page   1
 1                                    Tuesday, 17th November 2009
 2   (10.00 am)
 3                          SCOTT PATTISON
 4             Examined by MISS CARMICHAEL (continued)
 5   THE CHAIRMAN:  Good morning, Mr Pattison.  Thank you for
 6       returning.
 7   MISS CARMICHAEL:  Good morning, Mr Pattison.
 8   A.  Good morning.
 9   Q.  I think I said just when you finished on Friday that I
10       had two more matters for you.  There is one matter I
11       have been asked to clarify further with you arising out
12       of the way High Court proceedings currently operate and
13       the operation of the preliminary hearings system and the
14       allocation of cases to individual deputes.
15           It is really to try to clarify how some of the
16       circumstances we know arose at an earlier stage of the
17       preparation of the prosecution of Ms McKie might fit
18       into the current system, if you are able to help us with
19       that.
20           I will set out my understanding of what we think may
21       have happened here and then ask for your comment as to
22       how matters might proceed today.  What I've learned is
23       that Mrs Greaves precognosced the case against Ms McKie
24       before Ms McKie came to be placed on petition in the
25       context of the perjury investigation and one of the
page   2
 1       matters that Mrs Greaves raised in her note at the
 2       beginning of the Crown precognition was that it might be
 3       an idea to pursue whether Y7 could be considered by a
 4       further expert.
 5           The suggestion was taken up by Ms Climie who was
 6       dealing with the matter within Crown Office and included
 7       by her in one of her handwritten notes we have looked at
 8       in the Crown Office file.  The suggestion was also
 9       picked up by Crown Counsel who instructed High Court
10       proceedings at that stage.
11           What then happened was that matters eventually
12       passed back to Mrs Greaves who corresponded with an
13       English Home Office expert, Mr Kent, who in the event,
14       while he was able to advise about certain matters, was
15       not able to consider whether he could match Y7 to
16       Shirley McKie's print because he wasn't a Fingerprint
17       Expert and, for whatever reason, there was no further
18       action on the point of a further particularly English
19       expert opinion on Y7 after that point.  There is a point
20       where we lose track of some of the papers for reasons
21       that have been explored in correspondence, I think.
22           What I would like to try to explore with you is how,
23       if there was an issue of that sort that perhaps one or
24       more Fiscals had raised, had been picked up by Crown
25       Counsel and which may we think have come back to Crown
page   3
 1       Counsel at a later stage although there is no way of
 2       telling because the papers are not absolutely complete,
 3       how a point like that might be followed through in the
 4       new system and whether perhaps there's, if I can put it
 5       this way, less chance of something like that being lost
 6       sight of.
 7   A.  Okay.  I'll do my best to try and deal with that.  I
 8       think it's important for me not to speculate in relation
 9       to the particular facts of this case, given that I
10       wasn't involved in it in any way, and not assume that
11       there's something went wrong from the Crown's
12       perspective at that time but --
13   Q.  Indeed, if I can stop you there, what I should say is we
14       do not know precisely what happened to that proposition
15       because we have an absence of information about it.  We
16       know simply that the point was not taken any further.
17   A.  Sure.  The first thing that springs to mind is that, in
18       a case like this, it is very likely that responsibility
19       would have been allocated to an Advocate Depute pretty
20       much from the outset.  Now, that would mean that once
21       Mrs Greaves' precognition was submitted to Crown Office,
22       even though it was a pre-petition precognition, if that
23       were to come in today an Advocate Depute would be
24       allocated it from the start and would, wherever
25       possible, retain responsibility through to trial, as I
page   4
 1       think I said on Friday.  So that would entail
 2       responsibility for all key strategic decisions in
 3       relation to the case and that would obviously cover
 4       instruction of expert witnesses, precognition of them
 5       and re-precognition, where appropriate.  That's the
 6       major change, I suppose.
 7           I'm sure there was early allocation back in the '90s
 8       too but it's, I think, more rigorous now and more
 9       commonly found now in complex cases, in murder cases and
10       in certain other categories where it's felt that ADs
11       should be responsible from the start for the progress of
12       the investigation and the prosecution.  That would be
13       the major change.
14   Q.  In a case of this sort we know that it's an allegation
15       of perjury by a serving police officer.  Into what
16       category of case would that fall that would mean that it
17       would be allocated to a Depute at an early stage?
18   A.  It falls into a number of categories which would propel
19       it into early allocation: complex, high profile, the
20       fact that the individual was a serving police officer.
21           I think you heard from -- I think Lord Boyd gave the
22       Inquiry an overview of Crown Office procedures in
23       relation to decision-making in respect of allegations
24       against serving police officers and those procedures are
25       still in place in relation to decision-making.  He
page   5
 1       emphasised to the Inquiry that Law Officers are involved
 2       in decision-making but in terms of the progress of the
 3       prosecution, after the initial decision by a Law
 4       Officer, the matter would be allocated to Crown Counsel,
 5       a specific Crown Counsel, to take forward and work with,
 6       the area High Court Unit in one of our 11 COPFS areas to
 7       progress matters.
 8           I know from cases that I've been involved in that
 9       when that happens ADs are very involved and there are
10       regular meetings, regular instructions and in all
11       strategic matters in those cases the Advocate Depute
12       makes the call and it's the same Advocate Depute, which
13       is helpful.
14           It may also help to note that generally in those
15       cases, because there is interaction between Procurator
16       Fiscal's officers and the Crown Office in relation to
17       High Court matters and as well as there being a
18       nominated Advocate Depute as a point of reference for
19       decisions, advice, there generally is a nominated
20       indicter within the Crown Office High Court Unit so a
21       specialist member of legal staff there with experience
22       in indicting cases who would tend to follow the case
23       through as well.
24           Now, I think that that procedure is probably tighter
25       than it was in the late '90s perhaps or more commonly
page   6
 1       found in terms of a single point of contact amongst
 2       indicters, Crown Office and amongst the Advocate Deputes
 3       for these categories of case.
 4   Q.  So should we understand in a high profile case there
 5       could be three people with a continuing interest in the
 6       preparation of the case, an allocated Advocate Depute,
 7       the indicter who has been dealing with the case and
 8       somebody within the Local Fiscals' office?
 9   A.  Yes.
10   Q.  Thank you for clarifying that, Mr Pattison.
11           I would like to ask you now about current practice
12       and future proposals which we heard a little bit about
13       from Mr Nelson last week for the presentation of
14       fingerprint evidence in court.
15           We've heard that there aren't now large scale visual
16       representations used in court for fingerprint cases.
17       How does it work in practice, just at present, if a
18       Fingerprint Expert has to demonstrate his or her
19       conclusions to a court?
20   A.  It's pretty much oral evidence with reference to the
21       report, which is lodged as a production.  It's always
22       open to us to request enlargements in a case and if
23       fingerprint evidence was contentious or crucial in the
24       Crown case it would certainly be very useful to have
25       enlargements in that context but at the moment, pretty
page   7
 1       much, it's oral evidence elicited by Crown Counsel on
 2       the basis of the manuscript report which is available to
 3       the court and before the expert witness.
 4   Q.  So it's simply really just the joint report, speaking to
 5       the joint report?
 6   A.  It is really at the moment.  As I say, there is and I
 7       think from memory of materials that I've seen that there
 8       was an understanding when there was a decision
 9       enlargements would no longer routinely be used that it
10       was always open to the Crown to request them if the
11       circumstances of a particular case justified that or if
12       they would be helpful in a particular case and from my
13       perspective certainly if the evidence is challenged,
14       contentious or very significant, ie it's essential for
15       corroboration in the case, there would be a reason to
16       seek those enlargements.
17           Now I think we need to keep reminding Crown Counsel
18       that that's available to them and keep reminding
19       Procurators Fiscal who are preparing cases that that is
20       available to them.  I think Mr Nelson spoke a little
21       about some of the work that we're thinking about doing
22       and, in fact, planning for from next year in relation to
23       perhaps more visual, more visuals being used on a
24       routine basis.
25   Q.  I wonder if you could tell us a little more about that,
page   8
 1       what you are discussing with Mr Nelson and I think you
 2       mentioned the possibility of piloting some work?
 3   A.  We're due to meet again soon.  We've had a number of
 4       discussions over the past, I suppose, four or five
 5       months about this and our thinking, I think, developed
 6       for two reasons: Mr McGinnies gave a very helpful
 7       presentation to Crown Counsel which was visual and used
 8       examples of enlargements which Crown Counsel found very
 9       helpful and we began to explore the possibility of doing
10       that and presenting on that basis in court as opposed to
11       simply in training sessions.
12           Secondly, we are exploring very much across the
13       range of expert evidence, but across evidence generally,
14       how we might best use media and visual representations
15       of the Crown case to make the case come alive to a jury.
16       Our developing thinking is -- and I think this chimes
17       with what prosecutors are doing in other
18       jurisdictions -- is that, in the modern world, it's
19       perhaps more effective to present in visual format when
20       you can.  So we have examples of that across evidence
21       like DNA where we have experimented with a PowerPoint
22       presentation in at least one case and which we are
23       proposing to try and roll out too.  But across those --
24       for those two reasons, the effective presentation to
25       Crown Counsel and our developing thinking on visual
page   9
 1       representation of evidence generally, we began to
 2       explore with Mr Nelson the possibility of looking at
 3       fingerprint evidence in particular and although we're
 4       due to meet again in a few weeks' time to assess the way
 5       forward, what we are thinking about is in fingerprint
 6       cases having a DVD presentation which SPSA are in the
 7       process of finalising which gives and would give the
 8       jury a general overview of what fingerprint evidence is,
 9       what the techniques are.  It gives them a general
10       understanding of process and then on the back of that
11       perhaps using some PowerPoint slides in which there
12       would be specific enlargements of the prints in the
13       particular case.
14           We have spoken about doing this on a pilot basis for
15       Glasgow High Court cases and by that I mean cases
16       calling in Glasgow High Court.  I say that because cases
17       that call there are not just from Glasgow so we've
18       spoken about approaching Glasgow High Court cases in
19       that context.
20           However, we're pausing for a moment because we're
21       wondering whether that would give us enough cases over,
22       for example, a year to truly test it out and we're
23       thinking about developing the package and perhaps
24       rolling out to all High Court cases in which fingerprint
25       evidence is or requires to be led when it isn't agreed.
page  10
 1       From the figures I was able to provide on Friday that
 2       there aren't too many cases where it's actually led or
 3       requires to be led so that's behind the thinking of
 4       perhaps making a decision to start using this in any
 5       case where fingerprint evidence is being led.
 6           But it's a work in progress and certainly we would
 7       want to take on board the conclusions of the Inquiry in
 8       relation to that and I know that the Inquiry itself has
 9       been using particular technology in relation to the
10       representation of fingerprint evidence and prints and
11       that's something we would be keen to explore if that's
12       better, frankly, than what we are currently working on.
13   Q.  Finally, Mr Pattison, I would like to ask you just very
14       briefly about some of the papers that have been produced
15       to the Inquiry over time by Crown Office and I think we
16       adverted to it briefly in the discussion of the papers
17       that were passing between Ms Climie and Mrs Greaves.
18           Does it come to this really: that when we come to
19       the stage of considering the case that was being
20       prepared against Ms McKie, there comes a point where,
21       while we have some papers which we've managed to take
22       from, I think, essentially, the Glasgow side of that
23       correspondence, there is a portion where we are left
24       with a certain gap, a certain absence of evidence in
25       relation to what may have been within, I think, what
page  11
 1       Ms Climie described as a separate file, a separate buff
 2       file, that would have existed for Ms McKie's case?
 3   A.  I think that's right and I would refer to the
 4       correspondence with the Inquiry in relation to the
 5       comprehensive picture of that.
 6           In relation to the Crown's position and provision of
 7       papers to the Inquiry more generally, we wanted to and
 8       we have done our utmost to provide as much as is
 9       available to the Crown that falls within the Inquiry's
10       Terms of Reference.  We regret any inconvenience to core
11       participants through the part of the Crown Office High
12       Court file which we haven't been able to provide.  It
13       seems that over the years that file has become
14       fragmented and that particular part of the papers is no
15       longer available to us despite the extensive searches
16       that we have had taken place, both in Crown Office and
17       across the country.
18           If I may, the papers in both Asbury and the McKie
19       prosecution are extensive, as the Inquiry knows, and
20       we've been able to provide the vast bulk of them, as you
21       know.  They have travelled across the country quite a
22       few times between Procurator Fiscals' offices and the
23       Crown Office.  They have been through many hands,
24       perhaps a unique number of hands in terms of High Court
25       papers, because of the numerous proceedings that have
page  12
 1       been undergone in relation to this matter and, against
 2       that background, it's actually a testament, we think, to
 3       those who have intramitted with them from the Crown's
 4       side that so much is still intact.  When one thinks of
 5       the Justice 1 Inquiry, the civil case and all of the
 6       many hands and minds who have had to focus on the papers
 7       but, as I say, we do regret any inconvenience that has
 8       been caused by the part of the Crown Office High Court
 9       file which is or appears to be no longer available.
10   Q.  The reason I ask is not so much to put any criticism --
11   A.  No, I know.
12   Q.  -- on yourself but because we have had witnesses and I
13       think particularly of Ms Climie and Lord Boyd whose
14       recollection has not been as assisted as it might have
15       been had all the papers been available, Mr Pattison.
16   A.  I appreciate that.  Forgive the rather longer answer, I
17       just wanted to express and set a context for that
18       because I know it has caused difficulty for some
19       witnesses.
20   MISS CARMICHAEL:  Thank you, Mr Pattison.
21   THE CHAIRMAN:  We will begin with you, Miss Galbraith.
22   MISS GALBRAITH:  Thank you, sir.  I do have an application
23       in respect of this witness.  The issues that I would
24       like to ask questions about are, firstly, the steps that
25       were being taken in the move to the non-numeric
page  13
 1       standard.  I have a brief point in relation to
 2       authorisation of experts.  I am aware Mr Pattison has
 3       already addressed that but I have just one more point to
 4       make on that matter.
 5           Thereafter I would like to ask a little about the
 6       report that the Inquiry has heard from that was
 7       completed by Bill Gilchrist and also I have some further
 8       questions regarding precognition process and, in
 9       particular, in relation to disclosure to the defence.
10           As always, sir, I will endeavour not to go over
11       matters that have already been addressed.
12   THE CHAIRMAN:  I am sure you will not.  Very good, if you
13       wish to ask about those matters you may.
14                 Cross-examined by MISS GALBRAITH
15   Q.  Mr Pattison, if I can deal firstly with the move to the
16       non-numeric standard, the Inquiry has heard evidence
17       regarding the timescale for the move towards the
18       standard that was introduced in 2006, for example,
19       Joanne Tierney from the SPSA said that the Project Group
20       was established in 2000 and I think you yourself have
21       stated that the proposed change was brought to the
22       attention of the Law Officers in June 2000.
23           Is that correct?
24   A.  That's correct, yes.
25   Q.  Thereafter, the draft Scottish Fingerprint Standard was
page  14
 1       sent to Crown Office in 2002.  That is a matter you deal
 2       with in your statement.
 3   A.  Yes.
 4   Q.  Mrs Tierney also confirmed to the Inquiry that she had a
 5       meeting with Mr Gilchrist who, at that time, was the
 6       Deputy Crown Agent in August 2004.  The purpose of that,
 7       we understand, was to provide a draft non-numeric court
 8       report which may thereafter have been passed to the Law
 9       Officers for their consideration?
10   A.  Yes.
11   Q.  Thereafter, we understand without going into the detail
12       of it that that there was some ongoing dialogue between
13       the SPSA and Crown Office and the final version of the
14       standard report seems to have been provided to Liam
15       Murphy in February 2006?
16   A.  That's my understanding.
17   Q.  You confirm in your supplementary statement to the
18       Inquiry that the responsibility for the move towards the
19       new standard lay with the SPSA?
20   A.  Yes, I think I confirmed that on Friday, although there
21       was obviously an involvement and discussion between the
22       Crown and SPSA in the lead up to that.
23   Q.  They were really driving the process?
24   A.  Again, that's my understanding from my reading the
25       materials that I have been able to see.
page  15
 1   Q.  Would you agree that what we see really since 2000 is a
 2       gradual process that was moving towards the final
 3       introduction of the new procedure in 2006?
 4   A.  I think so, although I think it's fairly clear to me
 5       that in 2000/2001 that the view had crystallised that
 6       this was the right thing to do, if I can put it like
 7       that, and that, as I think I said on Friday, that in
 8       terms of the current standard that was being applied in
 9       Scotland, Scotland to some extent stood not alone but in
10       a minority because similar moves had been made on the
11       part of other jurisdictions to a different standard.
12   Q.  I would like to read to you something, some evidence
13       that was given by Lord Boyd when he gave evidence to the
14       Inquiry on 10th November.  For those of us with LiveNote
15       it is at page 87, line 17.  This was when Lord Boyd was
16       being questioned by Mr Smith.
17           The question put was:
18           "I take it you would agree that for what we seem to
19       know now about a number of things regarding Y7 and QI2,
20       even if we just talk about the question of Crown
21       concerns about the lack of disclosure, all of that is
22       something that would not have happened if, frankly, Iain
23       McKie had not been tenacious, got the media interest and
24       pushed it forward and whatever else happens there is
25       considerable benefit from having to analyse the systems
page  16
 1       in place.  Would you agree with that as a comment?"
 2           The answer was:
 3           "Yes and no.  I think I would agree that there was a
 4       catalyst in terms of bringing this to the attention of
 5       the public.  Thereafter, it frankly froze any progress
 6       until we got past the end of the civil proceedings and I
 7       think that was a great tragedy."
 8           The question was then:
 9           "Why did that stop change?  What was it that the
10       civil case prevented the Crown Office from saying,
11       'Well, we need to face up to this.  We need to take a
12       position on it.  We need to restore public confidence in
13       the entire system of fingerprints in Scotland'.  Why did
14       the civil case inhibit that process?"
15           The answer was:
16           "Because quite simply there was no movement that
17       could be made to non-numeric without judgment being made
18       against the Shirley McKie case and, frankly, the
19       campaign that was waged by Mr McKie against the SCRO
20       officers made it very, very difficult for anybody to
21       move and I can quite see how you and Ms McKie may feel
22       they have brought it to the public attention and I
23       accept that but thereafter I am quite clear in my own
24       mind that it was impossible to get the kind of movement
25       that was required while that campaign was going on."
page  17
 1           In light of what has been said about the gradual
 2       process of introduction of the non-numeric standard
 3       would you agree with that comment?
 4   A.  I don't feel I have a basis for disagreeing, if I can
 5       put it like that.  I wasn't working in this area at the
 6       time that these decisions were being made.  I wasn't
 7       advising in relation to them.  So in terms of -- I would
 8       be reluctant to express a personal view on that, to be
 9       honest, and I think I would just simply have to refer to
10       Lord Boyd's view.  He was uniquely placed at the time in
11       relation to all that was going on on a number of
12       different fronts as he referred to in his evidence.
13           I don't mean to be unhelpful.  I just don't feel
14       comfortable expressing a personal view on that.  I don't
15       think it would add too much.
16   Q.  I appreciate the difficulty personally but in terms of
17       your knowledge of the background and the work that you
18       have done to date, is there anything that you have seen,
19       either from documentation or your perception of the
20       process that has led you to the conclusion that the
21       non-numeric standard was delayed in any way by what may
22       have been going on with the civil case or any outside
23       media attention?
24   A.  Again, I think I would have to refer to Lord Boyd's
25       answer to some extent.  Certainly there was a decision
page  18
 1       made to -- it appears there was a decision made to delay
 2       the introduction pending the resolution of the civil
 3       matters.  So to that extent, yes, there was a delay
 4       because of that decision but -- sorry, I'm not sure I'm
 5       understanding the question.
 6   Q.  I am sorry, it is probably a bad question on my own
 7       part.
 8           Are you aware of there being any evidence that there
 9       was a delay caused to the introduction of the
10       non-numeric standard because of the civil case?
11   A.  I'm not personally aware of that from material that I've
12       read or seen.
13   Q.  You explained to us on Friday that COPFS received copies
14       of a DVD and a leaflet from I think it was the SFS at
15       the time --
16   A.  Yes.
17   Q.  -- regarding the introduction of the non-numeric
18       standard.  You explained to us in your role at the time
19       as Fiscal in Paisley what action you took in response to
20       receiving those materials.
21           Have you had a chance to look at the leaflet
22       recently?  Can you recall what information it contained?
23   A.  The leaflet was put to me on Friday in evidence.  It
24       gives a general overview of the change and what is
25       involved in relation to the non-numeric standard.  It's
page  19
 1       quite basic information.
 2   Q.  In terms of the DVD, those of us at the Inquiry had the
 3       benefit of watching it and I think also it's fair to say
 4       that the DVD is not something that appears to be
 5       specifically designed for prosecutors or for COPFS in
 6       any way?
 7   A.  No, it's a general overview of the standard and
 8       fingerprint evidence.
 9   Q.  Are we right to understand that when that was received
10       there was no system or guidance that was involved in the
11       dissemination of the DVD in that there was no way to
12       ensure staff saw it?
13   A.  As I recall, it was distributed by the then Deputy Crown
14       Agent to District Procurators Fiscal.  I'm just pausing
15       because I can't remember if there was a suggestion in
16       the covering minute to hold staff briefing sessions on
17       the DVD but certainly in my mind as a District
18       Procurator Fiscal that almost went without saying, that
19       staff had to be made aware that this existed and at
20       least provided with the leaflet and, as I think I said
21       on Friday, there already was guidance available to staff
22       in relation to expert witnesses generally and from our
23       perspective Fingerprint Officers/Examiners would come
24       into that category and a presumption in favour of
25       precognition of expert witnesses.  But, yes, the short
page  20
 1       answer is, yes, there was no specific direction to hold
 2       a briefing session, if you like.
 3   Q.  Do you know in your own office whether anyone actually
 4       saw the DVD?
 5   A.  No, I don't actually, is the straight answer to that.
 6       My recollection is that the leaflet -- I scanned the
 7       leaflet and e-mailed it to our legal staff and
 8       precognoscers at the time and that the DVD -- and that I
 9       told staff in the email that the DVD was available to
10       them if they were dealing with a case in which
11       fingerprint evidence was an issue and I then made the
12       DVD available to our Solemn Legal Managers.
13   Q.  Obviously we have no way of knowing what approaches were
14       taken within the other --
15   A.  No.  No, we don't.  I would say that the steps that I
16       took were probably the minimum you would expect to be
17       taken by Procurators Fiscal.  But, no, I can't speak
18       from personal knowledge as to what others did.
19   Q.  If I can move on now to ask you about authorisation of
20       experts and I think you have said in your statement and
21       I think, to be fair, in previous correspondence that the
22       COPFS plays no role in the authorisation of forensic
23       experts in terms of the section 280 procedure?
24   A.  Yes.
25   Q.  Sorry, section 280 of the Criminal Procedures Scotland
page  21
 1       Act 1995.
 2           Bearing that in mind, obviously you would agree that
 3       the Crown must bear responsibility for the prosecution
 4       of crime and the selection of appropriate witnesses on
 5       behalf of the Crown?
 6   A.  Yes, that's right.
 7   Q.  Would you also accept that it's in the interests of the
 8       Crown to ensure that they are satisfied as to the
 9       competence and integrity of witnesses that they choose
10       to lead on their --
11   A.  I think, yes, that is right and I think I said on Friday
12       that we have to be -- we certainly have an interest in
13       being assured that the training and competency testing
14       of experts is robust and thorough.
15   Q.  Can you just remind us how the Crown is ensured of that?
16       What steps are taken to satisfy themselves as to the
17       training and competency?
18   A.  I suppose, if we are focussing on SPSA and fingerprint
19       evidence then we rely heavily on the assessment of
20       competence by SPSA and their systems for checking
21       competence and for verifying work and we would certainly
22       feedback to SPSA any significant difficulty which had
23       arisen in relation to an expert in court to inform their
24       processes of review and assessment but for SPSA experts
25       we have to rely heavily on them.  They are employees of
page  22
 1       SPSA and we know that they have systems in place to
 2       assess competency.  So I suppose, from the Crown
 3       perspective, we can certainly -- it is certainly open to
 4       us to enquire into that and to discuss that with SPSA
 5       but they are best placed to assess the competence of
 6       there employees and to make representation to the
 7       Scottish Government in relation to authorisation.
 8   Q.  Given this responsibility, would you see any role for
 9       the COPFS in the authorisation process?  While I
10       appreciate that doesn't happen at the moment would you
11       see there being a benefit to being involved?
12   A.  I'm not sure there's a benefit for the Crown being
13       involved in actual authorisation, for a couple of
14       reasons, I think.  Firstly, I'm not sure we have the
15       expertise to do that.  I think that relates partly to
16       the answers I gave in relation to what extent should we
17       become involved in setting scientific standards or
18       quasi-scientific standards so, firstly, I'm not sure we
19       have the expertise on that front.
20           Secondly, it's traditionally been the position in
21       Scotland that expert witnesses are independent of the
22       parties so when the Crown calls a pathologist it's
23       tempting to think that that's the Crown's expert
24       pathologist but actually the position constitutionally
25       and legally is that that witness is independent and that
page  23
 1       brings huge value.
 2           For the Crown to be proactively or in any way
 3       involved in actually authorising experts I think there
 4       is a potential problem.  I say "potential", I haven't
 5       thought this through in detail but a potential problem
 6       in relation to a later perception of a lack of
 7       independence on the part of the expert and potential
 8       challenges against their independence.
 9           What I do think we can do and should do is feed back
10       problems that we experience, either in the course of our
11       interaction with an expert in the course of an
12       investigation because very often we are instructing at
13       the outset of, for example, a murder inquiry, forensic
14       biologists and pathologists and others will be at the
15       scene from the earliest point.  So we can feedback any
16       difficulties that we have experienced if we think they
17       are significant and go to competence and we certainly
18       should do that when we pick up on that and if we
19       experience difficulties with a witness giving evidence
20       in court -- and, I'll be frank, I have experience of
21       doing that in various contexts as a prosecutor and our
22       role, I think, is to feed that back to SPSA senior
23       management for that to be fed into performance appraisal
24       and competency testing, further training, whatever is
25       required for SPSA to feel confident in presenting that
page  24
 1       person as someone to be authorised and to give evidence
 2       in court.
 3   Q.  Can you explain to us a little bit about how that would
 4       happen?  Say a Depute or an Advocate Depute, if they had
 5       concerns about a witness giving evidence in court, how
 6       could they feed that information back to the SPSA?
 7   A.  It generally would be done, I think in the past and at
 8       present, through the Deputy Crown Agent's office in
 9       Crown Office or through the Head of the High Court Unit
10       and in the Deputy Crown Agent's Office, that's where I
11       work, and we would receive a note, a report, an
12       expression of concern from the Advocate Depute or
13       sometimes from a Procurator Fiscal who had experienced a
14       difficulty perhaps and we would assess that and
15       determine whether it ought to be referred to SPSA.
16       Practically, that's how it would work.
17           Now, I don't want to give the impression that this
18       is happening daily, because it isn't, but in terms of if
19       a prosecutor in the High Court had a real concern with
20       how an expert had presented, either because of the
21       content or the simple way they had conducted themselves
22       in court, then that would generally be referred to the
23       Deputy Crown Agent's office and we would then determine
24       whether it ought to be referred to SPSA and that would
25       depend on what you were dealing with, what was the
page  25
 1       degree of the fault, if you like, and what it actually
 2       related to.
 3   Q.  That may be of interest to the Inquiry, as you may know
 4       what happened after the acquittal of Shirley McKie is
 5       that there was a meeting between the Advocate Depute who
 6       prosecuted the case and certain representatives of the
 7       SCRO at that time which didn't lead to any further
 8       action being taken.
 9           What may be of interest is whether there are any
10       formal procedures in place should such a situation
11       happen now where either a prosecuting Fiscal or an
12       Advocate Depute has a concern about expert evidence,
13       whether there is a formal procedure, if you like, for
14       them to draw that to the attention, firstly, to Crown
15       Office and thereafter to any relevant agency.
16           From the way you are describing it, it doesn't sound
17       like there's a formal process.  It's a matter for the
18       individual concerned?
19   A.  I was going to give an awful answer there and say it
20       depends on how you define formal but what I will say is
21       there's no specific guidance I'm aware of that says to
22       prosecutors, "Here is what you do when ...", in relation
23       to this particular matter.  So to that extent it
24       probably is informal in the sense that it's not
25       formalised by guidance but it's still a referral to the
page  26
 1       Deputy Crown Agent's office, which isn't a light matter,
 2       if I can put it like that.
 3   Q.  Just to pick up one point you mentioned, an analogy with
 4       pathologists and perhaps those familiar with the
 5       prosecution of crime in Scotland will be aware that
 6       pathologists can give or frequently give evidence,
 7       perhaps, in one case on behalf of the Crown and then
 8       quite similarly in another case on behalf of the
 9       defence.  They are independent in that sense, that they
10       frequently act for Crown and defence.
11           Are you aware whether that's a similar situation
12       with the SPSA officers?  Do they ever act on behalf of
13       the defence?
14   A.  I don't think they do.  I couldn't categorically state
15       that though.  That's something that ought really should
16       be raised with them.  I'm aware certainly that all of
17       their work as an organisation does not come from the
18       Crown but I'm not aware of them giving evidence for the
19       defence in criminal cases and I think that would be
20       very, very unusual.
21   Q.  Still dealing with the interest of the Crown in relation
22       to the competency and expertise of Fingerprint Experts,
23       during the course of the Inquiry a difference of
24       approach seems to have emerged regarding how different
25       officers treat unexplained differences within a mark.
page  27
 1       Without going into the specifics, I think generally the
 2       two approaches can be seen, firstly, that an unexplained
 3       difference between a mark and a known print may not
 4       matter if there's a sufficient other detail to enable
 5       the officer to be content with the identification.
 6       That's one approach.
 7           The alternative approach seems to me that where
 8       there is an unexplained difference then the process ends
 9       there and there cannot be an identification.
10           Just using that as an example of a difference in
11       approach between Fingerprint Experts, while it may be
12       going into the technicalities of it, is that an issue
13       that you are aware of Crown Office having a particular
14       view on as to which is the appropriate approach to
15       follow?
16   A.  I'm not aware of us having a view on that or having
17       discussed that with SPSA, no.
18   Q.  Even within the SPSA if there is a differing view as to
19       the significance of an unexplained difference, how would
20       the Crown manage or become aware of the view of a
21       particular expert in relation to that sort of difference
22       of opinion?
23   A.  I suppose there are a number of ways.  Firstly, I think
24       the Crown is entitled to expect law enforcement
25       generally -- and I include SPSA within that -- to
page  28
 1       provide the prosecutor with all relevant information
 2       and, as I said on Friday, that would include information
 3       which would undermine the Crown case or which would be
 4       consistent with the innocence of the accused,
 5       exculpatory.  So that process is one I think we're
 6       entitled to expect to take place and we are entitled to
 7       expect law enforcement to be clear about their duties in
 8       that regard.
 9           Secondly, in relation to expert witnesses we have
10       had a presumption in favour of precognition for some
11       time and we've recently, as you know, with the Circular
12       in March, firmed up the instruction or introduced the
13       firm instruction that there should be precognition of
14       Fingerprint Officers wherever the evidence is not
15       clearly going to be agreed.  That process is there to
16       draw out and to test the potential evidence of witnesses
17       and not just expert witnesses but witnesses in general.
18           I think I said on Friday that we accept that there
19       is more that we can do to ensure that our precognoscers
20       are sufficiently informed so that they can test
21       evidence, ask questions to bring out matters that ought
22       to be brought out into the light, so to speak, and I
23       referred on Friday to a particular piece of work which
24       we brought to an advanced stage in relation to
25       fingerprint evidence but which we are also doing in
page  29
 1       relation to other streams of expert opinion and that is
 2       to provide our precognoscers with an aide-memoire, lists
 3       of specific questions, not that they require to
 4       slavishly adhere to but which are there for them as a
 5       resource in the context of precognition of experts
 6       across the board.
 7           So two things, and I apologise for the long answer:
 8       firstly, the duty of law enforcement to bring relevant
 9       matters to the attention of the prosecutor and,
10       secondly, in Scotland the role of precognition which I
11       think is still pretty unique to Scotland in terms of the
12       prosecutor conducting an investigation.
13           If I may though, I think it's important to recognise
14       that these aren't the only safeguards in the system.  I
15       know the Inquiry will have heard this before so forgive
16       me, the defence have a right to precognosce, to
17       investigate, to instruct experts and to assess matters
18       in that context and, in addition to that, there is the
19       residual safeguard of a jury who is able to assess
20       expert opinion and determine their verdict.
21           So I think there are a number of safeguards within
22       the system in Scotland which are there to assist and
23       hopefully minimise the possibility of a relevant matter
24       being missed.
25   Q.  The long answer was very helpful but can it be
page  30
 1       summarised, certainly the second part, is that
 2       precognition is the key?
 3   A.  No, no, it's not the key.  Disclosure by law enforcement
 4       and precognition would have to sit very much
 5       side-by-side.  I worry about saying precognition is the
 6       key for reasons that I mentioned on Friday.  It's not
 7       happening in summary cases and we wouldn't at this stage
 8       view that as a proportionate response to the context
 9       that we are in Scotland in relation to fingerprint
10       evidence, nor is it happening in other jurisdictions so
11       I think, actually -- no, I wouldn't say one is more
12       important than the other.  I think they sit together and
13       I also think that elements in the system combine to
14       minimise the possibility of risk and I was about to go
15       back to my long answer and I won't.
16   Q.  I think I only took one arm of it perhaps.  If we can
17       summarise it, if we can, by the disclosure by law
18       enforcement agency and precognition?
19   A.  Yes, yes.  That's fair, I think.
20   Q.  I may come back to a few of the points you have touched
21       on but can I ask you, firstly, were you aware, either at
22       the time or now, about a report that was submitted by
23       William Gilchrist, Bill Gilchrist, to Crown Office in
24       June 2001?
25   A.  I certainly wasn't aware of it at the time.  I've become
page  31
 1       aware of it in preparation for giving evidence, to be
 2       honest.
 3   Q.  Have you had an opportunity to read Mr Gilchrist's
 4       report?
 5   A.  I've read that report very briefly but I am aware of it
 6       and it's conclusions.
 7   Q.  Would you agree that, aside from the position that seems
 8       to be adopted in the report that there had been a
 9       mis-identification, another point that was brought out
10       by the report of the investigations that Mr Gilchrist
11       carried out was that there had been officers within SCRO
12       who could not identify Y7 to the 16-point standard?
13       That was something that was brought out by the Gilchrist
14       report?
15   A.  I think that's right.  Would it be possible to see the
16       report if it is available?
17   Q.  The reference is CO0003.  The specific parts I am
18       referring to, if you would like to turn to page 11 of
19       the report.  Obviously, Mr Pattison, if you would like
20       time to look at the fuller report --
21   A.  Yes.
22   Q.  -- I'd be happy with that.
23           The key points for my purposes in relation to the
24       heading halfway down the page we see identification of
25       Y7 by SCRO?
page  32
 1   A.  Thank you, yes.
 2   Q.  What is stated there, just in the second sentence of
 3       that paragraph:
 4           "We know from Alister Geddes that he was then asked
 5       by Hugh MacPherson to verify his identification of Y7.
 6       MacPherson informed Geddes that he had already
 7       identified the mark as being the left thumb of Shirley
 8       McKie, a serving police officer.  Geddes carried out the
 9       requested check using a magnifying glass but experienced
10       difficulty due to what he perceived as movement in the
11       mark.  He then placed the mark and the elimination print
12       onto a comparator and managed to identify 10 ridge
13       characteristics in agreement in the lower part of the
14       mark."
15           Thereafter he remained of the view he could only
16       find 10 points.
17           If I can then move on, please, to page 13.  This
18       part of the report explains what came to be known as a
19       blind test, which was a procedure where other officers
20       at that time on duty were asked to look at the mark and
21       in that respect it's noted in the second paragraph that:
22           "One expert, Terence Foley, found 10 characteristics
23       and indicated he would be willing to eliminate the
24       mark ..."
25           In the next paragraph Edward Bruce managed to
page  33
 1       identify 8 characteristics.  I think for the sake of
 2       completeness it was also noted in an explanation of the
 3       background that there were two other officers who did
 4       not give a view one way or the other and asked for more
 5       time to look at the mark.
 6           Looking at matters today, would you accept that that
 7       kind of information would be of relevance, perhaps, to
 8       the Crown but certainly to the defence?
 9   A.  I think the defence would find that relevant, would be
10       my personal view.
11   Q.  For example, it may encourage them to instruct their own
12       independent report if it was thought there may be, while
13       the officers were content to eliminate, to a degree that
14       it may show a degree of difference of opinion and may
15       encourage the instruction of an independent report by
16       the defence.  Would you agree with that?
17   A.  I could understand the defence taking that view, yes.
18   Q.  While I appreciate I think you were not in Crown Office
19       at the time this report was submitted, which was in June
20       or July 2001 --
21   A.  No, I would have been in Crown Office but in a very
22       different role.
23   Q.  But it's not something you were personally involved in?
24   A.  Not at all.
25   Q.  From the information that the Inquiry has it would not
page  34
 1       seem this point was flagged up in the wake of this
 2       report.  The fact that there had been a disagreement
 3       within SCRO was not something that was specifically
 4       mentioned or brought to anybody's attention.  Just in
 5       terms of the documentation that you have seen would you
 6       agree with that, that this wasn't a point that was
 7       picked up from the report?
 8   A.  I don't remember seeing anything which says that that
 9       was communicated proactively by the Crown but I should
10       say that doesn't mean that it didn't happen because I
11       haven't seen everything that exists in relation to -- or
12       read everything which exists within Crown Office in
13       relation to that particular matter.
14   Q.  Of course, I know it's a little unfair to ask you to
15       comment on something you were not personally involved
16       with but could I just ask you to accept in terms of
17       information that the Inquiry has received there would
18       not seem to be any action that was taken in response to
19       this particular issue at that time.
20           In terms of your knowledge of the procedures within
21       Crown Office, would you accept that there is no reason
22       in principle why, had this been raised as an issue, that
23       guidance or a direction could not have been given
24       directly to SCRO, that this kind of information should
25       be disclosed?
page  35
 1   A.  I'm just trying to --
 2   Q.  You're probably trying to work out what my question
 3       meant.  It was poorly framed.
 4   A.  No, not at all.  Do you mean more broadly where there is
 5       a disagreement between experts or specifically where
 6       there has been an identification of the kind that was
 7       made by these particular officers?
 8   Q.  I suppose I'm putting a hypothetical.  Had somebody
 9       looked at this report and thought, "Well, there was
10       disagreement in this case between officers.  We didn't
11       know that that happened, that that was possible within
12       SCRO that different officers could come to a different
13       opinion.  I would like to know that as a prosecutor and
14       maybe the defence would like to know that" and a
15       possible action could have been for the Lord Advocate or
16       for some discussion to have taken place between the two
17       agencies to ask for that information to be provided.
18   A.  Yes, that would have been a possible action in relation
19       to that matter.  I think I should say again that from
20       the Crown's perspective that -- and speaking in the
21       generality as opposed to in relation to the case
22       itself -- that where there is a dispute between experts
23       that that is something that we would, as I think I've
24       said already, view as relevant and something which
25       should be disclosed.  It's something we can try and draw
page  36
 1       out at precognition but it's much safer if it's
 2       disclosed in report and statements because the report
 3       and statements are automatically disclosed to the
 4       defence and then they are obviously cited and in
 5       possession of information which allows them to make what
 6       they will of that.
 7   Q.  If I can move on from that, you said in your statement
 8       and again you repeated it this morning, that from your
 9       perspective law enforcement colleagues should be aware
10       of their duty and provide relevant information to the
11       Crown?
12   A.  Yes, I think that's a long-standing duty in Scotland.  I
13       think, as I said on Friday, the clarification that the
14       Inquiry has brought to the issue of disputes between
15       experts in the context of fingerprint evidence, albeit
16       ones which are resolved, is something that we and SPSA
17       will work together on to determine the appropriate
18       protocol for that and to ensure the information is
19       brought to the attention of the Crown.
20   Q.  I think you talk in your statement about a protocol that
21       has been agreed with ACPOS?
22   A.  There is a protocol with ACPOS in relation to disclosure
23       of some years old now and there is an ACPOS manual on
24       disclosure which I think is quite -- it was in draft for
25       some time and it has quite recently been published.
page  37
 1   Q.  Obviously, there is no similar protocol with the SPSA?
 2   A.  I think SPSA would be covered by the ACPOS protocol and
 3       played a part in relation to that.  I could be wrong and
 4       I can check the detail of that.  I'm specifically
 5       referring to the ACPOS manual on disclosure.  I think
 6       there was a role and I'm sure there will be an
 7       acceptance of the principles within it on the part of
 8       SPSA.
 9   Q.  What you just said is that Crown Office or COPFS and the
10       SPSA will work together to determine an appropriate
11       protocol, I think what we are talking about is for
12       disclosure.  Can we take it from that that it is
13       accepted that the current arrangement is not sufficient
14       to ensure that information of relevance is disclosed to
15       the Crown or the defence?
16   A.  I think the Inquiry has clarified that, on a routine
17       basis, that disputed identifications or disputes between
18       experts are not routinely being brought to the attention
19       of the Crown in the report or statements and I think
20       that has been helpfully brought out and I think we need
21       to look at that carefully and work together on it.
22   Q.  Are you able to give us any indication of what work will
23       follow and any kind of timescale and what can be
24       expected from that?
25   A.  I expect to have early discussions with Mr Nelson in
page  38
 1       relation to the matter and to meet with relevant SPSA
 2       colleagues, hopefully within the next few weeks,
 3       certainly by the end of the year, and to reach agreement
 4       pretty quickly, certainly within the next few months.  I
 5       would expect in relation to the precise issue of where
 6       experts have disagreed to be able to resolve that issue
 7       very quickly.
 8   Q.  Again, just on that point -- I will be corrected if I am
 9       wrong -- but the issue of disclosure of this kind of
10       information of where there has been disagreement between
11       officers, this has been put to a number of witnesses
12       within the context of the Inquiry.  I don't know to what
13       extent you have been following the evidence, but
14       certainly I don't think any of the Fingerprint Officers
15       have indicated that this is information that would be
16       volunteered to the Prosecution Service and indeed there
17       may be a failure to appreciate the value that this
18       information could have certainly for the defence.
19           I take it that is something that will be taken into
20       account by the Crown in terms of their ongoing work with
21       the SPSA.
22   A.  Yes, I think we see that as relevant information.  I
23       think from the extent to which I have been able to
24       follow the evidence that SPSA colleagues have accepted
25       that that would be useful in terms of provision and the
page  39
 1       right thing to do in terms of disclosure and also that
 2       it should be contained within either the report or
 3       statements.
 4   Q.  You have already given us quite a lot of comment
 5       regarding the precognition process and, in particular,
 6       the precognition of experts.  You have also been able to
 7       provide the Inquiry with statistics for the number of
 8       precognitions carried out after the Circular was
 9       introduced in March of this year.
10           Can I ask are you aware of how many precognitions of
11       Fingerprint Experts were carried out between the
12       introduction of the non-numeric standard in 2006 and the
13       Circular being issued in 2009?
14   A.  No, I don't have that information, I'm afraid.
15   Q.  Can you perhaps explain why that information is not
16       available?
17   A.  It's not something which we store electronically on any
18       database and to obtain it would require a manual trawl
19       of all High Court and Sheriff and Jury case papers back
20       to 2006.
21           In relation to the figures that I was able to
22       provide the Inquiry with on Friday, we obtained them and
23       I think in my statement I've qualified them to some
24       extent but they were obtained by asking all Crown
25       Counsel about their experience since March '09, just
page  40
 1       following the specific questions that we were asked and
 2       by asking Area Fiscals to do the same in Sheriff and
 3       Jury cases.
 4   Q.  So you have been assisted in obtaining that information
 5       by Area Procurators Fiscal; is that right?
 6   A.  Yes.  In relation to Sheriff and Jury matters, yes.
 7   Q.  Can I ask, based on the information available to you,
 8       are you content that Fingerprint Officers have been
 9       routinely precognosced in the way that they should since
10       the publication of the Circular in 2009?
11   A.  I think we have done all that we can to ensure that they
12       are and I'm not aware of anything which suggests that
13       they are not, if I can put it like that.  The
14       instruction is to precognosce unless the evidence is
15       agreed and what I have picked up on, certainly from
16       speaking to prosecutors, High Court and in the lower
17       courts, and in terms of the feedback that we were
18       provided with, is that fingerprint evidence is pretty
19       routinely agreed and unchallenged in Scotland.
20           We have issued the instruction.  We have asked Area
21       Fiscals to monitor it.  We have reminded our Area High
22       Court Units in particular on a number of occasions about
23       the importance of the instruction.  Also, we have asked
24       Crown Counsel if any cases do slip through the net and
25       they receive a set of High Court papers in which a
page  41
 1       Fingerprint Officer or an expert witness generally has
 2       not been precognosced to specifically instruct that work
 3       of the Area High Court Unit ... sorry, that's it.
 4   Q.  Have you felt it necessary to instruct any kind of
 5       reminder or encouragement to Fiscals to ensure that this
 6       precognition is taking place?
 7   A.  We have issued, I think, two notes to Area Fiscals, as I
 8       recall, in relation to fingerprint evidence but also
 9       expert witness evidence generally.  On the latter, there
10       has been for some years, as I've said, a presumption in
11       favour of precognition of expert witnesses.
12           Our discussions with Areas and with SPSA over the
13       last 6 to 12 months -- and I'm speaking about expert
14       witness evidence generally at the moment -- has brought
15       to light that experts have not been being precognosced
16       to the extent that they perhaps should have been and
17       that has led to the Crown Office and through our office
18       reminding Area Fiscals of that duty and relevant
19       guidance.  That's something that we do as a matter of
20       course across our work.  Although we have systems in
21       place at Area level to monitor compliance against
22       guidance and although that's for the Area Fiscal to do,
23       in an organisation of our size and complexity and with
24       the significant amount of guidance that's now available
25       to prosecutors for compliance with, we do have to draw
page  42
 1       attention to specific matters from time to time.
 2   Q.  You say it's from what's brought to light in general in
 3       terms of expert evidence in the last 12 months that
 4       experts have not been precognosced to the extent they
 5       should have been.
 6           Have you had any information regarding specifically
 7       Fingerprint Officers?
 8   A.  I've had some information from Mr McGinnies in the
 9       context of the Crown Counsel seminar that I think he
10       mentioned and I've mentioned.  That was in June of this
11       year and the Circular had been issued in the March but
12       he, in the context of that discussion with Crown
13       Counsel, did say that from his perspective precognition
14       was not as routine as he would like and he was
15       emphasising from his perspective the value of
16       precognition for his officers.  That was information
17       which I'm sure -- I would have to check my records but
18       I'm sure that after that, and against the back of the
19       Circular in March, that I reminded Area Fiscals of the
20       guidance and of the need for precognition.  But, as I
21       recall -- and again I would need to check -- I think it
22       was fingerprint evidence but also expert witnesses in
23       general because similarly at that seminar there were
24       presentations from a ballistics expert and, in the
25       context of DNA evidence, from a forensic biologist.  You
page  43
 1       know, it was not -- as I recall, it was not solely in
 2       relation to fingerprint evidence.
 3   Q.  If I can move on now to deal with what we have been
 4       talking about as the provision of this information to
 5       the Crown, if I can ask now about that the Crown would
 6       do with this information when they have it.
 7           We have seen the Crown Office Circular and the
 8       aide-memoire, which I think you said is just a draft.
 9       It's not been finally issued as yet?
10   A.  It's at a pretty advanced stage now, as I think I said
11       on Friday, because we've had I think most of the
12       comments back from SPSA that we had sought or at least
13       from the relevant colleagues there and Crown Counsel
14       have had a chance to comment on it but, as in every
15       other area of our work, if there's something missing and
16       something that has come out in the context of the
17       Inquiry which could inform that document we would be
18       keen to learn from that and improve it.
19   Q.  Would you agree with me that while the aide-memoire
20       provides instruction for precognoscers to ask
21       Fingerprint Officers whether there may have been
22       disagreements between the Bureau or other views as to
23       the mark, there is then no specific instruction or
24       guidance that that information must then be passed to
25       the defence?
page  44
 1   A.  You mean in relation to, again, the issue of disputes
 2       between experts?
 3   Q.  Yes.
 4   A.  There's nothing in that document which is designed to
 5       assist with the precognition process, the actual
 6       questions asked of the expert in the interview but there
 7       has been a vast amount of guidance provided to
 8       prosecutors and precognoscers over the last four to five
 9       years in relation to disclosure and significant
10       training, protocols with the police, a disclosure manual
11       for prosecutors which is on our intranet but I think is
12       also in the public domain too, which emphasises the need
13       to disclose to defence not just the Crown case but
14       anything which would undermine the Crown case or assist
15       the defence case.  So I would have, no -- I'm as certain
16       as I can that prosecutors and precognoscers are very
17       much aware of their disclosure duties at every level in
18       the system.
19           Part of why I say that this type of information is
20       best contained in the report or the statements or both
21       is because since 2005, I think after the Holland case,
22       these statements have been routinely disclosed to the
23       defence.
24   Q.  I think to summarise, is the position that there is no
25       specific guidance, certainly in the Circular or nothing
page  45
 1       in the aide-memoire, that says that information of
 2       disputes or disagreements about marks should be
 3       disclosed, the reliance is on the general instruction
 4       given --
 5   A.  I think that's correct, yes.
 6   Q.  Do you --
 7   A.  Again -- sorry.
 8   Q.  I will let you finish.
 9   A.  This issue has come out during the course of the
10       Inquiry.  It's one that we, with SPSA, will learn from
11       and it's certainly worthy of consideration that we set
12       in place a specific instruction on that, at least that
13       there should be consideration of disclosure of that
14       material to the defence.
15   Q.  I guess that really answers my next question which was
16       going to be whether you consider specific instruction
17       would be necessary?
18   A.  I think that's worthy of consideration, definitely.
19   Q.  Of course, while this may be an issue that's perhaps
20       been highlighted during the course of the Inquiry, would
21       you accept that this issue really was known in a sort of
22       institutional way by the Crown, COPFS, when Mr Gilchrist
23       reported back in 2001?
24   A.  Yes, I think I would have to concede that, the issue of
25       disputes between the experts was known in that sense.
page  46
 1   Q.  And really, it's not been picked up until now?
 2   A.  Not specifically as in this context, although I do come
 3       back to the need for the Crown to be provided with
 4       material on a case-by-case basis which is relevant and
 5       material and that includes material which assists the
 6       defence.
 7   Q.  Dealing with that point on the provision of information
 8       to the Crown, the Inquiry has been interested to find
 9       out the extent to which notes and records are kept by
10       individual officers.  From the Crown's perspective would
11       you consider it to be something that would be useful or
12       important in the preparation of the prosecution of a
13       case for experts to be able to show their working and
14       their methodology.
15   A.  I'm pausing because I think it really depends on what
16       the expert needs themselves.  We wouldn't presume to
17       impose a particular way of working upon experts and I
18       refer to my earlier answers in relation to the Crown's
19       lack of expertise in that context.
20           Certainly I know from speaking to some experts
21       recently that when they know that their evidence is
22       going to be disputed or it is contentious in the
23       particular case they want their notes to be lodged as a
24       production in the case.  Sometimes judges will have
25       experts to refer to their notes if they aren't lodged
page  47
 1       but it's safer to have them lodged so they definitely
 2       can.  So I certainly see value in the lodging of notes
 3       if an expert has them and they were contemporaneous and
 4       they need them and in their evidence if it's disputed
 5       but I wouldn't impose a particular way of working on the
 6       expert.
 7           I think the ACPOS manual on disclosure deals with
 8       this point, I think, to some extent.  It may be of
 9       interest to the Inquiry.  I think it's paragraph 7.57
10       where there's a clear statement that it's -- there is
11       the no specific need to provide notes to the Crown per
12       se in the context of case preparation because really our
13       capacity to do anything with them is very limited from
14       our limited knowledge of the fields of expertise but
15       that if a defence expert has been instructed because the
16       evidence is contentious there is a complete acceptance
17       on the part of SPSA and the police and the Crown that
18       there should be disclosure of the relevant notes to
19       inform the defence preparation.  Again, I say that in
20       that context I think most experts would want their notes
21       lodged so that they could refer to them in the context
22       of their giving of evidence.
23   Q.  I think even with the witnesses who have given evidence
24       to this Inquiry we have seen some who have taken notes
25       of their original assessment and some who have not.
page  48
 1           Would you agree that the benefit of doing that is it
 2       shows a transparency and a consistency of approach if an
 3       expert is able to give evidence in court and point to
 4       what they did at the time that that could be helpful?
 5   A.  Yes.  I think from a prosecutor's perspective that could
 6       be helpful, again especially and particularly when the
 7       evidence is challenged.
 8   Q.  If I could just ask you about one point, Joanne
 9       Tierney -- I don't think you heard Mrs Tierney's
10       evidence?
11   A.  I didn't.  I've reviewed her evidence to some extent but
12       I didn't hear it.
13   Q.  I don't think this was a point that was made in her oral
14       evidence but in her written statement she suggests that
15       not having a full note of the initial analysis that was
16       carried out in relation to a particular mark will mean
17       that when an officer is giving evidence in court they
18       will be required to explain their analysis de novo and
19       she states that this provides the officer with a
20       challenge.
21           Would you think that that demonstrates a consistency
22       of procedure for officers to be doing their analysis of
23       new when they are giving evidence?
24   A.  I think I would have some concerns about that.  I'm
25       slightly hesitant because of my point about not wanting
page  49
 1       to impose a particular way of working upon experts but I
 2       can see difficulties in that.
 3   Q.  On the issue of notes, if I could ask you to have a
 4       quick look at a document that has been provided to the
 5       Inquiry.  I don't think you have seen this before.  It's
 6       DB0768.
 7           This is a record that is kept in certain cases by
 8       the Fingerprint Service in the Netherlands.  It's been
 9       translated so in parts the explanation is perhaps a
10       little difficult to follow but I think it clearly shows,
11       certainly on the first page, the analysis process that
12       an expert will go through when first looking at a mark.
13       You will see that there are boxes which provide for the
14       expert to fill in a number of minutiae, characteristic
15       value, contrast, problem areas and suchlike.
16           Then if we go on to the second page -- I should say
17       the first page deal with the analysis process and only
18       once the expert is content there's sufficient detail
19       there they move on to the comparison phase, which is
20       shown on the second page.  Again, there are boxes there
21       for notes to be made.  The evaluation phase says veto.
22       That is a phase that involves discussion with others
23       experts and problems can be noted there.
24           I appreciate you perhaps are seeing this for the
25       first time today but would a document similar to that
page  50
 1       that shows fairly briefly what process has been gone
 2       through and there is an indication of there being any
 3       discussion or difference of opinion, would that fairly
 4       straightforward document be something you think would be
 5       of value to a precognoscer or a prosecutor conducting
 6       a case?
 7   A.  I can certainly see value in that.  I would be
 8       interested in the SPSA view of it as to what would be
 9       most useful for their examiners in relation to capturing
10       information and prompting in the right direction.
11           Certainly, as a generality, a simple document which
12       also captures relevant information is what you really
13       want in the context of reporting on a routine basis to
14       the prosecutor.  So I think both with that document and
15       also with one that I was shown on Friday which I think
16       was referred to as a longer style report which Joanne
17       Tierney had referred to and which I viewed as
18       potentially helpful to, there certainly is a basis for
19       discussion with SPSA over.
20   Q.  Another possible advantage to something that is
21       completed routinely of this nature would be that this
22       could be something that could be fairly easily disclosed
23       to the defence, suitably redacted as necessary, but it
24       would provide information that may be of relevance
25       without the full precognition process being required?
page  51
 1   A.  Yes, although I can imagine a number of different styles
 2       of report which could do that but it does look
 3       potentially useful.
 4   Q.  As a general idea?
 5   A.  Yes.
 6   Q.  Specifically on that point, you mentioned earlier that
 7       in summary cases, the Crown Office Circular that came
 8       out requiring precognition of Fingerprint Officers, that
 9       does not apply in summary procedure?
10   A.  It doesn't, no.  It's always open to the prosecutor to
11       precognosce in a summary case but, as a matter of
12       routine, it isn't done.  It would be the exception.
13           I should say though if I was prosecuting a summary
14       case and I knew that fingerprint evidence was essential
15       and that it was disputed, as a prosecutor dealing with
16       the case, I would want to speak to the Fingerprint
17       Officers and, in effect, precognosce them and I would
18       expect that most prosecutors in summary courts would be
19       of that mind too.  That's really the type of thing that
20       you would do with any expert in a summary case where you
21       knew that the evidence was important and was going to be
22       disputed where a defence expert was coming in soon.
23   Q.  Form what we discussed earlier the information regarding
24       disputes or disagreements regarding the identification
25       within the Bureau, that is not information that would be
page  52
 1       disclosed to the Crown unless there was precognition?
 2   A.  Unless it was included in the report and statements,
 3       yes.
 4   Q.  If there was no proactive disclosure of that by SPSA
 5       then that information would not come to light unless
 6       there was precognition?
 7   A.  Yes, I would include in that either Crown or defence
 8       precognition because either could bring that out.
 9   Q.  Would you not accept that the defence may not consider
10       making a challenge until they get that information.
11       There may be a risk that -- certainly, if the defence
12       were to find out that there had been a disagreement or a
13       dispute within SPSA regarding an identification then
14       that may trigger the instruction of a defence expert
15       where it may not have happened before then?
16   A.  I suppose, equally, it's in the public domain in
17       Scotland that issues arose in this particular case and
18       we have had a number of public proceedings which have
19       brought these issues out.  So I suppose -- the defence
20       should be alive to the issue too, on one view, and the
21       defence have a duty to investigate their case and the
22       defence will have an indication of their client's
23       position and if the client's position is that that is
24       not his or her print, then I would have thought that
25       triggered a defence duty to pursue that proactively.
page  53
 1           Equally, I completely accept the Crown's duty of
 2       disclosure.  I completely accept that it is best if this
 3       information is within the report and the statements and
 4       is automatically disclosed but even when it's not, I
 5       still think there is a duty on the part of the defence
 6       and that in general in Scotland defence lawyers should
 7       be alive to these issues too.
 8   Q.  But I don't think you would be suggesting that the Crown
 9       obligations of disclosure are diminished in any way?
10   A.  Not at all.
11   Q.  But what may be --
12   A.  Not at all.  But there is a broader context and I think
13       in Scotland when you are looking towards the safety of
14       any proceedings, prosecution, conviction and minimising
15       the possibility of an unsafe conviction.  There are a
16       number of residual safeguards that work together in the
17       Scottish context and one of those is the role of the
18       defence and the capacity to test the evidence on the
19       part of the defence.
20   Q.  I appreciate it's not an area, I think you have already
21       said, that you have any particular knowledge in but you
22       will be aware that the defence in the main will require
23       to seek and obtain sanction from the Legal Aid Board to
24       pay for a defence expert and it may be that there simply
25       being fingerprint evidence would not be sufficient to
page  54
 1       allow the instruction of that independent defence
 2       expert.  There may be requirement for additional
 3       information such as a dispute within the SPSA regarding
 4       the identification?
 5   A.  I'm not aware.  I did volunteer on Friday and I'm still
 6       happy to try and facilitate that level of information
 7       for the Inquiry but I'm not personally aware of whether
 8       there an actual difficulty there or not.
 9   Q.  The point I started out with, if you like, is that if
10       some sort of written record were kept in perhaps the
11       manner of the document that you have just been shown and
12       if that were to be something in a form that could be
13       disclosed to the defence, would you agree that that
14       could apply equally in summary cases so the Crown could
15       be sure that this information was disclosed to the
16       defence, not only in solemn cases but in summary cases,
17       without additional resource being required in terms of
18       precognition?
19   A.  Yes, absolutely.
20   THE CHAIRMAN:  What would happen if the solicitor for the
21       defence wrote a letter in a fingerprint case, for
22       example, to the Crown and said, "Can you inform me if
23       any expert within the authority that was conducting the
24       examination had disagreed with the finding that it was
25       the fingerprint of whoever it may be"?  Surely then the
page  55
 1       Crown would have to reply and say, "Yes, there is
 2       someone" or, "No, no-one disagreed"?
 3           I am thinking about that if you did that, then you
 4       could then apply for Legal Aid perhaps because there had
 5       been disagreement between experts but it wouldn't cost a
 6       lot to the defence to write the letter?
 7   A.  No, certainly.  I suppose it's something which could
 8       trigger an enquiry by the Crown to the SPSA as an
 9       organisation.  It could equally trigger a request for
10       revised statements from SPSA on the matter.
11   THE CHAIRMAN:  Well, it might trigger them to go and
12       precognosce the expert who disagreed.
13   A.  Yes, it could do.  I suppose equally though the defence
14       will have the original statements from the SPSA officers
15       and will have Legal Aid to -- I'm assuming it's been
16       granted at least to precognosce them and to ask them in
17       their precognition was there any dispute so that itself
18       would bring --
19   THE CHAIRMAN:  I am simply trying to think of the simplest
20       method for the defence to discover, without having to go
21       to the extent of precognoscing witnesses, to discover
22       was there somebody who disagreed and merely to write and
23       ask was there any expert in the SPSA who did not agree
24       with this finding.  I mean, going on from that, I assume
25       that, as in the jurisdiction I'm familiar with, that
page  56
 1       there is no property in a witness, therefore, you could
 2       call, if you wanted to, you could call an expert who
 3       disagreed to give evidence.
 4   A.  Yes, absolutely.
 5   MISS GALBRAITH:  Sir, I do have one further area to ask
 6       questions on but I am mindful of the time.
 7   THE CHAIRMAN:  Yes.  Shall we stop now until 11.50.
 8   (11.30 am)
 9                         (A short break)
10   (11.50 am)
11   MISS GALBRAITH:  If I can just ask you quite a short point,
12       Mr Pattison.  You talk in your statement about the
13       Standing Committee on Expert Evidence which we
14       understand was stood down in 2001.
15           Given the timing of that in the wake of Shirley
16       McKie's acquittal and the subsequent investigations that
17       were carried out, can I ask you for any comment you have
18       on the standing down of the Committee at that time when
19       it may be thought the issue of particularly fingerprint
20       evidence was a matter of public concern.
21   A.  I don't think the two were connected in my reading of
22       the available papers.  I think it was felt that the
23       particular Committee had run its course in terms of what
24       they understood their remit to be at that time.  Other
25       than that I don't think there's much I can usefully add
page  57
 1       to my statement.
 2   Q.  It wasn't that there was another alternative committee
 3       set up or that their role was delegated to somebody
 4       else, it was just that they had run their course?
 5   A.  That's my understanding, although what happened at that
 6       point was that the responsibility for policy on
 7       fingerprint matters and the other matters that the
 8       Committee was dealing with, because it wasn't confined
 9       to fingerprints, transferred to a member of our Policy
10       Division and that person -- our Policy Division is
11       structured in a way that individuals have particular
12       portfolios, as I'm sure everyone would understand, and
13       my point is that work didn't stop and the policy
14       responsibility then transferred.
15   Q.  You indicated when you gave evidence on Friday that the
16       reason for the two and a half year delay in the issuing
17       of the Circular was due to administrative error and that
18       it had not been possible to ascertain a definitive
19       answer for the delay.  That was your position on Friday?
20   A.  Yes, yes.
21   Q.  I appreciate your position is that it's not helpful or
22       appropriate to speculate what went wrong with the
23       Circular, but what I would like to do is to set out the
24       background as it may be perceived from an outside
25       observer or the public, which is that after the
page  58
 1       acquittal of Shirley McKie no independent expert was
 2       engaged by the Crown in relation to establishing the
 3       true identity of Y7 and the only investigation that was
 4       carried out in the wake of the acquittal was a meeting
 5       between the AD who prosecuted the case and certain
 6       officials, including SCRO officers, and after that
 7       meeting no further action was considered necessary.
 8           It was not until the Frontline Scotland programme
 9       that any action was taken.  This point was put to
10       Lord Boyd when he gave evidence on 10th November.  If I
11       could just refer you to an excerpt of his evidence,
12       which is at page 86, line 17 of the LiveNote.
13           Again, this was in questioning from Mr Smith.  The
14       question was:
15           "We have seen some correspondence from Mr McKie
16       which appears to have resulted in a response saying, I
17       think, very shortly, 'Business as usual.  We have looked
18       at this.  We will carry on.  These people will give
19       evidence', but the Frontline Scotland comes along and it
20       was then the catalyst, as I think you put it."
21           Lord Boyd answered:
22           "That's fair."
23           The question was then:
24           "Why would there be a greater reaction to Frontline
25       Scotland than concerns presented by Mr McKie?"
page  59
 1           The answer was:
 2           "Well, I think there are a number of reasons for
 3       that.  To be blunt, Mr McKie is one individual.  He was
 4       not unnaturally concerned about the prosecution of his
 5       daughter and upset about the way in which she had been
 6       dealt with.  I mean, to be honest, it's not unusual for
 7       Crown Office to get a complaint of that kind.  I think
 8       that it was at the point where I said publicly in a
 9       lecture that I gave that I paid tribute to the media
10       when they went after cases where there had been either a
11       miscarriage of justice or some injustice and Frontline
12       Scotland was an example of that and I think it is right
13       to say that the work that they did brought together the
14       McKie strand and also I think it is fair to say that
15       Mr McKie's campaign highlighted publicly concern and a
16       greater public concern than just one individual."
17           It may be thought that that comment shows that it
18       was really only the media campaign which brought the
19       Frontline Scotland to bear that highlighted the wider
20       public interest in the identification or the fingerprint
21       procedures in place at that time.
22           Would you agree that that was a fair interpretation
23       of what was said?
24   A.  I think it's certainly one interpretation of Lord Boyd's
25       comments but I would hesitate to interpret them.  I'm
page  60
 1       not sure that's for me.
 2   Q.  I think it may be, on reading that excerpt back, that
 3       there may be a confusion between what was interesting to
 4       the public and what was genuinely in the public
 5       interest.  I take it you would accept these are
 6       different things?
 7   A.  Yes.
 8   Q.  In 2001, as I put to you earlier, the Gilchrist report
 9       made it or -- whether it made clear or not but it
10       certainly contained the information that the view of
11       Mr Gilchrist was the prints had been mis-identified and
12       there were issues regarding differences of opinion
13       within SCRO.  I think you agreed earlier that that point
14       wasn't flagged up at that stage and no action was taken
15       in the light of the Gilchrist report?
16   A.  In relation to that particular point?
17   Q.  Yes, in relation to that particular point but, again, I
18       will be corrected if I am wrong, but I understand that
19       no further action was taken in respect of Crown Office
20       after Mr Gilchrist's report was received?
21   A.  I'm not sure about the statement no action at all was
22       taken but in the papers I have seen I think I can say I
23       can confirm the first part of the question, which is in
24       relation to the particular point about disputed
25       identifications, et cetera, that nothing was done at
page  61
 1       that time in relation to issuing an instruction to
 2       Fiscals, for example.
 3   Q.  Then after that you have explained that in 2006 a DVD
 4       and leaflets were provided to COPFS regarding the
 5       non-numeric standard but at that stage no system was put
 6       in place to ensure that the information was given to
 7       members of staff.  While it may have been sent to
 8       individual officers thereafter, to an extent, they were
 9       left to get on with it and there was no central
10       procedure to make sure that this information was
11       disseminated.
12   A.  The material was circulated by Crown Office to all
13       District Procurators Fiscal.  That's what happened at
14       that time.
15   Q.  Finally, against that background we have the non-numeric
16       standard being introduced in September 2006 and the
17       Circular being issued to staff in March 2009.
18           Would you appreciate that it may be thought that
19       this Inquiry was the catalyst for the issuing of that
20       Circular?
21   A.  Yes, I could see why some would think that.
22   Q.  Is that the case?
23   A.  No.
24   Q.  Why is it not the case?
25   A.  Because it was a piece of work which was in train since
page  62
 1       2006 when an advanced draft was available, as I said in
 2       my earlier evidence.  I think I said that my post was
 3       created last year to support the Deputy Crown Agent and
 4       when I took up post in August/September of last year
 5       this was one of the pieces of work which was there to be
 6       taken forward and, as part of me settling into the job,
 7       there were a number of things which were immediately and
 8       obviously required to be done and this was one of them.
 9           Now, I think the Inquiry gives the particular focus
10       in relation to fingerprint evidence, that's certainly
11       true, but this was a piece of work which should have
12       been brought to a conclusion in 2006 and wasn't.  It was
13       clear when I took up post in August '09 that that hadn't
14       taken place and we needed to push it on and get it out.
15           We were comforted by the fact of course that
16       materials have been provided to Fiscals in 2006 and also
17       comforted by the fact that fingerprint evidence is not
18       routinely challenged in the context of the Scottish
19       courts.
20           I suppose if I may and, again, please forgive
21       another longer answer from what your question perhaps
22       was seeking but it's not a case that nothing had been
23       done by the Crown in the context of fingerprint
24       evidence.
25           The Inquiry has heard that in 2000 and 2001 there
page  63
 1       was a peer review system set up by SCRO and that I'm
 2       sure, although I could be corrected if I'm wrong, that
 3       the Lord Advocate of the day was instrumental in
 4       requiring that to be done and that around 1,700
 5       comparisons and analyses were peer reviewed and found
 6       not to be wanting.  Now, if I'm wrong about that I'm
 7       happy to be corrected but that provides some level of
 8       comfort to the Crown and to the system in general, I
 9       would venture to say.
10           Again, I think, and please correct me if I am wrong,
11       that the Lord Advocate was instrumental in that.
12       Thereafter, there was a presumption in favour of
13       precognition of expert witnesses, although I have said
14       in my evidence that we accept that was not routinely or
15       not taking place as much as we would have felt it
16       appropriate.  We have had to reemphasise that over the
17       last year.
18           So it wasn't the case that there was no guidance in
19       relation to precognition.  There was guidance in
20       relation to precognition of experts within which
21       Fingerprint Officers would come in our estimation and,
22       again, we have a scenario where, according to our
23       records and, again, we could be wrong, there appears to
24       have been no challenge to an identification since this
25       particular case.  So the overall context is important.
page  64
 1   Q.  I think we can agree that what you said earlier as was
 2       critical to the process is a combination of adequate
 3       disclosure by the agency, be it the police or SPSA,
 4       coupled with precognition.
 5   A.  Yes.
 6   Q.  Earlier this morning.
 7   A.  Yes.
 8   Q.  I think it was accepted that in relation to the former
 9       that, at the moment, sufficient relevant information is
10       not being provided by SPSA and that's a process of work
11       that the Crown Office is going to develop in conjunction
12       with Mr Nelson in order to ensure that full information
13       is provided?
14   A.  Yes.
15   Q.  We know that up until at least March this year
16       precognition of Fingerprint Officers was not instructed
17       and we have no way of knowing whether it was happening.
18   A.  It wasn't a mandatory instruction.  I think if you look
19       at -- I refer back to my answers in relation to
20       precognition of experts generally.  There was and I
21       think there has been for some years an understanding, a
22       presumption in favour of precognition of experts,
23       although I accept that that hadn't always been happening
24       in relation to expert witnesses generally but there
25       wasn't a complete absence of guidance in relation to
page  65
 1       that.
 2   Q.  Quite simply, for the two and a half years between the
 3       introduction of the non-numeric standard and the issuing
 4       of the Circular there is no way of knowing what impact
 5       that may have had on the prosecution of cases and, in
 6       particular, on the ability of the defence or the
 7       disclosure of information to the defence within that
 8       period.  That is information that can never be
 9       available?
10   A.  I'm not sure it could never be available but it would be
11       a very significant task to retrieve and would I think
12       require SPSA and the Crown to do a significant, what
13       would, in essence, be a research exercise, looking at
14       all High Court, Sheriff and jury and possibly summary
15       cases over that period.
16           I did refer in my earlier evidence to the fact that,
17       come what may, where expert evidence is contentious or
18       crucial to sufficiency or crucial to the quality of the
19       final Crown case that we would expect precognition to
20       take place in those circumstances and I know from my own
21       experience -- and this is back in 1996/97 before any
22       issue had arisen -- that I precognosced at least three
23       High Court cases, two murders and one drugs case, where
24       I precognosced both Fingerprint Officers just precisely
25       because of those reasons.  The fingerprint evidence was
page  66
 1       really important.  It wasn't essential to sufficiency in
 2       those cases but it was really important and that's good
 3       practice and we would expect that of prosecutors and
 4       precognoscers as a generality.
 5           I think that probably sits well with what the
 6       existing guidance was before the Circular, which is the
 7       presumption in favour of precognition of experts
 8       generally.  I don't think -- I doubt that I am unique as
 9       a Procurator Fiscal Depute in Hamilton in 1996 and '97,
10       in the country, precognoscing Fingerprint Officers when
11       the evidence was important.  I doubt I was unique in
12       that, but I do see that it was in a case where it was
13       important, crucial to the Crown case, but I should
14       probably also say there was no indication in those cases
15       that it was contentious in the context of the actual
16       identification of the individual.
17   Q.  While I do not doubt that your own diligent approach to
18       the precognition process, it was essentially down to you
19       as an individual to choose to precognosce those
20       Fingerprint Officers and what the Inquiry may be
21       interested in is the systems in place --
22   A.  Sure, yes, I understand that.
23   Q.  -- to ensure a consistent approach throughout the
24       service.
25   A.  But, again, I would come back on that slightly, if I
page  67
 1       may, and say that there was general guidance in place in
 2       relation to precognition of expert witnesses generally,
 3       a presumption in favour of that, and that to precognosce
 4       experts where evidence was important to the Crown case,
 5       where it was contentious, in that kind of scenario is
 6       completely consistent with good practice both in
 7       relation to the allocation of precognition work by
 8       Solemn Legal Managers over the years and by
 9       precognoscers themselves.
10   Q.  You mentioned, I wouldn't put it as highly as a
11       possibility but to obtain information I asked about,
12       which was the impact on the prosecution of cases between
13       the introduction of the non-numeric system and the
14       Circular being issued this year, there would have to be
15       an audit, a fairly extensive piece of work carried out
16       in terms of establishing what had happened in individual
17       cases.
18           Would I be correct in saying that if such a piece of
19       work were to be carried out and if it were to transpire
20       that there had been a disagreement between Fingerprint
21       Officers which had not been disclosed because there had
22       been no precognition, would I be correct in thinking
23       that is information that would now be passed to the
24       defence in a case that has already led to fruition?
25   A.  The Crown's duty of disclosure is a continuing one that
page  68
 1       flows through to the conclusion of trial and to the
 2       conclusion of an appeal.  So if the Crown, speaking in
 3       the generality, came into possession of information now
 4       in relation to a concluded case, which was material in
 5       terms of potentially undermining the conviction, then
 6       that would have to be considered for disclosure, yes.
 7   Q.  Who would make the decision as to whether it was
 8       material or not?
 9   A.  Well, that's something that's for the prosecutor to do.
10       It's the prosecutor's duty to consider that.  In
11       relation to within our organisation who would make that
12       decision, it would depend on the nature of the case, I
13       think, and the nature of the material which was
14       uncovered.  I'm sorry, I'm hesitant to speculate too
15       much.
16           In relation to your question and the impact of that,
17       again I'm not sure that we could conduct an exercise
18       which would determine the impact or the potential impact
19       of what you're suggesting.  It would be extremely,
20       extremely difficult to do an exercise such as the one
21       that I have suggested but all I suppose it could do in
22       the first instance would be to determine whether
23       witnesses should have been precognosced, identify were
24       they or were they not and for SPSA to contemporaneously
25       do a review which would look at, in those particular
page  69
 1       cases, was there dispute between experts and of what
 2       nature was it.
 3   Q.  Can I just clarify a point, something you have just
 4       said, that the information would only be passed to the
 5       defence if it was considered by the prosecutor to be
 6       material.  Is that --
 7   A.  I'm speaking generally in relation to the Crown's
 8       continuing duty of disclosure when I'm speaking at the
 9       moment and in that answer that's what I was setting out.
10       If the Crown came into possession of information which
11       was considered to be material in the sense that it
12       undermined the Crown case, supported the defence, was
13       exculpatory then that information would be disclosed to
14       the defence as part of that ongoing duty.
15   Q.  Just bear with me for a second.
16   A.  Not at all.  (Pause)
17   Q.  In relation to your position that the failure to issue
18       the Circular in a finalised form until March of this
19       year, that that was due to administrative error, can I
20       ask you does it cause you concern that it's possible for
21       there to be an administrative error in relation to the
22       dissemination of a policy of this importance?
23   A.  I think it's concerning that the Circular was not issued
24       in 2006.  I think that would have been our preferred
25       position.  It's a matter of regret that it wasn't issued
page  70
 1       at that time.
 2           I should say that it's very unusual for there to be
 3       a delay in relation to the issuing of policy guidance
 4       like that policy guidance, but I do qualify it by
 5       indicating that the guidance which was in place already
 6       in relation to expert witnesses was to the effect that
 7       there is a presumption of precognition.
 8   Q.  Have any steps been taken to ensure that such an
 9       administrative error cannot happen in the future?
10   A.  I think we feel pretty confident, generally, in relation
11       to our systems for policy review and dissemination of
12       guidance.  I'm pausing to think if there is anything
13       more that we could do in relation to that.
14   Q.  Is the answer then no, that no change has been made?
15   A.  Yes.
16   Q.  Given the background that I've highlighted of action or
17       reaction over the years since Shirley McKie's acquittal,
18       would you not accept that the perception may be quite
19       simply that the issue of fingerprint evidence was not
20       treated with sufficient gravity within COPFS?
21   A.  No, I don't think so.  I can see why others might take
22       that view.  I think one has to bear in mind the overall
23       context that I've referred to in earlier answers and I
24       won't repeat them, the steps that were taken at the time
25       to check the SCRO analysis, the guidance which was in
page  71
 1       existence, the understanding that we would have that
 2       fingerprint evidence, where important or essential or
 3       challenged would be precognosced.  I can understand why
 4       others would take a different view but I don't think
 5       it's as simple as that.
 6   Q.  Would you accept that over the intervening ten years, as
 7       an institution, COPFS has failed to take proactive and
 8       robust measures to ensure there's public confidence in
 9       the treatment of fingerprint evidence?
10   A.  No.
11   Q.  Can you explain why not?
12   A.  I think I would have to refer to earlier answers in
13       relation to that.
14   THE CHAIRMAN:  I don't think we can really go over all the
15       steps that have been taken again.
16   MISS GALBRAITH:  Thank you very much, Mr Pattison.
17   THE CHAIRMAN:  Now, Mr Holmes?
18   MR HOLMES:  Sir, there is one brief matter I would like to
19       cover as a result of my learned friend,
20       Miss Galbraith's, questions and it relates to
21       disclosure.
22   THE CHAIRMAN:  Yes.
23                   Cross-examined by MR HOLMES
24   Q.  Mr Pattison, you were asked about the situation where
25       there is a dispute between experts or a difference of
page  72
 1       opinion between experts and this was done by reference
 2       to the Gilchrist report.
 3           Does the reference to the Gilchrist report that was
 4       made not make it clear that there was no difference of
 5       opinion as to identity between the officers who are
 6       named in that report.
 7   A.  I think that's right, yes.
 8   Q.  So the SCRO officers, along with I think Sergeant
 9       Halliday who is also named in the report who was a
10       police officer but also a Fingerprint Expert, it's
11       accepted that they all identified Y7 as having been made
12       by the left thumb of Shirley McKie.  Is that correct?
13   A.  I'm sure that's right from my memory of the report yes.
14   Q.  Albeit they would have identified using a differing
15       number of characteristics?
16   A.  Yes.
17   Q.  Under the non-numeric system now in place you would not
18       necessarily be informed of that, would you?
19   A.  Not necessarily, no.
20   Q.  Without the encouragement that is said to have been
21       provided by disclosure, both defence teams in the Asbury
22       case and in the McKie case instructed defence experts
23       who did review the fingerprint evidence and in the case
24       of Mr Graham for Mr Asbury and Mr Swann for Ms McKie
25       both those experts confirmed the findings of the SCRO.
page  73
 1           Is that something of which you are aware?
 2   A.  I am not specifically aware of that.  I probably should
 3       be but I don't have that -- on some matters of detail in
 4       relation to the original prosecutions I'm unclear but
 5       I'm happy to accept that that's the position.
 6   MR HOLMES:  Thank you, Mr Pattison.
 7   THE CHAIRMAN:  Miss Grahame?
 8   MISS GRAHAME:  Thank you, sir.  There are a number of
 9       matters that I do wish to raise.  They have arisen as a
10       result of questions and answers over the course of
11       Mr Pattison's evidence.
12   THE CHAIRMAN:  Yes.
13   MISS GRAHAME:  I am happy to give a list.
14   THE CHAIRMAN:  Perhaps you should just give me the headings
15       that you want to cover.
16   MISS GRAHAME:  There's a matter in relation to whether
17       there's any conflict at all between Mr Pattison's
18       evidence and an answer given by Lord Boyd in his
19       evidence to the Inquiry.
20   THE CHAIRMAN:  Yes.
21   MISS GRAHAME:  There's an issue regarding disclosure of a
22       print.  An example has been used during the course of
23       the Inquiry of a print to be found on a murder weapon
24       and I would like to clarify with Mr Pattison where that
25       information would be made available to the Crown.
page  74
 1           One small matter regarding precognition.
 2       Mr Pattison has given evidence regarding that being
 3       disclosed to the defence by way of letter but I would
 4       like to draw out the fact that it is given to the
 5       defence in other ways as well depending on those
 6       circumstances.
 7   THE CHAIRMAN:  Yes.  That is the issue I raised about the
 8       letter.  Is that the point you are making?
 9   MISS GRAHAME:  No, it is a slightly different point.
10   THE CHAIRMAN:  All right.
11   MISS GRAHAME:  The issue regarding the training and
12       awareness of SPSA regarding disclosure and the Crown
13       precognition and I'd like to draw out some miscellaneous
14       issues regarding the aide-memoire, the anticipation of
15       Crown Office in the future, if the training in SPSA
16       improves and the defence position and a couple of minor
17       matters that arise as a result of --
18   THE CHAIRMAN:  Well, if they are minor matters you needn't
19       go into those.  You can deal with those as you go along.
20                  Cross-examined by MISS GRAHAME
21   Q.  Mr Pattison, can I ask you just one very minor question
22       to begin with.  You said in an answer to Miss Galbraith,
23       just at the end of your evidence there, that you took up
24       post in August 2009.  Did you mean 2008?
25   A.  Yes, I did.  Thank you.
page  75
 1   Q.  I would like to ask you a question about Lord Boyd's
 2       evidence.  He gave evidence to the Inquiry on
 3       20th November.  He was asked a question and it may be
 4       quicker if I just simply read the question and his
 5       answer to you.  What I am going to ask you is whether
 6       you consider there to be any conflict between his
 7       evidence and your evidence.  He was asked:
 8           "One thing I would like to ask just again, I started
 9       by asking you about the function of Law Officers in
10       relation to prosecution.  It might be thought that since
11       this is a matter of expert evidence that the content of
12       the evidence and, indeed, the standards to which the
13       evidence is addressed are a matter for the witness or a
14       matter for the witness's discipline.  Why would you have
15       any involvement in relation to this particular matter as
16       Law Officer?  Perhaps more generally, why would the
17       Crown Office have any involvement in this?"
18           His answer was:
19         "I think there might be two answers to that.  The
20       first is that in Scotland the Lord Advocate's role goes
21       beyond the simple prosecution and has a role in
22       directing the investigation of crime and often that is
23       done through the issuing of guidelines to the police.
24       But I suppose more generally it is important that the
25       Crown are satisfied that if the evidence is presented in
page  76
 1       such a way that it will be accepted by the court.  So
 2       these, I think, are the two reasons that I would suggest
 3       there was a role for the Lord Advocate."
 4           So, Mr Pattison, do you consider that answer from
 5       Lord Boyd conflicts with anything that you have given in
 6       your evidence?
 7   A.  I don't think so at all.  I think I was keen to say in
 8       my evidence that I didn't think it was a matter for the
 9       Crown to say what the standards should be or determine
10       what the standards should be because of our lack of
11       expertise and indicated that, of course, if there was a
12       shift to a new standard that we would expect to be
13       consulted and assured by those who had expertise that
14       this shift, this change, was correct, was consistent
15       with their views and what was appropriate and with
16       developments in that field of expertise in other
17       jurisdictions and also that if there came to be an
18       objective basis for doubting the standard, perhaps
19       because of another leading expert taking a different
20       view, then in that kind of scenario we would expect to
21       at least be prompting our own experts, if you like, to
22       be doing review work and expect to receive assurances
23       and to be part of that, or at least consulted about it.
24       But I still say it's not for the Crown to say what the
25       standard should be.
page  77
 1           I don't think Lord Boyd was saying that either, on
 2       my hearing and my reading of the evidence.  I think that
 3       the two do sit together.
 4   Q.  I would like to ask you some questions about disclosure
 5       in relation to when a print is found on a murder weapon.
 6       There has been a number of examples used during the
 7       course of the Inquiry.
 8           Can I ask you to confirm, first of all, in relation
 9       to information which is in the joint report, is it
10       correct that positive identifications relating to the
11       accused are contained within that report?
12   A.  Yes.
13   Q.  In relation to the annex, what is contained in that?
14   A.  Any other prints which were found and where
15       identifications have not been finalised or made.
16   Q.  If there was a print found on a murder weapon which has
17       not been linked say, for example, to the accused, would
18       that fact, that a print had been found on a murder
19       weapon, be within the annex?
20   A.  Yes.
21   Q.  And the annex is something that is automatically
22       disclosed to the defence, is it not, subject to
23       appropriate redactions?
24   A.  Yes.
25   Q.  So would it be fair to say that through the annex, the
page  78
 1       defence would always be made aware if a print of unknown
 2       origin had been found on a murder weapon?
 3   A.  That should be the case, yes.
 4   Q.  If the Crown were aware that there was a print of an
 5       unknown origin on a murder weapon which has not been
 6       positively identified as the accused's, so it's not in
 7       the report but it's in the annex, is that something that
 8       would be of interest to the Crown and, if so, could you
 9       explain why?
10   A.  Yes, absolutely.  The Crown has to present the
11       prosecution case to the court.  It has to be satisfied
12       that the right person is being prosecuted and also has
13       to prove that the accused is the perpetrator beyond a
14       reasonable doubt and that means that the Crown would
15       have to present the case -- well, firstly, it would have
16       to do whatever work could be done to identify that mark,
17       if the experts, at the end of the day, after everything
18       which could be done had been done were saying, well, it
19       simply can't be identified, the Crown would still have
20       to present the case and each conviction beyond a
21       reasonable doubt which would mean dealing with that
22       particular mark.  So it's highly relevant to the way the
23       Crown would present the case and, obviously, highly
24       relevant to disclosure to the defence in the interests
25       of all relevant information coming out.
page  79
 1   Q.  If, for example, there was an incriminee and the defence
 2       had lodged a notice of incrimination, for example, is
 3       that something, again, that would be open to the defence
 4       to explore with the relevant expert?
 5   A.  Yes, yes, of course.  It's not unknown for the Crown to
 6       commission that type of work as well though in relation
 7       to trying to rule out or rule in the incriminee being
 8       the owner of the particular print or DNA or whatever.
 9   Q.  Is that because of the onus which is on the Crown in
10       relation to incriminees?
11   A.  Yes.
12   Q.  Could you explain what that is?
13   A.  Well, I guess it's part of excluding the special defence
14       of incrimination to the appropriate standard.  That's
15       for the Crown to do in the interests of a proper
16       prosecution and a safe conviction.
17   Q.  Just to be clear, if there is an incriminee mentioned as
18       part of the defence case, it's not for the defence to
19       prove that the incriminee did it, the onus is on the
20       Crown to prove beyond reasonable doubt that the
21       incriminee did not do it?
22   A.  Yes, that's right.  It's for the Crown to exclude the
23       incriminee on the evidence.
24   Q.  You mentioned in your evidence that the Crown have a
25       continuing duty of disclosure to the defence and they
page  80
 1       would intimate material issues by way of letter.
 2           Is it also the case, Mr Pattison, that, for example,
 3       if the matter is urgent, say there's an appeal pending,
 4       that they will not simply stand on ceremony but they
 5       will provide that information to the defence by other
 6       means?
 7   A.  Yes, yes, absolutely.  The Advocate Depute could convey
 8       it to defence counsel orally and would it would be open
 9       to us to confirm that in writing as soon as we possibly
10       could.  We have also in the past provided a summary of
11       the relevant evidence in a summary document, for
12       example, a summary of the relevant precognition and the
13       salient features of that which were material for the
14       purpose of the defence's position.  I think that's what
15       took place in the Holland and Sinclair case actually.
16       So certainly my own experience perhaps where matters
17       have been less urgent has been to convey the issues, the
18       information, in a letter to the defence solicitor but
19       equally, as you suggest, the information could be
20       conveyed to counsel orally or via a summary of the
21       precognition.
22   Q.  It was suggested to you at one point during the course
23       of cross-examination today that it was down to
24       individual precognoscers, prior to March when the
25       Circular was issued, to decide whether to precognosce an
page  81
 1       expert.  You made the point about guidance prior to
 2       March being a presumption in favour of precognition,
 3       whereas now it's mandatory.
 4           Can I ask you to just give a little bit more detail
 5       about the way in which precognoscers are instructed to
 6       prepare a precognition.  Is it not the case that Solemn
 7       Legal Managers also have a role?
 8   A.  Yes, I could perhaps have highlighted that earlier, that
 9       High Court and Sheriff and Jury cases, any case which is
10       to be precognosced, as we put it, are allocated by
11       Solemn Legal Managers who are experienced lawyers and
12       experienced in solemn work and precognition work
13       themselves.  They assess the case and what is necessary
14       in terms of further investigation and they allocate the
15       cases to precognoscers within their teams using an
16       allocation note, which is a template form that we use
17       but which they expand upon and adjust for the purpose of
18       the specific case that they are dealing with, so that
19       the first assessment really is by the Solemn Legal
20       Manager as to whether particular witnesses require to be
21       precognosced and for what purpose.  That would include
22       an assessment of expert witnesses in the case, do they
23       require to be precognosced and for what purpose.  Again,
24       I would expect that if it was known, likely, obvious
25       that the expert evidence was crucial to the case,
page  82
 1       important to the quality or contentious or likely to
 2       be ... that there would be an instruction to
 3       precognosce.
 4   Q.  That is something that would be check by the Solemn
 5       Legal Manager who would co-sign the precognition before
 6       it goes to Crown Office?
 7   A.  That's right, whether the allocation note has been
 8       complied with, et cetera.
 9   Q.  You have been asked a number of questions in relation to
10       the issue which has arisen regarding the, perhaps, lack
11       of disclosure from SPSA about certain material
12       information and the precognition of Fingerprint Experts
13       and how those could perhaps better work together to fill
14       any gaps between the two.
15           Could I ask you to look, please, first of all, at
16       the aide-memoire, again CO4437.  I wonder if we could
17       turn to the final page, please.
18           You were asked a number of questions regarding there
19       being no reference to disclosure to the defence.  I
20       wonder if you could just take a moment to read the
21       section headed, "Other matters".
22   A.  Yes, I see that.
23   Q.  Does that help you in perhaps giving further detail
24       regarding disclosure?
25   A.  It does.  There's obviously in that particular document
page  83
 1       the statement in brackets at the very end which is
 2       indicating to the precognoscer that there should be a
 3       specific consideration as to whether anything raised in
 4       the precognition process is disclosable and should be
 5       disclosed.  Apologies for forgetting that earlier.
 6           I think on disclosure generally, I'm just so
 7       conscious that since 2005 there's been a vast amount of
 8       guidance and training provided to lawyers and
 9       precognoscers, not just nationally provided, in which we
10       have colleagues come into our Prosecution College to be
11       trained but also specific local briefing session by
12       District Fiscals to all those -- and I mean all staff
13       within the office, not just lawyers and precognoscers,
14       on the Crown's duty of disclosure and the fact that
15       relates to all material information, that is what suits
16       the prosecutor and which is exculpatory and also the
17       fact that that duty of disclosure pertains throughout
18       and beyond the life of the case.
19           So, as I say, I feel pretty confident that COPFS
20       employees and colleagues are aware of our duties of
21       disclosure and it is obviously helpful that in the
22       particular document there is reference to it also.
23   Q.  Perhaps it is fair to say we shouldn't see this document
24       in isolation?
25   A.  No, not at all -- not at all.
page  84
 1   Q.  You mentioned in your evidence on Friday that
 2       potentially in the future the Crown will be reviewing
 3       whether precognition is the most appropriate use of
 4       resources as a mandatory requirement in every case, with
 5       every expert.
 6           Is it anticipated that if the level of training and
 7       understanding in SPSA as to the duty of disclosure is
 8       improved and perhaps there is much more recognition that
 9       that information should be contained in either the
10       statement or the joint report that there would be less
11       need for the Crown to rely on precognition as a
12       safeguard?
13   A.  I think that's a possibility and I should say that
14       although -- my comments on Friday were very much in the
15       general context.  We always need to review whether what
16       we are doing in terms of our precognition role is truly
17       adding value to the prosecution case and we don't have a
18       formal review of this particular instruction planned at
19       the moment but it would not be -- it wouldn't be right
20       for an organisation like ourselves to say we're never
21       going to review this instruction.  It's always right to
22       assess whether it is right in the context of ongoing
23       developments and remains right for the time that we're
24       working in.
25   Q.  But at the moment, as things presently stand, the
page  85
 1       information available to the Crown comes from the joint
 2       report to the annex, the witness statement and
 3       precognition?
 4   A.  Yes, that's right.
 5   Q.  That is the basis on which decisions are taken and
 6       disclosures made?
 7   A.  That's correct.
 8   Q.  Can I ask you briefly about the Criminal Justice Bill.
 9           Is it correct to say that that will introduce new
10       procedures regarding disclosure of the defence line to
11       the Crown?
12   A.  That's correct and I think that particular Bill is at
13       stage 1 before the Scottish Parliament with a view to
14       potential commencement next summer.  I'm not totally
15       informed as to the detail of how it will work out in
16       practice but the thrust is for earlier disclosure to the
17       Crown by the defence of what the defence line generally
18       is, which will of course inform the work that
19       prosecutors are doing and inform the precognition
20       process and perhaps allow it to be even more targeted
21       and informed, I suppose, in a general sense.
22   Q.  You have also been asked about information regarding
23       disputes of identification not being disclosed to the
24       Crown and how that could possibly be provided to the
25       defence.
page  86
 1           Can I ask you, you have given a number of details of
 2       the statistics of how often fingerprint evidence is
 3       dealt with in the courts and it would appear that since
 4       the McKie case you have already said there haven't been
 5       any cases, as far as you are aware, of disputed
 6       identifications.
 7           Can you see any reason why, if the defence perhaps
 8       admit the crime and decide to plead or don't wish to
 9       take issue with fingerprints or where they admit the
10       accused's prints were at the locus but have an innocent
11       explanation, that there would really be any need for
12       further detailed information from the Fingerprint Expert
13       to be required?
14   A.  If you know all of that and it's been freely provided at
15       an early stage, then it's difficult to see what could
16       usefully be required of them in that context, yes, or
17       what more could usefully be added.
18   Q.  You were asked questions about Mr Gilchrist's, Sheriff
19       Gilchrist's, report in 2001 and the information that at
20       that point became regarding Mr Geddes's involvement and
21       the blind test which had been carried out.
22           You were asked about the Crown not being told at the
23       time or prior to the McKie trial about the involvement
24       of Mr Geddes and the blind test.  Part of your answer
25       was it doesn't mean it didn't happen and I want to ask
page  87
 1       you something about that.
 2           Where no-one has suggested in evidence to this
 3       Inquiry that the Crown was told prior to the McKie trial
 4       about Mr Geddes or the blind test, by giving that answer
 5       you're not suggesting that the Crown knew?
 6   A.  No, I'm not.  Sorry, if it came across that way.
 7   Q.  I just wanted to clear that up just in case there was
 8       any question about it later.
 9   A.  Thank you for that.
10   Q.  You have also been asked a number of questions about
11       there not being precognition in summary cases.  Just in
12       case there's any doubt, would you say it was or was not
13       the norm for experts to be given evidence in summary
14       cases?
15   A.  It's unusual.
16   Q.  Finally, in relation to the DVD and the leaflet which
17       were disseminated, you indicated in evidence they went
18       to the District Fiscals from Crown Office.
19           Was that the role that you were in at the time?
20   A.  I was a District Fiscal at the time, yes.
21   Q.  You have told us what you did and you spoke about you
22       passing that on to Solemn Legal Managers.  Again, could
23       you explain to us what you would anticipate them doing
24       with the material District Fiscals sent to them.
25   A.  I would have anticipated them briefing their teams on it
page  88
 1       and making the DVD available to members of their team,
 2       at the very least in cases where they were dealing with
 3       fingerprint evidence.
 4   MISS GRAHAME:  Thank you very much.  I have no further
 5       questions.
 6   THE CHAIRMAN:  Have you any questions?
 7   MISS CARMICHAEL:  Just one, please, sir.  It is in relation
 8       to the form from Holland.
 9                  Re-examined by MISS CARMICHAEL
10   Q.  Mr Pattison, Miss Galbraith showed you a form, DB0768,
11       we will put it up, again, I think because that would
12       have been the first time you had seen it.
13   A.  Certainly.
14   Q.  I should say the Inquiry's understanding about the
15       precise use of this is still being clarified to some
16       extent but if I can let you know a little bit more about
17       the further information that has become available to us
18       and then ask you some questions leading on from that.
19           What we think we know at this stage, Mr Pattison, is
20       that this is not a form that is used in the case of
21       every fingerprint examination and where there was a
22       straightforward case that provided examiners with no
23       difficulty, it wouldn't be used, however, it might be
24       used where an examiner or a verifying expert thought a
25       mark of borderline quality for comparison or where an
page  89
 1       examiner found anything questionable in the course of
 2       the examination and also where examiners had differed in
 3       their conclusions.
 4           With that background in mind, might it be that if
 5       one had a procedure of that sort where a form of this
 6       was brought into use in those slightly more complex
 7       situations, the very existence of form might be
 8       something that would alert both Crown and defence to the
 9       potential for further investigation or precognition?
10   A.  Yes, I think I can see the value in that as a system
11       which flags the issue up and takes it away from the
12       routine.
13   MISS CARMICHAEL:  Thank you, Mr Pattison.
14   THE CHAIRMAN:  There is very little I wanted to ask you but,
15       just from your general experience, I take it that it
16       would be unusual for the Crown to seek a further opinion
17       from another expert?
18   A.  Yes, it would be the general -- it would be very unusual
19       actually.  It's not infrequent and not unusual for there
20       to be a Crown expert, a defence expert and for matters
21       to be there at large in the case for the jury to reach a
22       view on.
23   THE CHAIRMAN:  I mean, I can see it, for example, has
24       happened indeed in the McKie case where there was a
25       question as to whether the fingerprint had been planted
page  90
 1       and that was outwith the expertise of the Scottish
 2       Criminal Record Office experts and so was given to an
 3       expert, Mr Kent, outside but generally speaking, from
 4       what you have just said, if your own -- if I say your
 5       own -- it's now SPSA, if they say their experts are
 6       confident about a particular thing you would have no
 7       cause to go outside?
 8   A.  No, no, I don't think so.  There would have to be a
 9       basis for doubting --
10   THE CHAIRMAN:  Yes.
11   A.  -- from wherever that came.
12   THE CHAIRMAN:  That is what I was wondering.  Would it be
13       another reason for you to know whether there has been
14       some difference of opinion among the experts would be an
15       advantage because you could then see, particularly if
16       you heard an outside expert for the defence was going to
17       be called and you knew that there was some division of
18       opinion, however minor, in the SPSA experts' view of it
19       then that would alert you, perhaps, to finding an expert
20       outside to confirm, if necessary, the evidence
21       depending, I imagine, on the circumstances of the case.
22       If it's critical evidence to the case, that's one
23       position.  If it's merely some supportive evidence, that
24       might be another.
25   A.  Yes, I can see that and would tend to agree with that.
page  91
 1       The first thing to do of course would be to assess the
 2       SPSA evidence account during the precognition process
 3       and allow that process to inform whether we take the
 4       unusual step of seeking a further expert opinion from
 5       outwith that organisation.
 6   THE CHAIRMAN:  This Bill that you mentioned that is before
 7       the Scottish Parliament, it would be an advantage to the
 8       prosecution, in the sense of the proper administration
 9       of justice, to know if there is an expert on the defence
10       side who disputes what is being said by the experts that
11       you have, in whatever field --
12   A.  Yes.
13   THE CHAIRMAN:  -- that you are going to call?
14   A.  Absolutely.  From a prosecutor's perspective that is a
15       very welcome provision and I think a healthy one for the
16       system as a whole in Scotland, although, as I said on
17       Friday, I think there is a rule on the statute which
18       requires the defence to list their witnesses and
19       productions seven days before the preliminary hearing.
20       So there is a system there already so that we know which
21       witnesses are going to be called by the defence.  Then
22       it's a matter for the Crown to precognosce those experts
23       and conduct that element of the investigation.  But
24       early notice of the defence line and earlier notice of
25       defence experts and specifically what they are perhaps
page  92
 1       likely to say and the line they are likely to take would
 2       be very helpful in crystallising the issues for the
 3       trial at a very early stage.
 4   THE CHAIRMAN:  Just on a slightly different topic, I am not
 5       quite sure how the funding works but does the Crown
 6       Office, as it were, have to pay fees for the work that's
 7       done by, say, the SCRO or its modern equivalent, the
 8       SPSA?
 9   A.  Not routinely, not routinely, as I understand it.  I
10       have to say this is not my precise field either but ...
11   THE CHAIRMAN:  The reason I was asking you really is
12       twofold: one is the more administrative work, more
13       paperwork that experts have to do, the more time they
14       take up and, therefore, there is somewhere a charge has
15       got to be met for that but a second point is that the
16       Crown also has an interest in expert evidence being
17       produced as quickly as a proper examination permits
18       because you have time limits to meet and so on.
19       Therefore, it's another factor in deciding how much
20       paperwork and administration should be introduced if
21       it's going to have a knock-on effect in taking more time
22       and, therefore, delaying possibly the progress of
23       a prosecution.
24   A.  Yes.  My understanding is that we do not routinely
25       transfer funds to SPSA for casework and that their
page  93
 1       funding comes from the Scottish Government, ultimately,
 2       in the same way as our own budgetary settlement would
 3       come.  I'm hesitant really to go beyond that because I
 4       would be speculating.  I'm sure Mr Nelson would be happy
 5       to clarify.
 6   THE CHAIRMAN:  No, I don't want you to at all.  It is just
 7       in this modern world, departments charge each other and
 8       things that didn't happen in the past and I was just
 9       curious to know whether, in fact, it would add to the
10       immediate expenses of the prosecution but the short
11       answer is the cost has got to fall somewhere on the
12       public wherever it be.
13   A.  Yes.
14   THE CHAIRMAN:  Thank you very much and I am sorry your
15       evidence had to be interrupted.
16   A.  Not at all.
17   MISS GRAHAME:  Mr Chairman, sorry, there's one matter that
18       arises and it may assist the Inquiry if I raise it with
19       Mr Pattison, just out of the questions that were asked
20       there.
21   THE CHAIRMAN:  Yes.
22              Further cross-examined by MISS GRAHAME
23   Q.  It relates to the Criminal Justice Bill and the new
24       proposals regarding intimation of the defence line.
25           You gave an answer which indicated that at the
page  94
 1       moment the defence have to intimate names of experts, if
 2       they intend to use them at trial, and lodge productions
 3       within seven days.
 4           Is it correct, Mr Pattison, that -- I am reading
 5       this -- the new Bill will introduce or intends to
 6       introduce a provision that any expert who is instructed
 7       by the accused with a view to preparing a report,
 8       whether they intend to rely on that report later or not
 9       at the trial, their name and address would have to be
10       intimated to the Crown?
11   A.  That's my understanding, yes.
12   Q.  So in a situation like the McKie trial where Mr Swann
13       had been instructed to prepare a report, if that was to
14       happen now the defence would have to intimate his name
15       and address to the Crown?
16   A.  Yes, that's right.
17   MISS GRAHAME:  Thank you very much.
18   THE CHAIRMAN:  Thank you very much.
19                      (The witness withdrew)
20   MR MOYNIHAN:  Sir, there is no further witness for today.
21       In any event, Mr Chamberlain, who is England, the
22       arrangement was that he would come tomorrow.
23           The only other matter that I flagged up yesterday
24       that I could conveniently deal with -- and it will not
25       take more than the 5 minutes available -- is just simply
page  95
 1       to record, as a matter of housekeeping, a number of
 2       witnesses from whom we have secured statements and it is
 3       not proposed to lead in evidence but their statements
 4       will be made available on the web, with two exceptions.
 5       These are individuals who were mentioned in a letter to
 6       Core Participants dated, I believe, 6th November.
 7           If I proceed through it the witnesses are, firstly,
 8       David Halliday who has been mentioned today; Ewan Innes;
 9       John McGregor; and William O'Neill.
10           Gary Dempster has been mentioned and a statement has
11       been obtained from him.  It covers a number of matters,
12       only one of which is of direct relevance to the
13       evidence, so far as my interest is concerned and,
14       therefore, what I would be putting up on the website
15       would be an edited version of Mr Dempster's statement
16       restricted to the matters that are germane to the Terms
17       of Reference.
18           Beyond those witnesses we also have a number of
19       other witnesses from whom statements have been secured:
20       Raymond Brown; Lynn McNally (who was formerly Lynn
21       Nicol), a police officer; Collette Orr; and from the
22       Scottish Government relating to the question of
23       authorisation a civil servant, I believe, called
24       Christie Smith.
25           Since the hearing in June and July, sir, we have had
page  96
 1       further information from Crown Office which has been
 2       made available to Core Participants for some time and
 3       there's been no adverse comment.
 4           We have secured a further statement from Denise
 5       Greaves who, of course, gave oral evidence.
 6           We also have recovered from Crown Office a further
 7       contemporaneous note by Sheriff Murphy relating to the
 8       McKie trial.  That note has been put on the database.
 9       It is CO4416.  We also entered into correspondence with
10       Sheriff Murphy just to make sure that that note did not
11       alter the evidence he gave to the Inquiry and that
12       correspondence with Sheriff Murphy will be put on the
13       website.  It's not proposed to recall either Sheriff
14       Murphy or Mrs Greaves to speak to the matters that I
15       have just referred to.
16           Beyond that, sir, we have secured a statement, at
17       his own request, from an individual called David
18       Fairhurst who was mentioned in evidence by Martin
19       Leadbetter.  We have also this week secured a statement
20       from Donald Findlay QC and that will be made available
21       on the website.  It is not intended to call David
22       Fairhurst or Donald Findlay to give evidence.
23           There are three other witnesses I should mention who
24       have already given evidence: Allan Bayle who you may
25       recall, sir, gave evidence and his evidence was
page  97
 1       incomplete at a point where he was, on my advice, going
 2       to seek legal advice if a certain question was being
 3       pursued with him.  Turcan Connell -- it was my learned
 4       friend, Mr Holmes, who was asking the question at the
 5       time and, in consultation, there is no longer seen to be
 6       a need to pursue that line of question and, therefore,
 7       Mr Bayle is not being recalled to complete his evidence.
 8       So Mr Bayle's evidence is now complete.
 9           Plainly, sir, we have still to conclude arrangements
10       to complete the evidence of Mr Wertheim and discussions
11       in relation to that are proceeding.
12           The third witness is Mr Swann and you may recollect
13       at one point there was a mention made in the public
14       hearing of an e-mail that had been received by
15       Mr Russell concerning an inconsistency that there was in
16       Mr Swann's evidence and seeking to clarify that
17       inconsistency.  We are still in correspondence with
18       Mr Russell to have that matter resolved and I will
19       report back as soon as I can.
20           That, sir, would otherwise complete the information
21       that I have and updates us.  That then means, on that
22       basis, subject to the uncertainty relating to Mr Swann
23       who may or may not be recalled to address the
24       inconsistency and resolving the matter concerning
25       Mr Wertheim, there are now three witnesses left.
page  98
 1           Mr Chamberlain will give evidence tomorrow and he is
 2       from the Forensic Science Services in England and will
 3       be speaking to fingerprint practice in his organisation
 4       and will touch on the question of probability analysis.
 5           We will then have Mr Pugh on Tuesday of next week
 6       and he is the Director of Forensic Services in the
 7       Metropolitan Police.  He has provided a report that is
 8       available.  Because he is the general manager, albeit a
 9       senior scientist, he is not a Fingerprint Expert, he
10       will bring with him two colleagues who could answer more
11       directly any practical questions, though he will be the
12       principal witness.  He is available for Tuesday of next
13       week.  Sir, with apologies to all concerned, he and his
14       team are only available on Tuesday, the suggestion would
15       be that we sit at 9.30 on Tuesday morning just to ensure
16       we finish his evidence.
17           The final witness will then be on Wednesday of next
18       week and will be Professor Champod.  Again, nearer the
19       time we can discuss whether it is necessary to begin at
20       9.30 or 10.00.  So, with apologies to all concerned,
21       that would, in a sense, tie together the various loose
22       ends and leave us simply with the three witnesses I have
23       mentioned as giving evidence on the three available days
24       for evidence.
25           I continue to be in discussions with individuals in
page  99
 1       the hall and those who are not in the hall about closing
 2       submissions.  I have made it clear that because the hall
 3       is not available beyond Friday of next week, the
 4       preference would be to begin closing submissions on
 5       Thursday just in case we spill over and Friday is
 6       available for that purpose.
 7           The order of closing submissions and their duration
 8       is what I will discuss and if there is any issue
 9       concerning that then no doubt it can be raised with you
10       tomorrow.
11           That is all I would propose to say, sir.
12   THE CHAIRMAN:  Very good.  I am sure having a little time to
13       think about submissions will not go amiss.  We will rise
14       now and sit tomorrow at 9.30.  Is that what you just
15       said, 9.30 tomorrow?
16   MR MOYNIHAN:  Because I don't know quite how long
17       Mr Chamberlain's evidence will take, it is probably
18       safer to err on that side.
19   THE CHAIRMAN:  9.30.
20   (1.02 pm)
21         (Adjourned until 9.30 am the following morning)
22
23
24
25