page 1 1 Tuesday, 24th November 2009 2 (Morning session) 3 (9.38 am) 4 THE CHAIRMAN: First of all, you wish to take the oath, 5 Mr Pugh. 6 GARY PUGH (sworn) 7 THE CHAIRMAN: So that we have it on the record your full 8 names are? 9 A. Gary Pugh. 10 THE CHAIRMAN: Take a seat, please, Mr Pugh. 11 LISA HALL (sworn) 12 THE CHAIRMAN: Your full names? 13 A. My name is Lisa Hall. 14 JUNE REDGEWELL (sworn) 15 THE CHAIRMAN: Your full name? 16 A. June Redgewell. 17 THE CHAIRMAN: I gather that the process will be, Mr Pugh, 18 where you wish to defer to a member of your team on some 19 particular point you feel free to do that. 20 A. (By Mr Pugh) Thank you. 21 MR MOYNIHAN: I also indicate there may, I don't know, but 22 there may be need on occasion for the team to confer so 23 it may be that we require some time-outs. I don't 24 anticipate -- 25 THE CHAIRMAN: We will adopt whatever course makes it the page 2 1 most efficient way to give the evidence. 2 Examined by MR MOYNIHAN 3 Q. Mr Pugh, just to begin it may help with those in the 4 hall if we introduce you and your team. 5 Your own position within the Metropolitan Police is? 6 A. (By Mr Pugh) I'm the Director of Forensic Services 7 responsible for the provision of forensic support to the 8 Metropolitan Police. 9 Q. And your own professional background? 10 A. (By Mr Pugh) My background is as a forensic scientist 11 which I have now been for around 30 years. 12 Q. Is there any one particular area of forensic science 13 that is your own area of specialisation? 14 A. (By Mr Pugh) My background is actually as a scientist, 15 as a chemist, so I'm a member of the Royal Society of 16 Chemistry and a chartered chemist. Most of the forensic 17 work I conducted operationally was in connection, if you 18 like, with that chemistry background so it was the 19 examination of paint, glass, footwear, fire accelerants, 20 fire investigation and so on. 21 Q. And you have also a national role in relation to DNA? 22 A. (By Mr Pugh) Yes, currently on behalf of the 23 Association of Chief Police Officers I chair the 24 national DNA Database Strategy Board. 25 Q. We will come to discuss some topics that have perhaps page 3 1 analogies with DNA so we may tread on that lightly 2 perhaps but we will pick that up. 3 So far as the history is concerned, before we link 4 into the colleagues who are with you today, so far as 5 the history is concerned I suppose the black spot first 6 fell upon you when the Inquiry asked if you would give 7 us the assistance of one of your team in relation to 8 analysis of previous reports? 9 A. (By Mr Pugh) Yes. 10 Q. You nominated Mr Annetts? 11 A. (By Mr Pugh) Yes. 12 Q. Who, in fact, in the event dropped out for reasons which 13 are a matter of record? 14 A. (By Mr Pugh) Yes. 15 Q. Because the nature of the reports that he was provided 16 with by us, the previous reports, were in fact so 17 inconsistent as to be incapable of direct comparison? 18 A. (By Mr Pugh) Yes. I think also the volume of work 19 required to do some of the analysis that you were 20 interested in, I think, was quite significant and coping 21 with that alongside his other duties, even if we took 22 him off his current duties, he still has a lot of 23 commitments. 24 Q. If I just bring up for the record MP0003. We will need 25 to bring up perhaps more than just the first page. This page 4 1 is a letter dated 24th April 2009 from Mr Annetts to 2 Mrs Nelson and will explain, set out in detail, the 3 reasons why he concluded that he could not assist us 4 with the task that was then assigned to him? 5 A. (By Mr Pugh) Yes. 6 Q. At roughly the same time did your fingerprint staff 7 assist us with a specific fingerprint identification in 8 relation to a Gary Gray? I will bring the document, 9 MP0002. 10 A. (By Mr Pugh) Yes. 11 Q. It may not be there. In any event, you were asked by us 12 to nominate some members of staff to look at Gary Gray's 13 fingerprints and indeed they reported back that Y7 was 14 not Gary Gray's fingerprint. Is that correct? 15 A. (By Mr Pugh) Yes. 16 Q. At that stage, Mrs Ridgewell became involved? 17 A. (By Mr Pugh) Yes. 18 Q. Who is now here today? 19 A. (By Mr Pugh) She is. 20 Q. If I understand it correctly, though you have 21 operational responsibility for fingerprints within the 22 Metropolitan Police, if there are detailed questions 23 about fingerprint practice and procedure, you may have 24 to defer to Mrs Ridgewell? 25 A. (By Mr Pugh) Yes, indeed. I'm not myself a Fingerprint page 5 1 Expert. 2 Q. That is fine. If we move then beyond that, you and your 3 colleague then, in fact, undertook two tasks for us. 4 First of all, you assisted with what we have come to 5 call the comparative exercise, setting up the obtaining 6 of images, the standardisation of forms, the 7 distribution of forms, that sort of thing. Is that 8 correct? 9 A. (By Mr Pugh) Yes, under your direction we advised and 10 prepared the material for the Inquiry. 11 Q. But in the event, as it turned out, you and your 12 colleagues were not involved in the ultimate analysis of 13 the results? 14 A. (By Mr Pugh) No. 15 Q. The final point that brings you in yourself is that you 16 were also asked to assist the Inquiry more from the 17 point of view, if one might put it this way, of 18 recommendation, looking towards the horizons. You, 19 along with your team, prepared a comprehensive report. 20 If I have that, it is MP0008. I will just bring it 21 up without looking at the whole document. 22 Is this the report that you yourself along with your 23 colleagues prepared? 24 A. (By Mr Pugh) Yes, it is. 25 Q. Because you are on oath I must just take from you you page 6 1 are content, as far as you can, as the supervisor of 2 this work that it accurately sets out the position of 3 the Metropolitan Police? 4 A. (By Mr Pugh) Yes, I am. 5 Q. Again, in relation to particular detailed questions it 6 may be that you have to defer to your colleagues? 7 A. (By Mr Pugh) Yes, those areas which might require a 8 technical explanation in connection with fingerprint 9 work I think I'd best refer to my colleagues. 10 Q. So we have introduced Mrs Ridgewell as the person to 11 whom detailed fingerprint practice questions may be 12 deferred. 13 As for Miss Hall, we will come to look at a 14 particular piece of research, which I refer to as the 15 tipping point research, that you cover in your Inquiry 16 submission and is she the individual who is responsible 17 for that research? 18 A. (By Mr Pugh) Yes, she is. 19 Q. Again, we may have occasion to ask her about that. 20 With that by way of an introduction, first of all, 21 just stressing so far as the Metropolitan Police, you do 22 say in your submission that you are not here to suggest 23 that you are the paradigm of best practice, you are 24 simply here to give Sir Anthony the benefit of your own 25 perspective on some of the issues that arise at the page 7 1 Inquiry? 2 A. (By Mr Pugh) Absolutely. I do not put forward the 3 Metropolitan Police Fingerprint Department as exemplar 4 or any better than any other fingerprint department 5 around the world. 6 Q. If I can then just start with the topics that I wanted 7 to cover with you -- and to allay any concern with 8 individuals I am not going to ask you or any of your 9 colleagues about the marks in issue in this Inquiry. I 10 am going to look at more general matters of 11 fingerprint practice, the science of fingerprints and 12 indeed the way that fingerprint evidence is led in court 13 in general. 14 First of all, if I begin my understanding is that 15 fingerprint evidence has traditionally been presented in 16 court in terms of unique identity. Is that fair? 17 A. (By Mr Pugh) Certainly a Fingerprint Expert will give 18 an opinion that a finger-mark recovered from a crime 19 scene originates from an individual to the exclusion of 20 all others. 21 Q. It has, therefore, not been conventional for Fingerprint 22 Experts to give evidence such as eye witnesses would 23 give of not just identity but also, to a lesser 24 standard, of similarity. Is that fair? 25 A. (By Mr Pugh) A Fingerprint Expert would not normally page 8 1 give evidence on anything less than identity. They 2 would give evidence if clearly there was an exclusion or 3 in the case that, if you like, the result falls between 4 identity and exclusion, in the sense that there is not 5 sufficient detail to establish identity. 6 Q. We will look at that intermediate position. So, first 7 of all, a Fingerprint Expert can give evidence if 8 satisfied that there is a unique identity between mark 9 and print? 10 A. (By Mr Pugh) Yes. If they are satisfied there is 11 sufficient information in agreement between the two they 12 will give evidence of identity. 13 Q. Equally, the converse. If they are satisfied there is a 14 point of difference that cannot be explained such that 15 the mark and print cannot match, they would give 16 evidence of an exclusion? 17 A. (By Mr Pugh) Yes, they would certainly exclude. By its 18 nature, exclusions tend not to work their way through 19 the criminal justice system because they are exclusions. 20 Q. What we will look at is the grey area between identity 21 and exclusion. I will come to that shortly. 22 Firstly, before coming to that, one of the points I 23 am intrigued by is why fingerprints come to be given or 24 evidence of this sort comes to be given only in relation 25 to identity and not, if I compare it with eye witness page 9 1 evidence, similarity. By that I mean with eye witness 2 evidence someone can say, "Yes, I do recognise Mr Pugh. 3 I am certain it was Mr Pugh I saw", and that is evidence 4 of identification but courts, certainly courts in 5 Scotland but I understand courts elsewhere, will also 6 take lesser evidence where someone will say, "I can't be 7 certain it was Mr Pugh but it was someone similar to 8 him", and then they give, if they can, a description of 9 the feature or features that they recognise as being 10 similar and the courts can take that into account as, to 11 some extent, an identification but fingerprints, as I 12 understand it, don't conventionally get presented on 13 that basis. What I am interested in looking at is the 14 reasons for that. Can you explain what the reasons are? 15 A. (By Mr Pugh) I think firstly, as you say, and I think 16 the right word is "convention", the convention is that 17 Fingerprint Experts give evidence of identity. They 18 don't perhaps, to use the expression, give a grey scale 19 of evidence. So they don't, if you like, on a basis of 20 limited detail. 21 In terms of the reasons for that -- and I think it's 22 important to say that if there was some degree of 23 agreement but insufficient to establish identity, that 24 would, if you like, be made available to the court. 25 That is evidence. The reason perhaps this has not been page 10 1 explored I think, firstly, I think the fingerprint 2 community would feel uncomfortable because there would 3 be no basis on which to put a scale to the degree of 4 similarity and again this is something that we've 5 considered within the research we are doing and we may 6 return to later. 7 I think, secondly, I think it has to be acknowledged 8 and we set it out in our submission that there are 9 relatively few instances where there is, if you like, 10 that in-between stage of relatively little information 11 that does not allow identity to be established. So I 12 think those are probably the two main reasons why, if 13 you like, this area is not being pursued. 14 Q. For the purposes of today, one of the cases that you 15 have mentioned to me is a DNA case from the English 16 Court of Appeal, a case called Doheny and Adams which I 17 have an unreported copy. The reported version or the 18 citation is [1997] 1 Criminal Appeal Reports, page 369. 19 This is obviously talking about DNA but I will use it 20 nonetheless as an analogy. The judgment of the court 21 was given by the then Lord Justice Phillips. One of the 22 points he was making was that in relation to DNA, 23 because it is so discriminating and, therefore, very 24 powerful or cogent evidence, the court was entitled to 25 approach it with greater rigour than it would with page 11 1 conventional evidence. In other words, if there is an 2 error made in DNA or evidence of that sort its potential 3 to mislead a jury is so great that everybody ought to be 4 very, very satisfied that the most rigorous standards 5 are applied to it. 6 Is that something that has parallels with 7 fingerprint evidence again because Fingerprint Experts 8 are conventionally giving evidence, not only based on 9 personal certainty but personal certainty of a unique 10 match between the mark and the print? So they are not 11 even suggesting a range of individuals but rather it is 12 unique perhaps to the suspect or an incriminee or 13 someone of that sort. Does that justify greater rigour? 14 A. (By Mr Pugh) Yes, I think the Doheny and Adams appeal 15 was a milestone in, if you like, the presentation of DNA 16 profiling evidence to the courts in England and Wales 17 and had some significant ramifications. I think there 18 is a category of forensic evidence, again which we refer 19 to in our submission, of what I might call 20 identification where forensic scientists or Fingerprint 21 Examiners are giving definitive opinions. Clearly 22 there's the case of fingerprints; there's the case of a 23 ballistic examination where a ballistics expert will 24 link a cartridge case to a gun; there's 25 footwear examination where a footwear expert, which page 12 1 happens to be my background as well, will definitely say 2 a shoe made a mark. So I think that there is a category 3 of identification evidence that is very powerful and, 4 therefore, I agree that needs considerable rigour to 5 make sure that those expert opinions are soundly based 6 and reliable when they are presented in the criminal 7 justice system. 8 Q. I will come slightly later in looking at the rigour that 9 is applied or can be applied but before we do, if I can 10 just begin with looking at the grey area. That is the 11 area between an identification and an exclusion. I 12 suppose one of the points we have learned, in particular 13 speaking to Mr Chamberlain from Forensic Science 14 Services, is it may depend on the question that is asked 15 by a lawyer. 16 Let us just assume for sake of argument that a 17 Fingerprint Examiner has looked at a print, has seen 18 points of similarity, no points of difference, but the 19 quantity and the quality of the points of similarity are 20 not so great as to persuade of unique identity. 21 At that level, seeing it as a lawyer, the 22 Fingerprint Examiner is seeing something that is 23 consistent with an accused person, let's say, but not so 24 consistent as to be unique to that person. So this is a 25 sort of grey area. page 13 1 If I understand it correctly, if I as a lawyer asked 2 a Fingerprint Examiner if they had matched the print to 3 the accused, they would say to me, no, they had not? 4 A. (By Mr Pugh) Correct. 5 Q. It is recognised that approaching it in that way from 6 such a high standard of unique identity the courts may 7 in fact be deprived of useful evidence that may be 8 worthy of some weight. Is that fair? 9 A. (By Mr Pugh) Yes, and certainly it's my view they 10 should not be deprived of that. That scenario you 11 describe has utility, if you like, in the criminal 12 justice system. I think the difficulty you are in, 13 because there is no way to assign a value on a scale, 14 you are in the position where really, if you like, the 15 raw evidence can be put before the court in terms of 16 what those similarities are and really then I think it's 17 a difficult situation, and I have been in this position 18 myself with footwear examination, is that really you are 19 leaving the court to decide on the value, which I think 20 has some risks in that they may overestimate or 21 underestimate the value. But nevertheless I think the 22 evidence should be put before the court, as difficult as 23 that situation is. 24 Q. If I follow this through, the way it was considered with 25 Mr Chamberlain is if the lawyer reformulates the page 14 1 question he can get, in fact, an answer from the 2 fingerprint practitioner but it nonetheless comes back 3 to the conundrum you just referred to. So instead of 4 asking, "Have you matched the mark and the print", the 5 lawyer asks, "Have you been unable to exclude", the 6 lawyer would get an answer. The answer would be, "No, I 7 have been unable to exclude"? 8 A. (By Mr Pugh) Yes. 9 Q. Which takes us into the grey area, yes? 10 A. (By Mr Pugh) Yes. 11 Q. I suppose the danger then is that one inverts the 12 negative, "I have been unable to exclude", into an 13 inferential positive, there is a match? 14 A. (By Mr Pugh) I think that's the point I was making. It 15 potentially could be ... it could mislead or be 16 misinterpreted and, of course, the fundamental question 17 of, well, how much does it include or exclude is one 18 that the Fingerprint Expert is unable to give an answer 19 to in the absence of any data or basis for doing that. 20 THE CHAIRMAN: Surely there is a position that there are 21 occasions when a Fingerprint Expert can say positively 22 that a particular person did not make that mark -- 23 A. (By Mr Pugh) Absolutely. 24 THE CHAIRMAN: -- because there's such a difference that 25 it's impossible, but then there must be somewhere where page 15 1 you can say, "I cannot say it was made by X but I cannot 2 rule out the possibility that it was made by X". 3 A. (By Mr Pugh) That would be a form of words that would 4 suit, if you like, the grey area that we're in. 5 Absolutely, to be clear, if it's an exclusion then 6 clearly that should be stated. If it's not an exclusion 7 but it's a limited amount of agreement, if I put it that 8 way or to use the word "consistent", but it doesn't 9 reach the standard for identification, then clearly that 10 needs to be said. 11 MR MOYNIHAN: I think myself reflecting on the conversation 12 that was had with Mr Chamberlain last week and the 13 conversations I have had with you are that to pick up 14 what his Lordship has said, if we are looking at this 15 grey area, the Fingerprint Expert says, "I cannot 16 identify but equally I cannot exclude the possibility 17 that ..." I suppose the temptation is so great for the 18 lawyer to overstep the mark, chance his arm and say, 19 "Well, what are the chances of a match?" And it's at 20 that point you say there is, in fact, no scale? 21 A. (By Mr Pugh) Absolutely and I've found myself in that 22 position, is it 20 per cent, 50 per cent, 60 per cent 23 and you can't answer that question. 24 Q. I will come back to questions about errors a little bit 25 later but if I can follow this particular line through page 16 1 because you do have a comment in your report when you 2 are dealing with probability that there is a lack of 3 scale for fingerprint evidence and that is what I want 4 to explore. 5 First of all, we have heard witnesses, fingerprint 6 practitioners, giving evidence who say the standard to 7 which they work is one of 100 per cent certainty. By 8 that I mean not only personally satisfied 100 per cent 9 but personally satisfied 100 per cent of a unique match 10 between mark and print, unique to the one individual and 11 unique to that individual obviously throughout history. 12 As a scientist, do you have difficulty with the 13 proposition that a witness can give evidence in court to 14 that standard? 15 A. (By Mr Pugh) I think in terms of an individual opinion 16 that someone is certain, I think they are entitled to do 17 that and to give that opinion. What there isn't is, if 18 you like, a scientific proof that it is 100 per cent 19 certain and I think that's the difference really in 20 terms of it's an individual opinion and that individual, 21 whether it's fingerprints or it's footwear or 22 ballistics, is certain. 23 Q. With apologies to all because it is my fault, I had not 24 appreciated until recently the significance of the case 25 of Doheny and Adams and I accept it is a DNA case but I page 17 1 am interested in it in its parallels to fingerprints, if 2 I bring up one part of the judgment of the court by 3 Lord Justice Phillips, it is at pages 6 and 7 of the 4 Internet copy. The case is now reported. 5 What I am interested in is at the foot of the page 6 where Lord Justice Phillips says: [Inquiry reference 7 AQ0002] 8 "The cogency of DNA evidence makes it particularly 9 important that DNA testing is rigorously conducted [we 10 will discuss that] so as to obviate the risk of error in 11 the laboratory, that the method of DNA analysis and the 12 basis of subsequent statistical calculation should so 13 far as possible be transparent to the defence and that 14 the true import of the resultant conclusion is 15 accurately and fairly explained to the jury." 16 Mr Pugh, I have read that I think with different 17 eyes as having an analogy to fingerprint evidence and 18 this is what I want to just discuss with you: whether it 19 is fair to transpose fingerprint evidence for DNA in 20 that passage so that what we would take is: 21 "The cogency of [fingerprint evidence] makes it 22 particularly important that [fingerprint] testing is 23 rigorously conducted so as to obviate the risk of error 24 in the laboratory." 25 Stopping there, is that a fair transposition? page 18 1 A. (By Mr Pugh) Yes, absolutely. 2 Q. "... that the method of [fingerprint] analysis and the 3 basis of subsequent statistical calculation should -- so 4 far as possible -- be transparent to the defence." 5 That leads into a topic we will come to later about 6 disclosure. Is that again a fair proposition applied to 7 fingerprints? 8 A. (By Mr Pugh) Yes. I think if we were in the territory 9 of using statistical tools to arrive at our scale of 10 value, then clearly it would be important that the 11 understanding and the transparency of those tools and 12 how they are used and applied should be available to the 13 court. 14 Q. I think where I would adapt it to fingerprints is 15 plainly the method of fingerprint analysis should be 16 disclosed but, in fact, it would seem everyone uses the 17 same basic method, ACE-V, and instead of the statistical 18 calculation what I would suggest should be considered, 19 the analogy here, instead of statistical calculation is 20 the interpretation of the characteristics, the 21 observation and interpretation of the characteristics in 22 a mark and a print should be disclosed to the defence. 23 Is that ...? 24 A. (By Mr Pugh) I think this takes us into the practical 25 debate -- and I have followed some of the proceedings of page 19 1 the Inquiry -- the practical side of, if you like, 2 producing detailed notes on all of the examinations that 3 are undertaken and then making them available to the 4 defence. 5 I absolutely support the principle that there must 6 be transparency and there certainly must be 7 understanding of how the Fingerprint Expert arrived at a 8 decision. I think there are some practical 9 implications, if you like, in terms of upholding in a 10 sense that principle but certainly -- and also I think 11 there's an issue about whether there is a kind of 12 proactive approach to making that information available 13 or if it's, if you like, on request so I think there's a 14 debate there. But certainly the court needs to have 15 access to the expert and, if you like, their thinking 16 process -- and that needs to be tested -- that arrives 17 at an identification opinion. 18 Q. So, again, if I take the second proposition by 19 Lord Justice Phillips applied to DNA, it may have a read 20 over to fingerprints and, as you say, we will come later 21 to the practicalities of that read over? 22 A. (By Mr Pugh) Yes, I have some knowledge of this appeal. 23 It was, in a sense, in the early days of DNA profiling 24 and it was when the statistical evidence, if you like, 25 in relation to DNA profiling had been introduced. So page 20 1 there was, I think, the need for some clarity about how 2 that should be applied and the Court of Appeal provided 3 that clarity. 4 I think also there was a significant debate about 5 the way statistics are presented and how they can be 6 open to misinterpretation. So there is a context to 7 those comments but I think the same issues would apply 8 should fingerprints use statistical tools. 9 Q. Again, plainly I am subconsciously taking these 10 propositions and applying them to a different context. 11 The third one is really what I am discussing just now, 12 what Lord Justice Phillips said of DNA, and this is the 13 question to ask you about fingerprints, he says: 14 "The true import of the resultant conclusion is 15 accurately and fairly explained to the jury." 16 Again, obviously applied to DNA, that is what the 17 court ruled. Do you see a read across to fingerprint 18 evidence, a need to accurately and fairly represent the 19 conclusion to the jury? 20 A. (By Mr Pugh) Absolutely. 21 Q. I have finished with that particular copy. 22 It has just been pointed out to me what I should do, 23 sir, is make available to all the full judgment in the 24 Doheny and Adams. 25 What interests me is the way in which fingerprint page 21 1 evidence is presented in court. If we take the 2 proposition that what is required is fairly and 3 accurately to represent the conclusion to the jury, if 4 we start, as we seem to have done, with the proposition 5 that it is unrealistic for a Fingerprint Expert to, from 6 a scientific perspective, claim 100 per cent certainty 7 in relation to a unique identification is -- and it is 8 in the literature it's put this way -- the conundrum, 9 that the absence of a scale for fingerprint evidence 10 means in fact that there is no readily available 11 alternative? 12 A. (By Mr Pugh) The answer is, yes, there is no 13 alternative, although I think at the moment probably 14 people haven't looked for one. 15 Q. I accept what you are saying because, in fact, what your 16 own paper, your own submission at pages 32 and 33 -- 17 it is not in numbered paragraphs -- refers to a textbook 18 Robertson and Vignaux? 19 A. (By Mr Pugh) Yes. 20 Q. For those who are watching just now, your report is 21 MP0008 and it is page 32 of the text. I am not sure how 22 it will come up on a pdf. 23 Robertson and Vignaux is mentioned two-thirds of the 24 way down, if I just highlight, "Robertson and Vignaux 25 writing in 1995", if we can, first of all, understand page 22 1 they are writing in 1995 at a time as you say when, in 2 effect, your commentary deals with this, the 16-point 3 standard prevailed? 4 A. (By Mr Pugh) Yes. 5 Q. We should therefore understand what the authors are 6 writing in that context of the 16-point standard. You 7 pick up three propositions that they have as their 8 summary at page 146. The first one is: 9 "Fingerprint evidence is a matter of expert judgment 10 not counting of points." 11 So they are advocating, in effect, the move to 12 non-numeric. It is a matter of judgment, first of all, 13 it is opinion evidence but it is not as crude as 14 counting points? 15 A. (By Mr Pugh) Absolutely. 16 Q. Secondly, prefacing the introduction to a non-numeric 17 they say: 18 "There is no reason in logic or law why a witness 19 should not give evidence that a partial print strongly 20 supports the contention that the accused was present but 21 there are cost benefit reasons for not doing so." 22 So far as that second proposition is concerned, that 23 seems, and perhaps the words in brackets strongly begs 24 the question, that seems to advocate that a Fingerprint 25 Expert may give evidence of something less than unique page 23 1 identity based on strong support for an identification 2 and that is the grey area that we have been discussing? 3 A. (By Mr Pugh) Yes. 4 Q. We will come back to that in just a moment. They then 5 write: 6 "The standards currently used in the United Kingdom 7 and most other countries are conservative in the extreme 8 and continue to deprive the courts of useful evidence." 9 Again, that very much picks up what we have talked 10 about before. The 16-point standard was so high that it 11 was thought to be depriving the court of some reliable 12 evidence; is that correct? 13 A. (By Mr Pugh) Yes, I think it also potentially had other 14 distorting effects in a sense in that I think to meet 15 a numerical standard given the complexity of a 16 finger-mark with 14 points you were almost hunting out 17 two further points to reach the standard, which is 18 nonsensical and I think, therefore, that's why the 19 non-numerical(sic) standard was effectively removed. 20 THE CHAIRMAN: Can I ask while it is in my mind, is that the 21 reason why the second proposition is there because if 22 you can't get to 16 and you can get to 12 then it 23 strongly supports the contention? So it's got to be 24 read in the context of the 16-point requirement in 25 existence at that time? page 24 1 A. (By Mr Pugh) Yes. 2 MR MOYNIHAN: In fact, so far as this particular point is -- 3 A. (By Miss Hall) Sorry, just to refer back to "There is 4 no reason in logic or law why a witness should not give 5 evidence that partial prints strongly supports", that 6 was when the 16-point standard was in at the time and 7 when we say strongly support that wasn't a case of not 8 being less than 100 per cent that the mark was made by 9 that particular source. It was, in fact, still 10 established an identification, 100 per cent established 11 an identification. It's just it didn't reach the 12 required standard set by the court of law. 13 Q. What I am actually picking up is that, in a way, having 14 read Robertson and Vignaux, it may from some of the 15 earlier passages be this: that what they were saying was 16 the 16-point standard was so high that the chances of a 17 coincident match with two individuals was so remote 18 that, in fact, statistical evidence was rendered 19 redundant and practitioners were able to give a 20 confident, ie certain, opinion at that threshold. Is 21 that fair? 22 A. (By Mr Pugh) Yes, although I think at the time -- and 23 there have been some more recent studies that have 24 looked at what I might describe as the constellation of 25 small groups of features and sought to calculate page 25 1 probabilities from that and I think that research, 2 although I think tentative at the moment, indicates that 3 a level of 16 points in probability terms you are into 4 very, very large numbers. 5 Q. The Chairman's question has also picked up what we have 6 understand that the research is also tending to support 7 even a lower number randomly 12 features may have that 8 degree of probability attached to it. Is that fair or 9 not fair? 10 A. (By Mr Pugh) Yes, although I think I'd go back to the 11 very first point or bullet point is that it is not 12 simply a question of counting points. The Fingerprint 13 Examiner, if you like, uses all the information within 14 the mark which are not, in a sense, simply the features 15 it's the relationship of features to each other, the 16 ridge flow and other areas that my colleagues can expand 17 upon but it's not a simple point-counting exercise if I 18 can put it that way. 19 Q. What, in fact, I was looking at was, again from the 20 point of view of one of the critics, an author called 21 Mnookin, is that it argues that the 100 per cent 22 standard is unrealistic but that the conundrum is 23 because of the lack of scale for evidence there is no 24 substitute and, therefore, a Fingerprint Examiner is 25 then giving an implicit opinion of probability in fact page 26 1 without being able to express that or quantify that in 2 probability terms. Is that fair? 3 A. (By Mr Pugh) Yes. I don't -- they are obviously not 4 thinking about probability. The comparison process is, 5 in a sense, a human process that an individual is going 6 through. They are, if you like, using pattern 7 recognition skills and they are arriving at a decision 8 and they are considering that. I don't think, in a 9 sense, even though they may be thinking about the 10 features they've got in front of them, the 11 characteristic nature of them, I don't think they are, 12 if you like, thinking about probability but that's where 13 they end up. 14 Q. As I say, it is no criticism whatsoever of the 15 examiners. Robertson and Vignaux would say or at least 16 lead to the proposition that with the history of the 17 discipline, because of the confidence level and the 18 statistical probability built into 16 points, they did 19 not require themselves to think analytically in terms of 20 probability; the standard, in effect, did that for them? 21 A. (By Mr Pugh) Yes, I think so although I think I would 22 have to say, having dealt with many members of the 23 fingerprint community within the Metropolitan Police and 24 across the country, I think that most Fingerprint 25 Experts didn't simply count points. They did go through page 27 1 a process which you refer to as the ACE-V process. They 2 may have not gone through that in a formal way but there 3 was certainly more to it, if you like, than simply 4 finding 16 points. 5 Q. I will come and look at ACE-V. 6 The final point really in relation to this 7 particular topic is picking up in your report, if I 8 carry on over the page to page 32. This is where this 9 phrase of the lack of a scale comes in, dealing with 10 Robertson and Vignaux's three propositions, that is, 11 "fingerprints is a matter of expert judgment, not 12 counting points", that's the first point. You say that 13 you completely agree with that? 14 A. (By Mr Pugh) Yes. 15 Q. The second point, that is, "no reason in logic or law 16 why a witness should not give evidence that a partial 17 print strongly supports the contention that the accused 18 was present." 19 What you say is in principle you agree with the 20 second point but the reason for the lack of a scale of 21 evidence for fingerprints is the absence of any basis 22 for being able to give such an opinion referred to in 23 part above and the limited occasion where this situation 24 arises? 25 A. (By Mr Pugh) Yes. page 28 1 Q. So, in other words, you have, to deal with Miss Hall's 2 point, as soon as one moves away from the 16-point 3 standard which had that sort of margin where Fingerprint 4 Experts could say, "Well, if I dip below 16 points I can 5 still have that degree of certainty", in fact when one 6 comes to a non-numeric standard where they may be very 7 much below 16 the question is, is there there a basis to 8 grade the confidence of an examiner and to assess it in 9 court. That's the absence of the scale for evidence 10 that you are mentioning? 11 A. (By Mr Pugh) Yes. 12 Q. We will come back to some of the other points that you 13 mention in that particular paragraph. If I pick it up 14 three lines up from the bottom of that paragraph on 15 page 33 you say: 16 "On the third point", and we will see that is, "the 17 standards currently used in the United Kingdom and most 18 other countries are conservative in the extreme and 19 continue to deprive the courts of useful evidence", what 20 you say is: 21 "On the third point, this refers to the use of a 22 numeric standard." 23 So written in 1995, it was referring to the 24 16-point? 25 A. (By Mr Pugh) Yes. page 29 1 Q. "... but even as a general statement we do not believe 2 that this has been established through systematic study 3 and experiment. We very much support the call for 4 further research in this area." 5 Can you explain why you made that observation? 6 A. (By Mr Pugh) I think because -- there is some recent, 7 very recent, research, as I have described, that looks 8 at what I would call a constellation of a small features 9 is able to calculate, if you like, the frequency of 10 occurrence of those features and, therefore, derive a 11 probability statement. That is relatively recent and 12 has been done on a relatively small scale. 13 Professor Champod, for example, has been involved in 14 that. So I think that if we were to -- it's a 15 combination of both things. I think if you were to move 16 into looking at scale, that would be very much part of 17 that research. So as you -- if you use just simple 18 points, characteristics, then clearly you'd want to look 19 at the constellation, the relationship of those points 20 to each other and be able to derive from that some 21 statistic that allowed you then to put a scale of value 22 that you could communicate to the court. 23 Certainly to my knowledge we are not in that 24 position yet although I know that people are working on 25 this and we very much support that research and are page 30 1 actually in the process of contributing to it. 2 Q. I will come to that just in a second. Before we come to 3 that research, if I pick it up, you mentioned the ACE-V 4 methodology and your paper does discuss some of the 5 details of ACE-V methodology but when we come to 6 Professor Champod, first of all, he has written an 7 article that I would ask you just to comment on. First 8 of all, he says -- and we appreciate ACE-V as an acronym 9 is relatively recent, late 1990s -- but he says, in 10 fact, there was nothing new in ACE-V and you cannot, in 11 terms of historical perspective, speak in terms of the 12 pre-ACE-V period and the post ACE-V period of 13 fingerprint practice. 14 Do you yourself support that? 15 A. (By Mr Pugh) Again, certainly from my contact with a 16 wide range of Fingerprint Examiners, I think that is the 17 case. ACE-V didn't suddenly appear. I think it 18 probably can be best described as codifying the thought 19 process that existed amongst many Fingerprint Examiners. 20 I think it's also important to point out that ACE-V 21 is not a theory and it's not even a set of principles. 22 It is a description of a process that's applied, a 23 structured process, to arrive at a decision in 24 fingerprint examination. But I entirely agree with you, 25 it didn't suddenly appear. I think it was there and I page 31 1 think David Ashbaugh, who coined the phrase, as I 2 described codified it in terms of describing the various 3 stages of the process. 4 Q. I am very grateful to you because what I want to pick up 5 and build on is this proposition: it's a structured way 6 of working. We will look at it just in a moment. There 7 are certain safeguards built into that. It is a 8 structured way of working, but would it be fair to say, 9 as Professor Champod argues, that despite that structure 10 what remains is essentially a personal opinion and 11 judgment, a subjective judgment by the individual 12 examiner, that that's at the root of this? 13 A. (By Mr Pugh) Absolutely and that's my point that it 14 shouldn't be seen as a theory or in some way some 15 underpinning fundamental basis for fingerprints. It is 16 a process. 17 Q. As soon as we move away from the 16-point standard -- I 18 am now looking to pages 27 and 28 of your submission. 19 You were asked by the Inquiry team, first of all, it's 20 in connection with statistics, we see at the top the 21 first question was: 22 "Is there any statistical evidence relating to the 23 prevalence within the population of combinations of 24 minutiae." 25 Taking it very shortly, what you indicate is that page 32 1 some studies are being carried out. You mentioned one 2 Spanish study that we have heard but, for the main, 3 there is no statistical evidence of prevalence of 4 minutiae across the population. Is that fair? 5 A. (By Mr Pugh) Yes. 6 Q. You are then asked: 7 "If not, on what basis can Fingerprint Examiners 8 conclude that X number of observed common 9 characteristics is indicative of a unique 10 identification?" 11 I suppose, picking up the theme of the questions I 12 have been asking you so far is, if one is looking to 13 fingerprints as having a statistical basis, then what is 14 the statistical foundation for the conclusion of a 15 particular examiner that a certain number of minutiae in 16 this constellation, as you have described, is in this 17 instance consistent with a unique match and picking up 18 the theme really that we are running with, because of 19 the absence of a scale of evidence, the answer would be 20 that there is, in fact, no statistical underpinning to 21 an individual practitioner's conclusion. 22 Would that be fair? 23 A. (By Mr Pugh) Yes. 24 Q. That is what, in fact, you go on to say on page 28 of 25 this. You say: page 33 1 "Fingerprint Examiners in the Metropolitan Police 2 Service are encouraged to evaluate whether the 3 information they have interpreted is sufficient to 4 establish identity." 5 You then pick up the very question and discuss the 6 very question we have asked a number of witnesses, which 7 is what sufficiency means. You say: 8 "Any positive identifications presented to the 9 courts are justified using the ACE-V methodology, 10 highlighting the pattern, ridge flow and features in 11 agreement. In the absence of a numeric standard 12 Fingerprint Examiners develop and work within their own 13 threshold values pertaining to both the qualitative and 14 quantitative detail within the analysis. The threshold 15 is developed through training and experience and is 16 adapted to address the quality and clarity of 17 information within each comparison. They monitor and 18 continually challenge their thresholds via quality 19 assurance measures and peer review. These procedures 20 explore all the evaluations, decisions, and opinions 21 made by the practitioner, not just their 22 identifications." 23 So if I take it and picking out the most challenging 24 part of that to begin with, would it be fair to say that 25 what you are identifying there is that practitioners page 34 1 have their own personal threshold of sufficiency? 2 A. (By Mr Pugh) Yes. 3 Q. However, that is where the methodology of ACE-V has, in 4 fact, some significant parameters built into it, some 5 safeguards? 6 A. (By Mr Pugh) Yes, it clearly has merit, yes. 7 Q. Can you indicate to us without me taking you through the 8 particular parts what you see as the particular 9 safeguards that are built into the ACE-V methodology, 10 recognising that we start from the point of view that 11 practitioners are applying their personal thresholds. 12 A. (By Mr Pugh) May I ask Mrs Ridgewell to contribute as 13 well but certainly from where I sit I think, firstly, 14 it's the structure of the process in that it requires 15 you to start with a latent mark (the unknown) and to 16 carry out a thorough analysis of that mark and that 17 means understanding whether or not there is movement, 18 superimposition or other complicating factors in the 19 mark. I think also it takes you through logical steps 20 in terms then of marking up or identifying the features 21 and then, if you like, moving to a comparison with the 22 print (the known). 23 I think also the ACE-V process and certainly the way 24 it operates within the Metropolitan Police is one in 25 which individual experts use that process to make or page 35 1 come to a decision and, if you like, when we get to the 2 verification process, which is a three-stage 3 verification process in the Metropolitan Police, all 4 three individuals in that process make independent 5 decisions. So, in effect, they go round the ACE-V 6 process again and for me at perhaps my superficial level 7 as a non-Fingerprint Examiner those to me seem to be the 8 strengths in the ACE-V process. 9 Perhaps I could ask Mrs Redgewell to comment on more 10 detail as to the benefits. 11 A. (By Mrs Redgewell) To be fair, I haven't got much more 12 to add than what Mr Pugh has said. It is basically at 13 the analysis stage to look at the mark, to interpret all 14 the detail within the mark, not just look at the 15 characteristics and to make your information based on 16 that analysis and as we spoke about, as Mr Pugh spoke 17 about, the verification system, that we've got a 18 three-tier verification system so everybody looks at the 19 mark and makes their own decisions. 20 Q. We will do it in its phases. First of all, so far as 21 analysis is concerned, you may be aware that we've had a 22 range of views about analysis from perhaps the purest 23 view, which is that a Fingerprint Examiner should look 24 at the mark, analyse the mark, identify characteristics 25 and then effect a comparison with a known print only -- page 36 1 only -- by reference to the characteristics observed in 2 the mark at the initial analysis stage. 3 Other practitioners have said, no, that's too pure, 4 it is permissible to observe, a characteristic in the 5 known, the print, carry that back to the mark, provided 6 you are conscious of what you are doing and, if I 7 understand it, the debate in relation to that centres 8 around some psychological thinking that if you work from 9 the known back to the latent, in other words from the 10 print back to the mark, you may in fact then be 11 interpreting the mark in a way to suit an 12 identification. 13 In the way that you practice in the Metropolitan 14 Police at which end of the spectrum do you find 15 yourselves? 16 A. (By Mr Pugh) I think we are more to the former, in that 17 we would carry out the analysis of the latent in the 18 first instance. We would certainly not start with a 19 print. Having said that I think -- and we speak about 20 it in our submission -- that we do not, if you like, 21 then stick to a purist approach of only then using the 22 information we have identified in the latent. 23 The process of comparison and certainly the way that 24 fingerprint examination is conducted we think that there 25 has to be allowance, if you like, for when you see the page 37 1 print it may be that -- and you understand, in a sense, 2 the makeup of the print, of the known, that may help you 3 better understand the latent. There needs to be very 4 great care there that you are not, if you like, looking 5 for the print in the mark, but certainly I think we 6 would say that the nature of fingerprint examination 7 should allow you to use information from the print 8 after, if you like you have marked up the latents. So 9 we would use all of that information together with the 10 strong caveat that we need to be very careful that we 11 are not, if you like, looking or seeking out information 12 from the print in the mark. I think it's more a 13 question of bringing greater clarity within the process. 14 A. (By Mrs Redgewell) Can I just add there as well that 15 when you do the analysis of the unknown. You should be 16 identifying clear characteristics or clear features but 17 you should also be observing areas within the mark that 18 possibly you can identify something that may be 19 happening but you're not sure what, and when you do the 20 comparison stage the known print can actually identify 21 and clarify what was happening but you shouldn't bring 22 anything new to the unknown. So basically everything 23 should be determined in the unknown before you start 24 your comparison stage. 25 Q. I am grateful because that then means -- and I am not page 38 1 quite sure just exactly which direction to face with the 2 questions so perhaps I will ask and maybe the tag match 3 is a very helpful description here. 4 What I am interested in, we have heard some 5 practitioners speak in terms of an event. As you say, 6 there is something happening. It's not quite clear 7 whether that event is something in the substrate on 8 which the fingerprint is deposited or is something 9 integral to the fingerprint and, if integral to the 10 fingerprint, it is not clear whether it is a ridge 11 ending or a bifurcation. 12 If I understand it correctly, there is an area of 13 practice or a number of practitioners -- and I would 14 understand the Metropolitan Police to be in that area -- 15 where it is permissible, having discerned an event in 16 the mark, to look at the known in order to interpret the 17 event so that having looked at the known you might 18 determine that the event that you have observed is in 19 fact something that is external to the mark (it is 20 something to do with the substrate and therefore is 21 ignored) or, if it's internal to the mark, intrinsic to 22 the mark, you can then discern that it's actually 23 properly a ridge ending or a bifurcation. 24 A. (By Mr Pugh) Mrs Redgewell can answer that. 25 A. (By Mrs Redgewell) Yes, I agree with what you've said. page 39 1 All it does is add clarity to what is going on within 2 the unknown. 3 Q. How then as a practitioner do you guard against the risk 4 that what you are doing then is working in reverse, you 5 are working back from the clearer known and then running 6 the danger that what you are in fact doing is, to put it 7 at its most extreme, seeing in the mark what you want to 8 see consistent with an identification. 9 A. (By Mrs Redgewell) When you do the analysis of the 10 unknown print you basically look at clear features but 11 you also will have areas which you can see some sort of 12 ridge interruption, you can see something's happening. 13 What the looking at the known can do -- because you also 14 do analysis of the known as well, so you do the analysis 15 of the unknown, then you do the analysis of the known. 16 What you can use the information in the known print is 17 just to add clarity. It may allow you determine it was 18 actually a ridge ending or a bifurcation but it 19 shouldn't bring something new to the picture. You 20 shouldn't be, all of a sudden, seeing something in the 21 known print and saying, actually, I can work back and I 22 can interpret that in the unknown print. You've already 23 identified in the unknown print there is something 24 happening there but you're not sure whether it's due to 25 pressure, whether it's a ridge ending or bifurcation. page 40 1 But you have already identified there has been some sort 2 of ridge flow interruption and then the known print can 3 add clarity to that. 4 Q. I will come back to that question just a little bit 5 later. 6 If I understand one of the essential features of 7 ACE-V is the V, the verification. Because an individual 8 practitioner has applied a personal threshold may indeed 9 have required to interpret an event in a personal way. 10 Do I understand that it is the verification that really 11 is an essential part, that there's a subjective 12 individual judgment but it's cross-checked by being 13 verified by other practitioners so that an 14 identification is then found to be reliable because of 15 the concurrence of view of a number of experts? Is that 16 the theory? 17 A. (By Mr Pugh) Yes and also that there is, if you like, a 18 degree of independence in the second person in the chain 19 independently carries out the ACE-V process, in the 20 sense there's not a consultation or a committee decision 21 between the three individuals. The independence of each 22 examiner arriving at their own personal decision is a 23 critical part of the process. 24 Q. If you will forgive me to pick up something you used 25 quite deliberately I think a degree of independence. page 41 1 The Metropolitan Police does not practice blind 2 verification? 3 A. (By Mr Pugh) No. 4 Q. Is blind verification something that you have considered 5 but rejected as being impractical or have you not 6 considered it? 7 A. (By Mr Pugh) I wouldn't say we have considered it in 8 great depth. I think it has -- to try and produce a 9 group of individuals possibly in a sterile or within an 10 environment which is independent, I think practically 11 would be very difficult. My own view is we should rely 12 on, in a sense, the professionalism of the individuals 13 to maintain their independence and it is certainly a 14 major part of our training and development of 15 individuals that they make individual decisions. 16 Q. So you have no difficulty, therefore, with the 17 proposition that the independence really turns on the 18 personal responsibility and integrity of the individuals 19 involved? 20 A. (By Mr Pugh) Yes. 21 Q. If I take this further, just to ask you, and it may be 22 Mrs Redgewell I require to bring in as well, is it 23 possible for there to be a discussion between colleagues 24 involved in the verification stage, again accepting 25 without question they are acting responsibility and with page 42 1 ultimate integrity so they are each going to carry 2 individual responsibility for the decision, is it 3 permissible at the verification stage for two 4 individuals to have a conversation? For example, what I 5 am thinking about and it's purely an abstract 6 proposition, I'm looking at something that may be 7 challenging, for example, a low number and I appreciate 8 you don't work in numbers but for me it just works as a 9 way of explaining it, a low number of minutiae, let us 10 say seven minutiae, for example, where one practitioner 11 has looked at it, has seen something unusual in that 12 particular constellation indicative to his or her eye of 13 a unique identity, the second verifier is seeing, in 14 effect, something that's on the cusp but not quite 15 persuaded that it's unique, is it permissible for them 16 to have a conversation? 17 A. (By Mr Pugh) I will let Mrs Redgewell expand but the 18 answer is simply no. An individual may consult with 19 colleagues but if -- those colleagues they consulted 20 with would effectively be disqualified from the 21 verification process so in the circumstance you describe 22 the next person in the chain would be the independent 23 and would not have taken a view about that mark or been 24 consulted. That is our policy. 25 A. (By Mrs Redgewell) I'd go with that, yes. page 43 1 Q. So, in fact, it's perfectly possible for, let's say, the 2 second verifier to seek advice. 3 A. (By Mrs Redgewell) They can seek advice from an 4 independent person but they cannot discuss the mark with 5 the first checker. So they cannot use any of the first 6 checker's findings or analysis to actually assist them 7 in a decision so they can go across but they can't go 8 back. 9 Q. Again, is that to maintain, as you describe, the degree 10 of independence that you require at the verification 11 stage? 12 A. (By Mr Pugh) Yes. 13 Q. You also do mention that before we come to broader 14 questions about -- sorry, we are going outwith ACE-V 15 just now. If there is a difference of view among 16 individuals at the verification stage, you have 17 procedures for a panel to sit; is that correct? 18 A. (By Mr Pugh) Yes. 19 Q. Before I become too abstract, do you have experience of 20 the panel sitting to resolve a difference of view? 21 A. (By Mr Pugh) I think Mrs Redgewell can probably comment 22 better than I but we have had one occasion where we have 23 used the panel in the last 18 months. 24 A. (By Mrs Redgewell) (Nodded) 25 Q. So it is as rare as that. It is one occasion in the page 44 1 last 18 months? 2 A. (By Mr Pugh) Yes. 3 Q. Again, please, I do not wish to become too theoretical 4 if there's not practical experience of this because I 5 realise that practical issues here are actually quite 6 challenging. 7 In that one instance, did that result in an 8 identification being reported or did the arbitration 9 panel result in there being no report of an 10 identification because of the doubt arising from the 11 difference of view? 12 A. (By Mr Pugh) I think it would probably be helpful if 13 Mrs Redgewell described the process leading up to it and 14 then the outcome. 15 A. (By Mrs Redgewell) Yes. Basically that resulted in 16 identification. It wasn't a disputed identification in 17 the fact that nobody said it was an ident. What 18 happened was it was a court job that was prepared -- 19 went through the three-check verification system. It 20 was allocated to an independent person to prepare the 21 court evidence. When they compared the mark they didn't 22 believe it met their threshold, their independent 23 threshold, to actually produce as evidence to the court. 24 They didn't actually say it was not identical but they 25 didn't think there was sufficient detail within the mark page 45 1 to actually positively conclude identity. As a result 2 of this it went to the assessment panel and the three 3 independent members of the assessment panel, they 4 reviewed the mark and they concluded identity had been 5 established. As a result of that the actual evidence 6 was prepared by the original third checker. So it 7 wasn't actually disputed. It was around the clarity of 8 that mark. 9 Q. I will come back slightly later on to the most 10 challenging question of how that arbitration panel comes 11 to be represented to the prosecution and the Court but 12 if I again just come back to the more central point that 13 we are looking at subjective judgments so you have the 14 degree of independence and the verification process as 15 an essential check. 16 If I understand, what your submission says is over 17 and above that you have quality assurance within the 18 organisation as a whole again to strengthen the 19 reliability and rigour of the process; is that fair? 20 A. (By Mr Pugh) Yes, we have both dip sampling, as we call 21 it, of individuals and within our quality management 22 system we have in a sense an audit of processes, which 23 is a kind of another way of coming at, if you like, 24 checking and reassuring that procedures are being 25 followed. page 46 1 Q. In addition, as you say, you also have the competence of 2 your practitioners assessed periodically? 3 A. (By Mr Pugh) Yes. 4 Q. These are checks, therefore, within ACE-V that are 5 internal to the identification process and then external 6 to the identification process within the organisation to 7 check the rigour and reliability of the identification? 8 A. (By Mr Pugh) Yes, these are processes that are outside 9 of the individual cases, if you like. This is about 10 looking at the whole system, in effect, that operates 11 within the Metropolitan Police. 12 Q. I will come back to this question of disclosure later. 13 If I come to the question that I left earlier on about 14 error, first of all, you do mention error in your own 15 particular submission. 16 First of all, at paragraph 1.5 of the main text, 17 that is at page 4. Perhaps I should, in fact, begin a 18 little earlier at paragraph 1.2 on page 3. At 1.2 on 19 page 3 you, in fact, start from the premise of 20 acknowledging that you wish to put on record the 21 Metropolitan Police does not consider fingerprint 22 evidence to be an "exact science", error-free or 23 infallible? 24 A. (By Mr Pugh) Yes. 25 Q. That is your considered position? page 47 1 A. (By Mr Pugh) Yes. 2 Q. So despite the rigours of the processes we have just 3 described, it is possible for errors to occur? 4 A. (By Mr Pugh) It is a human process and therefore, 5 inevitably, there is potential for error. 6 Q. Insofar as errors are referred to in your own work, you 7 mention it at pages 34 and 35. You are addressing in 8 this context what comes to be seen in some of the 9 literature trying to calculate an error rate supposedly 10 but, in fact, what you indicate here is that the 11 instances of "error" have, in fact -- you picked up 12 three in the period 2008/2009? 13 A. (By Mr Pugh) Yes. 14 Q. But, in fact, these were all internal errors that came 15 to light as a result of the verification process? 16 A. (By Mr Pugh) Yes. 17 Q. So that in fact with these three, in inverted commas, 18 errors the ACE-V methodology would appear to have 19 operated? 20 A. (By Mr Pugh) Yes, I think the system operated 21 effectively in revealing those errors. 22 Q. Therefore, to try to extrapolate from that, first of 23 all, it's very difficult, I think is what you are 24 arguing, to try to extrapolate from those three isolated 25 occurrences even an internal practitioner error rate. page 48 1 Would that be fair? 2 A. (By Mr Pugh) Yes. 3 Q. Certainly these three incidents tell us nothing about 4 the incidence of error occurring in the courts because, 5 in fact, these did not progress that far? 6 A. (By Mr Pugh) No, I mean they effectively didn't get 7 past the first of the three stages in the process. 8 Q. However, because you acknowledge that the process is not 9 error-free, you do -- and it is paragraph 1.5, pages 4 10 and 5 of the text -- it is really the conclusion of 11 paragraph 1.5 you are saying -- if I highlight the last 12 few lines: 13 "It is through the effective operation of this 14 overall system the Metropolitan Police Service provides 15 reliable expert evidence to the criminal justice system. 16 In our experience when errors are made in fingerprint 17 examination it is a result of one or more of the factors 18 of competence, process and culture failing rather than a 19 fundamental flaw in fingerprint examination." 20 A. (By Mr Pugh) Yes. 21 Q. So though you acknowledge that it is not an exact 22 science and that there is the potential for error your 23 studies so far -- and we will come to one particular 24 area -- have not indicated any fundamental flaw in 25 fingerprint evidence as such? page 49 1 A. (By Mr Pugh) They haven't, no. 2 Q. In particular, not indicated any fundamental flaw in the 3 reliability of fingerprint evidence in court? 4 A. (By Mr Pugh) No. 5 Q. However, where incidents of error have been discovered, 6 they have tended to arise from issues of competence, 7 process and culture? 8 A. (By Mr Pugh) (Nodded) 9 Q. Competence in a sense, I suppose, one understands. 10 Process, what do you mean by process issues giving rise 11 to error? 12 A. (By Mr Pugh) I think that perhaps in an extreme 13 situation where, for example, the three-checking process 14 is abandoned, in that perhaps on the result of a first 15 check because an individual feels a result, because it's 16 a very high profile inquiry or, you know, it's of some 17 great import, that a result is released without it going 18 through the full checking process and so that is where I 19 think you could have, without those checks, obviously 20 greater potential for an erroneous result to be 21 released. 22 Q. Then you say culture. What do you have in mind as a 23 cultural source for error? 24 A. (By Mr Pugh) I think I can speak from a position, the 25 Metropolitan Police had a wrong identification some page 50 1 years ago and there were a number of potential 2 weaknesses in our system but one of them was in that 3 particular instance there was an independent review of 4 that wrong identification and one of the areas that was 5 identified was the mark was being passed from one 6 checker to the next already marked-up and I think there 7 were certainly some issues around people presuming, in a 8 sense, that the result was right and, therefore, I don't 9 think there was as much rigour in the checking process 10 as we now have in our current system. In fact, I think 11 our current system is a product of going through that 12 experience. 13 Q. If I just expand on that, first of all, a 14 mis-identification having occurred, there was a thorough 15 investigation carried out. Is that correct? 16 A. (By Mr Pugh) Yes, independently by another police 17 force. 18 Q. So it was an external investigation and the source of 19 the error would seem to have been a breakdown, in 20 effect, in the verification process? 21 A. (By Mr Pugh) Yes. 22 Q. Because the subsequent verifiers did not carry out an 23 independent personal ACE-V analysis, rather they picked 24 up from marked comparisons by predecessors and that 25 predisposed to error? page 51 1 A. (By Mr Pugh) Yes. 2 Q. The other case that I just wanted to mention for the 3 record, Mr Sheppard from Durham gave evidence of a case 4 in Nottingham, a Mr Lee. We made inquiry of the police 5 in Nottingham who, in fact, ultimately through yourself 6 gave consent for material that was previously 7 confidential to be released. 8 First of all, so far as the Nottingham case is 9 concerned, a letter has been received which is MP0006. 10 This is from the Nottinghamshire Police, Mr MacShane, 11 who is the Fingerprint Bureau Manager. Was this 12 information that he, in fact, communicated to you in 13 order for you to pass this on to the Inquiry? 14 A. (By Mr Pugh) Yes. 15 Q. Without looking at the detail so much he was indicating 16 that the information that, in fact, had been given by 17 Mr Sheppard about Mr Lee's case was, in fact, erroneous 18 in some of its detail? 19 A. (By Mr Pugh) Yes, in terms of the circumstances of the 20 offence and the way the mis-identification came about. 21 Q. In fact, what is indicated is it may in fact enable it 22 to fall within a category similar to the Brandon 23 Mayfield case that we are also familiar with, that what 24 happened in the case of Neville Lee is that one 25 individual having initially been suspected, in part page 52 1 based on fingerprint evidence, subsequently a second 2 individual emerged as a suspect, indeed was then 3 accepted as the culprit. The fact that a true donor to 4 the print emerges perhaps makes it easier for the 5 Fingerprint Examiners to then admit to error. Is that 6 fair? 7 A. (By Mr Pugh) Yes, that's certainly the way I read the 8 explanation. 9 Q. In fact, I have been asked just to clarify something 10 that is mentioned here. The last main full paragraph, 11 in fact, if I bring it up so it can be highlighted. It 12 says: 13 "All the Nottinghamshire fingerprint staff involved 14 were interviewed and then required to sit an 15 identification competency test, which they all passed, 16 and their other casework was examined but no other 17 errors were found," is what is reported. 18 Then it said they were allowed to continue 19 practising as experts. Do you know anything about the 20 particular individuals? What is being asked of me is 21 whether there required to be disclosure thereafter to 22 the prosecution and defence that these individuals had a 23 history of one example, in other words a precedent of 24 having made a mis-identification. Do you know 25 anything -- page 53 1 A. (By Mr Pugh) I'm sorry, I don't know -- I can possibly 2 find out for you but I don't know whether there was a 3 disclosure requirement. Again, this was some time ago. 4 I don't know whether at that time the current disclosure 5 rules, certainly in England and Wales, would have 6 required that but I can certainly, if you want me to, 7 find out for you. 8 Q. We can maybe ask the questions ourselves. If we need 9 your assistance then we will do so. 10 The other point I wish to -- and this might be an 11 appropriate point to break for the mid-morning break -- 12 is that in addition to the letter which we have seen, 13 Nottingham, in fact, there was an inspection carried out 14 after this particular incident. Is that fair? 15 A. (By Mr Pugh) Yes, by two members -- well, in fact, by a 16 team from the Metropolitan Police. 17 Q. So, again, as with your own example, a 18 mis-identification having occurred, another force was 19 called in to carry out an inspection? 20 A. (By Mr Pugh) Yes. 21 Q. And provided a report? 22 A. (By Mr Pugh) Yes. 23 Q. It so happens, in fact, that what the Nottinghamshire 24 Police told us is they no longer had a copy but perhaps 25 the Metropolitan Police who carried out the inspection page 54 1 would and you, in fact, did have a copy? 2 A. (By Mr Pugh) Yes. 3 Q. If I bring that up or at least part of it we may have 4 available MP0007. 5 In fact, Mr Pugh we can take it relatively shortly. 6 On my reading of it, it doesn't in fact read as a 7 particular investigation into Mr Lee's case as such, 8 rather it's a more comprehensive review of the 9 Fingerprint Bureau in Nottinghamshire. Is that fair? 10 A. (By Mr Pugh) Yes and certainly from my recollection 11 that was what was requested, was that broader 12 comprehensive review of the operating procedures. 13 THE CHAIRMAN: I think we might have it. 14 MR MOYNIHAN: Yes. 15 So, in fact, what one will not find in this report 16 is an account of the specific error that was made that 17 led to the mis-identification of Mr Lee. 18 A. (By Mr Pugh) I can't recall from memory whether it 19 covers that ground. I certainly know that the officers 20 involved in this were given access, if you like, to that 21 material so they understood what the nature of, if you 22 like, the problem or the error was. 23 Q. Again I think the report just reads for itself at 24 section 12, if I go to page 83 and see if it comes up. 25 There is, in fact, a section that begins at section 12 page 55 1 relating to identification of crime scene marks. If one 2 reads that, we will see that the Metropolitan Police 3 commented adversely on the use of comparator screens in 4 Nottinghamshire. 5 Is that something we are simply left to read what 6 the report says rather than you having knowledge of the 7 particular practices back then? 8 A. (By Mr Pugh) I certainly have no knowledge of the 9 practices at that point. 10 Q. In that case what we will do is simply read for 11 ourselves section 12, which runs on the original from 12 pages 54 to 58. The pdf page is 83b to 87 about 13 comparator screens and I think, somewhat ironically, 14 what the authors were saying is that perhaps instead of 15 using photographic enlargements there should be use of 16 computer technology to prepare chartings and that's 17 perhaps where our case picks up in the historical 18 sequence. 19 If we stop there that would be perhaps be as 20 convenient a point to take the morning break. 21 THE CHAIRMAN: Yes. We normally take a break for 20 minutes 22 so we will sit again at 11.25. 23 (11.05 am) 24 (A short break) 25 (11.28 am) page 56 1 MR MOYNIHAN: Mr Pugh, just to resume, I wanted to move away 2 from error to come back again to a fingerprint 3 practitioner and the way that they practise. 4 We have asked a number of practitioners about the 5 approach to the non-numeric standard and the fact that 6 you have given a description of the personal threshold 7 and in fact, no number, it being dependent on a 8 particular constellation perhaps helps to explain some 9 of the responses we have had, but I note in your own 10 paper -- and this is the reason for Miss Hall being 11 here -- you have actually carried out some work, some 12 research to try to understand how it is that fingerprint 13 practitioners come to a conclusion. It's described, at 14 least in my notes, the phrase I have picked up is the 15 "tipping point" and it is mentioned in a number of 16 paragraphs. 1.6 was the first mention, then 5.3 and 4 17 in the report, it is also mentioned. 18 It's left just in the submission that this research 19 has been carried out but was in fact being sent for 20 external verification with some academic partners. 21 Therefore, I do appreciate that we may be looking at 22 research that is not yet fully peer reviewed. 23 What I did think myself think would have of benefit 24 would be to understand what you have and your colleagues 25 have gleaned from the research you have carried out in page 57 1 relation to the decisions made by individual 2 practitioners in relation to marks. I understand this 3 may be a point that is put across to Miss Hall to 4 explain the research? 5 A. (By Mr Pugh) Yes, we describe it at section 5 in our 6 submission and if I can perhaps set the scene, we were 7 interested to understand perhaps better the process that 8 a Fingerprint Examiner goes through. Our research, 9 although has some, we hope, practical outcomes, we can 10 see a situation where we will need to develop more 11 efficient proficiency and competency testing. 12 Therefore, we need known material to use within that. 13 We also were interested in the recruitment or 14 selection process of trainees. One of the practical 15 outcomes of this research already is a process which 16 includes a booklet by which we get individuals who apply 17 to be Fingerprint Experts in the Metropolitan Police to 18 complete that booklet and that's based on testing their 19 pattern recognition skills and whether, if you like, 20 they have an inherent skill towards recognising patterns 21 and particularly comparing fingerprints. 22 So our research was very much thought through, if 23 you like, with a practical outcome and I think it's 24 probably best, perhaps working off section 5, if I ask 25 Miss Hall to describe the research and where we page 58 1 currently are with that at the moment. 2 A. (By Miss Hall) The tipping point experiment, as you 3 refer to it, I think we need to make a distinction there 4 that we weren't trying to find, like, a quantifiable 5 measure of what we call sufficiency. So the tipping 6 point really had three aims. It sort of wanted to 7 examine whether particular things like superimposition, 8 pressure, movement would have an impact on the 9 fingerprint practitioner's ability to make an 10 identification and how that actually impacted on their 11 decision-making process and also we wanted to measure 12 the extent of agreement and disagreement between 13 Fingerprint Experts along a series of marks within a 14 scale of from good quality to very poor quality and the 15 other thing was to explore -- we talk about individual 16 thresholds, what we wanted to the explore as well is 17 what individual differences are and what makes up this 18 threshold and how the threshold can change within a 19 Fingerprint Expert and how that changes with experience. 20 Q. What I think I will do is the computer that is in front 21 of you, I think we will close it down and move it out of 22 the way so we will move the microphone round and give 23 you a more natural position to sit. (Pause) 24 You are having to give your evidence at a tilt at 25 the moment. Is that better? page 59 1 A. (By Miss Hall) Slightly better, yes. So I suppose the 2 tipping point experiment, we wanted to examine what 3 extraneous factors would have an impact on the mark's 4 quality to start off with and how that would impact on 5 the fingerprint practitioner's ability to interpret the 6 information within the mark. So we chose three 7 extraneous forces, for want of a better word, of what we 8 experience within a fingerprint practitioner -- what 9 would impact on the mark itself. So we chose 10 superimposition, we chose rotational movement, and we 11 also chose pressure but it was really load because we 12 didn't want to get into the nitty-gritty about surface 13 area so I'll refer to pressure. 14 We manipulated a known source mark, so we laid down 15 the mark and we made seven from good quality to poor 16 quality and seven categories within each of those tasks 17 so that the tasks being superimposition, pressure and 18 rotational movement and we had 79 Fingerprint Examiners 19 independently look at each one of those marks within 20 this task. 21 We've got -- I mean, the Fingerprint Examiners 22 varied from people who had recently got their expertise 23 to people who had been practising for 30 or so number of 24 years. So we had a whole range of abilities and 25 experience and different places where they work within page 60 1 the Bureau and where they practice most often. So we 2 had a real varied group of participants. 3 As you said earlier, we haven't published this 4 information yet so we are still in the process of 5 analysing the results but what we noted is that the -- 6 we didn't look at individuals, what characteristics they 7 were deciphering so we wanted them to look at the mark 8 as a whole, taking all the information available to them 9 and they were given comparators and magnifying glasses 10 and everything they would normally use within the normal 11 workplace and then they were offered to give their 12 initial opinion and their opinion after a comparison was 13 made. 14 We found that against the three tasks there was lots 15 of agreement between the Fingerprint Experts. All 16 Fingerprint Experts stated that they could see an 17 identification or establish an identification up to a 18 certain point and at which point Fingerprint Experts, 19 the tipping point or the thresholds then became more 20 apparent when the mark became more difficult. When I am 21 saying more difficult we mean more rotational movement 22 or more superimposition or less pressure. So we found 23 that as the marks became more complex and more difficult 24 there was less available characteristics to make a 25 comparison in the first place. page 61 1 We only used characteristics as we got the 2 Fingerprint Experts to tell us how many characteristics 3 they were able to interpret and find in agreement but 4 that wasn't the whole -- it wasn't the whole 5 identification process. Obviously, when you go through 6 an analysis you are looking at characteristics, ridge 7 flow and various other things and we were trying to 8 encourage them to do that as well. 9 So we had seven marks within each of these scales 10 and from being copperplate marks, from having nothing 11 wrong with the mark whatsoever to being completely 12 insufficient where there was very limited information 13 that they could establish so they wouldn't make a 14 comparison in the first place and that was the agreement 15 we had on these three tasks. 16 Q. So are you indicating at either extreme that's, from a 17 copperplate mark at one extreme and at the other a truly 18 awful mark -- 19 A. (By Miss Hall) Yes. 20 Q. -- there was consistency of report across all the 21 spectrum of practitioners, that they were all in 22 agreement at these extremes? 23 A. (By Miss Hall) For the total extremes, yes, there was 24 total agreement. 25 Q. However, across the spectrum, between these two page 62 1 extremes, do your results indicate variation of 2 observation among the practitioners? 3 A. (By Miss Hall) Yes, particularly for rotational movement 4 marks, at about 75 degrees or so of movement there was 5 we ended up with a scenario where there was 50 per cent 6 practitioners taking part in the study thought they 7 could establish an identification or they had sufficient 8 information to establish an identification and there 9 was -- the other 50 per cent didn't believe they could 10 establish an identification. They could find points in 11 agreement but they didn't feel that was sufficient to 12 establish an identification. 13 The rotational movements caused the most variability 14 within decision-making of the Fingerprint Experts 15 whereas for the marks with superimposition and marks 16 exposed to reduced pressure, reduced load, there was 17 more consistency between the experts' decisions. 18 Q. If I understand it correctly, what you have said is at 19 75 degrees of rotation there was about a 50/50 split 20 among the practitioners. You have also indicated that 21 as the degree of rotation had increased, the degree of 22 complexity, you were finding individual practitioners 23 you have said dropping off so that there would be some, 24 as the degree of rotation increased, some would pass 25 from the position where they could make an page 63 1 identification to the position where they could not and 2 that that was incremental up to the point of about 3 75 degrees of rotation? 4 A. (By Miss Hall) Yes, that's one of the things we tried to 5 look at. We analysed a scale, so to speak, a scale from 6 poor quality to -- from good quality to poor quality and 7 along those points on that scale we had a threshold of 8 the Fingerprint Experts but then we were also able to 9 establish the marks, because obviously the mark has its 10 own threshold value, certain marks, you know, there's no 11 way in a million years you are ever going to be able to 12 establish an identification from certain marks and we 13 wanted to establish where that was on a scale as well as 14 where the fingerprint practitioners tipped, so to speak. 15 Q. In trying to derive lessons, first of all, it does 16 indicate that at either extreme one would expect a fair 17 degree of consistency among practitioners? 18 A. (By Miss Hall) yes, very much so. 19 Q. However, because practitioners are operating to this 20 personal threshold, there will be variations among them 21 in relation to certain challenging marks; is that fair? 22 A. (By Miss Hall) Yes, that's true to say that, yes. 23 Q. Again, because you have stressed that the research is 24 still being analysed and is yet to be fully peer 25 reviewed, are you -- and I don't wish to overstretch page 64 1 your analysis so far -- have you yet been reaching any 2 conclusions based on the research about what we would 3 now understand from the variability of personal 4 thresholds of individual practitioners? 5 A. (By Miss Hall) I think what we have found is that when 6 we talk about complexity of marks and what is complexity 7 in trying to put a definition to what is sufficient and 8 what is complexity and this is taking us some way into 9 looking at what practitioners do find complex and what 10 is a challenging mark to study and I suppose the lessons 11 to be learnt from the whole of the study would be that 12 you need to have the right exposure and the right 13 training from very early on from when the person first 14 comes into the bureau and first starts practising and 15 making decisions and they do need to be -- I wouldn't 16 say challenged but they need to be making sure that they 17 can fully interpret the mark and appreciate the 18 extraneous forces that may have impacted on how that 19 mark would appear. So I think there lots of lessons to 20 be learnt regarding the training aspect and exposure to 21 complex marks. 22 Q. If I come back then and tell me about the passage from 23 you back to Mr Pugh again, if I am looking at this from 24 the point of view of the reliability of the evidence, I 25 might infer from this that if one deals with complex page 65 1 marks, in inverted commas, so taking your point about 2 not knowing what complex actually means, there is here a 3 great potential for practitioner variability and then 4 one would begin to wonder, plainly, when you are doing 5 your research, you have a known mark. You actually set 6 it up yourself so you know the source so you can decide 7 who is right and who is wrong, you know who is right and 8 who is wrong, applied in a more conventional operational 9 setting of a police investigation, the whole point of 10 the fingerprint evidence is you don't know who is right 11 and who is wrong? 12 A. (By Miss Hall) Yes. 13 Q. Is there anything emerging from this about that enables 14 one to consider the degree of caution that should be 15 applied in relation to identifications with complex 16 marks knowing that ranges of individual can differ based 17 on their personal thresholds? 18 A. (By Miss Hall) Well, I think it's quite important to 19 remember that from all the decisions that were being 20 made, none of the practitioners actually said that it 21 was from a different source. Nobody actually stated 22 that. So we are talking about -- you talked earlier 23 about shades of grey and this degree of, I'm not saying 24 uncertainty but this degree in the middle and it's 25 highlighted that for rotational movement marks in page 66 1 particular that there is some people who are a lot more 2 cautious in interpreting those marks and would need a 3 greater amount of information, so to speak, in order to 4 establish an identification. So I don't think we are 5 looking at inaccuracy levels as such here. What we are 6 looking at is the person's confidence levels in being 7 able to come out and say, "I have sufficient information 8 to establish an identification at the exclusion of all 9 others". So I think as far as the complexity of the 10 marks is concerned as well, these were highly distorted 11 marks. We're not talking about just a slight line of 12 movement. There are extreme rotational movement so 13 there's a lot of distortion, visibly distorted, so much 14 so that if you were to give a non-fingerprint 15 practitioner these marks they would say that's nothing 16 like it. It's definitely not an identification, so 17 these are extreme marks. 18 Q. What I was myself wondering is extending beyond this, we 19 have heard some evidence that would suggest that when 20 methodologies are being applied, in particular ACE-V, 21 that there might be some distinction drawn between 22 easier, as you say, copperplate marks on the one hand 23 and complex marks on the other, so complex marks would 24 require a more rigorous process of verification. 25 First of all, does your research have any relevance page 67 1 to that particular debate or not? 2 A. (By Miss Hall) It could do. It's early days yet but 3 what I would say is we've already established that what 4 might be complex to myself as a practitioner might not 5 be complex to somebody else as a practitioner. So it's 6 very difficult to have a hard line of where you draw 7 that line. It's very much interpretation. 8 Q. So the definition of what is complex is itself 9 subjective? 10 A. (By Miss Hall) Yes, it can be. 11 Q. I also note, and this may pass beyond the research, that 12 at page 23 of your summary -- I will try and find the 13 particular part -- page 23, you are talking about 14 verification. You normally have three stages of 15 verification and then it says on marks with low levels 16 of disclosed detail and no unexplained features in 17 disagreement a fourth verification is undertaken. That 18 led me to think that that might be, again, a surrogate 19 for a complex mark; in other words, there are certain 20 marks where you have an enhanced verification process. 21 Is that correct? You have an enhanced verification 22 process? 23 A. (By Mr Pugh) Yes, there is a fourth check on the type of 24 mark described. I think what Lisa's work shows is that 25 we might be able to refine that definition. At the page 68 1 moment it's, you can see, fairly broad in terms of a low 2 level of detail and I think it probably comes down to 3 within the process recognising that. 4 I think where Lisa's research takes us in terms of 5 superimposition or rotation, those complicating factors, 6 a better understanding of them and where they, if I put 7 it this way, present a risk that requires greater 8 scrutiny then that, I think, would be a good product 9 from the research. 10 Q. Do you have any operational definition of what is a low 11 level of disclosed detail or is that again a relatively 12 subjective judgment for the practitioner? 13 A. (By Mr Pugh) I pass that to Mrs Redgewell. It's not, as 14 I understand, based on the number of points, for 15 example? 16 A. (By Mrs Redgewell) No, basically we don't we look at the 17 number of points. We look at the level of detail within 18 the mark. Within the Met at the moment we currently 19 report that as a tool box 8. Within the verification 20 system, if somebody identifies a mark which they believe 21 has got characteristics in agreement but insufficient to 22 conclude identity this will undergo a full check. It 23 will be passed to an independent person for them to look 24 at. If they also conclude there's insufficient detail, 25 then the mark isn't verified. page 69 1 If they actually believe though that the mark has 2 got sufficient detail to process, they will then pass it 3 to an independent second checker and third checker. So 4 any mark within the verification chain if it is 5 highlighted to be insufficient clarity for one person, 6 that will automatically be passed to up the verification 7 chain to either confirm that or disagree with that. 8 Q. So, in a sense, a low level of disclosed detail can, in 9 fact, be as extreme as this: one individual has deemed 10 it to be insufficient for comparison? 11 A. (By Mrs Redgewell) That's right. 12 Q. One of the other factors that has been suggested to us 13 by Mr Zeelenberg who is from Holland is that again a 14 surrogate for complexity of mark may be in fact the time 15 taken by the individual practitioners. 16 Do you have any experience of that as an indicator 17 of complexity? 18 A. (By Mrs Redgewell) No. I think again it depends on the 19 expert and what one practitioner might spend two hours 20 looking at another practitioner could look at and make 21 their decision a lot quicker than that. So, no, the 22 time element I wouldn't say comes into play. 23 Q. Just before I finish this particular topic what I would 24 like to do is come back to the theme that's really 25 underpinned all of this discussion so far and that is page 70 1 the question of the statistical basis. 2 I have taken from the case of Doheny and Adams that 3 others now have -- the typescript might be slightly 4 different from the one I have -- the third proposition 5 was, from Lord Justice Phillips, the true import of the 6 resultant conclusion is accurately and fairly explained 7 to the jury. The phrase that you used when I discussed 8 this with you was that, first of all, we have talked 9 about the lack of a scale for grading it. 10 Is there also a lack of what you termed an 11 explanatory model, in other words, a lack of leeway in 12 which a practitioner can explain the factors which have 13 led to the conclusion for that individual of a match 14 uniquely to a known individual? 15 A. (By Mr Pugh) Yes, I think there is and, again, that's 16 part of our research, is finding ways, if you like, of 17 communicating the thought process and the decision the 18 Fingerprint Examiner arrives at. 19 I think in relation to Doheny and Adams this was 20 relatively early in the days of DNA so a lot of the 21 concepts and issues probably weren't understood. If I 22 draw the comparison with fingerprints which clearly has 23 been round some considerable time, we have seen and we 24 may touch on it later but we have seen different 25 practices evolve over the 100 or so years that page 71 1 fingerprints has been in existence so we have had 2 periods when, for example, the courts have been 3 presented with full marked-up charted copies and that, 4 in a sense, has kind of fallen into disrepute. I think 5 the issue, in a sense, is what does the court expect? 6 But certainly from where we sit we want to put forward 7 as simple but as robust and reliable an explanation of 8 how the Fingerprint Expert arrives at a decision and to 9 make clear that it is an opinion, it is an expert 10 opinion and that the court need to understand all that 11 goes with that. 12 Q. Again, if I draw an analogy, I found helpful the 13 discussion in the textbook Robertson and Vignaux talking 14 about eye witnesses, because when they use is the 15 analogy here when addressing what you have described as 16 the lack of an explanatory model is when one is talking 17 about an eye witness, an eye witness may be able to 18 recognise, for example, Mr Pugh sitting opposite me, but 19 might find it actually difficult to tell another what 20 the description is. So there's a difference between an 21 ability for the human eye and brain to recognise as 22 distinct from the brain and the mouth being able to 23 articulate a description of the reasoning process. 24 Simplistic though that is, is that true applied to 25 fingerprint evidence as it currently stands? page 72 1 A. (By Mr Pugh) Yes, I think it is because the Fingerprint 2 Expert has that inherent skill and understanding. When 3 they look at a latent mark they see something different 4 from probably what you and I would see which is, in a 5 sense, where their expertise and training lies. 6 I think that the issue here is how do they convey to 7 the court and give confidence that the process they have 8 gone through to arrive at a decision is transparent and 9 clear and, if you like, the jury and the court can 10 understand how that individual arrives at that decision 11 and I think it's clearly critical there is transparency 12 in that process. 13 Q. One of the reasons, following through on the eye witness 14 analogy, is plainly ultimately the test here is for the 15 jury to be satisfied of the guilt of the accused so that 16 the jury requires to assess all of the evidence it 17 hears. 18 With eye witness evidence, jurors can apply their 19 own personal experience. We have all had experience of 20 mistaking the identity of a grandmother in a shop, 21 shouting out and it's not gran, it's somebody else; 22 we've all had experience that it's difficult to 23 recognise someone in the dark; it's difficult to 24 recognise someone in a passing car if the speed is too 25 great so that we can relate eye witness evidence to page 73 1 personal experience. 2 The difficulty when one comes to DNA evidence, for 3 example, or fingerprint evidence, which is perhaps what 4 I am more comfortable discussing, is that the jury just 5 has no personal experience to assist. 6 Do you see that as a difficulty -- this is coming 7 back to the point, the lack of an explanatory model -- 8 it may just be difficult to communicate to a jury the 9 particular features that are worthy of weight to the 10 practitioner? 11 A. (By Mr Pugh) Yes, I think it is and I think that 12 model needs to take into account the way the criminal 13 justice system operates. Again, drawing on my own 14 experience as a footwear examiner I have found myself 15 with, if you like, the latent and the print being passed 16 to the jury for them to see how I arrived at my 17 conclusion and it was clear that some members of the 18 jury agreed with me and could see it very clearly and 19 others couldn't. It created a rather lengthy process 20 then of trying to give the evidence, if you like. So I 21 think there's something about how do we convey and 22 explain in an open and transparent manner how the 23 Fingerprint Expert arrives at the decision but possibly 24 avoiding drawing the jury into being the expert and, in 25 a sense, making a judgment. page 74 1 Having said that they should be able to understand 2 and they should be able to see and discern the 3 information that the Fingerprint Expert puts before the 4 court. 5 Q. That very neatly leads into another topic that we have 6 been discussing which I term demonstrability. First of 7 all, as you have said, without in any way diminishing 8 the skill of the examiner, it will need the skill, the 9 training and the expertise of the examiner to discern 10 features and to reach the conclusion on a match or not 11 but when once the skilled person has reached that 12 conclusion I'm looking at the extent to which it must be 13 demonstrable to the jury. I begin and again it makes 14 more sense to look at a complex mark because some of the 15 research as I understand it indicates, and indeed you 16 say so in paragraph 5.9. With a copperplate print what 17 research has indicated -- it is paragraph 5.9 of your 18 report, page 19. It says: 19 "The majority of the non-fingerprint volunteers were 20 able to correctly identify the clearest mark in each 21 scale." 22 So if something is copperplate one might expect a 23 majority of even lay people to be able identify. So if 24 we put that to the side, dealing with a complex mark, 25 with all the difficulties there are in defining it, one page 75 1 would take it it needs an expert to identify a complex 2 mark? 3 A. (By Mr Pugh) Yes. 4 Q. Let us say, to use Mrs Redgewell's phrase, there is a 5 series of events, first of all, would you accept that a 6 fingerprint practitioner must be able to show the juror 7 the presence of a feature which is capable of being 8 regarded as an event, must be able to show it? 9 A. Yes, they should be able to explain the process they 10 have gone through to arrive at a decision which in a 11 sense provides a reference point for the jury or the 12 court so they know, if you like, the way the Fingerprint 13 Expert has approached that. If within that process the 14 Fingerprint Expert is using features or detail, then 15 they should be able to demonstrate those to the court. 16 Q. Then if we move beyond the question of it being an 17 event, something the existence of which can be 18 demonstrated, the next question is how one interprets 19 that event as either part of the substrate and therefore 20 irrelevant or a ridge characteristic and, if a ridge 21 characteristic, a ridge ending or a bifurcation. These 22 are more matters of interpretation rather than simple 23 observation? 24 A. (By Mr Pugh) Yes and I think there comes a point in 25 fingerprint evidence or even identification evidence page 76 1 generally where the court, in a sense, will have to take 2 it on trust that the individual is explaining some 3 feature or even possibly some artefact, that they will 4 have an explanation for that but clearly it's their 5 expertise that allows them to understand that and you 6 will then, I think, move into the territory of the jury 7 will not have or the court will not have, if you like, 8 the knowledge to be able to understand, if you like, 9 exactly the basis for what is being put forward. 10 Q. So there is at the first level the most obvious point 11 that an expert ought not to be able to say to a juror, 12 "Only I with my skilled eye can see, at the most 13 elementary level, can see the particular feature. You 14 can't even see the feature believe me it's there". They 15 ought not to be able to say that? 16 A. (By Mr Pugh) No, certainly not. I think if the 17 Fingerprint Expert can see it the jury should be able to 18 see it. 19 Q. But then, as you say, not just on, because this is not 20 blind trust in relation to interpretation, the jury 21 ought to be able to be told about the skill the training 22 and all the competency structures that surround an 23 expert so that when they are hearing their 24 interpretation, the jury is able to make an informed 25 judgment about whether that person possesses sufficient page 77 1 skill to give them a reliable interpretation. Is that 2 fair? 3 A. (By Mr Pugh) Yes, certainly. The demonstration of 4 competence to the court is a very live issue and 5 certainly in England and Wales as we move into what will 6 be a regulated environment. So I think the 7 individual -- and it will be incumbent on me to make 8 sure that the staff in the Metropolitan Police are 9 competent and to be accountable for that. 10 I think there's a slightly separate point around the 11 process in that on the assumption the expert is 12 competent they should be able to explain to the court 13 the process they have been through to arrive at a 14 decision. This is also a live issue and relates to many 15 other areas of forensic science and, in fact, in the 16 area that I am particularly involved in in DNA profiling 17 there has been a significant debate now as to whether, 18 before DNA evidence is taken, the jury or the court 19 should hear a background account, if you like, of DNA 20 profiling and how it operates, if you like, in general 21 terms so that they have some level of knowledge, 22 particularly where there are complex results or partial 23 results in a case. That's not a debate that's resolved 24 but I certainly think in my experience in the last ten 25 years there have been a number of suggestions or ways page 78 1 that the court can come to a certain level of knowledge 2 of whether it's fingerprints or DNA or other branches of 3 forensic science and then hear the experts so they've 4 got some basis from which then they can evaluate, if you 5 like, or assess what the expert is saying. 6 Q. I will come slightly later to two particular parts or 7 break that down into two particular parts because, first 8 of all, there is the competency of the individual 9 practitioner but then, secondly, there is the 10 reliability of the method or the discipline that they 11 are actually applying. I will come to discuss that 12 later as a distinction. 13 A. (By Mr Pugh) Yes. 14 Q. Before I get that far, what I want to do is now to 15 return to one of Lord Justice Phillips' other 16 propositions. We have been looking at the explanatory 17 model, which was the third proposition in Doheny and 18 Adams, at least in the copy I have I was looking at 19 page 6 and 7. It is now being brought up just now. If 20 we can progress through it and I will see if I can find 21 the passage in question. If you allow me just a second. 22 On this text it is pages 4 to 5. Lord Justice Phillips, 23 in fact, at the top of page 5 is talking about the 24 cogency of DNA evidence: 25 "The cogency of DNA evidence makes it particularly page 79 1 important that DNA testing is rigorously conducted so as 2 to obviate the risk of error in the laboratory." 3 So we have talked about that talked about internal 4 procedures. I have left one element aside which is 5 where the panel is involved in maybe a difference of 6 view and we will come back to that. 7 "... that the method of DNA analysis and the basis 8 of subsequent statistical calculation should, so far as 9 possible, be transparent to the defence and that the 10 true import of the resultant conclusion is accurately 11 and fairly explained to the jury." 12 We have covered the last of those just now, "the 13 true import of the resultant conclusion is accurately 14 and fairly explained to the jury". 15 What I now want to look at is the intermediate 16 proposition -- and I appreciate this is DNA -- the 17 method of DNA analysis and the basis of subsequent 18 statistical calculation should be transparent to the 19 defence. What in fact I want to do is drop statistical 20 calculation because, as we know, fingerprint 21 practitioners do not carry out the statistical 22 calculation. The substitute as far as their techniques 23 are concerned is their analysis of the mark and the 24 print. 25 What I want to do now is to look at the question of page 80 1 documentation of working processes so that the working 2 processes would be, as it is said here, to use 3 Lord Justice Philip's "transparent to the defence". The 4 reason for looking at that is another fingerprint 5 academic, Mr Cole (an American, I understand), has 6 written about the few instances of reported 7 mis-identifications, including the McNamee in England 8 and also Brandon Mayfield in the States. He has 9 reported that, in fact, the discovery of individual 10 mis-identifications in fact tends to, he says, result 11 from rather extreme or extraordinary sets of 12 circumstance. In Brandon Mayfield, to give as an 13 example, it was the emergence or the coming to the 14 attention of the Spanish authorities of an alternative 15 source, the Algerian, and indeed as we have seen in the 16 Lee case something similar happened. 17 Do you recognise that if errors are occurring that 18 they are in fact likely to be discovered relatively 19 rarely? 20 A. (By Mr Pugh) I think it's fair to say that fingerprint 21 evidence is rarely challenged; so in the sense that 22 errors are revealed within the criminal justice process, 23 it is very rare. I would expect if that process was 24 operating effectively and someone clearly denied that it 25 was their finger-mark that was found at the crime scene, page 81 1 I would certainly hope, if not expect, that through the 2 criminal justice process the challenge would elicit, if 3 you like, that error and reveal that error. 4 Q. As we have seen your organisation can itself say, 5 because of the three incidents that you report, that 6 potential errors have been picked up as a result of the 7 strength of the internal verification process. That is 8 the first. However, you accept that error, in inverted 9 commas, can still occur. There is at least the risk 10 that, despite rigorous verification, that a 11 mis-identification could issue from any police bureau? 12 A. (By Mr Pugh) Yes. We are not infallible. 13 Q. Therefore, what I want to do is explore with you -- and 14 there has been some discussion about this -- using 15 Lord Justice Phillips as no more than the touchstone for 16 this discussion, the extent to which the working 17 practices and the thought processes are documented 18 because that, it would seem to the court in Doheny is 19 the first step of a safeguard. The working practices 20 are fully documented, they are exposed to scrutiny by 21 the defence so that the defence can actually pick up or 22 not the potential for error. 23 Is that something that, first of all, so far as 24 fingerprint practice itself is concerned today in the 25 Metropolitan Police, is the initial analysis carried out page 82 1 by your fingerprint practitioners routinely documented? 2 A. (By Mr Pugh) It's not documented in the sense of a 3 commentary on the whole process. I just would point out 4 as well in relation to Doheny and Adams the comments, as 5 I understood them, were as much about access to the 6 statistical database so the defence could understand why 7 the prosecution were putting the statistics they were on 8 it. 9 Having said that, and to come back to your point -- 10 and it's something that certainly has prompted a thought 11 in the course of our involvement in the Inquiry -- we do 12 not produce documented notes on every stage of the 13 process. We do require individuals to document their 14 decisions and I think the debate here is what purpose, 15 in a sense, do those notes serve. Certainly as an 16 internal or internally, if we wished to return and 17 re-examine a case, then the notes provide us with 18 information about the way or the process by which a 19 decision was taken. If there was a requirement from the 20 courts to produce notes, I mentioned earlier that we 21 have been through a period where, primarily driven by 22 the numerical standard, that bureaux some time ago would 23 routinely produce chartings or marked-up copies to show 24 there were 16 points. We've tended to move away from 25 that. page 83 1 So I think there is a legitimate debate about the 2 level of notes, but I think I would come at this from 3 what purpose do they serve. Certainly, to be absolutely 4 clear, if notes were required or any disclosure of any 5 of the information we have, then that will be met. 6 I would add one final caveat which I touched on in 7 our submission and it's really perhaps a broader 8 understanding of what fingerprint departments or bureau 9 do and I produce some statistics in the report if it is 10 appropriate to touch on those now. 11 We are very much in the business of serving the 12 criminal justice system -- that is our ultimate goal -- 13 but there is a lot of work we do, for example, around 14 validating identity and also at the very early stages of 15 an investigation where we produce identifications and 16 some of those are to eliminate individuals and some of 17 them do not progress through, if you like, to a criminal 18 charge or to a prosecution. So I think within the 19 debate about the level at which notes are made across 20 the whole of fingerprint work, there needs to be some 21 recognition, if you like, of the role that fingerprints 22 paly in the investigation of crime, and particularly the 23 early stages of crime investigation, as well as, if you 24 like, the totality of the administration of justice. 25 Q. If I take this again in a deliberately simplistic way page 84 1 based on conversations we have had, there could be a 2 spate of burglaries going on and it could be that, first 3 of all, there may be for the police urgency in trying to 4 bring the spate of burglaries to an end. There's a 5 premium of fingerprint work being done speedily to try 6 to arrest, in both senses -- arrest the crime, stop the 7 incidence of crime and arrest the suspect -- and it may 8 be in a case of, for example, mass burglaries that the 9 fingerprint gives the police the intelligence, the clue, 10 as to who the suspect is, they can arrest him and then 11 perhaps conventional police methods (namely, finding him 12 with the loot) might actually prove without any need for 13 use of the fingerprint evidence. 14 Is that a general scenario you are explaining the 15 fingerprint evidence can in fact, from an intelligence 16 point of view, lead the investigation? 17 A. (By Mr Pugh) Yes, that's entirely what I'm describing 18 in that it provides an investigative lead to start with. 19 It provides a name and that's probably the most 20 significant change with the growth and development of 21 the databases. Certainly you mentioned burglary and in 22 that area of crime I can say in London that 40 per cent 23 of the detections come from the identification of 24 individuals initially through the databases. So the 25 nature of the business we are in is around a suspect, if page 85 1 you like, or potential suspect identification which 2 means we are involved at a much earlier stage of the 3 process, rather than after charge where we might be 4 providing a range of corroborative evidence which would 5 sit alongside, as you describe, other police evidence, 6 for example, finding the stolen property in the 7 possession of the suspect or other information that 8 leads to a charge. 9 Q. If you will forgive me if I just explain the way I am 10 approaching this particular chapter. I obviously 11 recognise that if the courts dictate a certain 12 requirement from practitioners, then plainly the 13 practitioners must meet those requirements. I accept 14 that. 15 However, I perhaps discerned when you have been 16 talking about Doheny and Adams that there is perhaps a 17 concern from a scientist, such as yourself, that courts 18 will hear evidence relating to a science at a particular 19 stage in its development and will in fact hear evidence 20 from particular practitioners who may have a personal 21 slant, and then the authority of the court and the 22 precedent will perhaps then tend to constrain the 23 development of the science thereafter. Is that a risk? 24 A. (By Mr Pugh) Sorry, could you just expand on 25 "constraint". page 86 1 Q. I will try and repeat that again. I perhaps got the 2 impression from what you have been talking about with 3 Doheny and Adams that there is a risk or a danger in 4 case law precedent that courts will hear evidence at a 5 particular stage in the development of the science, may 6 in fact hear evidence from particular people with their 7 own personal opinions that slant the argument, and that 8 the authority of the court, the precedent, then gets 9 imposed on the science and restricts the development of 10 the science. 11 Is that a risk? 12 A. (By Mr Pugh) Sorry, I understand now where you are 13 coming from. Certainly the Doheny and Adams appeal had 14 a very significant and now proved to be long-term effect 15 on the way DNA profiling evidence is presented. It 16 effectively stopped a forensic scientist giving an 17 opinion that the saliva came from an individual and the 18 debate was driven, if you like, by the use of statistics 19 and what is called Bayesian theory, which actually was 20 subject to some adverse comment in that judgment. 21 Taking away, in effect, the ability of the expert to 22 give an opinion I think is a retrograde step and I think 23 that the far-reaching consequences of that we have ended 24 up with a form of words and a construct in DNA which is 25 sometimes quite easily, I think, misunderstood and the page 87 1 so-called prosecutor's or defence fallacy means the 2 evidence, as presented, is quite complex and therefore 3 vulnerable to misinterpretation. 4 I think perhaps as a general point we lack a process 5 of looking at developing science like DNA profiling and 6 finding a way or perhaps I could describe an explanatory 7 model for DNA that allows the weight of the evidence to 8 be put fairly and accurately to the court. But one 9 judgment can have a very significant impact, as that 10 judgment did. 11 Q. In fact, rather ironically if I continue the quote or 12 continue the passage, first of all, we see Lord Justice 13 Phillips in Doheny begins with a section called "The 14 role of the expert." If your copy is the same as mine, 15 I am looking at page 7. I can bring it up. If I go 16 back a page to page 5, it begins at the foot of page 5 17 on this particular text. I do not know what copy you 18 have, Mr Pugh. I am really looking at the section that 19 deals with the role of the expert. The judge has set 20 out three particular points that should be done relative 21 to the defence. Then he says at the foot of page 5 of 22 this copy: 23 "When the scientist gives evidence it is important 24 that he should not overstep the line which separates his 25 province from that of the jury." page 88 1 Lord Justice Phillips said: 2 "He will properly explain to the jury the nature of 3 the match (the matching DNA characteristics) between the 4 DNA in the crime stain and the DNA in the blood sample 5 taken from the defendant. He will properly on the basis 6 of empirical statistical data give the jury the random 7 occurrence ratio -- the frequency with which the 8 matching DNA characteristics are likely to be found in 9 the population at large. Provided that he has the 10 necessary data, and the statistical expertise, it may be 11 appropriate for him then to say how many people with the 12 matching characteristics are likely to be found in the 13 United Kingdom -- or perhaps in a more limited relevant 14 subgroup, such as, for instance, the Caucasian sexually 15 active males in the Manchester area. This will often be 16 the limit of the evidence which he can properly and 17 usefully give. It will then be for the jury to decide, 18 having regard to all the relevant evidence, whether they 19 are sure that it was the defendant who left the crime 20 stain, or whether it is possible that it was left by 21 someone else with the same matching DNA 22 characteristics." 23 If I stop there, having read the judgment what I 24 understand was that if the statistics had been properly 25 applied, which was one of the issues in Doheny and page 89 1 Adams, whether the statistics had been properly applied, 2 there was a chance of -- sorry, the figure that was 3 produced was 1 in 10 million and therefore I think the 4 prosecutor's fallacy was that the prosecutor inverted 5 that to say that there was a 10 to 1 on chance that the 6 accused was the suspect. Is that correct? A 1 in 7 10 million probability? 8 A. Broadly speaking, yes, it was -- without attempting to 9 try to explain the prosecutor's fallacy, I think it was 10 a misinterpretation in the evidence which overstated it 11 in favour of the prosecution. That's essentially what 12 it is. 13 Q. In fact, what is being explained by the position is if 14 it is 1 in 10 million possesses this particular strand 15 of DNA, then if one looks at the population of the 16 United Kingdom with 52 or 60 million perhaps, then what 17 it in fact comes to is that there could be six 18 individuals in the United Kingdom with that DNA and, 19 therefore, the true proposition is that the accused is 20 one of six people in the United Kingdom who could 21 possess that DNA? 22 A. (By Mr Pugh) I think it's a frequency statistic so it's 23 derived from some studies of the occurrence of the 24 different features within the DNA profile. It doesn't 25 mean that there are precisely and only six. As a page 90 1 statistic, it gives an indication that you would expect 2 to find six people with that profile. There could be 3 more, there could be less. 4 Q. If I understand it then -- and you will forgive me, I am 5 just simply reading the judgment -- if I understand it 6 correctly, what the Court of Appeal said in Doheny and 7 Adams is that they did not wish the expert to go beyond 8 the bare statistics. On my example it would be left 9 that the accused was one of six people who could have 10 left the stain, the blood or whatever at the scene. In 11 fact what the court went on to say, picking up the next 12 paragraph: 13 "The scientist should not be asked his opinion on 14 the likelihood that it was the defendant who left the 15 crime stain, nor when giving evidence should he use 16 terminology which may lead the jury to believe that he 17 is expressing such an opinion. 18 "It has been suggested that it may be appropriate 19 for the statistician to expound to the jury a 20 statistical approach to evaluating the likelihood ..." 21 In fact,we will go on now to Bayes' theorem. Just 22 stopping there, the middle paragraph I read: 23 "The scientist should not be asked his opinion on 24 the likelihood that it was the defendant who left the 25 crime stain nor when giving evidence should he use page 91 1 terminology which may lead the jury to believe that he 2 is expressing such an opinion" that means that the 3 scientist cannot say in an English court this stain was 4 left by Mr Moynihan? 5 A. (By Mr Pugh) Yes. 6 Q. He is forbidden to do that. He simply leaves the 7 statistics? 8 A. (By Mr Pugh) Yes. 9 Q. Rather paradoxically, we have, however, Fingerprint 10 Officers who actually routinely and conventionally are 11 indeed required by the court to give a unique 12 identification to say the fingerprint was left by 13 Mr Moynihan and not by any other, and that's the 14 paradox? 15 A. (By Mr Pugh) Yes and I think it's probably fair to 16 point out that DNA, in a sense, sits on its own. There 17 are other branches of forensic science that I have 18 mentioned (ballistics, footwear examination, tool mark 19 examination) where, albeit they don't relate to an 20 individual, the forensic expert will give a definitive 21 opinion as to source. 22 Q. In fact, what I was wanting to do was -- and I am sorry 23 for that long discourse -- instead of as in that case, 24 which you plainly regard as the court having said set 25 some artificial constraint on the size at a particular page 92 1 point in time, what I want to do in relation to 2 fingerprints is to stand back and say from your 3 involvement, in particular your involvement with the 4 Inquiry, looking at the type of issue we have raised and 5 you are now to come at it from your understanding of the 6 discipline, your understanding of the risks that are at 7 play, whether you yourself as the head of a bureau see 8 merit in documentation in transparency from the point of 9 view of informing the defence, the prosecution and the 10 court. So, in other words, this is not a lawyer saying, 11 "I want to impose this upon you", rather you as a 12 practitioner saying, "Yes, we do or do not see merit in 13 what is being discussed". Do you understand the 14 particular proposition? 15 First of all, if I understand you correctly, looking 16 at mass burglaries and the important role but limited 17 role ultimately in the criminal justice system, proof of 18 guilt that fingerprints are going to perform, do you see 19 it as a disproportionate imposition on a bureau to 20 routinely ask for detailed documentation of working 21 processes applied to every mark processed in a 22 laboratory? 23 A. (By Mr Pugh) Yes, effectively. From an operational 24 standpoint, if we were to document for every 25 identification we made, the ACE-V process at every stage page 93 1 of the process, we couldn't undertake, if you like, the 2 volume of work we currently undertake. The burden, if 3 you like, would be enormous. I think, having said that, 4 I understand the need, if you like, for documentation 5 but I would come back to the purpose and I think from 6 where I, if you like, currently sit that the priority 7 for me is to make sure we provide robust and reliable 8 evidence. 9 We have a range of ways we've described earlier of 10 how we go about doing that through our management 11 system, the way we train and develop staff and the 12 processes we operate, but I do acknowledge that if there 13 is a need for greater documentation then we might look 14 at that more closely particularly in the complex marks 15 we mentioned earlier. It might be appropriate to do it 16 where we come to provide evidence. Perhaps there is 17 more detailed documentation at that point, if you like 18 post charge, although having said that of course the 19 identification has already been made. 20 I think it's a very legitimate debate about the 21 level of documentation that is undertaken by Fingerprint 22 Experts. I would just, if you like, from an operational 23 standpoint make a plea to consider it in the round and 24 also to consider the purpose for doing it. 25 Q. I am grateful to you because purpose can be looked at page 94 1 from two perspectives. First of all, purpose can be 2 looked at from the perspective of the lawyer, the court. 3 The purpose can also be looked at, if I invert it, from 4 the point of view of someone who is involved in the 5 system who understands and comprehends the risks that 6 are involved and is therefore devising quality systems 7 proportionate to the risk. 8 The risk obviously here is one of mis-identification 9 and ultimately not just mis-identification of a 10 fingerprint for its own sake, it's mis-identification in 11 the sense that someone is wrongly convicted of a crime 12 they did not commit. 13 If I understand what you are saying, you would not 14 see a need for exhaustive documentation in every 15 fingerprint because in many cases the fingerprint will 16 not even require to be led in evidence? 17 A. (By Mr Pugh) Yes and certainly the process we have in 18 England and Wales, and certainly in London, of providing 19 evidence we provide what is called staged evidence. 20 Once we produce an identification, if there is a charge, 21 the process that operates in consultation and agreement 22 with the Crown Prosecution Service is that there is a 23 staged approach. By that I mean that the defence are 24 invited to, if you like, identify whether they can test 25 the identification. They might contest how the page 95 1 fingerprint got there and they may have an explanation 2 for that, but do they actually contest the 3 identification? So there is a first stage. 4 We have reproduced in our submission there is then, 5 if you like, an increasing level of information provided 6 should that identification be contested. So, in a 7 sense, there is a process that draws more information 8 out about the identification and the basis for it if the 9 defence wish to challenge it. 10 I would also make another point in relation to 11 documentation. A fingerprint identification, as we have 12 discussed, is a judgment, is a human decision and I 13 think the documentation in large part follows, in a 14 sense, that decision. It's not that there's a 15 mathematical -- documentation isn't a mathematical 16 derivation which comes to an answer that is what is 17 presented in court. So in that sense the notes or the 18 documentation is supplementary to the decision-making 19 and certainly my view is we need to make sure the 20 decisions are sound. We are certainly, you know, not 21 wanting to obfuscate or hide and if we need to put a 22 greater level of detail around that we would but I would 23 want to focus on getting the decisions right. What 24 documentation surrounds that then I think is a matter of 25 debate. page 96 1 Q. There certainly has been one line of argument that 2 underpins documentation that goes beyond transparency 3 that has suggested that documentation may be a good 4 check for the individual practitioner. Committing it to 5 writing is forcing them to see if they can reason 6 through their own particular observations. 7 First of all, do you see any merit in that as a line 8 of thought? 9 A. (By Mr Pugh) I think there is some merit and certainly 10 in some of the I understand more complex cases we 11 will -- and certainly where there is perhaps some 12 disagreement, then we will ask the Fingerprint Examiner 13 to make a greater level of documentation of what they 14 found and why they perhaps might disagree. So I think 15 there is a potential benefit there and certainly within 16 our training, trainees do fully comprehensive documented 17 ACE-Vs for scrutiny by their peers as part of their 18 progression towards competence. So we do have, if you 19 like, our own internal processes around making detailed 20 notes and documenting the process. 21 I think also there is an element here that a 22 Fingerprint Expert -- again, I will come back to it, it 23 is important to get the decision right. If I use the 24 example of, if I try and choose one, it may be a trivial 25 example, but if you had completed a crossword ten years page 97 1 ago you might have approached that in a certain way and 2 you arrive at the answer, which is the crossword is 3 complete. Ten years on you might do the same crossword 4 and again complete it but via a different route but both 5 answers are right. 6 I think the important thing, if there was to be a 7 review it would not be a question of simply following 8 the thought process that, if you like, was there 9 originally, I would still want an independent, if it was 10 after the event, an independent review of a decision to 11 go back round in a sense the ACE-V process not in a 12 sense to try and follow the documented notes. So I 13 think that's still wrapped up in the purpose of a 14 greater level or a lesser level of documentation. 15 Q. Again so that I do not misunderstand the context, as you 16 have yourself said in Doheny and Adams, the point about 17 disclosure was the computer printouts or the printouts 18 of the DNA profile had to be disclosed because in the 19 various samples some of the strands were duplicated and 20 that duplication affected the manner in which the 21 statistical probability was properly to be calculated. 22 Is that correct? 23 A. (By Mr Pugh) Yes, in DNA profiling there is far more 24 documentation in the sense that it's the product or 25 results from various analytical equipment. Behind that page 98 1 is again a whole set of information about the databases 2 and the statistical calculations that arrive at the 3 probabilities that I used. I think the clear message 4 from Doheny and Adams is the defence should have open 5 access to that information and should be able to test it 6 and examine it, however they see fit. 7 Q. Applied to fingerprints to the true analogy here is that 8 the fingerprint practitioner works from either a lift or 9 an image of a print in situ so, therefore, the core data 10 they work from is an image and the answer would be that 11 that image ought to be readily accessible to a defence 12 fingerprint practitioner. That would be the true 13 analogy with DNA, that the image ought to be available? 14 A. (By Mr Pugh) Yes, absolutely any material that the 15 Fingerprint Expert has used or relied on to arrive at a 16 decision should be made available to the defence. I 17 included in our submission the disclosure index that we 18 use. I'd have to say it is slightly opaque because it 19 is a rather short document but it lists the entire 20 contents of the written information that is available 21 and that's part of normal disclosure practice for us. 22 Q. So you would be disclosing, therefore, the image that 23 the practitioner has worked on for the fingerprint. You 24 would also be disclosing the ten-print form that has 25 been used and that would be the analogy with Doheny and page 99 1 Adams? 2 A. (By Mr Pugh) Yes. To be clear, we do not do that 3 normally but if we were required to do or there was any 4 challenge to the identification, the disclosure index 5 would effectively have an index of all the documents 6 held on the file and if necessary, and as we say in our 7 submission, they would have been made available to the 8 defence. 9 Q. Again, I am just trying to understand it from the 10 purpose perspective that you see and the risks that are 11 at play. If there is available to the defence the base 12 material, the image and ten-print form, do you yourself 13 see, understanding the risks that are at play here, a 14 need to supplement that by having available for the 15 defence the working notes of the particular thought 16 processes of the individual practitioner within the Met 17 who has reached the identification or is it premature to 18 have such notes available at that stage? 19 A. (By Mr Pugh) I think all notes and material relied on 20 should be made available. It is a moot point whether 21 the defence or independent expert is arriving at their 22 own view or seeking to follow, if you like, the process 23 that the prosecution rely on. I think there was a case, 24 it was in I think it was Australia where they have a 25 numerical standard and the expert for the defence page 100 1 contested it as he could not find, I think it was either 2 16 or 12 points, whatever the standard was, but actually 3 the expert agreed it was an identification. So I think 4 that goes to the role of the defence or independent 5 expert in looking at, if you like, the material the 6 prosecution relies on but absolutely, as a point in 7 principle, any material, photographs, images or 8 documentation should be made available to the defence. 9 THE CHAIRMAN: But how much detail is actually given? Let 10 us say in a contested case, the examiner would make a 11 deposition, presumably before the criminal trial and 12 would that set out just, "I found this to be a match", 13 or whatever the expression is or would it go on to say, 14 "I found the following points of similarity"? 15 A. (By Mr Pugh) It is actually relatively little 16 documentation. We give examples in our submission. The 17 most complex statement, if you like, where there is a 18 challenge will detail the number of characteristics, for 19 example, and it will describe the process. The 20 disclosure index will list all documents that are 21 available but to be clear there is no more volunteered, 22 if you like, at that point of disclosure. The process 23 works that if it is contested then normally there would 24 be a defence expert engaged who would then visit the 25 Bureau and the information would be made available to page 101 1 him or her but, if you like, there isn't a proactive 2 release of all of that information. 3 THE CHAIRMAN: The reason I was asking was that if a case is 4 contested I can see the argument that the defence expert 5 should look at it not influenced at all by the argument, 6 if that is the way to put it, of the prosecution 7 examiner but let us say that the defence expert is not 8 satisfied, it might be that by seeing the argument of 9 the prosecution expert they could be persuaded to the 10 view that the prosecution expert was right without the 11 need for it to be all explained in court but in advance 12 of a court hearing? 13 A. (By Mr Pugh) Yes, I find myself in that position, not in 14 the fingerprint arena, where the judge has directed that 15 I go away and explain why I've arrived at my decision 16 to -- well, actually in that case, a number of experts 17 for a number of defendants, so will direct effectively a 18 case conference of experts, essentially sending us away 19 to come back with a view as to what we actually all 20 agree on, what are the issues we agree on and where do 21 we disagree. I think that type of event takes place at 22 different points. Sometimes it's before trial. I have 23 had it happen within the trial. 24 I think we don't really have, certainly in England 25 and Wales, an established mechanism for doing that so it page 102 1 does happen but it's not perhaps structured or there 2 isn't a clear process that, if you like, directs it. 3 THE CHAIRMAN: Thank you. 4 MR MOYNIHAN: So if I understand it correctly, Mr Pugh, as 5 you say, working through the stage process there may be 6 intelligence goes out to alert the police to the fact 7 that Mr Moynihan is the burglar. That may in fact be 8 documented only to the extent that the officers who have 9 actually made the identification will record on 10 paperwork they in fact did make the identification of an 11 a certain digit by reference to a certain mark on a 12 certain day but that would be about the limit of it? 13 A. (By Mr Pugh) Yes. 14 Q. The Fingerprint Bureau may hear nothing else if, for 15 example, Mr Moynihan is caught with the loot in his car 16 speeding away, then that may be the end of it. If, 17 however, the prosecution decides to go to court, to 18 charge and to rely on the fingerprint evidence as a key 19 part of its case, then it would be reported back and, if 20 I understand it correctly, there would be a second level 21 report then prepared for court but even at that stage it 22 may not contain much in the way of detailed reasoning. 23 A. (By Mr Pugh) No. 24 Q. Would that be correct? 25 It may simply state the conclusion and be certified page 103 1 by a number of practitioners as the conclusion of their 2 examination; is that correct? 3 A. (By Mr Pugh) Yes, and it needs to be recognised it is 4 within an agreed process in England and Wales where we 5 are -- it's an agreement, essentially, with the Ministry 6 of Justice, the Crown Prosecution Service, that that is 7 all they require at that point. 8 Q. Then the intermediate stage is the defence would, 9 depending on the line of defence, the defence would have 10 the opportunity to have your basic material examined by 11 an expert and it's at that stage there may be the 12 potential for a challenge and in the event of a 13 challenge, and only in the event of a challenge, do your 14 practitioners then prepare more detailed notes and 15 perhaps graphics for court? 16 A. (By Mr Pugh) Yes, that is broadly speaking it is 17 basically inviting the defence are they going to contest 18 the identification evidence and it's through what is 19 called the defence letter. So it is a formal part of 20 the process. So they are effectively being asked to 21 agree that, in a sense, at an early stage in the process 22 and at that point they either agree it or they don't. 23 If they don't agree then, as you describe, there's a 24 second stage and, potentially, a third stage statement 25 produced. page 104 1 Q. I can understand from an operational point of view the 2 burdens that would be placed on an organisation by 3 having documentation at an earlier stage. 4 We have heard some evidence about psychological 5 processes called confirmation bias and other 6 psychological processes such that where an individual 7 has made an identification and then revisits the matter 8 what he is likely to do or at risk of doing is seeing 9 more points in favour of his identification than he saw 10 earlier and less likely to pick up error so the argument 11 would be that what the practitioner should do to avoid 12 any confirmation bias later is to document their 13 thinking at the time so that, if it does come to a 14 challenge, others can look back and can say, "Well, you 15 made a mistake because there in your contemporaneous 16 notes I can see where you went wrong". 17 From your depth of experience are you indicating 18 that or do you have any sort of reservations yourself 19 about the need for contemporaneous notes and, if so, in 20 which types of case? 21 A. (By Mr Pugh) As a forensic scientist I would make notes 22 at the time of my examination and that was standard 23 practice but those notes were recording the detail of 24 exhibits. They were recording a whole range of, if you 25 like, issues around the examinations I was being asked page 105 1 to conduct. 2 The fingerprint examination is much more focused. 3 It can effectively be a lift taken from a crime scene 4 and a straightforward comparison. In a sense, the audit 5 trail of the decision-making process might be helpful 6 but I think I would still come back to I would focus on 7 getting a decision right in the first place and not 8 being in a position where we need, in a sense, to go 9 back over the ground. 10 Also, I just add in terms of the production of 11 evidence -- and it may just be worth, again, just for an 12 idea of scale, I produced in our submission the volume 13 crime information in the Metropolitan Police as a scale 14 point. It's on page 26. We received around 28,000 15 cases. 16 Q. If you allow me just a second I will bring up page 26 so 17 everyone can see. It is MP0008, page 26. What we will 18 do is just highlight the particular page. 19 We can see the volume of work that you are talking 20 about. 21 A. (By Mr Pugh) The three sections, again this isn't 22 necessarily directly related to the amount of time and 23 activity but just to give you an idea of the volume and 24 the range of what -- and the way that fingerprint 25 examination is used. It is the main means, and page 106 1 sometimes I think this is overlooked, of verifying the 2 identity of individuals. So anyone who comes into 3 custody is checked on a machine called LiveScan to 4 verify their identity and it's the person, if they are 5 answering bail, that is the means by which we do that, 6 in the sense we don't rely upon name or appearance. 7 Fingerprints is used very much to manage identity and 8 it's unusual and, in a sense, unique in that, within 9 forensic science. 10 I've included here the volume crime information and 11 you can see -- 12 Q. If I just stop you there. So that we can understand the 13 scale of the work within your Bureau, the total amount 14 of fingerprints received, just to verify the identity of 15 individuals, is over 300,000 per annum? 16 A. (By Mr Pugh) Yes. 17 Q. Of which you search a shade under 300,000, to give an 18 idea of the scale? 19 A. (By Mr Pugh) Yes. This is very much -- this is nothing 20 to do with crime, in a sense. This is to do with 21 individuals who pass through custody in the Metropolitan 22 Police in the course of a year and just for reference 23 the verification of identity can be -- well, it can be 24 verified or unverified. So, effectively, the 25 identification person to person is made, more often than page 107 1 not, without a human intervention, albeit behind this 2 there is a group of people who work around the clock to 3 support that identity management function. 4 The second two, and I have particularly focused on 5 volume crime, you can see there are, in terms of the 6 number of cases in which -- and this would be burglary 7 and acquisitive crime, vehicle crime -- in 8 which finger-marks or latent ridge detail is recovered 9 from those crime scenes and submitted for either search 10 against the database or comparison against a nominated 11 suspect. So there's 28,000 cases coming in to the 12 Metropolitan Police Bureau in a year. Of those we 13 generate 6,000 which we would call suspect 14 identification. So this is where we are putting, as I 15 described earlier, a name back to the investigator, 16 identifying that ridge detail found at the scene of a 17 burglary. 18 We also, if you like, have individuals put forward 19 for the purposes of elimination within those crimes as 20 well. So, again, there's a significant portion of 21 identifications that, in a sense, don't result in a 22 criminal charge but are relevant to the investigation. 23 So we are performing a function there of eliminating 24 individuals. 25 In fact, in the more serious crime, particularly page 108 1 homicide, perhaps the majority of the work can sometimes 2 be just simply eliminating suspects given that we've got 3 the fingerprint or the finger-mark of the individual at 4 the crime scene. So there's a large chunk of work, if 5 you like, that's around eliminating people from 6 inquiries because of the power of, if you like, 7 fingerprint examination. 8 To give you, again, an idea of the scale in which we 9 are being asked to prepare evidence, so we are into 10 probably post-charge or beyond here, that year was in 11 around 770 cases. So I think that reflects probably the 12 acceptance in the main and the lack of fingerprint 13 evidence being contested. 14 It is accepted in the majority of cases, although 15 there were 770 in which we were asked to provide 16 statements and that would have included the first line 17 statements. This is not 770 cases that were contested 18 but it's still a relatively small proportion that even 19 get to that first stage of preparing, if you like, a 20 statement. 21 Q. So, as you say, just looking at volume crime, the 28,000 22 or so resulted in suspect identifications, just over 23 6,000? 24 A. (By Mr Pugh) Yes. 25 Q. Then the eliminations, legitimate access page 109 1 identifications, 3,700? 2 A. (By Mr Pugh) Yes. 3 Q. That's the sort of scale. Of that, almost 10,000 then 4 identifications of one sort or another made, only 770 5 actually converted into, in a sense, any evidential 6 evidence being led -- any evidence being led at all? 7 A. (By Mr Pugh) Well, those are, the 770 cases in which, in 8 a sense, we have been requested to prepare evidence. 9 Going back to our earlier discussion it may well be that 10 in a large number of the 6,000 cases, having put forward 11 a name, as you described it, the police may have 12 arrested the individual, found property in his or her 13 possession, have other evidence, the individual may have 14 pleaded, there may be a whole host of reasons why it 15 doesn't go on for evidence. 16 Q. Therefore, we see that in fact of the 10,000 or so 17 identifications it's under 7 per cent or about 7 18 per cent in which even statements are requested from 19 you? 20 A. (By Mr Pugh) Yes. 21 Q. Of those, that there will be a smaller subset where 22 there would be a contested identification? 23 A. (By Mr Pugh) Yes. 24 Q. I am not going to ask you for an absolute number but can 25 you give us any indication of the extent to which the page 110 1 Metropolitan Police experiences a challenge to the 2 identification? 3 A. (By Mr Pugh) I think I might ask Mrs Redgewell to see if 4 she can shed any light on that. 5 A. (By Mrs Redgewell) I haven't got any statistics but we 6 do prepare -- the majority of the evidence we prepare is 7 stage 1 and stage 2 and the less degree stage 3, which 8 is more complex evidence. Another stage that we prepare 9 the -- to employ an actual independent expert to 10 challenge it, very, very infrequently. 11 Q. So very, very infrequently. It's the sort of thing we 12 are getting down to such a low number it is actually 13 very difficult to give a correct answer to how many. 14 A. (By Mrs Redgewell) We probably have got statistics to 15 support that but I don't know what they are. 16 A. (By Mr Pugh) Would it be fair to say we are into single 17 figures per year? 18 A. (By Mrs Redgewell) I would think so, yes. 19 THE CHAIRMAN: Do the statistics in the second bracket where 20 you get 28,000 and you identify just over 6 and 21 eliminate or whatever another 3,700, does that mean that 22 of the balance that's only about a third, something 23 around a third, that you can identify or use at all? In 24 other words, are the vast majority of them unusable 25 prints? page 111 1 A. (By Mr Pugh) They are either unusable or unidentified. 2 THE CHAIRMAN: Yes, as you cannot break down between those 3 two. 4 A. (By Mr Pugh) There are obviously -- there's an important 5 distinction here with DNA, with the national fingerprint 6 system, the algorithm is not 100 per cent efficient so 7 it may be they are on the system but it doesn't find 8 them or it may be the individual has not been arrested 9 previously and therefore their prints are not held so it 10 remains an unidentified mark. 11 THE CHAIRMAN: Yes, thank you. 12 MR MOYNIHAN: I will leave to the side something I will come 13 back to, at least in my notes, about image quality as 14 feeding into this. I will conclude by lunch maybe just 15 by starting a topic but we may be able to finish it, the 16 whole question of probability analysis. 17 First of all, do I take it that so far as statistics 18 have come in and probabilities, first of all, as matters 19 currently stand the probability calculations are 20 themselves dependent upon the accuracy of the 21 observation of a Fingerprint Examiner? 22 A. (By Mr Pugh) Yes, the current approach is to use a 23 statistical or probabilistic approach to fingerprint 24 examination and we describe this in some detail. They 25 rely on looking at groups of features. So in a sense page 112 1 they are simplifying the fingerprint image. Unlike the 2 human brain, the computer can't assess holistically the 3 image. So the work and the research that has been done 4 has looked at what I describe as constellation of 5 features and particularly small numbers of features and 6 then sought to calculate the frequency with which those 7 constellations of features occur within a database and 8 from that frequency then to generate a statistical 9 probability that can be used or could be used in support 10 of that fingerprint evidence. 11 Q. If I understand it correctly though, if -- if -- a 12 source of error comes about because a fingerprint 13 practitioner is reporting observing a point in agreement 14 which another expert would say is not in agreement, 15 probability analysis does not assist with that 16 particular dispute? 17 A. (By Mr Pugh) No, it certainly doesn't and I think that's 18 where potentially it is susceptible to the variations 19 between individual experts and the features that they 20 mark up. Clearly, if someone marks up an incorrect 21 feature you could generate a statistic which would be 22 meaningless. Likewise, of course the computer doesn't 23 recognise differences. So if you had a small number of 24 features in agreement you might be able to generate a 25 statistic of say 1 in 100 million but actually somewhere page 113 1 else in the mark there are differences which means again 2 that statistic is meaningless because it's actually 3 not -- it was actually an elimination. 4 Q. When Mr Chamberlain gave evidence it would seem that 5 what he was thinking was that probabilistic analysis 6 would tend to have value in supplementing evidence that 7 is available by reference to low minutiae marks rather 8 than dealing with areas where fingerprint practitioners 9 would conventionally feel comfortable giving evidence. 10 If I understand what you have written from pages 31 11 to 33 and just picking up what you last mentioned there, 12 if what is being done is to work with a very small 13 portion of a fingerprint so, therefore, there is 14 relatively little detail actually observable, you might, 15 in fact, get as a result of a probabilistic analysis a 16 very high probability based on the incidence of the 17 observed features but it comes with the risk that just 18 off screen, so to speak, there are differences that have 19 not been left in the impression. 20 Is that something that you see as a risk? 21 A. (By Mr Pugh) Yes, I think very much so and particularly 22 if you are dealing with what we have described as 23 complex marks with relatively few features. I think you 24 could, at worst, create a veneer of robustness in a 25 sense by producing a statistic when in fact there could page 114 1 well be differences present and the mark is effectively 2 an exclusion. 3 Q. If I look at, it is in fact page 33 of your report, 4 again, it was commenting on Robertson and Vignaux, I 5 skipped over part in the middle. You are talking about 6 a myth: 7 "There is a myth that there are many thousands of 8 cases where there are similarities based on limited 9 ridge detail that do not reach the threshold for 10 identification. [Your] experience is that it is not the 11 case and where someone commits a crime they will leave 12 sufficient ridge detail to establish an identification 13 then recourse to imaging or chemical development will 14 increase the information sufficient to complete the 15 three stage verification process and provide 16 identification. We accept this may be a self-fulfilling 17 prophecy as forensic staff do not look for small areas 18 of ridge detail but as one of our examples of evidential 19 court graphics shows at appendix G a very small area of 20 ridge detail can be enough to establish an 21 identification. It should also be noted that each 22 individual offers at least ten opportunities ... to 23 establish identification." 24 Then on the third point this refers to the use of 25 the non-numeric and we go on. So you are not convinced page 115 1 that at a practical level there is, in fact, much 2 fingerprint evidence that is there that has not, in 3 fact, been picked up? 4 A. (By Mr Pugh) I think I am not convinced there's a 5 massive amount of potential evidence we're missing for 6 the reasons I outline. As I say, I do acknowledge 7 though that, as I say, it may be the Scene Examiner 8 might not collect small amounts of ridge detail but 9 Scene Examiners are not Fingerprint Experts so they are 10 directed if they think they can see some ridge detail to 11 take it. So I'm still struggling to see where there 12 might be a, as attractive as it would be, a seam of 13 material in fingerprint examination that would give us a 14 lot more identifications. Unfortunately, I think it's 15 not the case. 16 Q. Going beyond that, even if there were a volume of marks 17 not picked up because they are small in area or small in 18 clarity, they would carry with them the risk that the 19 statistical model may in fact not have attached 20 sufficient weight to a difference that, as I have said, 21 is just off screen and, therefore, you might get a 22 misleading result? 23 A. (By Mr Pugh) Absolutely and if you go down to very low 24 levels of features, three or four, I'm sure we could 25 find examples of where that constellation of three page 116 1 points is found in more than one fingerprint but if you 2 only see a very small part and you can't see the whole 3 then I think you are in a difficult place attributing a 4 significance to that. 5 MR MOYNIHAN: Sir, that would be an appropriate point to 6 adjourn. 7 THE CHAIRMAN: Very good, we will sit then at 1.55. 8 (1.05 pm) 9 (Luncheon Adjournment) 10 (Afternoon session) 11 (1.55 pm) 12 GARY PUGH, LISA HALL and JUNE REDGEWELL 13 Examined by MR MOYNIHAN (continued) 14 Q. I just wanted to pick up the question of probability and 15 one other feature of it that we haven't discussed and 16 that was the question of patterns in fingers being sort 17 of random or not random compared with other matters that 18 you mentioned as being features of identification 19 evidence. 20 Can you explain what the subtlety of this particular 21 point is. 22 A. (By Mr Pugh) Yes, in a fingerprint there are ridge 23 endings or bifurcations, features which we would find in 24 probably all of our fingerprints; whereas in other 25 forensic areas like ballistic examination or footwear page 117 1 the comparison there in the definitive opinion relies, 2 effectively, on the production of random damage either 3 to the sole of the shoe through its normal use or to a 4 cartridge case or bullet that's fired from a gun and in 5 that process damage will be caused, minute scratches to 6 those various elements, allowing you to link it back to 7 that gun. 8 So the distinction that I'm making is the features 9 in a fingerprint are not random in that sense. They 10 occur possibly in all our fingerprints. We all have a 11 ridge ending or bifurcations, whereas the damage on the 12 sole of a shoe, in theory one point of damage could be 13 unique to a shoe. 14 THE CHAIRMAN: Just to interrupt you for a moment there, if, 15 for example, in ballistics you are told that a bullet 16 must have been fired from a particular weapon because 17 the rifling marks on the bullet correspond to those of 18 the weapon or in a test round fired from the weapon, is 19 that not pretty close to the fingerprint or is the 20 rifling not as particular, as it were, as the 21 fingerprint is, specific to one weapon? 22 A. (By Mr Pugh) You are correct. There is a similarity. 23 There are gross features, as you describe, in the 24 rifling and perhaps where the firing pin position is to 25 certain types of gun so that gives you, in a sense, a page 118 1 gross -- it's that type of gun but to link it to that 2 specific gun you would need to examine the minute damage 3 that is generated by that gun when the cartridge case or 4 the bullet, if you like, is fired and that is done by 5 looking at minute scratches around -- it is the 6 randomness, if you like, of the production of the gun 7 that they will always be manufactured in a slightly 8 different way so the ejection mechanism will work 9 slightly differently and will generate slightly 10 different damage characteristics on a cartridge case 11 when it's ejected. 12 THE CHAIRMAN: But at some stage in the examination the 13 expert is comparing the marks left by the rifling on the 14 round with a test round fired in a particular weapon? 15 A. (By Mr Pugh) Yes, clearly they would look at the gross 16 features which might narrow it down to a particular type 17 of gun because the marks you are looking at you know are 18 produced by the ejection mechanism in a Glock, for 19 example, but to narrow it down to a specific Glock you a 20 looking at the, as I say, the damage caused by the 21 particular ejection mechanism. 22 A similar analogy in footwear would be there are 23 footwear patterns that have bocks or circles in them. 24 Again, it's a gross feature which you might use at the 25 first level of comparison but to make the definitive page 119 1 identification you would be looking at damage that is 2 specific to that shoe or, in the case of ballistics, to 3 the cartridge. 4 THE CHAIRMAN: Whether it be wear or something of that sort? 5 A. (By Mr Pugh) Yes, or wear, yes. 6 THE CHAIRMAN: Thank you. 7 MR MOYNIHAN: Thus far I have been looking at probability in 8 particular in relation to low minutiae, in effect, as a 9 substitute for conventional fingerprint evidence. 10 If I change tack now and go back to the theme of 11 this morning, which was that fingerprint evidence could 12 be understood to be based on an implicit statistical 13 foundation, the theory of it is the likelihood of a 14 match between a certain constellation of features and 15 the identification will occur where the likelihood is 16 that that constellation of features can only be found in 17 the one individual who is, therefore, the source of both 18 mark and print. So it's an implicit likelihood or 19 statistical model, albeit not articulated in such terms. 20 Do you see, at least as a reassurance and perhaps a 21 means of explanation of evidence to the jury, any 22 function for statistical evidence as reinforcing the 23 conventional opinion of a Fingerprint Officer, in other 24 words we would have a Fingerprint Officer who has 25 carried out a conventional analysis who is speaking to page 120 1 having observed a sufficiency of characteristics in 2 sequence and agreement consistent, in his or her 3 opinion, with an identification who would then go on and 4 use as the explanatory model, which is currently absent, 5 some statistical research to say that the incidence of 6 this particular feature in a mark is whatever it may be 7 and give some statistical value then to underpin their 8 professional judgment? Do you see a function for that? 9 A. (By Mr Pugh) I mentioned earlier some of the risks of 10 looking at small numbers of features in a limited area 11 of detail. The current approach doesn't look for 12 differences so if we accept those points. I think there 13 may well be a role -- and I might ask Miss Hall to 14 contribute to this as well as she has thought about this 15 in connection with research we are doing -- there may 16 well be a role to use statistical frequencies or 17 evaluation to supplement the opinion or to support the 18 opinion of the fingerprint examiner or even help them 19 arrive at an opinion by looking at, if I call it the 20 rarity of certain groups of characteristics. 21 In a sense, what -- the Fingerprint Expert will have 22 some inherent knowledge of how rare things are and they 23 can give examples of quite rare constellations. Of 24 course they can't hold all of those in their head and 25 the advantage of an algorithm or a statistical approach page 121 1 to that means you have got an, in a sense, a reference 2 database of those types of constellations and that may 3 be something that is of value and could be used. 4 Perhaps if I ask whether Miss Hall wants to add 5 anything to that? 6 A. (By Miss Hall) Yes, I agree with what Gary says there. 7 I think -- I suppose in a way you could look at 8 statistics to be used as a sort of objective measure or 9 an objective value towards experience of an examiner. 10 For example, if there's a particular configuration 11 that's quite unusual and in your experience you don't 12 come across that quite so often, then if you have -- and 13 that constitutes some of your coincident sequence, then 14 you might be able to offer an opinion of identity on a 15 smaller number of characteristics because it is quite 16 rare within the populations of how many marks you have 17 compared. So I think it could add a value, not 18 necessarily to support your decision but to enable the 19 jury or the courts to understand your decision because 20 it could have an objective value to rareness of 21 occurrence, so to speak. So I don't think it would help 22 you make your decision necessarily but I think it's more 23 of a descriptive or an objective explanation as to why 24 your intuition or your experience says that's a rare 25 characteristic or that's a rare coincident sequence. page 122 1 Q. What I am going to do now is a complete change of topic 2 away now from probability. I have ended with 3 probability. I want to go back now to the question of 4 disclosure. 5 Where we had left disclosure or where we had left 6 the discussion was much earlier on you might have 7 occasionally a panel. You have had it occur once. 8 Have you ever had to consider what the disclosure 9 position would be in relation to a panel decision, let 10 us say, agreeing an identification where one of your 11 fingerprint practitioners has, at the very least, been 12 doubtful about the making of an identification? Have 13 you given consideration to the disclosure requirements 14 in that context? 15 A. (By Mr Pugh) Yes, we have and I think prompted by the 16 Inquiry in a way to think about the possible scenarios I 17 think, first, as a point of principle, that if a 18 Fingerprint Expert in the Metropolitan Police had a 19 different view about an identification or particularly 20 felt it was unsafe, we need to find a way of disclosing 21 that to the courts. 22 There is an element here of we deal with, if you 23 like, issues like that from within, they are dealt with 24 in a sense in a professional context. At the end of a 25 dispute, if all parties understand but might agree to page 123 1 differ, but I think where an individual almost as a 2 matter of conscience felt something was wrong and they 3 had an opposing view -- and I can think of a couple of 4 scenarios where that might happen -- I think my view 5 would be, and I would have to acknowledge this is not 6 written in our procedures, but my view would be they 7 should effectively write a statement and make that known 8 to the prosecuting authorities and the court. 9 Q. My attempt to rationalise this had been that I can 10 understand a corporate view, if that corporate view was 11 the end result in itself. In other words, if the 12 Metropolitan Police was asked to reach a definitive 13 conclusion is this mark Mr Moynihan's or not then you 14 might come to a corporate view but, in fact, 15 fingerprints are not the end result. They are a means 16 to an end and the end result is the guilt or innocence 17 of the accused. A corporate view, it might at least be 18 thought, is potentially misleading because what it has 19 not done is disclosed an element of doubt that it's for 20 the jury to assess, hence on that reasoning the bias 21 might be in favour of disclosure of the doubt. 22 Is that the line of reasoning that you follow? 23 A. (By Mr Pugh) Yes, perhaps rather more bluntly than 24 (inaudible) it might subvert the role of the court in a 25 sense if we are effectively then arriving at a corporate page 124 1 view of which there may be some dissent within that. I 2 would feel very uncomfortable if someone felt strongly 3 and there was a corporate pressure for them not to, in a 4 sense, have their voice heard. 5 I think there is another consideration to that which 6 we need to find a way of doing that so that the 7 individual, if they clearly disagree and that is 8 something that, in a sense, needs to be tested in the 9 courts then so be it. I think where we had perhaps a 10 disagreement in the process, where instead of trying to 11 resolve that internally and within the professional 12 environment there was effectively an automatic statement 13 produced by the person who dissents. I would have a 14 concern about that because it doesn't allow us in a 15 sense to then resolve that matter or even understand it 16 internally and, actually, I think it might then be a 17 deterrent because you would be putting people in a place 18 where they'd instead of raising that issue and having 19 discussed, hopefully in a positive and supportive way, 20 you would be putting them in a position where they have 21 to effectively write a statement and then stand by that 22 and there wouldn't be an internal discussion. 23 So I think the process of how that happens, 24 acknowledging that an individual who wishes to make 25 their dissenting view known should but I think the page 125 1 process around that needs to be carefully considered. 2 Q. In other words, it would seem that one of the recurring 3 themes in your evidence is that subjective variations in 4 view, which are inherent in the process, should be 5 managed constructively internally as part of a properly 6 accredited ACE-V process with quality assurance around. 7 You see that as much more important; is that correct? 8 A. (By Mr Pugh) Yes and I think added to that is, again, 9 under the umbrella now of regulation of forensic 10 science, is I think now an accepted requirement of 11 external audit. Currently that's more of an audit of 12 the system but I can see a place for a technical audit 13 so, in a sense, there is another external view as to how 14 the system we are operating is functioning and is it 15 functioning inappropriately. 16 Q. Just following through, just on dealing with it 17 internally, what you are wanting, in effect, is for 18 these things to be kept low key so that practitioners 19 don't feel that they are getting into a confrontation 20 with colleagues if they are simply trying responsibly to 21 sort out differences of view low key, but if at the end 22 of the panel process somebody feels strongly enough to 23 still stand out against the stream then at that stage 24 there would be an obvious requirement for disclosure? 25 A. (By Mr Pugh) Yes, that's the balance I'm seeking to page 126 1 strike. 2 Q. But it may be at some immediate stage the person who has 3 had a difference of view feels comforted by the fact 4 that his view has been considered. Others may have 5 taken a different view but he can see it and, therefore, 6 allows his dissent to drop? 7 A. (By Mr Pugh) Yes, it may be a training requirement. It 8 may be part of their development. 9 Q. The second last topic I wanted to ask you about was a 10 question of image, image quality. We have plainly 11 talked about marks being of variable quality, 12 practitioners' personal thresholds being variable. 13 We have also had some evidence in the Inquiry about 14 image quality and the fact that practitioners can reach 15 one conclusion based on one image and a different 16 conclusion relative to a fingerprint based on a 17 different image of the same impression. 18 Is that a feature of practice that you are already 19 familiar with, that the quality of the image of a mark 20 may itself be variable and lead to differences of view 21 in relation to the fingerprint comparison? 22 A. (By Mr Pugh) Yes, it is as a product of what I might 23 call image processing. For example, if you have a mark 24 on a printed or coloured background you may use a 25 variety of imaging tools to enhance, effectively, the page 127 1 image and by that I mean you are able to see more 2 information or you are able to effectively subtract the 3 background away from the image. 4 However, the way I would see that process operating 5 is if you start with your mark and you have a certain 6 amount of information, you might then use a range of 7 imaging tools to get more information out and, for 8 example, a sheet of paper that was red on one side, blue 9 on the other, you would use different imaging and 10 lighting conditions to obtain all of the information 11 from that mark. So I think it's a successive process of 12 trying to get to the point where you've got all of the 13 information in a sense extracted from that mark and 14 that's the sort of step-wise process we would go 15 through. So I think it's, in a sense, very much part of 16 the analysis phase, although again we would look at that 17 further down the line. In a case where perhaps we would 18 have described as an insufficient, we might then have 19 recourse to use imaging technology to again extract more 20 information to try and reach the threshold of 21 identification. 22 Q. Do I understand -- we have had some evidence from a Home 23 Office scientist, Dr Bleay -- that in fact you are 24 required to keep an audit trail of the enhancements you 25 make or changes to images; is that correct? page 128 1 A. (By Mr Pugh) Yes, that's a general principle applied to 2 forensic science, the chain of custody, the integrity 3 that can trace back to the original image. Also in the 4 context of imaging we capture images in what is called 5 raw format so we avoid the processing within the camera 6 so where we are trying to get to is as pure, if you 7 like, an image of what was present on an item from the 8 very outset. 9 Q. The next stage of this: can you envisage a situation in 10 which an identification would involve consideration of a 11 photo montage; in other words, a selection of different 12 aim aggregated to form one identification? 13 A. (By Mr Pugh) I might ask Mrs Redgewell to comment on 14 this. I think in terms of a montage there may be as I 15 describe there are different backgrounds and, therefore, 16 the product of imaging produces a series of images that 17 allow for a better comparison with the print. I don't 18 think the would montage in a sense would work the other 19 way but I will ask perhaps Mrs Redgewell to comment on 20 the detail of how we process that scenario. 21 A. (By Mrs Redgewell) I agree with Mr Pugh in the fact we 22 would actually possibly go through a series of 23 photographs to ensure that we obtained a photograph with 24 optimum clarity and we might spend a lot of time working 25 on that, but once we'd arrived at a conclusion this was page 129 1 a mark that we felt had the most detail and the most 2 clarity, then we would stick with that. We certainly 3 wouldn't use multiple images to prove identity. We 4 would stick with the one that had the optimum. 5 Q. So, in other words, if you had a range of images 6 available to you -- let us say four -- you might study 7 each of the four to decide which showed the most clarity 8 for your purpose? 9 A. (By Mrs Redgewell) That's right. I mean, in an ideal 10 world you'd go back to the exhibit and you'd examine the 11 exhibit and look for all the information within the 12 exhibit and then ensure that the photographs represented 13 what you could see on the exhibit. That's in an ideal 14 world. If the exhibit was obtainable, that's what you 15 would work with. 16 Q. Thank you. 17 The final feature of this: you spoke about 18 enlargements having dropped out of use in practice. Do 19 you know why that happened, because it seems to be not 20 confined -- it happened in Scotland, it seems to have 21 happened in England and I can find case law in Australia 22 and New Zealand to see exactly the same. Can you 23 rationalise why -- 24 A. (By Mr Pugh) I think it is a product when there was a 25 numerical standard -- and certainly many of the page 130 1 marked-up enlargements I've seen always have 16 points. 2 I assume it's a product of moving away from a 3 non-numerical(sic) standard but perhaps Mrs Redgewell 4 can help. 5 A. (By Mrs Redgewell) Can you repeat the question? 6 Q. Mr Pugh has told us that in England you no longer 7 routinely prepare enlargements for court. 8 A. (By Mrs Redgewell) That's right. 9 Q. The same is true in Scotland and I've seen case law that 10 says that the same may also be true in Australia and New 11 Zealand. So what I was wondering was why it is that the 12 practice of preparing enlargements has stopped? 13 A. (By Mrs Redgewell) To be fair, we used them on a 14 regular basis but the criminal justice system hasn't 15 been using the images. Occasionally we can go to court 16 and they can ask us to go back to the Yard and prepare 17 marked-up enlargements but, as a rule, they're not asked 18 for. I don't know why that is. 19 Q. You don't know why. 20 Again, I will just ask the question and the person 21 who feels best able to do so can answer. If you're 22 giving evidence in court and part of the purpose is, as 23 we have seen by the case law, not yourself to reach the 24 conclusion but to provide information to the jury so 25 that they can assess it to the ultimate conclusion of page 131 1 whether there is guilt or innocence, one might wonder 2 how you can actually explain how you have arrived at a 3 conclusion in a particular case without having an image 4 there to say, "I found certain features in agreement and 5 that's a pattern that I find unusual"? 6 A. (By Mrs Redgewell) I agree with you but in many cases 7 we produce marked-up enlargements and then we're not 8 asked to supply them in court. So I agree with you. In 9 an ideal world, we would like to explain to the jury how 10 we came to our decision but quite often that isn't the 11 case. We're not questioned on that. 12 Q. So it may be that if the experience in Scotland was that 13 the enlargements were not often used in the court, 14 therefore the prosecution authorities stopped asking for 15 them. That might be as good a reason as any to explain 16 why they are no longer used? 17 A. (By Mrs Redgewell) Yes and quite often we actually say 18 to them, "Can we please get into the box and explain our 19 evidence to you. We'd like to be able to demonstrate to 20 you our findings" but that's not always taken up. 21 Q. One final point that I just wanted to ask about image 22 quality. When you were working doing the comparison you 23 said you might use the original exhibit if it is 24 available or you might use an image. First, I 25 understand the image you would use would be a life-size page 132 1 image of the fingerprint? 2 A. (By Mrs Redgewell) That's correct. 3 Q. However, if you yourself are in doubt, you can call for 4 an enlargement? 5 A. (By Mrs Redgewell) That's right. 6 Q. The very fact that you yourself as a practitioner can 7 call for an enlargement suggests to me that there's no 8 necessary inferiority in the quality of an enlargement; 9 is that correct? 10 A. (By Mrs Redgewell) Yes, you would need to confirm that 11 by looking at the life-size photograph. You would need 12 to ensure that all the clarity in the mark was there on 13 the enlargement, but you shouldn't lose clarity on the 14 mark enlargement. 15 Q. That is the point because what I have heard 16 some witnesses say is that there is a reluctance to 17 produce enlargements in court because the ridge detail 18 can deteriorate in quality with the enlargement so what 19 was crisp in the life-size can become blurred in the 20 enlargement. 21 Is that a necessary complication or should it be 22 possible, in particular with today's digital 23 photography, to produce enlargements which are of 24 sufficient detail to enable the jury to observe what you 25 yourself observed on the life-size photograph? page 133 1 A. (By Mrs Redgewell) I agree with what you're saying. 2 Going back 20 years ago sometimes that did happen. You 3 would lose some clarity and you would actually possibly 4 remark on your working notes that you preferred the 5 identification under an epi, under a comparator, but in 6 recent years with the advancement of technology I've not 7 encountered that at all. 8 Q. That then brings me to the final question which is not 9 really a question, it's more an opportunity for you to 10 actually say what lessons you have, in fact, learned 11 from the involvement in this process and not just from 12 the general point of view of your own personal benefit 13 but rather to assist the Inquiry in understanding what 14 lessons we can actually learn. 15 A. (By Mr Pugh) Thank you. 16 I think certainly this is, certainly in my memory, 17 the most in-depth and broad examination of, if you like, 18 the fingerprint discipline. As I say, I haven't read 19 all the transcripts but there is a considerable amount 20 of information and depth of information which certainly 21 I pick up some themes from. But it seems to me a 22 significant opportunity to almost take stock of 23 fingerprint examination and where it sits in the 24 criminal justice system. 25 I think I've covered many of the points in the page 134 1 evidence I've given but I will just highlight two or 2 three. We've spoken about the research we've undertaken 3 and I think that the ultimate goal of understanding how 4 Fingerprint Experts come to opinions, which is really 5 about the way the algorithm in their human brain works 6 and so on is probably not research that is going to come 7 to fruition in my lifetime, whereas the research we've 8 looked at is more applied. We're looking at the 9 consistency, the constraints and risks really in terms 10 of the way the Fingerprint Experts make comparisons and 11 very much hoping to get from that, as I've mentioned, a 12 means of better understanding how those decisions are 13 made but also a way to test and understand our 14 Fingerprint Experts. 15 I think the second area is probably around processes 16 and I think that is to me critical and certainly in the 17 discussions and the evidence we have given today I think 18 we probably highlighted areas where I think we can look 19 very carefully at our processes -- the example we just 20 discussed about how does a dissenting individual make 21 their views known in the criminal justice system but 22 without making it a process that alienates them in any 23 way but is the right balance. So I think certainly in 24 the light of what we have seen and I have heard we would 25 look very carefully at the processes we have and very page 135 1 much endorsing the idea of external audit, I think. 2 The third one, I suppose, starts with note-taking or 3 what I will probably call for broadly transparency. I 4 think there is a certain mystique around fingerprint 5 examination and perhaps we need to demystify some of 6 that and certainly in a way that we provide evidence of 7 processes that operate. I think there is perhaps an 8 inherent suspicion in something that is a human 9 judgment; so, therefore, I think it is incumbent on us 10 to be able to demonstrate how we arrive at decisions and 11 to be able to do that to the courts and to provide 12 whatever information is necessary within the criminal 13 justice process. 14 I think that the final area perhaps is around 15 culture as well. I come from a background as a forensic 16 scientist and I've now worked for eight years with 17 Fingerprint Experts and I think I'm beginning to 18 understand them. There is an ex-director of the 19 Metropolitan Forensic Science Laboratory who once 20 described the scientists in the lab as professionals and 21 the fingerprint community as artisans. I think there 22 are some out-dated views about fingerprint expertise and 23 I think Fingerprint Experts need to be considered and 24 treated and behave as professionals with all the 25 responsibility and accountability that comes with that. page 136 1 I think, perhaps on a final note, I do obviously 2 have some knowledge of the system here in Scotland and 3 by bringing the whole forensic community together I 4 think that is a significant opportunity for a kind of 5 cross-understanding between forensic science, 6 fingerprint and other forensic staff in Scotland. So 7 thank you for giving me the opportunity to put those 8 views forward. 9 THE CHAIRMAN: I will just invite the various Core 10 Participants if they want to ask questions. What I 11 suggest is they direct their questions to you and if you 12 prefer to have them answered by Mrs Redgewell or 13 Miss Hall, so be it. Shall we begin perhaps for a 14 change with Miss Grahame. Do you have any application? 15 MISS GRAHAME: I have no application, thank you. 16 MR SMITH: I have no application either, sir. 17 THE CHAIRMAN: Ms Jones? 18 Cross-examined by MS JONES 19 Q. There was just one point of clarification about the 20 error that was talked about this morning in evidence if 21 I can just ask a question on that. I wasn't quite clear 22 whether you said that was picked up through the 23 verification process or by some other means. 24 A. (By Mr Pugh) Sorry, which error? 25 Q. I thought you spoke this morning about a mistake that page 137 1 had been made that you had come across and dealt with. 2 Did I pick you up right on that? 3 A. (By Mr Pugh) Yes, we mentioned in our submission that 4 our current processes picked up three errors at the 5 first level of checking. Some time ago, probably around 6 ten years ago I think, there was a mis-identification so 7 in a sense that got through the whole of system. So 8 that wasn't picked up internally. That was one 9 effectively that got out into the criminal justice 10 system. 11 MS JONES: Thank you very much. 12 Cross-examined by MR HOLMES 13 Q. Sir, there is just one point of clarification and this 14 may be a matter for your colleagues, Mr Pugh, but we 15 heard evidence about the tipping point earlier and an 16 exercise that was carried out in relation to that. 17 I think, if I have it noted correctly, where the 18 marks that were used were clear then there was very 19 little diversions or no divergence between the opinion 20 of the experts. Similarly, where the marks were very 21 unclear there was no divergence but somewhere in the 22 middle, particularly with rotation, there seemed to be 23 some divergence. 24 Is that your understanding of what was said earlier? 25 A. (By Mr Pugh) Yes, the more complex the mark, if you page 138 1 like, the more challenging -- perhaps, Miss Hall can 2 comment in detail on that. 3 Q. Were the donors of the marks that were used in this 4 exercise known? 5 A. (By Miss Hall) Yes, we manufactured the marks, in 6 essence, so we knew the source. 7 Q. Where the opinion of the experts diverged, and I 8 interested particularly in relation to the marks with 9 heavy rotational distortion, I think you said that there 10 was about a 50/50 divergence between the experts who 11 would identify and experts who would not identify. Is 12 that correct? 13 A. (By Miss Hall) Yes, there was a 50/50 divergence in 14 those that were prepared to state the mark was an 15 identification and would report that to a court and the 16 remaining 50 per cent of them came to the conclusion 17 that there was either insufficient detail to make a 18 comparison or insufficient detail to establish an 19 identification. 20 Q. My question is: the divergence, is that as a result of 21 the fact that the experts who were willing to identify 22 were incorrect or as a result of the fact that the 23 experts who were not willing to identify were perhaps 24 too reluctant to do so? 25 A. (By Miss Hall) I don't think you can say they were page 139 1 incorrect or not. It's a bit of a tricky one because we 2 know the known source but it was really about a matter 3 whether the expert was satisfied that they could explain 4 the differences or the distortion caused by movement 5 sufficiently to enable them to establish an 6 identification. 7 MR HOLMES: Thank you. 8 Re-examined by MR MOYNIHAN 9 Q. Mr Pugh, I do not wish to involve breaches of 10 confidentiality if it does not arise. I should have 11 perhaps just asked in relation to the case of 12 mis-identification that informed your own practices in 13 relation to verification whether you are in a position 14 to name that case so we can relate it back to prior 15 literature. There are two cases that I think we have an 16 understanding of in relation to the Metropolitan Police 17 one is McNamee that you are talking about, the other is 18 a case called Chiory. 19 A. (By Mr Pugh) It's the latter case I'm referring to. 20 Q. Chiory? 21 A. Chiory. 22 MR MOYNIHAN: Thank you very much. 23 THE CHAIRMAN: One subject I would like your assistance on 24 is to return for a moment to the question of 25 note-taking. I have read in the American Academy of page 140 1 Science report they seem to attach great importance to 2 the note-taking. We had a witness only yesterday from 3 America who said they take notes in every case. 4 Mr Chamberlain was speaking about the standard 17025, I 5 think it is, which I imagine a lot of laboratories would 6 wish to have and he was saying that as an examiner he 7 would expect notes to be taken. So there seems to be a 8 very powerful lobby, if that is the way to put it, in 9 favour of note-taking. On the other hand, I can quite 10 understand your reluctance to engage in that because of 11 the time and labour that would be involved. 12 We have seen a pro forma that is used I understand 13 in the Netherlands and what I wondered is would one -- 14 just to finish the first part of the proposition, I can 15 also see the danger of writing the notes subsequently, 16 say the eve of the trial if it is contested because of 17 the confirmation bias risk but what I wondered is could 18 it be left to the discretion of the examiner that they 19 have got a simple form to fill in and in a totally 20 straightforward case they would write very little 21 because it's pretty obvious and in the more 22 complicated -- and I realise what is a complex mark 23 can't be defined -- but where the examiner, in that 24 examiner's own discretion, feels a more complete note 25 would be necessary because it has required more time or page 141 1 caused them more difficulty that they should keep a 2 greater note in that case, in which case one could say, 3 well, a note is kept everywhere but the quality or 4 quantity or detail of the note would depend upon, 5 really, the mark itself and the discretion of that 6 examiner in completing it. 7 The last thing I want to do is to make some 8 recommendation which I am told you just could not do 9 that and I was just wondering if I could see what your 10 attitude would be towards that. 11 A. (By Mr Pugh) I think that's an attractive idea and 12 certainly not having a principle that for every 13 identification there is a complete, if you like, account 14 of the ACE-V process. I mentioned earlier the 28,000 15 cases, of course, that would have happened three times 16 there which would have a significant administrative 17 burden. So I think your proposal is attractive in the 18 sense there's a discretion and there's also perhaps a 19 tailoring of the note-taking to the complexity of the 20 challenge. 21 I think also I'd return to my point about clarity of 22 purpose of the notes, in the sense that are they there 23 for the benefit of the court or the Fingerprint Examiner 24 or the defence and I think that needs to be resolved, in 25 a sense, in deciding and providing the context within page 142 1 which notes are made. 2 I would add the 17025 accreditation is a scientific 3 accreditation. We have that for -- we are well on the 4 way to accreditation for that scientific standard and I 5 have debated with the organisation that carries out or 6 gives that accreditation, called UKAS, they do insist on 7 note-taking to meet the standard of 17025 but it is an 8 interesting debate with that organisation as to why they 9 require that for an area like fingerprints that is not a 10 scientific area. 17025 is the standard that applies to 11 measurement and testing in a scientific sense so I think 12 they might have, in applying in fingerprints, they have 13 looked for something that would make it, in a sense, 14 more scientific. 15 So we're in discussions with them at the 16 moment because I would very like to get a 17025 because 17 it is a more intrusive accreditation for fingerprints 18 but I think I would want to have a measured discussion 19 with them about the level of note-taking and most 20 probably along the lines that you describe. 21 THE CHAIRMAN: Thank you very much. I am very grateful to 22 you and Mrs Redgewell and Mrs Hall for their assistance 23 not only today but for the work you have done for us in 24 helping the Inquiry in all the ways that were described 25 at the outset of your evidence. Thank you very much page 143 1 indeed. 2 So that concludes the evidence, I think, today, does 3 it? 4 MR MOYNIHAN: That concludes the evidence today. 5 Professor Champod is tomorrow, sir. 6 THE CHAIRMAN: I find that the mornings we begin at 9.30 we 7 seem to finish earlier so I think we should risk it 8 tomorrow and start at 10.00. 9 MR MOYNIHAN: I understand we do have the potential that 10 Professor Champod could, if absolutely required, spill 11 over into Thursday but I do not envisage he will be, for 12 my purposes, any longer than Mr Pugh has been today. 13 THE CHAIRMAN: Well, as I say in the hope that we are as 14 quick as we were today we will risk 10.00 then tomorrow. 15 Thank you very much. 16 (2.40 pm) 17 (Adjourned until 10.00 am the following morning) 18 19 20 21 22 23 24 25