
 1       involved we knew that there was going to be a public
 2       Inquiry and the organisation felt it was right that the
 3       public Inquiry would give that independent view on the
 4       mark.
 5   Q.  Can I ask if there is any difference in the quality of
 6       the description from a mis-identification to an unsafe
 7       identification and, if so, what is that difference?
 8   A.  It's like asking a fire expert to give an opinion on a
 9       fire scene without actually allowing that officer to go
10       to that fire scene.  To me, SPSA has never looked at the
11       marks so, therefore, I would struggle to say it was a
12       mis-identification because I nor my staff have looked at
13       it but what I can say is, with the varying views out
14       there, it is an unsafe identification.
15   Q.  Is that not rather suggesting that it's a bit both?
16       It's an identification, it's right, but it's not safe?
17   A.  I'm acknowledging the fact that an identification had
18       been made ten years ago but I'm saying that is unsafe.
19   Q.  You see, the categories, as I understand it, that are
20       well accepted as being descriptive of a purported
21       identification or an analysis, if I put it that way, are
22       either there is insufficient detail for a useful
23       comparison to be completed, so it's putting the
24       (inaudible) no comment one way or t'other.  Second, it's
25       identical and third it's not identical.  These are the
page  92
 1       three we are faced with.  Do you understand that to be
 2       so?
 3   A.  Those are certainly terms that the fingerprint community
 4       would be using.  I'm actually using more of a scientific
 5       term that I'm used to within Forensic Services.
 6   Q.  Let us proceed from the assumption that I don't
 7       understand anyone within this debate, none of the
 8       experts who have given evidence on both sides of the
 9       debate, and no-one else to suggest that Y7 falls into
10       the first of these I mentioned: insufficient detail to
11       carry out a comparison.  So we will leave that aside.
12       We are left, dealing with Y7, with two options: one is
13       it's correct; the other is it's incorrect.
14           I think, as Mr Holmes pointed out, at the end of
15       this Inquiry, on the assumption the Chairman doesn't go
16       for the first, we're left with one of the other two.
17       What that will inevitably mean is there are certain
18       people within SPSA, certain experts, who are, according
19       to SPSA and the Chair's position, wrong.  They've got it
20       wrong.  Either they just simply -- they can't all be
21       right, if I put it that way.
22           I think you said you haven't actually taken this on
23       board but you must have considered what you will do
24       about the people who have got it wrong because it raises
25       serious question marks over their ability.  It must do
page  93
 1       so?
 2   A.  Yes, I have said what we will do is we will look at that
 3       when it arises and SPSA will come up with an action that
 4       we will have to take but we have not done that up to
 5       this moment in time.
 6   Q.  Have you not even considered what action might be
 7       appropriate, whether it's retraining, whether it's
 8       termination of their employment, whether it's moving
 9       them to other duties?
10   A.  We would have to understand what the Inquiry comes up
11       with and why it came to that decision and then, based on
12       that, we can then put an action plan together, if that's
13       what's needed.
14   Q.  Can you give some indication of timescale after the
15       decision comes out because we are a good couple of years
16       down the line since you came on board and we're ten
17       years down the line since this happened?  How quickly
18       will the action plan follow the decision, if it gives
19       positive or negative support for the identification, how
20       quickly can we imagine this will be there to restore
21       public confidence?
22   A.  I totally agree with your sentiments.  I think it's
23       important we do it quickly.  I could not put a time on
24       that because obviously our Board would need to be
25       involved but certainly it's something we would need to
page  94
 1       do quickly.
 2   Q.  Again on question of restoring public confidence, will
 3       the actions in that regard be made public so that Mr Joe
 4       Public can read, either on your website or elsewhere,
 5       "We have taken on board the decision of the Chairman.
 6       Those, frankly, have been wrong about this, we have
 7       decided to take the following action ..." is that
 8       something that is going to be there for the public to
 9       read and have confidence in.
10   A.  That would be something our Communications Unit will
11       have to look at and decide what is the best way to take
12       that forward, yes.
13   Q.  I am sure you appreciate, Mr Nelson, that again, the
14       main purpose of this being a public Inquiry, is to try
15       and give the public confidence not just in the science
16       of fingerprinting but in the procedures and processes
17       available to those who work in it and those who are the
18       employers within it.  You understand that to be so?
19   A.  I do, indeed, yes.
20   Q.  Therefore, to come back to the word "transparency", is
21       something that is vitally important, even after the
22       Inquiry has reported and that's something that you agree
23       with?
24   A.  I totally agree, yes.
25   Q.  I would like to ask you again, just dealing a little bit
page  95
 1       more with the question of morale, if we can have another
 2       document up, please, which is DB0755.  I think this, we
 3       can see, is a document which is a minute of a meeting,
 4       we can see from the heading ourselves, in December 2007.
 5       As far as this is concerned -- do you recall a meeting
 6       taking place --
 7   A.  I do, yes.
 8   Q.  -- in December 2007?
 9           As far as this is concerned, we can see from the
10       heading, basically, what it is but we can see a section
11       on that page under "negative comments".  Is this minute
12       one prepared by yourself?
13   A.  No, I don't know.  It wasn't prepared by me.
14   Q.  I am sorry, I have been corrected.  I think it is
15       members of the lab that actually prepared it but I think
16       it was actually forwarded to yourself as a record of the
17       meeting taking place.
18           Under "Negative comments", if you can see this, the
19       fourth bullet point:
20           "I felt, as before, that a lot of questions/concerns
21       didn't really get a definitive answer.  There's always a
22       lot of 'hopefully' and 'it's not our intention',
23       et cetera.  Also Eileen Masson's favourite phrase seemed
24       to be 'best meets the needs of the organisation', which
25       doesn't really mean anything to us."
page  96
 1           Going on:
 2           "A point raised by a colleague that I do agree with
 3       is that it seemed an awful waste of 2-3 hours travelling
 4       time for everybody in the lab to go down to Fettes, plus
 5       costs instead of Tom simply delivering the talk at
 6       Fettes for SEB staff and then coming to the lab to talk
 7       to us ..."
 8           The next bullet point:
 9           "I was extremely disappointed and disheartened
10       following the meeting last week.  I was already a little
11       bitter at having to lose half a day from very busy week
12       so probably didn't go into the meeting in the best frame
13       of mind."
14           This is clearly the comment of someone who is
15       somewhat disheartened within the organisation, you can
16       see that?
17   A.  Yes, I do recall the meeting itself and it was a series
18       of meetings where I had going round the different
19       service centres.  I would say that I didn't arrange the
20       venue so I didn't ask staff to come to Fettes that was
21       left to the local manager to organise for me.
22           One of the reasons, I understand, why the lab were
23       so disappointed was because the meeting happened at the
24       same time that SPSA announced the business case that
25       went to the Board regarding the Dundee laboratory and
page  97
 1       certainly staff were concerned about their future.  I
 2       went back to the staff a number of weeks after this
 3       meeting and had a staff meeting with them and certainly
 4       at that was able to reassure them on certain things.
 5   Q.  Can I ask to go to page 4 in the documents.  It is
 6       another couple of pages on, please.  We can see another
 7       bullet point, the first bullet point at the top:
 8           "Overall, I came out of the meeting with less faith
 9       in the SPSA exec than I had before I went in.  I got the
10       impression that the upper echelons of the SPSA are a
11       shambolic mess."
12           I am not asking for your comments about the truth or
13       falsity of that, but this is clearly someone who is very
14       concerned about what is going on.  I take it you agree
15       that this shows a degree of lack of confidence?
16   A.  I think this needs to be into perspective.  This
17       meeting -- what happened immediately after that meeting
18       was that a board paper was released and within that
19       board paper it mentioned the Aberdeen and the Edinburgh
20       laboratory and obviously staff were concerned about
21       their future.
22   Q.  They are still concerned about their future too, aren't
23       they?
24   A.  We are undergoing a modernisation programme.  That
25       programme has actually involved staff, involved ACPOS
page  98
 1       and involved Crown Office and we have had a full
 2       communications plan around this modernisation project.
 3       So I'm certainly more confident that the feelings of
 4       staff will not be the same with this modernisation
 5       project.
 6   Q.  But at the present time there is a low morale, isn't
 7       there, amongst these individuals who feel they may have
 8       to lose their jobs, isn't there?
 9   A.  I don't believe morale is low.  What I do believe is
10       staff are concerned about the future and what that
11       future would and it's incumbent on SPSA to obviously
12       quickly come to a decision on what the forensic model is
13       for Scotland.
14   Q.  How quickly is that decision to be made?
15   A.  The paper has been promised to Scottish Government by
16       January.
17   Q.  It will probably be up to the Scottish Government then
18       as to how quickly any recommendations are implemented.
19       Is that the way it will operate?
20   A.  I'm assuming that will be the case.
21   Q.  Can I ask just one more, a short passage from this
22       document.  The next page, please.
23   MISS CARMICHAEL:  Sir, I am reluctant to interrupt at this
24       point but I am not detecting that this is necessarily
25       directly involved with fingerprints and I do just raise
page  99
 1       that query at this stage.
 2   THE CHAIRMAN:  There was really a question of whether it
 3       comes within my Terms of Reference but I think there was
 4       a question, as you said at the outset, of rivalry and
 5       differences arising because of that.  Certainly I don't
 6       think we should explore it too far but if you want to
 7       touch on it --
 8   MR SMITH:  One more passage, sir.  On page 5 of 11, the
 9       first bullet point again we can see:
10           "The answers given [it is being suggested] were
11       evasive and superficial.  I thought they were loaded
12       with corporate jargon, especially the HR answers."
13           Again, I just place that before you for comment.
14       It's quite clear, isn't it, that this is someone who is
15       very concerned about the communication structures that
16       are going on within SPSA.  You'd agree with that?
17   A.  Certainly obviously this individual, whoever put it
18       together, does have some significant concerns.  What I
19       have done is I went back to the staff and addressed
20       those issues with them and they were satisfied that that
21       meeting went well and came to a satisfactory conclusion.
22   Q.  I would like to move on if I can to something a little
23       different and it is to do with, in particular, Y7.  As I
24       understand it, the system as operated within forensic
25       bureaux with fingerprints is that prints that are, as it
page 100
 1       were, unidentified to an individual that may be useful
 2       in a future crime investigation go on a database so when
 3       some person's arrested for a serious crime, the
 4       fingerprints are run through the computer and it may pop
 5       up this is an individual who actually makes a match with
 6       a crime scene mark?
 7   A.  That's correct, yes.
 8   Q.  As far as Y7 is concerned, as I understand it -- and
 9       this was in fact an answer to Parliamentary question --
10       an indication was given by the former Justice Minister,
11       Cathy Jamieson, that the mark Y7 is on the Scottish
12       Fingerprint Service Latents Database.
13           She said:
14           "The database is checked regularly against
15       fingerprint taken from arrested persons.  Because the
16       mark was taken from the scene of a serious crime, it
17       will remain in the database until it is identified."
18           One can see the logic of a fingerprint to that
19       effect.  Are you able to help with this: does it
20       currently remain on a database that is searched
21       routinely as an unknown print?
22   A.  Certainly the process you described there is correct but
23       I honestly do not know whether that mark is on or not.
24   Q.  If I was to just ask for clarification about something,
25       on 4th December 2006 was the Scottish database migrated
page 101
 1       across to the National Fingerprint and Palm-print
 2       Database that's known as Ident1?  Do you know about
 3       Ident1?
 4   A.  I do, yes.  That's correct.
 5   Q.  What that does is it creates, for the first time, a
 6       single database of finger and palm prints for the UK
 7       mainland.  That's the purpose of the Ident1 database,
 8       isn't it?
 9   A.  That's correct.
10   Q.  I suppose it might be suggested that there is a question
11       obviously of ownership -- using it very much in inverted
12       commas -- of Y7, that it originates in Scotland, it
13       originated from a database at SCRO and no doubt wider
14       throughout Scotland was available but ends up in the
15       national database.  Is there any system in place for a
16       decision on whether that's owned by an individual?
17   A.  At the end of the day, both our DNA and our fingerprint
18       databases have access to the national database and how
19       samples stay on and come off that database are governed
20       by certain rules.  Obviously you mentioned there
21       obviously if there's a crime and it hasn't been
22       resolved, then the sample would normally stay on, that
23       is correct.
24   Q.  I would like to ask some questions about the issue of,
25       as it were, basic expertise of experts.  We have heard
page 102
 1       some considerable evidence in this case of the various
 2       methods by which those throughout the UK can obtain
 3       qualification to act as an expert in a case.
 4           I suppose at one end of the spectrum you can have
 5       somebody who is an expert who obtains that expertise
 6       just by length of their experience, on-the-job training,
 7       doing it day in, day out, all over the place.  At the
 8       other end, you've can have someone who has got less of
 9       that experience but has attended numerous training
10       courses, they've been through examinations, they've been
11       peer reviewed and so on and so forth.
12           Can you tell me as far as the SPSA is concerned,
13       where is it that they see the necessity for experts to
14       fit within that spectrum?
15   A.  Our training manual and our training manager make sure
16       that all experts before they actually become experts
17       have completed all the appropriate training at Centrex
18       down in Durham and, therefore, we are confident that our
19       experts are working to a competent standard.  Obviously
20       as people go and attend conferences and attend meetings,
21       you do continue to add to that experience and to that
22       knowledge base, but we expect all our examiners who are
23       giving evidence in court to at least be working to the
24       standard from the training college.
25           However, we are looking at seeing if we can develop
page 103
 1       further and in fact I've had five people who have just
 2       completed a foundation degree in fingerprint examination
 3       and that is certainly something we want to encourage
 4       staff to look at to be part of their CPD.
 5   Q.  As far as these various training courses are concerned,
 6       I take it it is obvious that the training is not just
 7       fingerprint analysis, but fingerprint development
 8       techniques and so on and so forth, is undoubtedly of
 9       course, because it's a biological feature, it's a
10       worldwide science?
11   A.  It is.  It certainly is and certainly we are heavily
12       engaged with the NPIA on that but also engaged with the
13       research establishment in the south-east of England to
14       look at chemical enhancement and chemical development
15       and, in fact, they use a lot of the techniques that have
16       been developed in Scotland because in a number of these
17       areas we are leading the field.
18   Q.  But also I'm thinking of the experience and publications
19       indeed that are produced throughout the world, in
20       particular in the United States of America.  These are
21       all things I take it that your experts are encouraged to
22       engage in, to train in and so on and so forth.  It's a
23       worldwide thing and it's a good thing to draw on other's
24       experience, I take it?
25   A.  Certainly in terms of success for me whenever we get
page 104
 1       involved in more collaborative work with universities
 2       and producing papers, that's where I want this
 3       organisation to be.
 4   Q.  The question of expertise is there, as it were, a
 5       National Register of those who are experts, in Scotland
 6       of course?
 7   A.  In terms of fingerprints people are on the Register, the
 8       Fingerprint Register, I understand, but there's nothing
 9       to replace the Council for the Registration of Forensic
10       Practitioners.
11   Q.  Do you see that -- and I use this in no pejorative
12       sense -- but do you see that as a failure?  Something
13       that perhaps could be rectified to have an indication
14       who the experts are and, indeed, what the qualifications
15       are?
16   A.  I think that's something certainly that I have
17       identified to the forensic regulator as something that
18       needs to be addressed very quickly.
19   Q.  Can I ask you this and if you don't know the answer,
20       please, just say so: do you know what the Daubert
21       hearings are in the United States?
22   A.  Yes, I'm aware of those, yes.
23   Q.  The name comes from a case of course and we may get some
24       guidance on this in due course but the Daubert hearings
25       are almost having to prove to the court before you get
page 105
 1       underway that there is a valid science, that the
 2       individuals in question are qualified to speak to it and
 3       looking at the failure rate within that science, that
 4       kind of thing.  That is your understanding, is it?
 5   A.  Yes, the Daubert hearing sits to look at the science and
 6       it's particularly useful when a new science is being
 7       developed and, obviously, the new science has to be
 8       tested somewhere and, obviously, they have a
 9       Daubert hearing to allow that to actually happen.
10   Q.  I think we heard some mention earlier on, I think from a
11       Mr Moffat some time ago in the Inquiry, about an ear
12       print, a print of someone's ear being found and he was
13       involved in the analysis.  Obviously, I take it you
14       would agree that that is a question mark over whether
15       there is such a science of identification of ear prints.
16       You are aware there's a bit of a debate about that?
17   A.  There is a debate about that, yes.
18   Q.  But, as far as expertise is concerned, if I can try and
19       focus in a little bit, there's obviously been a shift
20       from numeric to the non-numeric standard.  As I
21       understand it, the decision was more or less taken about
22       2006 that something should happen with regards to a move
23       to a non-numeric standard, some time about that period?
24   A.  I believe that was -- it was debated for a long time but
25       I believe that that was the period that was chosen, yes.
page 106
 1   Q.  Clearly that is a significant shift in the emphasis, if
 2       nothing else, in the presentation to a court.  Rather
 3       than being obsessed with 16 points, it's then down to a
 4       qualitative rather than a simple quantitative analysis.
 5       I would be right, would I, that is would be something
 6       that would require considerable discussion with the
 7       experts involved in preparing their work, doing the
 8       reports, communicating to the Crown Office, et cetera,
 9       et cetera, and simple training about court appearances?
10       It's a major shift in attitude; would you agree?
11   A.  That would be correct, yes.
12   Q.  I take it that the SPSA would be anxious to ensure that
13       all of the experts who were working on cases were aware
14       of the change that's about to happen and given training
15       as to how to actually carry out their work because they
16       may be in a court being cross-examined about it.  Is
17       that fair?
18   A.  Yes, and I understand that a lot of that happened before
19       SPSA came into being but, yes, that would have happened.
20   Q.  Are you able to tell us how much training did existing
21       experts actually receive on the non-numeric standard?
22   A.  As I say, that was before SPSA came into being so I
23       don't have that knowledge but if that's something that
24       you would like to have, I can certainly look into that.
25   Q.  Perhaps it may indeed be of some assistance if that
page 107
 1       could be communicated in due course, largely informally.
 2       But it's my understanding that what took place was a
 3       one-day training course in Glenrothes, a one-day
 4       training course on the non-numeric standard.  Is that
 5       something that would cause you concern if that's the
 6       limit?
 7   A.  If that's all that they got I'd certainly want to know
 8       about the quality of the presentation and if it is in
 9       actual fact sufficient.  But I know certainly, you know,
10       there's a lot more training going into actually court
11       presentation and presentation of evidence.
12   Q.  If I may say so, in this Inquiry we have heard a good
13       deal of evidence on a number of occasions about the
14       non-numeric and it may be that because we are not in the
15       business ourselves it may be that we require more, but
16       tutoring, but do you not agree that even if it was one
17       day, even if it was the best quality you could get for
18       one day, it does raise a question mark over whether one
19       day could ever be enough to cover all the topics from
20       all of the various directions.  Would you not agree with
21       that comment?
22   A.  I would, yes.
23   Q.  I take it you also agree that one of the things that you
24       are obviously going to have to look at is the question
25       of establishing what training has been given in the
page 108
 1       non-numeric and review whether that is appropriate and
 2       if it's not appropriate, then move on and fairly quickly
 3       to have that rectified.
 4   A.  I certainly will .
 5   Q.  A question of court training has also been covered and
 6       you very fairly acknowledged, I think, that it is
 7       probably a good thing in many ways that experts are
 8       challenged so they realise what they are actually trying
 9       to convey.  Again, is court training something that you
10       only really work in conjunction with the prosecution
11       authorities over or has consideration ever been given to
12       enlighten those on the other side of the fence?
13   A.  Certainly when we do our court training, the Crown
14       Office are involved in that and they do supply us with
15       an individual who is actually at the police college to
16       assist in that training.
17   Q.  Can I ask you -- and this picks up from something
18       Mr Holmes was asking -- what procedures would ordinarily
19       be in place if there was a regular dissatisfaction with
20       the quality of evidence that an individual was giving?
21       Say somebody is just not performing, would there be some
22       procedure by which they would be almost monitored, they
23       would then be invited in for an interview, retraining if
24       necessary, et cetera, et cetera?  Is that something that
25       operates on a fairly regular basis?
page 109
 1   A.  Certainly if any of my experts were going to court and
 2       their evidence wasn't to a sufficient standard, the
 3       Crown Office would be making me aware of that at one of
 4       my regular meetings and, if that was the case, then we
 5       would certainly address that through additional
 6       training.
 7   Q.  As far as the contact with the Crown Office is
 8       concerned, you say regular meetings, is that scheduled
 9       meetings or how can we imagine the frequency of these
10       meetings with Crown Office?
11   A.  I probably meet with them maybe once every two to three
12       months but I'm in telephone conversation with them more
13       frequently than that.
14   Q.  Of course, the introduction to the non-numeric standard
15       required that there be a precognition-taking facility by
16       the Crown, no doubt to ask the questions they wanted to
17       know the answers to.  As far as that is concerned, and
18       bearing in mind as I understand it we no longer have the
19       charting enlargement kind of system available to a jury,
20       it's obviously important that the Crown knows what to
21       ask as much as the Fingerprint Expert knows what to
22       tell.  The big issue of course here is disclosure, as
23       you will appreciate.
24           What training is given or what advice is given to
25       your people, the Fingerprint Experts, as to what the
page 110
 1       test is, what is required to be handed over to the Crown
 2       Office when a Procurator Fiscal or a precognition
 3       official comes along to take the statement?  Do you tell
 4       him what has to be disclosed?
 5   A.  Whenever a person has come through a precognition, they
 6       obviously have the case in front of them and the report
 7       in front of them and normally the Procurator Fiscal or
 8       whoever is precognoscing them would lead them through
 9       their statement and ask them questions about the
10       statement and if there are any potential issues within
11       that particular case.  So that would be led very much by
12       the person doing the precognition.
13   Q.  You see, the question of disclosure, as I am sure you
14       understand, is that the obligation principally on the
15       Crown is to disclose to the defence anything which may
16       damage the Crown case or assist the defence case.  I am
17       trying to imagine a situation, and I will give you an
18       example, let's suppose someone in the office, a
19       Fingerprint Expert, is looking at a fingerprint on a bag
20       and they are not really satisfied with it.  They say,
21       "Well, it doesn't look like the accused's fingerprint"
22       or "I am not prepared to go to court over this one" so
23       they, as it were, put it to the side.  They can get
24       maybe nine or ten points, but they are not great.
25           We then get to a position where, as it were, they
page 111
 1       consider that is something that is not damaging the
 2       prosecution because it's not going forward.  "I am
 3       looking for the accused's print, I'm not too happy about
 4       it".  Of course, defence counsel might be very
 5       interested in that because it may cast a reasonable
 6       doubt as to why his client's fingerprints are not on it
 7       or it may be something that tends to -- it may be a
 8       fingerprint that possibly is of an incriminee.
 9           I take it you see that there's actually a bit of a
10       danger that the Fingerprint Expert thinks they are being
11       fair to the defence when in fact the defence would
12       actually like to know that they weren't able to get this
13       particular aeroplane flying on it.
14           Is there any specific training on disclosure that
15       highlights these subtle differences?
16   A.  Can I say that the ACPOS disclosure document, which was
17       finalised in the last month, and we are working with
18       ACPOS and the Crown Office.  We have a working group to
19       look at this issue to see how we can ensure that we are
20       making full disclosure to the Crown and we're seeking
21       that from Liam Murphy who meets with us to discuss that
22       particular issue.
23           So there will be training.  There's a training
24       package identified by ACPOS.  They will be training all
25       our staff and, at the end of the day, we will ensure
page 112
 1       that if we have to disclose anything, we will be
 2       disclosing it.
 3   Q.  As far as the training is concerned, I take it that is
 4       given to new trainees as well as those who are in
 5       existing positions?
 6   A.  It will be given to every member of staff.
 7   Q.  The question of disclosure is one that is clearly still
 8       under active consideration and you mentioned the ACPOS
 9       disclosure questions.  I take it you are aware that the
10       Crown policy on disclosure is available on the Internet
11       on the Crown Office website?
12   A.  Yes, I am.
13   Q.  Is that something that your employees are encouraged to
14       be aware of, to look at, to understand what the issues
15       are?
16   A.  We are working with the Crown Office to put together a
17       package that we can then take to our staff so they are
18       fully aware of all their obligations under disclosure.
19   Q.  I am going to make the suggestion to you.  You may not
20       feel capable of agreeing to this but the form I showed
21       you Mr Zeelenberg provided appears to contain all the
22       information.  So if the defence asked for that it would
23       disclose something like the example I gave to you.  So
24       you have a hard ready copy to hand over to prosecution
25       authorities and say it's all in there.
page 113
 1           Would you agree that that certainly appears to be a
 2       comprehensive statement as to the whole analysis from
 3       start to finish?
 4   A.  Certainly from what I have seen yesterday and what I
 5       have heard of today it looks very comprehensive.  I
 6       think, as I said before, we will need to take that away
 7       and look at it to make sure it does work for our
 8       organisation and, yes, that could be a potential method
 9       for disclosure.
10   Q.  I would like to turn to the question of the general ways
11       of presenting evidence if I can.  I think you will
12       understand that it is simply, broadly speaking, for
13       lawyers, not good enough for someone to just turn up and
14       say, "I'm an expert.  I'm telling you that's the way it
15       is".  It has to be demonstrable.  It has to be something
16       that has logic to it, that can be seen and the jury can
17       decide for themselves but instructed and assisted by the
18       expert.
19           Against that background have you yourself been in
20       any way observing, and I don't necessarily mean sitting
21       in the room but looking at the documents and PowerPoint
22       presentations available on the Inquiry website to see
23       how this had been approached in particular by, on the
24       one hand, Mr Wertheim but also Mr Zeelenberg, his
25       presentation, trying to explain methods of fingerprint
page 114
 1       analysis and, obviously, Y7 and QI2?  Have you been
 2       looking at how that has been done?
 3   A.  I have been.  I have said we are working with the Crown
 4       Office and in particular Scott Pattison to look at a
 5       generic DVD and that DVD could be shown to the court
 6       prior to evidence being given, whether it be on DNA or
 7       fingerprints, and we are also looking to see if we can
 8       take that further to enhance marks so people can talk
 9       through their identifications, if that is needed, to the
10       court.
11   Q.  Of course.  I am not suggesting that every single case
12       where it's a tiny piece of the overall evidence but in
13       cases that are highly or solely dependent on fingerprint
14       evidence I take it you will agree that for your experts
15       to at least have training and understanding of
16       PowerPoint presentations or Photoshop, all these kinds
17       of software facilities, similar to what we have in the
18       Inquiry, it is something that they should be comfortable
19       with using in case they have to end up in the High Court
20       with a difficult case trying to explain and demonstrate?
21       You agree with that I take it?
22   A.  I totally agree and certainly the DVD, we expect to be
23       ready in late December because that's actually being
24       worked on at the moment.
25   Q.  Do you have any general comments and, again, if you
page 115
 1       don't, please say so, but just on let's take
 2       Mr Zeelenberg's presentation, is that something that you
 3       as a non-Fingerprint Expert, if I put it that way, is
 4       that something that you were able to understand what he
 5       was trying to achieve?  I am not asking whether you
 6       agree with him.  I am just asking if, from the
 7       presentation, you see what he was trying to demonstrate?
 8   A.  I think any method -- and there's probably many methods
 9       out there that actually allow the jury and the members
10       of the court to understand why you've come up with a
11       certain conclusion can only benefit the criminal justice
12       system and I would support it.
13   Q.  If I contrast that with -- and I know it was the system.
14       I am not criticising the SCRO people for what they
15       presented but the system that existed before with the
16       charting enlargements, which I am sure you must have
17       seen, at least the kind of example that's been before
18       this Inquiry, I take it you will agree that that really
19       didn't assist very much in explaining what the analysis
20       was?  It was just a simple demonstration of how that
21       analysis could be carried out.  I take it you would
22       agree the quality is rather inferior to the kind of
23       dynamic presentations we have seen?
24   A.  I think we need to embrace technology and where
25       technology is at the moment and certainly that's a way
page 116
 1       our organisation will take this forward, working
 2       alongside the Crown Office.
 3   Q.  Do any individuals within the SPSA, have they asked if
 4       they can come along to watch the Inquiry for the
 5       purposes of CPD or just general learning?  Is that
 6       something that's been asked for?
 7   A.  Whenever the Inquiry was set up I went round and spoke
 8       to all four centres and spoke to the staff there and
 9       spoke to the unit managers.  As an organisation we set
10       up an oversight group and also on a Monday morning I
11       have a video conference with the heads of operations and
12       the fingerprint managers.  That doesn't happen every
13       Monday morning but it is in my diary that if there's
14       something from the Inquiry we can then feed that back to
15       the unit managers and whenever we were speaking to
16       staff, staff were very clear, we actually purchased
17       televisions because we weren't sure if it was going to
18       be televised and we were encouraging staff to obviously
19       with the LiveNotes, have the opportunity -- not the
20       LiveNotes, have it obviously presented in the evening.
21       They were following it that way as well.
22           So we left it with the unit managers to allow them
23       to manage their own units as to if people want to come
24       along to the Inquiry or not.  Obviously, staff stress to
25       us that they wanted it to be business as usual because,
page 117
 1       obviously, we still have to be in the business of
 2       examining marks, detecting crime and obviously going to
 3       court to give evidence.
 4   Q.  It has been a fairly long Inquiry.  I am not suggesting
 5       you should be sitting every day as we have but, as far
 6       as a learning experience, I take it from what you have
 7       said there's certainly been no discouragement from them
 8       coming along to attend?
 9   A.  I'm certainly not aware of anyone who has been told they
10       can't come along.
11   Q.  I take it you would agree that for some parts of it,
12       from what you have been able to identify, no doubt it
13       could have been, if people had been able to do so, a
14       useful exercise to see various presentations on both
15       sides of the debate?
16   A.  Sure, yes.
17   Q.  Can I just be clear, as far as the way forward is
18       concerned, you have described you anticipate a number of
19       things happening.  You have explained, for example,
20       disclosure, you are in contact with Crown Office,
21       whatever the result of the Inquiry is to respond to that
22       in the appropriate way and so on and so forth.
23           Is there any difficulty in the question of
24       resources, financial resources, that you feel that may
25       restrict or inhibit any improvement or is it more or
page 118
 1       less if it's reasonably required for a proper system
 2       within the system of justice to be allowed that the
 3       resources will be found for it?  Is that your
 4       understanding?
 5   A.  Certainly my understanding is our next piece of work
 6       will be the modernisation programme and that programme
 7       will identify our HR issues for the future.  It will
 8       identify how we move forward with our quality systems.
 9       It will identify what our capability and capacity
10       actually is and it will also identify what the customers
11       require, both ACPOS and Crown Office.  I will be in a
12       better position, whenever I have that document
13       completed, to be able to answer your question fully but
14       obviously what we will be doing is presenting a paper to
15       our Board, to the Scottish Government and obviously to
16       the public to say this is where we see forensic science
17       going in the future.  There may be a cost associated
18       with that but that is a matter for the SPSA Board to
19       actually go out and successfully get that money for us.
20   Q.  So they'll put the pitch in but we know that those who
21       have pay out the money might have a different view as to
22       what is a reasonable cost.  That is what it comes down
23       to?
24   A.  That is one of the chances we probably have.  You know,
25       we do have significant support from the Government.  We
page 119
 1       have been able to move forward with Gartcosh and we have
 2       the Dundee Bill there so we have been able to support
 3       development and we'll look for further support if that's
 4       required in the future.
 5   Q.  Finally, just really related to that, the number of
 6       fingerprints that are being analysed seems to be a
 7       pretty high volume.  What sort of staff levels are felt
 8       to be appropriate?  Do you feel that to carry out the
 9       function they are currently adequately staffed,
10       inadequately or more than adequate?  Where would you fit
11       it?
12   A.  I think if you look at the backlogs we have and the fact
13       those backlogs are falling, that would indicate to me on
14       a month-by-month basis that we have the appropriate
15       resources out there to meet the customers' needs.
16       However, I would put a caveat on that and say if the
17       customer wants the reports quicker or the analysis done
18       quicker that might have an impact on that and that's why
19       we are at the moment speaking to Crown Office and to the
20       police to understand what their business needs are.
21   MR SMITH:  Sir, there was one other matter I wanted to ask
22       about but I have a somewhat cryptic message from
23       Mr Moynihan that before I asked it he wished to explain
24       to me he had a problem with it.  I am not sure if
25       Miss Carmichael is in a position to advise me.
page 120
 1   MISS CARMICHAEL:  Mr Moynihan might be because he is back in
 2       the hall himself.  I am happy to deal with it myself
 3       but ...
 4   THE CHAIRMAN:  Well, we'll give Mr Moynihan to speak to you
 5       but I am keen to finish this witness before lunch.
 6                         (Counsel confer)
 7   MR SMITH:  Can I have one moment, sir?
 8   THE CHAIRMAN:  Yes.  (Pause)
 9   MR SMITH:  Sir, I am obliged for the few moments to deal
10       with that matter.  I am happy to indicate that I have no
11       further questions for this witness.
12   THE CHAIRMAN:  Thank you very much.
13           Ms Jones?
14   MS JONES:  Thank you, sir, just a few questions really
15       following on from my learned friend, Mr Smith's,
16       questions about morale within the organisation.
17   THE CHAIRMAN:  Yes.
18                    Cross-examined by MS JONES
19   Q.  Mr Nelson, a document was put to you from a meeting
20       nearly two years ago in the Edinburgh laboratory.  I
21       wonder if you could, first of all, clarify who exactly
22       was at that meeting?
23   A.  It was members of staff from both the laboratory, scene
24       examination and fingerprints.
25   Q.  How many staff, do you know, altogether?  Can you
page 121
 1       remember?
 2   A.  There was probably in the region of 60.
 3   Q.  I think you said that there were subsequent meetings, I
 4       think you said, that you sought to reassure staff on
 5       certain matters.
 6           Can you perhaps tell us when subsequent meetings
 7       took place?
 8   A.  I believe that was in March that I arranged a meeting to
 9       go back and speak to the staff.
10   Q.  What was the tenor of comments subsequent to that
11       meeting?
12   A.  Everyone, to my understanding, went away satisfied and
13       certainly there was no further communication regarding
14       anyone's unhappiness.
15   Q.  It may be said that staff sickness levels can be a
16       fairly concrete indicator of morale within an
17       organisation.
18           Are you able to tell us what the sickness levels at
19       the organisation are just now in comparison to, say, two
20       or three years ago?
21   A.  Certainly the sickness levels have fallen significantly
22       and it's down to about 3.4 per cent.
23   Q.  Can you recollect from what?
24   A.  I think at one stage it was between 12 and 16.
25   Q.  So when you say round about 3 per cent, what period does
page 122
 1       that cover?
 2   A.  That's in the last quarter.
 3   Q.  Can you tell us what your view on morale within --
 4       because this Inquiry clearly is only concerned with
 5       fingerprint matters -- what your view of morale within
 6       the fingerprint bureaux and staff within that is just
 7       now and what you base that on?
 8   A.  Certainly I have to take my lead from my unit managers
 9       and obviously from the staff that I meet at the
10       breakfast mornings or when I am walking round and I
11       think everyone has said what they want to do is they
12       want to move on, they want to have that opportunity to
13       move on and I'm not aware of any significant staff
14       issues in terms of morale.
15   Q.  One final question: I think there is some suggestion
16       before the Inquiry that there has been a worsening
17       relationship between the SPSA and the Chief Constables
18       in Scotland.
19           Are you able to comment on that?
20   A.  Certainly what I can say is that I believe the
21       relationships between ourselves (i.e. SPSA) and the
22       Chief Constables are better than they have ever been and
23       we really are, both organisations have taken this on
24       board and both organisations have put a lot of resources
25       into working on that relationship and I believe it's
page 123
 1       better than it's ever been.
 2   Q.  In terms of the composition of the Board of SPSA, how
 3       many Chief Constables are currently on the Board.
 4   A.  The Board have two Chief Constables sitting on the
 5       Board.
 6   MS JONES:  Thank you very much.
 7   THE CHAIRMAN:  Yes?
 8   MISS CARMICHAEL:  Two very brief points, sir.
 9   THE CHAIRMAN:  Yes.
10                  Re-examined by MISS CARMICHAEL
11   Q.  Mr Nelson, Mr Smith gave you some information about the
12       Mackay and Robertson Inquiry and asked for your comment
13       about, I think as he put it, the four experts pleading
14       the fifth.  Were you aware that the Mackay and Robertson
15       investigation was a criminal investigation in which they
16       were suspects?
17   A.  No.
18   Q.  To that extent, if they were being interviewed in that
19       capacity it would be appropriate for them to be warned
20       they had every right to remain silent?
21   A.  Sure.
22   Q.  The other matter I just wanted to clarify with you is
23       something you said to Ms Jones there.  In your statement
24       you provided us with a graph about staff sickness.  I
25       don't think we need it on the screen but the reference
page 124
 1       is paragraph 44, page 13.
 2           You had given us a figure April to
 3       September 2008/2009 at 6.3 per cent and I think in
 4       evidence there you said 3.4 per cent.  I just wanted to
 5       clarify whether that was a more up-to-date figure or
 6       whether there was something in the graph that you wanted
 7       to alter in the light of that?
 8   A.  No, that's a more up-to-date figure that I have, just
 9       taken within the last three months that it's down to 3.4
10       per cent.
11   MISS CARMICHAEL:  Thank you.
12   THE CHAIRMAN:  I don't think there is very much I need to
13       ask you that has not been covered but my impression has
14       been over many years now of forensic evidence that
15       forensic scientists generally try to understate rather
16       than overstate their position; in other words, I can't
17       the remember the formula but sometimes one got a
18       probability or a possibility and so on.
19           Would that be your experience, generally, that
20       experts in various fields tend to err, as I think you
21       put it, on the side of caution?
22   A.  I think certainly what they would always do is give
23       benefit of the doubt.  That is something they are
24       trained to do.  In terms of our statements, whenever you
25       move into the laboratory environment we're beginning to
page 125
 1       change our statements and the conclusions will follow
 2       the lines that you have just said there, support the
 3       evidence, strongly support the evidence and we're
 4       looking across the United Kingdom at how we begin to
 5       even modify our statements to make them more acceptable
 6       and more understandable and that's a working group we're
 7       involved in here in Scotland and we have leads at each
 8       of our business centres so reports will be changing and
 9       will be improving in the near future.
10   THE CHAIRMAN:  I just wondered whether from your experience,
11       and obviously it goes back a long way of being an expert
12       in your own field, do fingerprints create a particular
13       problem because we have heard in the course of this
14       Inquiry people saying about being 100 per cent certain.
15       Which is a strange view, in a sense, because although
16       only one person could have -- everybody has their own
17       fingerprint but actually what the expert is doing is
18       comparing a mark with a print and saying, "My view is
19       that that mark is made by the person who owns the
20       print".
21   A.  That's correct.
22   THE CHAIRMAN:  So really the idea of being 100 per cent, is
23       that something you would discourage as a scientist?
24   A.  Definitely.  I can only speak to physical fits and in a
25       physical fit I'm happy to speak to, you know, that was
page 126
 1       definitely the same item, of the certainty of that
 2       coming together, but unless you have looked at every
 3       fingerprint in the world, unless you are completely
 4       satisfied beyond all doubt to your conclusion, I don't
 5       see how you can be 100 per cent.  You can be confident
 6       but not 100 per cent certain.
 7   THE CHAIRMAN:  But the way that an expert in fingerprints
 8       gives his view, it could be expressed in the ways that
 9       you have been mentioning for other subjects that
10       forensic scientists engage in.
11   A.  That's correct.
12   THE CHAIRMAN:  On a more practical point, I raised with
13       another witness, at least one other witness, it seems to
14       me that if an expert is going to be opposed (in other
15       words, somebody is going to say, "Well, I disagree with
16       you.  I think you are wrong"), you should have an
17       opportunity in a laboratory atmosphere to examine that
18       person's opinion and not to be confronted with it in the
19       witness box?
20   A.  Yes, and quite often that might help through the
21       precognition process where, you know, the defence might
22       come in to precognosce and if we have the open and
23       transparent environment there there's no reason why they
24       couldn't be understanding each other's position before
25       it actually ends up in court.
page 127
 1   THE CHAIRMAN:  Certainly sometimes experts, certainly in my
 2       experience, seem to resolve their differences in that
 3       way.
 4   A.  Yes.
 5   THE CHAIRMAN:  Perhaps not directly but through the witness
 6       being asked the right questions in advance of the
 7       hearing.
 8   A.  Exactly.
 9   THE CHAIRMAN:  The only other question I wanted to ask you
10       was really it's been touched upon by Mr Smith and that
11       is the way the evidence is displayed, I suppose is the
12       way I would put it, in court.  It does seem that there
13       could be a danger that if, say, the opposing expert
14       produces a very graphic description of his views or her
15       views, that the expert who is from your side, as it
16       were, is put at a disadvantage in that they don't have
17       the opportunity to present their evidence in as clear a
18       way or a way that the jury could readily understand.
19   A.  No, you are correct on that.  At the end of the day, we
20       as an organisation need to move forward in terms of how
21       we present our evidence in court and that's why we are
22       working with the Crown Office through this DVD to see if
23       there's any other ways we can do and improve the
24       presentational skills of our experts in court and where
25       there is challenge that can be dealt with at the
page 128
 1       appropriate level with maybe even the two experts
 2       talking through what differences they would have.
 3   THE CHAIRMAN:  Those were the only matters I wanted to raise
 4       with you.  I am grateful to you for assisting the
 5       Inquiry and thank you very much for coming.
 6           I think that neatly concludes the witness' evidence
 7       and we will sit again at 1.50.  Then it will be
 8       Mr Pattison?
 9   MISS CARMICHAEL:  It will be Mr Pattison who is the next
10       witness.
11   (1.00 pm)
12                      (Luncheon Adjournment)
13   (1.50 pm)
14                      SCOTT PATTISON, sworn
15                   Examined by MISS CARMICHAEL
16   THE CHAIRMAN:  Your full names, please.
17   A.  It's Scott Pattison.
18   THE CHAIRMAN:  Take a seat, please.
19   MISS CARMICHAEL:  Good afternoon Mr Pattison.  I think you
20       have prepared both a statement and a supplementary
21       statement for the Inquiry.
22   A.  That's correct, yes.
23   Q.  Subject to anything that you want to elaborate on or to
24       change in the course of your oral evidence this
25       afternoon, are you happy to adopt those as part of your
page 129
 1       evidence?
 2   A.  Yes, please.
 3   Q.  You are the Director of Operations within the Crown
 4       Office and Procurator Fiscal Service at the moment?
 5   A.  That's right.
 6   Q.  I wonder if you could tell the Chairman a little bit
 7       about what that involves?
 8   A.  As Director of Operations I occupy a new post which was
 9       created in August of last year in support to the Deputy
10       Crown Agent and I report directly to the Deputy Crown
11       Agent.
12           Crown Office is the headquarters of the Prosecution
13       Service and has a number of different divisions and
14       groups within it.  The Operations Group is the largest
15       of those and comprises six specialist units which are
16       essentially the main specialist units within the
17       Prosecution Service in Scotland, for example, the High
18       Court Unit which prepares and assists Procurators Fiscal
19       in preparing High Court cases for trial, the Appeals
20       Unit which prepares criminal appeals, our International
21       Co-operation Unit, our Press Office and our Civil
22       Recovery Unit and the National Casework Division.
23           With the Deputy Crown Agent I am senior operational
24       or adviser on operational matters to both Law Officers
25       and to the Crown Agent and we support and advise
page 130
 1       Procurators Fiscal in the preparation of their cases.
 2   Q.  I would like to call, if I can, on your expertise and
 3       knowledge of how High Court procedures currently work,
 4       Mr Pattison, if I may.  I think you were present in the
 5       hall when the Chairman was asking the last witness,
 6       Mr Nelson, about situations where expert witnesses
 7       called by the Crown might be faced with defence evidence
 8       which they might want to go away and examine for some
 9       reason.
10           To explain a little bit about the background that
11       seems to have arisen in the Shirley McKie case, what
12       happened was that the defence counsel disclosed to the
13       Advocate Depute a few days before the trial was due to
14       start what the line of defence would be.  There was some
15       opportunity for two of the Crown witnesses to view the
16       defence production and to speak to the Advocate Depute
17       about it and a third Crown witness it seems may only
18       have had the material by the time she got into the
19       witness box.
20           What I'd like to explore is whether there are any
21       procedures currently in play which may not have been in
22       play back in 1997 which would enable the Crown and
23       ultimately experts called upon by the Crown to become
24       aware of a line of defence based on opposing expert
25       evidence?
page 131
 1   A.  I think it's important to note that since the events in
 2       the case that the Inquiry is considering took place
 3       there has been a major programme of reform, particularly
 4       in the High Court in Scotland.  Lord Bonhomie led a
 5       review in relation to that.  There were significant
 6       legal procedural changes as a result.
 7           I think probably the most significant change, but
 8       there have been a few and I will try and elaborate on
 9       them, has been the introduction of preliminary hearing
10       in High Court business and the change to a situation
11       whereby cases are indicted to a preliminary hearing and
12       by that I mean that a trial is not yet fixed until all
13       matters are canvassed in terms of the Crown and the
14       defence's state of preparedness at the preliminary
15       hearing and thereafter a trial is fixed by the judge
16       after he is satisfied that both parties are prepared.
17           As part of that process, which has been very helpful
18       we think, there is a provision for managed meetings or
19       managed communication between the Crown and defence,
20       between the Advocate Depute and counsel for the defence,
21       and that process tends to draw out the work which the
22       defence are doing, the material they are still awaiting
23       in terms of their own preparedness for trial and there
24       is a legal provision that requires the defence to now
25       intimate their list of witnesses and list of productions
page 132
 1       to the Crown and to all parties in the case if there are
 2       co-accused seven days before the preliminary hearing.
 3           I think there is still a degree of judicial latitude
 4       given in relation to situations where the defence don't
 5       manage to lodge by that seven-day period but where that
 6       doesn't happen there can be a continued preliminary
 7       hearing where the defence still await information or
 8       productions and only when both parties say that they are
 9       prepared are cases continued to trials and, as another
10       result of the Bonham reforms, in the main cases, are
11       continued to a fixed trial on a fixed date within a High
12       Court sitting, whereas previously they were continued to
13       a sitting which might have up to 20 cases within it.
14           So there are a number of procedural changes which I
15       think serve to focus the mind of both the Crown and the
16       defence and there is a focus on judicial management of
17       the preliminary hearing to get to a point where each
18       side knows what the other's position is, so far as is
19       possible.
20   Q.  What we have heard happened back in 1999, by the time we
21       got to Ms McKie's trial, was that there had been a
22       thought that a fingerprint may have been planted and
23       then further experts were consulted by the defence whose
24       opinion it was that the fingerprint had not in fact been
25       correctly identified and it was at the point where these
page 133
 1       further experts came up with their opinion that the
 2       nature of the defence changed.
 3           How would that be managed within the current system
 4       because I suppose it could still be that a trial might
 5       be set on the basis of one line of potential defence and
 6       then another emerges, possibly based on expert evidence?
 7       How would expert evidence emerging relatively late in
 8       the day, perhaps close to the trial, be dealt with now?
 9   A.  I suppose it could arise either because the defence had
10       instructed an additional expert or because the existing
11       expert's opinion had changed or developed and in that
12       situation what we find happening -- and I'm not saying
13       it happens, I couldn't say it happens in every case,
14       there's a process of communication between defence
15       counsel and the Advocate Depute and in that scenario now
16       one would expect the Advocate Depute to be asking for
17       time for the Crown to consider the defence expert
18       report, if it's been revised or updated, and also in
19       that situation where the expert evidence is contested,
20       if you like, it's open to the Crown and we would
21       encourage, very strongly encourage, the Procurator
22       Fiscal to precognosce the defence expert and Advocate
23       Deputes do instruct that.
24   Q.  What we've heard about in this case is there having been
25       some communication between the Advocate Depute and
page 134
 1       defence counsel and about a production having been
 2       brought forward which was really entirely visual in
 3       nature.  It had some annotations on it which perhaps
 4       indicated or which did indicate that the expert saw
 5       differences in the mark, but there was no, as I
 6       understand it, formal written report or anything of that
 7       sort.
 8           Is there any provision to ensure that there might be
 9       some further explanation in writing from a defence
10       expert of the position so that that could be put to a
11       Crown expert?
12   A.  I think one would expect the Advocate Depute, as I said
13       earlier, to be -- if the witness is presented with that
14       on very short notice and you mentioned a potential when
15       they were in the witness box for the first time, we
16       would expect the Advocate Depute to be asking for time
17       for the witness to consider that and for perhaps a short
18       adjournment or an overnight adjournment to allow
19       precognition to take place.
20           I suppose that the procedures which have changed in
21       terms of the advent of preliminary hearings and managed
22       meetings have helped a great deal or have helped a great
23       deal in relation to the issues that you are suggesting.
24           In the scenario where a salient piece of evidence,
25       expert evidence, is brought to the fore at a very late
page 135
 1       stage by the defence I would expect the judiciary to
 2       have an openness to allow that to avoid a miscarriage of
 3       justice but also to allow the prosecutor time to
 4       consider a new document or a new statement and I think
 5       if you spoke to Advocate Deps you would find that the
 6       judiciary in Scotland allow that kind of time.
 7   Q.  I think a term "defence disclosure" is perhaps something
 8       that comes from other jurisdictions whereby there might
 9       be more of a compulsion on the defence to put forward
10       their productions in a formal way.
11           Is there anything you can assist us with in the
12       Scottish system that might be a parallel to that?
13   A.  Only the provision under, I think it's section 74 as
14       amended of the 1995 Act which requires the defence to
15       intimate and lodge productions seven days before the
16       preliminary hearing.  Now, that's a direction to the
17       defence but I couldn't go so far as to say that it's
18       absolutely -- they are required to absolutely adhere to
19       it and productions are frequently lodged at a later
20       stage than that and sometimes just before the trial so
21       that still happens as a matter of course.
22           When that happens we rely on the Advocate Depute
23       making clear that the Crown requires time to consider
24       the point and I think that the judge allowing equality
25       of arms in terms of preparation.
page 136
 1   Q.  Of course the Advocate Depute, if he had had the
 2       opportunity, as we heard he did in this case, in asking
 3       for time would be guided by the advice that he or she
 4       had had from such experts as they had been able to
 5       consult with?
 6   A.  Yes.
 7   Q.  You mentioned the Bonhomie Reforms as something that
 8       might be relevant in the area we are talking about here,
 9       expert evidence and the preparation of it for criminal
10       cases.  In your statement you indicate there have been
11       some other developments in the area of solemn procedure
12       set in at least within your own offices.
13           Are there any areas you particularly want to draw to
14       the Chairman's attention that are relevant to the area
15       of fingerprint evidence?
16   A.  I think over the last ten years there's been an ever
17       increasing -- this isn't directly related to fingerprint
18       evidence but I think it's helpful context so if I may,
19       there's been a real trend towards specialisation within
20       the Prosecution Service and that has in particular
21       focussed on our High Court work.  For example, in each
22       of our 11 prosecutorial areas there is a specialist area
23       High Court Unit with legal staff and precognoscers
24       within it who are focused on High Court work with all of
25       its myriad complexity and to own cases from the time
page 137
 1       they are marked, at the point at which the initial
 2       decision is taken to take proceedings, right through to
 3       trial and through to the appeal stage.  That ownership
 4       and our emphasis on High Court case requiring to be
 5       prepared to the highest quality is something which we
 6       really focus upon as an organisation.
 7           I think also there's been in parallel with the
 8       Bonhomie reforms a real focus by the Crown and by Crown
 9       Counsel on early allocation of cases which are complex
10       and are less than routine and you could say that every
11       High Court case is complex and they are and getting ever
12       increasingly more so but there are some which are top of
13       the pile and at the moment there is a complex case list
14       within Crown Office and every murder case, for example,
15       is allocated to an Advocate Depute at a very early stage
16       after the initial report comes in from the Procurator
17       Fiscal.  When I say "initial report", it's the report
18       that the Fiscal submits just after the accused has
19       appeared on petition for the first time.  So the
20       approach is to allocate murder cases at a very early
21       stage and also certain other complex matters.
22           That means that you have the involvement of Crown
23       Counsel who will be doing the trial from a very early
24       stage and that adds to the quality of their preparation
25       and we do find Crown Counsel becoming involved in
page 138
 1       decisions as to precognition and re-precognition of
 2       appropriate witnesses.
 3           So although it's not directly related to fingerprint
 4       evidence as such I think it's perhaps helpful
 5       background.  The scenario within which we work is vastly
 6       different from the scenario ten years ago.
 7   Q.  So it would be fair to say that the most complex cases
 8       are allocated to individual advocates Depute very close
 9       to the point at which the case is commenced --
10   A.  Yes.
11   Q.  -- when it comes to the attention of the Procurator
12       Fiscal.
13           Less complex cases will be assigned to advocates
14       depute but possibly at a later stage in their life?
15   A.  That's right.  The other thing that has changed though
16       that even for -- and I'll say a routine High Court case
17       guardedly because they all do have a degree of
18       complexity, there is much earlier allocation of the
19       routine to advocate deputes and much earlier involvement
20       by Crown Counsel by the virtue of the advent of the
21       preliminary hearings themselves and by preliminary
22       hearing preparation in the preparation of the cases so
23       whereas 10/15 years ago you could find advocate deputes
24       receiving High Court papers on quite short notice before
25       a sitting which might have many cases within it, most
page 139
 1       cases will have been seen by Crown Counsel, in fact, all
 2       cases will have been seen by Crown Counsel prior to
 3       preliminary hearings.  That doesn't mean that those who
 4       prepare preliminary hearings also do the trials but it
 5       does mean that Crown Counsel have seen the case, have
 6       input into the preparation at a much earlier stage and,
 7       as I say, there is earlier allocation of significant and
 8       complex trial work.
 9   Q.  Should we understand that when Crown Counsel is looking
10       at a case at the preliminary hearing stage he or she
11       will be getting into the detail of the case, thinking
12       about which witnesses actually need to be cited and
13       sometimes even instructing further investigations at
14       that stage?
15   A.  Yes, absolutely.  That's frequent.
16   Q.  I would like to move on, if I may, to the topic of the
17       involvement of the Crown Office and Procurator Fiscal
18       Service in the stages running up to the introduction of
19       the non-numeric standard.
20           I think in your supplementary statement you raise a
21       query about the extent to which it's really the Crown's
22       business to become involved in the detail of standards
23       employed by experts who may come to give evidence in the
24       criminal courts.  I think you draw a parallel or perhaps
25       you are really drawing a distinction rather with the
page 140
 1       situation where the Crown might on occasion call on
 2       psychiatrists.
 3           I think what you say is we wouldn't ask to be
 4       involved in the psychiatrist's formulation of their
 5       standards, their diagnostic manual and so on, perhaps
 6       it's not appropriate for the Crown to be too involved in
 7       the standards of the fingerprint community.
 8           I would like you to elaborate on why you say that.
 9   A.  I think I should say that I wouldn't restrict it to the
10       comparison to psychiatric evidence or standards.  I
11       think we are not the experts and prosecutions, on an
12       ever increasing basis, rely on expert evidence which is
13       of increased complexity.  We do not get involved in
14       setting the particular standards, for example, for
15       forensic scientists in biology work, in dealing with DNA
16       evidence, in psychiatry, as I say in my statement, in
17       road traffic collision investigation.  We rely on those
18       who have the expertise to tell us as a Prosecution
19       Service the standards that they feel are appropriate.
20       Our business is prosecution and in making decisions as
21       to prosecution in the public interest.  That requires, I
22       think, the Crown to place a great reliance on those who
23       have expertise in terms of setting standards for their
24       work.
25           What I will say if there is an objective basis for
page 141
 1       doubting the standard that is being applied, however
 2       that might arise, then of course the Crown has an
 3       interest in making sure there is significant review work
 4       to review that standard but I do think that, as a
 5       Prosecution Service, our position has to be to rely on
 6       those who have the expertise and the detailed knowledge
 7       of the subject matter to provide that to the court and
 8       to set their own standards, if you will.
 9   Q.  I am going to try to draw a distinction and ask you for
10       comment on it.  Just taking the example of psychiatry
11       but it may well apply to some of the other scientific
12       disciplines that you have described, psychiatry is
13       itself an independent clinical discipline and although
14       psychiatrists very often come to give evidence in court
15       their primary purpose in life is not to provide evidence
16       for courts.  They spend most of their time treating
17       psychiatric patients.
18           I would suggest to you a potential distinction in
19       that fingerprint examination is an area of endeavour
20       that has grown up almost entirely in the forensic
21       context and Fingerprint Examiners carry out work,
22       leaving aside perhaps for immigration identifications,
23       almost entirely in the context of work that is
24       instructed by the police and the Crown.
25           On that basis, might there not be grounds for a
page 142
 1       distinction in saying that this is an area where perhaps
 2       the Crown has a more proper and direct interest in
 3       looking at the underlying standards, partly because this
 4       is not an independent scientific discipline in the way
 5       that some of the other things that you are describing
 6       are, but partly also because, you know, you are the main
 7       customer and you are going to have to rely on the
 8       evidence in court?
 9   A.  I can see the force in your question.  I'm not sure that
10       the fact that we are the main customer of the service,
11       if you like, is the relevant factor, though.  Expert
12       evidence is always important and can be crucially
13       important and I think the issue is who is best placed to
14       determine what the standard should be.
15           I come back to what I said: as a Prosecution
16       Service, we do not ourselves have the expertise to
17       determine scientific or quasi-scientific standards.  We
18       are a customer of experts of all and the varied
19       descriptions that I mentioned earlier.  So I'm not
20       convinced that just by being a customer of an
21       organisation that that would allow us to have a
22       sufficient basis or the expertise to intramate with them
23       in relation to the detail of which standard they apply.
24       I hope that is clear enough.
25   Q.  What is on my mind in this area as well is that some of
page 143
 1       the material that you refer to in the course of your
 2       statement, when you're talking about the Standing
 3       Committee on Expert Evidence and the Lord Advocate's
 4       guidance and the way these strands were being developed
 5       through the 1990s, is that the Crown Office at that
 6       stage did seem to be quite keen to become involved in
 7       the development of standards and were themselves perhaps
 8       trying to promote a situation where there could be
 9       discussion about leading evidence to less than a
10       16-point standard.
11           I am wondering if there is not the expertise to
12       judge that how it could come about that that was the
13       line of discussion being promoted at that stage?
14   A.  I wasn't involved in that particular stream of work but,
15       as I read the papers and read the material that's
16       available to me, I don't think what was happening at
17       that time was that the Crown were trying to determine
18       whether the 16-point standard was the appropriate
19       standard or not to determine a positive identification.
20       My reading of the materials is that at that point the
21       Crown was keen to have expressions of opinion from
22       Fingerprint Examiners where less than 16 points were
23       achieved because of a potential view that that would
24       also be identification evidence, perhaps with less
25       weight to be given to it but which should be available
page 144
 1       to the prosecutor to determine whether it would be
 2       appropriate to lead that, for example, for whatever
 3       corroborative effect it might have.
 4           I think that is different from the prosecutor
 5       saying, "That 16-point standard can't be right and I
 6       want to get involved in trying to change it".  I think
 7       it's a different dynamic and, as I say, I'm looking back
 8       at the papers that we have and the reports that we've
 9       had access to in preparation for the hearing.  I think
10       the work that was going on at that point was the
11       Prosecution Service wondering aloud, if you like, in
12       liaison with the scientific community and fingerprints
13       in particular as to whether it would be possible to have
14       expressions of opinion on identifications which did not
15       meet 16 points but which might have perhaps useful
16       weight in the prosecution.
17   Q.  I will come back to the role of the Crown in dealing
18       with fingerprints and standards but I would like to
19       pursue that theme with you a little bit further because
20       we have talked about it in evidence this morning as well
21       with Mr Nelson.
22           If I understand rightly, part of the Crown's concern
23       which developed in discussions during the course of the
24       1990s was that there might be evidence which was
25       consistent with either an accused person or even
page 145
 1       potentially with an identity of an incriminee that
 2       wasn't at a standard where an expert would identify to
 3       either of those individuals and for obvious reasons it
 4       might assist the Crown as being evidence which would
 5       perhaps be at least partially of assistance in a
 6       circumstantial case pointing to guilt or which might
 7       assist with exculpating somebody and there was a problem
 8       in that these would just not be reported, with the
 9       potential result that the court ended up thinking that
10       there was no potential for matching at all with any of
11       these individuals.
12           As to the current position, does the Crown still see
13       any potential benefit in obtaining this sort of evidence
14       which I think it might come under the category of
15       impossible to exclude a particular individual as the
16       donor of the fingerprint rather than identifying them?
17   A.  Yes is the answer to that for two reasons and you
18       summarised them.  It could be of assistance to the Crown
19       case.  The law of corroboration in Scotland itself
20       provides a basis for that.  Please forgive me if I
21       summarise badly but the way the law has developed is to
22       the point that where the Crown has a solid first source
23       of evidence that if there is a secondary source, and
24       that secondary source could be a seam of circumstantial
25       evidence, if it has a tendency to corroborate the first
page 146
 1       source or is consistent with the first source then that
 2       can have corroborative effect.  It's quite easy to
 3       foresee a situation where an identification -- or I use
 4       the word identification advisedly in these
 5       circumstances, but an identification as being consistent
 6       with a particular accused person, suspect becoming
 7       accused, if there is, for example, significant eye
 8       witness evidence in the case and a solid eye witness
 9       identification then it's not outwith the realms of
10       possibility that the Crown would seek to use that to
11       corroborate a solid eye witness.
12           Equally, from the perspective of disclosure and the
13       Crown's long-standing duty to disclose material which
14       undermines it's own case in the interests of all in
15       society and in the public interest, that type of
16       information would be relevant to the defence.  They
17       would want to know it and we would want to make sure
18       that they had access to that.
19   Q.  In terms of taking that potential strand of evidence
20       forward, are there any discussions going on that you are
21       aware of at the moment between yourselves and SPSA?
22   A.  We're in close discussion with SPSA and I was fortunate
23       to hear the last half hour or so of Mr Nelson's evidence
24       this morning.  He and I, with the Deputy Crown Agent,
25       John Dunn, are in liaison in relation to a number of
page 147
 1       different work streams across forensic science and
 2       across disclosure in the context of forensic science
 3       too.  So, yes, there is work ongoing.  It's a work in
 4       progress.  We have to establish the principles that
 5       should be applied.  We have to look at the best way for
 6       SPSA to disclose that information to us and some of the
 7       information that's come out in the Inquiry has been very
 8       helpful clarification in relation to that.  But it is an
 9       issue that we will have to give further thought to and
10       looking carefully at the systems to make it happen.
11   Q.  I am not trying to trick you in any way here because, to
12       be quite clear, Mr Nelson's position this morning was
13       that he wasn't himself directly involved in any
14       discussions on this topic.  Is it the position that that
15       is something that may be picked up from here or is it
16       the position that that is something that is currently
17       being discussed at any level?
18   A.  Sorry, I should be clear.  On that particular point
19       that's work for the future in relation to the
20       disclosure, disclosability of what you just mentioned
21       but there is significant liaison ongoing into many and
22       varied topics with SPSA.
23   Q.  Just returning for a moment to the theme of Crown
24       involvement, if I may, in developing work with standards
25       on fingerprints, there are a couple of documents that I
page 148
 1       would like to put to you perhaps for comment and the
 2       first is CO4406.
 3           What I understand this to be is a 1999 draft of the
 4       Lord Advocate's guidance on fingerprint evidence and, if
 5       we perhaps put the next page up as well, what we see
 6       here is perhaps an introductory and historical first
 7       couple of paragraphs.  Then in the third paragraph we
 8       see that:
 9           "As a result of developments in England where it has
10       been decided to change to a non-numerical standard based
11       on the professional opinion of the Fingerprint Expert,
12       the Lord Advocate has concluded that it is time to
13       review the national standard."
14           This would tend to suggest that the Lord Advocate of
15       the day was himself taking an active interest in this
16       area of endeavour.  We can perhaps take the image of the
17       paragraph down and take page 1 away and put page 3 up as
18       well, please.
19           As we see there at paragraph 4 which leads on to the
20       next page the Lord Advocate is there agreeing that:
21           "It is appropriate and desirable that Fingerprint
22       Officers of suitable experience and expertise should be
23       able to express conclusions as to the identity of marks
24       where they are satisfied of the common origin of
25       fingerprint impressions and known fingerprints and that
page 149
 1       it is appropriate for the prosecutors to the place the
 2       same reliance on that evidence as they currently do on
 3       such conclusions expressed in terms of the 16-point
 4       standard."
 5           Then it goes on to say:
 6           "An appropriate training programme, required
 7       standards of competence, auditing and quality assurance
 8       must however accompany any departure from the 16-point
 9       standard to ensure that the confidence that fingerprint
10       evidence has traditionally enjoyed is not compromised."
11           What we seem to be seeing there is a proposal for
12       the future which the Lord Advocate is backing but
13       subject to certain reassurances, I think, about
14       training, competence, auditing and quality assurance.
15           The suggestion which I would like you to comment on
16       is that this is perhaps an example of the Crown taking
17       an active interest but wanting to be satisfied about
18       training, competence, quality assurance and so on, which
19       might on one view be seen to be at odds from the
20       distance that you are indicating between the Crown and
21       involvement with the ins and outs of fingerprint
22       practice today.
23   A.  I think -- and I have to qualify my lack of involvement
24       at the time and looking back with what is less than
25       perfect hindsight, the guidelines were at an advanced
page 150
 1       stage of drafting, as I am advised, but were never
 2       issued.
 3           I think the background was, and I come back to one
 4       of my earlier answers, that the Crown had a concern
 5       perhaps evidence was being lost to an extent by the
 6       hesitancy of Fingerprint Officers to express an opinion
 7       which was on an identification that was less than the
 8       16 points and that led to the Crown perhaps becoming
 9       involved in prompting a review in that context.
10           I think that, again, that's a different thing from
11       the Crown saying that the 16-point standard itself was
12       not appropriate per se as a means to positive
13       identification and, again, I would come back to that's
14       really not our job and not something we have expertise
15       to do.
16           Now, the other thing I would offer is that from 1994
17       when I think this work started, if I'm remembering
18       correctly, to the present day there's been a vast
19       increase, I think, in the reliance that we place on
20       expert evidence generally.  Trials are becoming more
21       complex, science has advanced and the myriad of experts
22       which are available to the Crown is much more
23       significant than it was at that time.  I think that even
24       if you could read these documents as the Crown dipping
25       its toe in the water of prompting review of a standard
page 151
 1       then that would not be the position we would find
 2       ourselves in now, partly because of the broad range of
 3       science and other expertise which is available.
 4   THE CHAIRMAN:  Surely the Crown has some responsibility in
 5       ensuring that the evidence that they are going to call
 6       will be acceptable to the court.
 7   A.  Certainly.
 8   THE CHAIRMAN:  Therefore, if they are going to change
 9       standards you don't want to find that that takes away
10       from the way in which the court will receive the
11       evidence.  I rather gathered from this that what was
12       being asked was really for the Crown to say what would
13       be acceptable if there was a change to the non-numeric
14       standard.  Maybe I got that wrong.
15   A.  It's not been my reading of the documentation that I've
16       reviewed, sir, but certainly the Crown has to be
17       satisfied that there is sufficient credible and reliable
18       evidence to prosecute and to safely seek a conviction
19       and, yes, if there was a fundamental proposed shift in a
20       standard you would expect to be told about it.  I'm sure
21       we might be asked our view on it.  I'm not sure at the
22       moment we would feel qualified to express a view.
23           I mentioned earlier that if we'd felt through
24       receipt of any information or through a development in a
25       case that there was an objective basis to doubt a
page 152
 1       particular standard that at that point we might have --
 2       would have a role in prompting review.  I can see that
 3       as being necessary and appropriate.  I think we have to
 4       get the balance right and the division of
 5       responsibilities right, though.
 6   MISS CARMICHAEL:  Thank you, sir.
 7           Can I take it you personally would not read this
 8       document and I'm thinking particularly about the part in
 9       paragraph 4 where it's indicating that appropriate
10       training and so on would be required to ensure that the
11       confidence that fingerprint evidence had enjoyed was not
12       compromised, you wouldn't read that as the Lord Advocate
13       taking a proper interest in ensuring the continued, I
14       suppose, reliability of fingerprint evidence for the
15       courts?
16   A.  I think we would certainly and the Law Officers would
17       certainly wish to be assured that there is regular
18       competency testing, verification and training and proper
19       systems to allow experts working for an organisation
20       like SPSA to develop and enhance their expertise.
21       That's certainly something that comes within our frame
22       of reference and I wouldn't seek to demur from that.  I
23       think my point was I don't really -- and I might be
24       wrong -- but I don't really see the document or the
25       other documents that I've viewed from around that time
page 153
 1       as being indicative of the prosecutor service, the
 2       Lord Advocate saying there's a need to review the
 3       16-point standard and we are well-placed to assist in
 4       that review, if I can put it like that.
 5   Q.  I see.  There is another document -- well, perhaps
 6       before I go to the other document, it's fair to say that
 7       matters to some extent, and I think we heard this from
 8       Lord Boyd on Tuesday, some potential developments fell
 9       into abeyance during the course of some of the
10       litigation surrounding the McKie case and I think you
11       said yourself that this document that we see here never
12       came to be issued.
13   A.  That's my understanding, yes.
14   Q.  If we can jump to perhaps a piece of correspondence from
15       a later stage that you have provided us with and I don't
16       think it's a complete document, we seem to be missing
17       the end of it, but it is CO4330 and it appears to be a
18       draft from February 2004 going from someone within Crown
19       Office and Procurator Fiscal Service to the Justice 2
20       Committee.
21           What we see here in the second paragraph is that:
22           "Crown Office has previously been in discussion with
23       Fingerprint Experts about the move to a non-numeric
24       standard of fingerprint identification.  Although the
25       decision to adopt such a standard would be a matter for
page 154
 1       SCRO, clearly, any such move would require to be made in
 2       close consultation with the Lord Advocate, who would
 3       require to be satisfied that he would be entitled to
 4       rely on fingerprint evidence prepared using that
 5       standard."
 6           Again, I'd suggest to you that this is a fairly
 7       clear indication that the Lord Advocate takes an
 8       interest in being satisfied that fingerprint evidence
 9       prepared according to this new standard is going to be
10       something that can properly be relied on by the Crown,
11       obviously acting in the public interest, in the criminal
12       courts.
13   A.  I can certainly see the force in that when there was a
14       move to a new standard proposed by those who have the
15       expertise themselves and I'm aware that there was a
16       process of consultation and interaction with the Crown,
17       I think commencing in 2000/2001 but I could be wrong
18       about that.
19   Q.  Do you have any knowledge yourself as to how, at the
20       stage that the standard came to be introduced in 2006,
21       Crown Office had become satisfied that they were going
22       to be happy to rely on fingerprint evidence using the
23       particular standard?
24   A.  From the materials that I've seen, I believe that there
25       was a series of discussions with SPSA and colleagues
page 155
 1       there at that time that there was consultation on the
 2       basis of those discussions and the material presented by
 3       SPSA with area Procurators Fiscal and with Advocate
 4       Deputes on what the new standard was, what it might mean
 5       in the context of criminal trial work and that there was
 6       no reason to doubt the move to the new standard and I
 7       believe that there was consultation with the Law
 8       Officers of the day in relation to that, in fact I also
 9       believe the Lord Advocate was at a presentation made by
10       SPSA in relation to the new standard but that may not
11       have been in 2006.  I think that may have been further
12       back.  I don't have the chronology right at my
13       fingertips but there was consultation.  There was
14       information provided about the new standard and there
15       was a contentment on the part of the Crown that the move
16       seemed appropriate.  I think we were made aware that
17       there had been moves to this in other jurisdictions and
18       that to some extent Scotland had lagged behind and that
19       this was a more effective way, not just of examining but
20       of presenting the conclusions.
21   Q.  I think possibly I have not assisted you because you
22       provided some further information to us in letter form
23       as well and I perhaps do not need to take you to the
24       letter.  The reference for others is CO4428.
25   A.  I'm afraid I don't have an encyclopaedic knowledge of --
page 156
 1   Q.  That's all right --
 2   A.  I wish I did.
 3   Q.  Perhaps that is my fault in not taking you directly to
 4       the document but I think you have told us already that
 5       by letter that the Lord Advocate indicated in 2005 that
 6       he was content in principle with the non-numeric
 7       standard and then there was no separate subsequent
 8       decision to that or obvious signing off of it but
 9       matters proceeded in 2006 in the light of that?
10   A.  Yes.  I think should be clear.  I hope my earlier
11       answers have not been unclear but clearly if there's a
12       proposed change of standard between what has applied in
13       the past and what is proposed in a significant area like
14       fingerprint evidence or any of the forensic sciences we
15       routinely work with we would expect to hear about that
16       and to be assured about it and to be able to ask
17       questions about that and that process of consultation is
18       useful but I think there's a difference to us setting
19       standards and we don't feel that we can and have the
20       expertise to really do that.
21   Q.  Just perhaps continuing on that theme, I know you were
22       asked about the Brandon Mayfield case and your response
23       was that nobody within SPSA had drawn that to your
24       attention.
25           Thinking perhaps more broadly about things like the
page 157
 1       Brandon Mayfield case, perhaps something that arises in
 2       a discipline in another jurisdiction but which may be of
 3       fairly direct relevance, at least to practise in a
 4       forensic expert discipline, I accept that it's not been
 5       drawn to your attention by SPSA, is there anyone whose
 6       job it is within your organisation to keep their eyes
 7       open for something of that sort, accepting all you say
 8       that there are many, many scientific disciplines out
 9       there, but thinking to fingerprints in the context of
10       being a forensic discipline and perhaps something like
11       Mayfield being a very high profile international case?
12   A.  There isn't at the moment an individual who would have
13       responsibility for looking out for developments in
14       forensic science within our organisation, is the direct
15       answer to that.
16           We do have a number of streams of work or work
17       ongoing in relation to expert evidence generally but,
18       no, there's no-one who is tasked with that.  What we
19       would expect is that if any of our colleagues became
20       aware, either through formal notification or informal
21       notification by colleagues in forensic science or SPSA,
22       then we would bring that to the attention of Crown
23       Office in the first instance and promulgate any lessons
24       to be learned from it but, again, I think we have to
25       rely on those who are plugged into the forensic world in
page 158
 1       a way we are not and probably couldn't be, given it's
 2       not our primary focus, to bring these matters to our
 3       attention.
 4   Q.  So what structures do you have in place, for example,
 5       with SPSA or are you working on with SPSA to try to
 6       ensure that things like that would come to your
 7       attention?
 8   A.  I'm pausing because we don't have a particular piece of
 9       work ongoing at the moment which is focused on that.  I
10       think that the focus on the Mayfield case which has come
11       to be through the Inquiry itself is going to probably I
12       would venture to prompt SPSA perhaps into a more
13       proactive approach in bringing these matters to our
14       attention but it is something to think about.  I'm happy
15       to take that away as something we can fold into the
16       other work that we've got ongoing.
17   Q.  Still on the theme of discussions with SPSA that may
18       have taken place over time, we heard some evidence from
19       Mrs Tierney yesterday about a longer form of joint
20       report which was proposed at some stage.  I think her
21       position came ultimately to be that she wasn't aware of
22       any active rejection of the longer form by Crown Office
23       but that the longer form of report had been in Crown
24       Office hands at some stage.
25           I would like to show you the example draft which is
page 159
 1       MM0145 that she discussed in the course of her evidence
 2       yesterday and perhaps ask for your comment as to whether
 3       you think it's in any way a helpful document
 4       potentially.
 5           This is simply the cover and you see there that
 6       Mrs Tierney's noted there that she submitted it to
 7       Mr Gilchrist and assembled Advocate Deputes at Crown
 8       Office in August 2004.
 9           If we can take that page away and perhaps show the
10       next two pages, please.
11           What we heard from Mrs Tierney yesterday is really
12       what this documents more fully is what she described as
13       the analysis phase of what we have heard is the ACE-V
14       process in fingerprint identification and perhaps tells
15       us more about the development medium and composition but
16       also makes some notes about what's been seen by way of
17       the clarity of the mark and any impression of movement
18       in the mark.
19           What I am wondering is whether you would take any
20       view as to whether it is useful to have that for the
21       Crown in the form of a joint report in that sort of
22       format?
23   A.  I think this format is useful.  I think the greater
24       amount of information which is available is useful to
25       the Crown; it's useful to defence; it perhaps prompts a
page 160
 1       more detailed discussion at precognition than the
 2       current report does and I think it's certainly worthy of
 3       further thought and discussion with the SPSA in relation
 4       to how reports are submitted.
 5   Q.  Because one of the things we have become aware of
 6       through the Inquiry, and I will ask you a little bit
 7       more about it, is that your organisation in association
 8       with SPSA have in recent weeks been formulating a guide
 9       for precognoscers which is still at a draft stage and it
10       sets out -- and I think the draft is now available for
11       Core Participants to see, but the question that was in
12       my mind was as to how useful it was necessarily going to
13       be to have that in the form of a precognition rather
14       than having some of the detail in a report which is, the
15       report, being of course immediately disclosable whereas
16       perhaps a precognition, albeit you might disclose the
17       contents in some format to the defence, you wouldn't
18       automatically hand on to the defence in the form of a
19       precognition?
20   A.  Yes, I think it's important to say this would be a Crown
21       view, I suppose, that precognition is not the complete
22       answer.  It can't be because it doesn't take place in
23       summary cases in Scotland nor does it take place in many
24       other jurisdictions and to ensure that the defence have
25       as much information as possible or as is helpful and, in
page 161
 1       particular, information that might undermine the Crown
 2       case or show weaknesses in it, I think it's absolutely
 3       essential that relevant and material information is
 4       within the report submitted and in the statements
 5       submitted to the Crown because of course these are now
 6       routinely disclosable at an earlier stage now.
 7           Also relevant and material information which comes
 8       out through the precognition process is disclosable to
 9       the defence and the Crown has a continuing duty of
10       disclosure throughout the history of any criminal case
11       right up to the conclusion of an appeal and beyond, but
12       certainly a strong view from the Crown would be that
13       relevant and material information should be within the
14       report and the statements.  That's the best and most
15       effective place for it.
16   Q.  Just touching on something you said there, you indicated
17       that information that might become available during the
18       precognition process would, if necessary for disclosure,
19       be disclosed to the defence.
20           Can you tell the Chairman just how that takes place
21       in practice, given that the precognition document itself
22       wouldn't normally be handed over as a document to the
23       defence?
24   A.  It would generally be by letter to the defence
25       solicitor.  That would be the most obvious and routine
page 162
 1       way of doing it and directing their attention to the
 2       particular elements which came out and which they may
 3       wish to further explore and that's a proactive duty upon
 4       the prosecutor.
 5   Q.  If it came to be that in the process of examining a
 6       fingerprint -- and we've heard some evidence about
 7       this -- if it came to be that there was a particularly
 8       complicated mark that had come to require perhaps
 9       special note-taking or something of that nature, in a
10       case of that sort, would it be useful to the Crown to
11       have information about that in the form of the joint
12       report?
13   A.  I'm sorry, do you mean access to the notes taken by the
14       expert at the time --
15   Q.  No, I'm sorry.  I put the question badly.  If it were to
16       come to pass that there was a complex mark which
17       demanded particular examination with particular care and
18       if it came to be that procedurally it was thought
19       appropriate for particular notes to be taken in relation
20       to such a mark, would the fact that that had happened in
21       the first place and some indication of the reasoning in
22       relation to the mark be matters that you would think
23       would usefully be recorded at the joint report stage?
24   A.  I think so is my instinctive response to that.  Clearly,
25       if we were looking again at the style of the joint
page 163
 1       report we do that in close consultation with SPSA and we
 2       would take their views on board, but my tendency to
 3       think is that the more information that can be in the
 4       report that might benefit the Crown and the defence the
 5       better and that's the type of information which might
 6       prompt activity on the part of the defence to further
 7       explore the matter.
 8   Q.  I don't know if you will be able to answer this
 9       question, Mr Pattison, coming from the Crown background
10       but if you can assist with this I would be grateful for
11       any guidance to the Inquiry.
12           In terms of the defence instructing experts and
13       obtaining Legal Aid sanction to do so, does there
14       require to be anything that has been obviously wrong
15       with the Crown case?  I put that too strongly.
16       Obviously requiring particular investigation in the
17       Crown case to enable them to obtain Legal Aid or would
18       they routinely on a request to, for example, get a
19       different Fingerprint Expert to look at the matter
20       obtain sanction for that?
21   A.  I'm sorry, I wish I could speak with some authority on
22       that but I can't.  I'm sure we could get that
23       information for you.
24   Q.  That may be helpful.  It was a matter that Senior
25       Counsel had brought to my attention as something that
page 164
 1       might be potentially relevant in this context.
 2   A.  I would be more than happy to try and explore that.
 3   THE CHAIRMAN:  I can understand Legal Aid isn't a matter
 4       that the Crown is usually experienced in.
 5   A.  I'm afraid I'm not one of those who hasn't worked on the
 6       other side, unhelpfully enough.  I wish I had at some
 7       points but, sorry, I wish I could help you further.
 8   MISS CARMICHAEL:  I am sorry to have asked you a question
 9       that is outwith your field, Mr Pattison.
10           Moving on to the question of authorisation of
11       experts, we understand that is a matter of statute (that
12       is something that falls within the remit of Scottish
13       Government), but if it were to be proposed, for example,
14       that authorisation by the Scottish Government ought to
15       be linked to any particular qualification or
16       accreditation on the part of the individual expert, is
17       that a matter on which the Crown would take an interest?
18   A.  I think our interest would be in being assured that the
19       processes were robust enough in relation to training and
20       the assessment of competency.  I think there is --
21       certainly we would have an interest, certainly.  I think
22       there is a danger in the Crown becoming the authoriser,
23       if you like and I don't think your question is driving
24       really at that.  The danger in that, of course, would be
25       that expert witnesses are independent and if the Crown
page 165
 1       had a significant role in relation to the authorisation,
 2       then that could lead to the perception of a lack of
 3       independence on the part of the experts themselves.
 4       Certainly our interest would be in ensuring that
 5       training and, as I say, competency testing and the
 6       authorisation process was sufficiently robust.
 7   Q.  You are quite right to apprehend that I am not
 8       suggesting that the Crown should be the authorisation
 9       body or anything of that sort.  The question is directed
10       at the Crown being satisfied that the experts whose
11       evidence comes to have potentially a statutory status
12       under the 1995 Act are experts who are appropriately
13       qualified?
14   A.  Certainly we have a strong interest in that being the
15       case in terms of current processes.  We again heavily
16       rely on the assessment by others who have the expertise
17       to do that and to make the authorisation.  But certainly
18       in the public interest the Crown has an interest in that
19       process being as robust and thorough as is appropriate.
20   MISS GRAHAME:  Excuse me, Mr Chairman, unfortunately the
21       LiveNote has stopped again.  (Pause)
22   THE CHAIRMAN:  I was not planning to rise now as I was
23       planning on rising at 3.45 today, but if we can't
24       resolve it fairly rapidly -- perhaps we will rise until
25       3.00 to see if it can be cured.
page 166
 1   (2.51 pm)
 2                         (A short break)
 3   (3.05 pm)
 4   MISS CARMICHAEL:  What I am going to turn to ask you about
 5       now, Mr Pattison, is about the Crown Office Circular
 6       that came out in March this year, number 8 of 2009.  We
 7       can have that on the screen as CO4109 and perhaps pages
 8       2 and 3 could be substituted.  I think this is
 9       essentially a cover sheet for it.
10           This is a document that was issued in March of this
11       year and perhaps you could explain in the first instance
12       just what a Crown Office Circular is for those who might
13       not be familiar with the idea.
14   A.  It's one of the ways that Crown Office communicates with
15       Procurator Fiscal Service and, in particular, is used to
16       communicate changes in policy or any significant
17       communication really would be in the first instance by
18       means of Crown Office Circular.  We have other means of
19       communication too obviously but it is a pretty standard
20       way of communicating a change to policy and practice.
21       The Circulars are consolidated, indexed and are
22       available on our departmental intranet and available to
23       all staff online.
24   Q.  Are they normally things that would be made public?
25   A.  They are not normally made public at all.  They are
page 167
 1       generally viewed as confidential guidance within the
 2       Prosecution Service.
 3   Q.  This is a document that is about the non-numeric
 4       standard and gives certain instructions in relation to
 5       precognition of experts in the context of the
 6       non-numeric standard.  We have heard that the
 7       non-numeric standard or approach started to be used on
 8       4th September 2006 and, indeed, that date is referred to
 9       in the document.
10           How does it come to be that this instruction is only
11       issued in your own organisation in March of this year?
12   A.  I think the first thing is to say that obviously ideally
13       this Circular should be issued a lot earlier and, after
14       I came into post in August, we were aware that there was
15       an advanced draft available to us.  We've looked back to
16       ascertain why it wasn't issued earlier and we can't find
17       a definitive answer to that.  It seems to have been an
18       administrative error within the Crown Office.  Certainly
19       there was an advanced draft available in 2006 which was
20       consulted upon with SPSA.
21           I don't want to speculate on why it wasn't issued at
22       that time.  I don't think that would be helpful or
23       appropriate.  What I should say though is that it's not
24       the case that no information was provided to the
25       Procurator Fiscal Service in 2006.  There was a DVD
page 168
 1       outlining the changes and giving an overview of the
 2       non-numeric standard.  There was a helpful leaflet which
 3       gave a similar overview and which was provided to all 49
 4       District Procurators Fiscal around the country.  I was a
 5       District Fiscal at that time in Paisley in a prior job
 6       and received that from the Crown Office at that time.
 7       So that information was provided.
 8           There was also a continuous process of consultation
 9       with SPSA as I'm advised as to how fingerprint evidence
10       was developing in relation to the non-numeric standard
11       after its introduction and what the perception of it was
12       at court, and I'm told that the Deputy Crown Agent of
13       the day was keen and was trying to obtain feedback from
14       Advocate Deputes at that time.
15           But certainly ideally the Circular would have been
16       out a lot earlier.
17   Q.  We watched the DVD in the course of the proceedings just
18       the other day, Mr Pattison.  I think you mentioned a
19       leaflet as well and I think for completeness I should
20       just show you CO4105 to make sure we are talking about
21       the same item.  That was the leaflet I think that you
22       are referring to?
23   A.  I think that's right, yes.
24   Q.  You have said that all the was it the District
25       Procurator Fiscals got it?
page 169
 1   A.  Yes.  It is important to be clear a copy wasn't given to
 2       every individual lawyer or precognoscer within the
 3       Service but a copy was provided to each Procurator
 4       Fiscal Office via the District Procurator Fiscal.  So
 5       49, in essence, went out at that time and were available
 6       within offices for briefing sessions and just to raise
 7       awareness locally of the change.
 8   Q.  Do you know whether briefing sessions on the DVD took
 9       place?
10   A.  I can't speak for others or other Procurator Fiscals.
11       The material was issued by Crown Office I'm pretty sure
12       with that in mind.  Certainly from my own perspective in
13       Paisley, my memory is that I circulated the leaflet to
14       all staff by e-mail, having had it scanned it in, and
15       drew their attention to the fact that the DVD was
16       available for their use if they were dealing with a
17       fingerprint case and, if memory serves me properly, I
18       provided to team leaders or Solemn Legal Managers within
19       the High Court and Sheriff and Jury Unit at that time
20       for the purposes of them raising the awareness of their
21       teams.
22           I would really expect every Procurator Fiscal to
23       have done at least that.  I would like to be able to say
24       that we had had feedback that everyone had a distinct
25       briefing session, but I would expect that all members of
page 170
 1       legal staff would have had their attention drawn to the
 2       leaflet and the availability of the DVD at the very
 3       least.
 4   Q.  As I say, we saw the DVD for ourselves and it certainly
 5       contains information about how Fingerprint Examiners go
 6       about their task and how the non-numeric standard
 7       differs from the 16-point standard and provides
 8       information of that sort, but I would be right in saying
 9       that it does differ from the content of the Circular --
10   A.  Yes.
11   Q.  -- perhaps in the important respect that there is no
12       instruction there to Fiscals about precognoscing
13       Fingerprint Examiners?
14   A.  That's right.  That's not within the DVD or the leaflet.
15       The instruction within the Circular, of course, is to
16       precognosce Fingerprint Examiners in all High Court
17       cases unless it is absolutely clear that the evidence is
18       going to be the subject of agreement and is not
19       challenged and there is a presumption in favour of
20       precognition in Sheriff and Jury cases.
21           It may be helpful to know, though, that for some
22       time the guidance within the Crown Office and Procurator
23       Fiscal Service in relation to expert witnesses
24       generally -- and I'm going to paraphrase -- has
25       essentially been there is a presumption in favour of
page 171
 1       precognition of expert witnesses and we would certainly
 2       view Fingerprint Examiners with appropriate experience
 3       and training as coming within the definition in Scots
 4       law of expert witnesses.
 5           What we have found is that Fingerprint Examiners
 6       have not been routinely precognosced.  I say "routinely"
 7       precognosced and I'm speaking before the Circular was
 8       issued in March 2009 because, the Circular having been
 9       issued, the number of precognitions have, we think, gone
10       up in relation to that.  Feedback from colleagues in
11       SPSA though our liaison has told us that and has told us
12       that there was not routine precognition in the years
13       before the Circular.
14           I do want to say though -- and I think it is
15       important to note the context -- that the instruction is
16       to precognosce unless the evidence is agreed.  What we
17       find as prosecutors is that fingerprint evidence is
18       almost routinely agreed in Scottish courts.  It's very
19       rarely challenged.  In fact, other than the case that
20       the Inquiry is dealing with, we can't find a case where
21       it has been challenged in relation to the identification
22       of a suspect over the past years.  When it is led, it is
23       generally led yield an inference from the position of
24       the fingerprint and it is led in very few cases, as I
25       say, because in the vast majority it's agreed between
page 172
 1       the Crown and the defence.  So that is the context
 2       within which we work.
 3           But when fingerprint evidence is contentious, either
 4       because of the issue of identification of the suspect --
 5       and we haven't had that -- or because of an inference
 6       which can be drawn from the print or where it's
 7       important to the Crown case, then we would have been
 8       expecting Fingerprint Experts to have been precognosced
 9       anyway.
10           I know from personal experience that has happened
11       and was happening, even as far back as 1997/98.  At that
12       time, I was working as a Procurator Fiscal Depute in the
13       Hamilton Procurator Fiscal Office and I had at least
14       three High Court cases which I was personally preparing
15       in which fingerprint evidence was important.  It wasn't
16       the sole evidence but it was important evidence for the
17       Crown case and I received instructions from my Solemn
18       Legal Manager, the person who was supervising my work,
19       to precognosce the Fingerprint Experts and I did so,
20       both experts in all three cases.  I'm speaking
21       personally, but I don't think that was unusual at that
22       time and even over the last years where fingerprint
23       evidence was either crucial or very important in the
24       Crown case or where we knew it was contentious for some
25       reason.
page 173
 1   Q.  There was just a question perhaps that arises from what
 2       you have just said that I would like to ask you about:
 3       the proper reading of the instruction about
 4       precognition.  We should perhaps take this document now
 5       and go back to CO419, page 3.  It arises from what you
 6       said about cases where the fingerprint evidence is
 7       clearly going to be agreed.
 8           If we look to paragraph 12 there, what we see is
 9       that:
10           " ... all Fingerprint Experts in High Court cases
11       should be precognosced and there is a presumption that
12       the same applied to Sheriff and Jury cases (unless it is
13       clear at the time of precognition that the fingerprint
14       evidence in the case is agreed)."
15           I know whoever drafted this wasn't expecting it to
16       parsed, but should we read the passage in brackets as
17       qualifying both High Court cases and Sheriff and Jury
18       cases because on one reading it may be an instruction
19       that in all High Court cases the Fingerprint Experts
20       should be precognosced whether or not there's likely to
21       be agreement, which on one view doesn't make a great
22       deal of sense, with the qualification about it being
23       clear about agreement applying only to the Sheriff and
24       Jury cases.
25           I just want to be quite clear what the proper
page 174
 1       reading of this instruction is.
 2   A.  The intention is to apply to both High Court and Sheriff
 3       and Jury cases.  When I look at the wording again, in
 4       particular, unless it is clear at the time of
 5       precognition that the evidence is agreed, obviously it
 6       can be clear at a much earlier stage occasionally that
 7       the evidence is non-contentious in that particular case.
 8       In that scenario, where you learn that the defence were
 9       not going to contest at least the fingerprint evidence
10       in the case -- and sometimes that's clear from the very
11       earliest weeks after an individual appears on
12       petition -- at that point you would realise that in
13       terms of this guidance you don't have to precognosce at
14       all.
15           Now, it may be helpful to say that this is the
16       instruction and the instruction that the Law Officers
17       think is important at the moment, but we have to
18       constantly review whether precognition is adding value
19       to the preparation of the Crown case.  While I think we
20       will always have a presumption in favour of all expert
21       witnesses, and at the moment we're pushing that as an
22       organisation, we have to constantly review whether it
23       generally is adding value.  We have to pause in relation
24       to the position we're in in Scotland at the moment where
25       fingerprint evidence is routinely unchallenged and
page 175
 1       determine whether at some point in the future, if that
 2       position remains the same, is precognition truly added
 3       value to the process?
 4           Now, at the moment you referred to the aide-memoires
 5       where we're calling it that we're working up to assist
 6       our precognoscers in the process of precognoscing
 7       fingerprint witnesses.  We're using precognition to
 8       tease out the number of issues for our purposes and for
 9       the purposes of disclosure.
10           If we, in our workings with SPSA, achieve a
11       situation where issues in relation to expert disputes or
12       issues which might weaken the identification are within
13       the report and/or the statements, then that is -- it's a
14       more complete answer than precognition purporting to be
15       the complete answer.
16           So I apologise, that's a long-winded way of saying
17       we need to keep our processes under review and our
18       instructions to prosecutors under review.  This feels
19       and seems like the right instruction at the moment and
20       is one which we will -- we can't see departing from an
21       early course but if the position remains that
22       fingerprint evidence is routinely unchallenged and to
23       that extent there is a confidence on it within the legal
24       profession or the justice system we might have to review
25       that and determine whether precognition is necessary in
page 176
 1       every case.
 2   THE CHAIRMAN:  Would it be too late to precognosce once you
 3       knew that the evidence was going to be challenged by the
 4       defence?  In other words, instead of having a
 5       precognition in every case, having it where you know
 6       there's a challenge.
 7   A.  Certainly, that's another way of approaching the
 8       situation, where you know that the evidence is
 9       contentious then to focus in and use precognition as a
10       tool in that context and I think that it's not just
11       about precognition, it's about information we are
12       presented with in the report and the statements.
13           It's also about the prosecutor who is taking the
14       trial consulting with the expert before the trial and
15       Crown Counsel are encouraged to do that by the Law
16       Officers and do do that.  So not just relying on the
17       precognition but engaging with the expert before they
18       take the expert's evidence in the course of the trial.
19           That's helpful not just from the perspective of
20       Crown Counsel becoming more familiar with the evidence
21       to come, but also establishing a rapport with the
22       individual expert.
23   MISS CARMICHAEL:  One of the areas that's become a focus of
24       discussion in the Inquiry, Mr Pattison, has been the
25       disclosure to the Crown, with the potential, obviously,
page 177
 1       for disclosure to the defence, of issues that might
 2       arise in a fingerprint identification such as examiners
 3       initially being of a different view from each other but
 4       perhaps that view becoming resolved by some internal
 5       process.
 6           Knowledge of that on the part of the Crown is
 7       something that the Crown would want to be fixed with, I
 8       suppose, whether or not there came to be any active
 9       dispute which might only emerge at a very much later
10       stage; would that be fair?
11   A.  Yes, that's right.
12   Q.  So that would be a reason for seeking the information
13       whether in the form of precognition or in some other
14       form at a relatively early stage of a case?
15   A.  Yes, absolutely, I would agree with that entirely.
16   Q.  It is fair to say also I think that it's emerged in the
17       course of the Inquiry that, although people seem to be
18       open to discussion on the point, it has not been the
19       understanding necessarily of those within SPSA that
20       issues of that sort would be of interest to the Crown.
21           Your position, as I understand it, or your
22       organisation's position from what I read in your
23       statement, was that you would be expecting issues like
24       that to be disclosed by way of joint report or of
25       statement.  Again, what we have heard from the SPSA
page 178
 1       witnesses is that, well, to them these are fairly formal
 2       documents that they wouldn't be using for that purpose.
 3           Insofar as there may not have been a meeting of
 4       minds to date on that matter, what has been done to
 5       break that impasse, if anything?
 6   A.  We will be speaking to SPSA in a formal and -- well
 7       formal and informal way in relation to this issue.  You
 8       are right to say that the Inquiry has provided helpful
 9       clarification of, I think, the position which pertains.
10       So we will have to make progress on that in very early
11       course and that's something that I will be taking
12       forward with Mr Nelson and I mean in very early course.
13           I think from the Crown's perspective in an
14       engagement with law enforcement and SPSA, who come
15       within that banner, there's been a long-standing duty on
16       the part of law enforcement in Scotland to not just
17       bring to the attention of the prosecutor information
18       which suited the prosecutor's theory of the case or
19       supported the prosecutor's version of events but
20       material which undermined that, which pointed towards
21       the innocence of the accused.  That goes back to the
22       Smith case in the '50s and there is a seam of authority
23       which re-emphasises that and which has done to a
24       significant extent in the last five/six years.  So I
25       suppose we view it that that's quite a basic requirement
page 179
 1       and it's obviously one we have to do some further work
 2       with SPSA on and I come back to the point that it's
 3       helpful the Inquiry has brought that clarification to
 4       bear.
 5           In relation to our involvement with the police, we
 6       would expect that type of information to be in reports
 7       submitted by them and statements submitted by police
 8       officers and material which is undermining of the Crown
 9       case or is exculpatory to be provided.  Our view would
10       be that where there has been a dispute between experts,
11       even where resolved -- and we're happy to discuss this
12       further with SPSA but we would view that as something
13       which should be disclosed.
14   Q.  It is something that perhaps would show that there was
15       at least room for doubt or the possibility of room for
16       doubt about a conclusion, the fact that somebody at some
17       stage had not been convinced of that conclusion?
18   A.  I think so and I think it's just consistent with
19       long-standing duties of disclosure to the Crown and the
20       Crown disclosure to the defence and that kind of
21       transparency, openness, is something the justice system
22       should welcome and I know that the Law Officers welcome.
23   Q.  Does it come to this: effectively it's only fairly
24       recently in the course of the Inquiry that your
25       organisation may have come to appreciate that SPSA
page 180
 1       examiners might actively need to be asked about
 2       something of this sort?
 3   A.  Yes, it is.
 4   Q.  If we look at CO4437, do we understand this to be a
 5       current working draft, albeit a work in progress, of
 6       your guidance for precognition of Fingerprint Examiners?
 7   A.  Yes, it is.  It's a fairly advanced draft now in that we
 8       have had the benefit of some comments from SPSA and also
 9       from Crown Counsel in relation to the draft.
10   Q.  If I can look at page 4, please, of this document, what
11       we see there is perhaps a series of questions designed
12       now to elicit information just on this very sort of
13       topic.
14           Would that be fair?
15   A.  Yes.
16   Q.  We see a question asking, about halfway down the page:
17           "Were there any differences of opinion regarding the
18       identification between you and your colleagues?
19           "Did a facilitated meeting or any other quality
20       assurance process take place?"
21           Then some further follow-up questions arising from
22       those?
23   A.  Yes.
24   Q.  So for the moment at least should we take it that the
25       proposal is that precognition with questions actively
page 181
 1       being directed at these topics is the means for
 2       disclosure?
 3   A.  I think we would view this as a resource for
 4       precognoscers, not a list they would have to go through
 5       in terms of using every question in every precognition.
 6       The process could become rather stilted if it were like
 7       that and less dynamic than we would wish but we would
 8       view it as a means to draw out those issues in light of
 9       the clarification that the Inquiry has brought to that.
10           It might be helpful to know that this type of
11       document is being currently developed as part of work
12       we're doing on expert witnesses generally so we're
13       developing similar guidance or aide-memoire prompt lists
14       for our precognoscers across the range of expert
15       evidence for forensic pathologists, for psychiatrists,
16       for road traffic collision investigation and the like,
17       as part of the training, further training and enhanced
18       training for our precognition officers but also to
19       recognise that we need a system given the ever
20       increasing complexity of the range of experts that they
21       need to interact with.  But, yes, the questions are
22       there to draw out the information that you suggest.
23   Q.  Just on the theme of precognition practice and
24       precognition of Fingerprint Examiners, I think you
25       provided some statistics in your supplementary statement
page 182
 1       and I understand you may have carried out some further
 2       research yourself as to numbers of trials and numbers of
 3       Fingerprint Experts giving evidence and being
 4       precognosced even since you gave that statement and I
 5       wondered if there was anything you wanted to add on
 6       that?
 7   A.  We had some further information from the Court Service
 8       in relation to trials which were fixed between the
 9       relevant period, which is in my statement, between April
10       and September 2009, and I am able to update paragraph 6
11       of my statement in light of that.  There were, in fact,
12       228 trials of cases indicted in the High Court.  185 of
13       those were trials which went the distance, if I can put
14       it like that, and 43 were trials but trials which
15       resolved either on the first day or pretty quickly.
16           In terms of fingerprint evidence within those, there
17       were 12 trials within that period in which fingerprint
18       evidence was either led orally or by joint minute of
19       agreement.  In only 3 of those was oral evidence led
20       from Fingerprint Examiners and in those cases it wasn't
21       a matter of a challenge to identification, the evidence
22       was led generally because the prosecutor wanted to take
23       an inference from the position of the print or some
24       other factor which was of relevance to the presentation
25       of the case.  So in the vast majority of cases in the
page 183
 1       High Court our research -- which is feedback from
 2       Advocate Deputes, as my statement says -- suggests that
 3       fingerprint evidence is, in the main, agreed within the
 4       High Court in Scotland.  I think my statement touches on
 5       Sheriff court cases too, on Sheriff and jury cases.
 6   Q.  It does, yes.
 7   A.  In that context we asked Area Procurators Fiscal for
 8       feedback over the same period and I think in only three
 9       cases was fingerprint evidence led at Sheriff and jury
10       level or oral evidence was led from them at Sheriff and
11       jury level.  So, again, really in quite a small
12       percentage of cases was the evidence actually led in
13       court.
14           Of course the defence have an opportunity to
15       precognosce the examiners.  I'm not sure to what extent
16       that is taken up but I am sure SPSA would be able to
17       provide input on that and that, you know, can put them
18       in a position where they can make a decision on
19       agreement of the evidence or whether there is a
20       challenge there on any part of it.
21   Q.  We have heard some evidence from Mr McGinnies and from
22       Mrs Tierney who currently work within SPSA.
23       Mr McGinnies said that he thought there had been an
24       upturn in precognition of Fingerprint Examiners since
25       about June and he dated it to a time when he had given a
page 184
 1       presentation to Advocates Depute and I think yourself
 2       there at the presentation as well.  I think he was
 3       essentially saying that was an example of better
 4       communication taking place between your two
 5       organisations.  He certainly seemed to see some link
 6       between that particular event and an increase in
 7       precognitions being taken.
 8           Can you comment on that?
 9   A.  I can see why Mr McGinnies would say that but I think we
10       have to -- the guidance went out in March and
11       precognoscers would be applying the guidance to ongoing
12       cases and I would have expected there to perhaps be a
13       slight gap between the circular and precognitions
14       kicking in because precognoscers would get to that part
15       of the process in relation to their individual cases.
16       They wouldn't immediately begin to precognosce the
17       Fingerprint Examiners that they had on their list of
18       witnesses in all their cases at that point.  They would
19       do it in a staged way over the period and I think it's
20       really just an indication of the ongoing throughput of
21       the work and precognition officers responding to the
22       guidance at an appropriate stage.
23           I should say Mr McGinnies's presentation to Crown
24       Counsel was very well received.  He presented a
25       PowerPoint presentation covering fingerprint evidence
page 185
 1       generally but with some particularities to it which, in
 2       themselves, led to Tom Nelson and I discussing the
 3       possibility of looking again at electronic presentation
 4       of fingerprint evidence in High Court cases.  I think
 5       Mr Nelson touched on a particular project that we aim to
 6       start early next year on that.
 7   Q.  I will ask you a little bit more about that.  First
 8       though, I should say also from Mrs Tierney who gave
 9       evidence yesterday, who works in the Edinburgh Bureau of
10       the Fingerprints for SPSA.  She spoke to one
11       precognition having been taken from her staff in the
12       period April '08 up to date and that by telephone and I
13       think in the very recent past, I think she said in the
14       last week or the last month.
15           How does that fit with your picture of how
16       precognition is taking place?
17   A.  It's difficult to comment without knowing the overall
18       context in Edinburgh and Lothian & Borders generally in
19       relation to their casework because of course the
20       guidance is to precognosce unless it's clear that
21       evidence is being agreed and the overwhelming context in
22       Scotland is on the evidence being agreed.  It is also
23       not clear whether the cases or the case in which she was
24       precognosced or her colleague was was a High Court
25       matter or a case calling within a different court.
page 186
 1           It is something we need to look into.  It is a
 2       change in practice.  We have been reminding our area
 3       High Court units and Area Procurators Fiscal of the need
 4       for precognition of Fingerprint Examiners in particular
 5       and expert witnesses in general.  That's something from
 6       a Crown Office perspective we will continue to do.  I
 7       will look into the position for Lothian & Borders cases
 8       but I think it's a more complex picture than perhaps
 9       allows me to make an off-the-cuff comment about that.
10           As I say, the context is of evidence generally being
11       agreed and the instruction is precognition unless it's
12       clear that evidence is being agreed.  So I don't think
13       it's helpful if I speculate any further on that.
14   Q.  Still on the theme of precognition, I have a couple of
15       propositions, I suppose, to put to you for comment, if
16       you feel you can comment.
17           I hope I am paraphrasing Mrs Tierney fairly when she
18       gave evidence yesterday but, if I understood her
19       rightly, partly in the light of the expertise of the
20       individual examiner but also in the light of the comfort
21       that they gained from verification within their own
22       office, by the time they are passing information out to
23       the Crown they are confident of the rightness of their
24       own conclusion.
25           How is that to be tested in the precognition
page 187
 1       process, if at all?
 2   A.  It can be tested by asking the examiner the type of
 3       questions that are set out in the aide-memoire in
 4       relation to: have there been disputes; is there any
 5       weakness in your conclusion; is there any possible other
 6       explanation?
 7           These types of questions are the types of questions
 8       that we would have been expecting precognoscers to be
 9       using anyway before we developed this draft list because
10       precognition has always been about assessing and testing
11       the evidence of a witness.  That is what it is there
12       for, and for expert witnesses to ask them where they
13       think any witnesses may lie in relation to their
14       own opinion or where there is any other possible
15       explanation.
16           So if you back that up with Fingerprint Examiners
17       disclosing in advance via statements and reports that
18       there have been discussions in relation to the
19       identification and with the perhaps greater information
20       that's provided in the other style report that you
21       referred me to earlier, that provides a much more
22       informed basis for the precognition process.  But,
23       equally, we would be expecting our precognoscers, after
24       they receive the appropriate training, to be asking
25       these type of testing questions in any event.
page 188
 1   Q.  What I suppose I am concerned about in the light of what
 2       we heard is if a Fingerprint Examiner, with the
 3       confidence that they have perhaps become accustomed to
 4       have in the rightness of their conclusion, is asked, "Is
 5       there a weakness", the automatic answer may very well be
 6       no and I am wondering whether there's any proposal
 7       for further probing in terms of the particular features
 8       on which they rely, whether they have particular
 9       confidence in features in the mark or not?
10   A.  I think there must be scope for some of that.  That will
11       require or would require our precognoscers to have a
12       familiarity with their techniques and we have to do
13       more, I think, in relation to assisting colleagues with
14       that but certainly I think that the material we're
15       preparing at the moment is a very good basis to enable
16       precognoscers to test Fingerprint Officers.
17   Q.  I am also concerned as to whether it's necessarily
18       always going to be proportionate to carry out the sort
19       of questioning I am suggesting in cases where there
20       isn't going to be dispute about identification and I
21       wonder if you can perhaps comment on that concern?
22   A.  I think if you know that the evidence is contested and
23       you know that there is a defence expert report either
24       already available or about to be available, then that
25       will, I think, cause you to not change the approach but
page 189
 1       develop the approach and if, for example, you have the
 2       other expert report available then you would want the
 3       Fingerprint Examiner for the Crown to have access to
 4       that, to be commenting on it, to be commenting on
 5       whether any aspects of that undermine his own
 6       conclusions or expose a weakness and to be commenting on
 7       what his rebuttal would be to those points.  So, yes, I
 8       think when evidence is contested it does call for a
 9       different type of approach, an enhanced approach to the
10       process.
11   MISS CARMICHAEL:  I am conscious of the time, sir, and that
12       might be a useful point at which to break.
13   THE CHAIRMAN:  If this is convenient.  We are obviously not
14       going to finish Mr Pattison's evidence now.
15           I understand the arrangement is we are asking you to
16       come back next week but not on Monday.
17   MISS CARMICHAEL:  Not on Monday but at 9.30 on Tuesday.
18   THE CHAIRMAN:  There are some matters I think you said you
19       might be able to look up and that might give you an
20       opportunity to do that.
21   A.  Certainly.
22   THE CHAIRMAN:  Very well, it's Monday this coming week.
23   MISS CARMICHAEL:  It is Monday for everybody else but
24       Tuesday for Mr Pattison.
25   THE CHAIRMAN:  At 9.30, please.
page 190
 1   (3.40 pm)
 2       (Adjourned until 9.30 am on Monday, 16th November)
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