page   1
 1                                   Thursday, 26th November 2009
 2   (Morning session)
 3   (10.05 am)
 4   THE CHAIRMAN:  I think the arrangement was Mr Macpherson is
 5       going to begin.  Is that the plan?
 6                   Submission by MR MACPHERSON
 7   MR MACPHERSON:  Sir, on behalf of the Chief Constable my
 8       closing statement will be brief.
 9           On looking back, sir, to the opening statements for
10       the core participants there was much reference to rumour
11       and innuendo.  The Inquiry has, for example, heard the
12       evidence of Mr Brown about Ms McKie and you, sir, may
13       have formed a view as to the truth of what was said.  If
14       it was mere rumour without any substance, Mr Smith was
15       right to say, as he did on Ms McKie's behalf, that it
16       was hurtful and outrageous.
17           The Chief Constable wishes to distance himself from
18       all rumour.  The Chief Constable has never advanced the
19       view that Ms McKie lied nor does he seek to malign her.
20       In Mr Smith's opening statement he did suggest the
21       contrary about, as he put it, many officers of
22       Strathclyde Police.  The Chief Constable wonders whether
23       this idea might also have been distilled from rumour.
24           The Inquiry heard little in the way of evidence that
25       might place Ms McKie within the house when she should
page   2
 1       not have been there, by the same token the Inquiry did
 2       not hear evidence from police officers who insisted that
 3       she was.
 4           The Chief Constable's interest, sir, is ensuring his
 5       officers perform their duties to the best of their
 6       abilities and that they maintain their integrity and
 7       trust with the public.  The investigation at the scene
 8       at Irvine Road in January 1997 has been examined by this
 9       Inquiry in some detail.  It has been an investigation
10       into an investigation.
11           Nobody would suggest that every element of the
12       murder inquiry and every action taken was perfect.
13       However, the Chief Constable submits that no evidence
14       has emerged of a serious failures or omissions.
15           It should be remembered that 1997 is not today.  The
16       world has moved on and one should not look too closely
17       at those events through a lens from 2009.  The Chief
18       Constable recalls the evidence given by David Thurley on
19       the fifth day of this Inquiry.  He said:
20           "Technology is always moving on.  There are always
21       different ways to do it.  Had this happened nowadays or
22       today, then things would have been entirely different.
23       Things have moved on."
24           Mr Thurley was talking about fingerprint techniques
25       but the point may have a more general application.  For
page   3
 1       example, there is the comment of Alexander McAllister on
 2       the eighth day talking about procedure at crime scenes.
 3       He said:
 4           "I think it's fair to say the position nowadays
 5       bears little resemblance to where we were 12 years ago."
 6           The murder of Marion Ross was a terrible crime.
 7       There was undoubtedly pressure on the police to get
 8       results but it does not follow that this would create
 9       any pressure to settle for the wrong result.  Indeed,
10       the contrary might be more likely.
11           The officers on the case worked extremely hard.  The
12       hours were long and the work was not easy.  It would
13       perhaps be surprising if there were no errors in the
14       paperwork or the administration or in the handling of
15       the crime scene.
16           Sir, it is unfair to suggest that there are those
17       within Strathclyde Police who presume that Shirley McKie
18       was guilty, notwithstanding on her acquittal.  No police
19       witness has maintained that.
20           It might be recalled that Mr McKie himself has
21       spoken about the faith he originally had in fingerprint
22       evidence and the doubt he had at the outset given his
23       daughter's insistence that she had not been in the
24       house.  It is a consistent theme that fingerprints were
25       then considered infallible.  Perhaps it would not be
page   4
 1       surprising if some police officers have been hard to
 2       persuade otherwise.
 3           There is these days a tendency to look for blame
 4       where there may be only ordinary mistakes.  There is a
 5       desire for the blame to be tracked all the way to the
 6       top.  When something goes wrong in the public sphere
 7       anger is channelled to the institution and there is a
 8       search for wider or systemic failures.  Perhaps
 9       sometimes, sir, there is maybe just an ordinary error.
10           The evidence in this case has not always painted a
11       picture of a system operating perfectly.  It is, it is
12       submitted, difficult to imagine what a perfectly working
13       system would look like in an imperfect world.  Even if
14       the Inquiry has identified failures, mistakes or
15       omissions, none are indicative of anything systematic or
16       intentional or corrupt.  There is no conspiracy and
17       there never has been.
18           The Chief Constable submits that the public interest
19       is served by identifying where mistakes have been made,
20       where improvements can be found but also in permitting
21       public servants to continue to use their best endeavours
22       recognising that they will not always do so without
23       falling into error.
24           Thank you, sir.
25   THE CHAIRMAN:  Thank you, Mr MacPherson.
page   5
 1           Ms Jones, I think you were going to come next; is
 2       that right?
 3   MS JONES:  Yes, sir, thank you.
 4   THE CHAIRMAN:  Very good.
 5                      Submission by MS JONES
 6   MS JONES:  My submission will also be brief, sir.
 7           SPSA has welcomed the opportunity to participate in
 8       the fingerprint Inquiry and has found the process of
 9       involvement helpful in the continuing analysis of its
10       fingerprint operations.
11           SPSA would also like to record its thanks for the
12       professional conduct of the Inquiry by all of those
13       involved both in relation to the management of the
14       proceedings and the constructive approach taken to the
15       gathering of evidence.  SPSA has also sought to assist
16       as much as possible with the conduct of the Inquiry and
17       has encouraged, facilitated and supported the
18       contribution of its staff in this regard.
19           The Inquiry has heard evidence and received evidence
20       from a number of members of staff of SPSA.  It's not
21       intended to comment in any detail on the evidence
22       already available to the Inquiry.  This, however, should
23       not be taken as an indication that the evidence has not
24       been considered by SPSA or as an attempt to minimise the
25       task of the Inquiry in distilling that evidence in
page   6
 1       producing a report and recommendations.  It is
 2       appreciated that this is a substantial and very
 3       significant task.  However, SPSA instead wishes in this
 4       closing statement to make some overarching comments on
 5       the Inquiry and the potential recommendations which may
 6       be made.
 7           It may be of assistance to the Inquiry to know that
 8       operations in relation to fingerprint services represent
 9       around 3 per cent of the various police support services
10       that are delivered by SPSA.  While SPSA does not wish to
11       diminish in any way the importance of its operations in
12       this regard the issue of recommendations, resources and
13       the issues for fingerprint services raised in the
14       context of this Inquiry must be viewed as specific to
15       SPSA Forensic Services and not to SPSA as a whole.
16           Regard should also be given to the implications on
17       police training, police ICT and criminal justice
18       information systems which are among some of the other
19       obligations and operations of SPSA when considering
20       SPSA's ability to divert its finite budget from one part
21       of its operations to another.  We therefore trust that
22       any such recommendations facilitate a more efficient and
23       effective delivery of fingerprint services within
24       existing resource while taking into account, of course,
25       the interests of all relevant parties.
page   7
 1           SPSA also wishes to make clear its continued
 2       willingness to engage in discussion and the provision of
 3       information with the Inquiry team during this concluding
 4       stage of its proceedings.  In particular, the national
 5       forensic modernisation work which has been referred to
 6       in evidence is due to report in the next few months.  It
 7       may be that emerging thinking on that modernisation
 8       approach is of assistance to the Inquiry Team as it
 9       considers its final report and recommendations.
10           We would be keen to engage with the Inquiry on any
11       draft recommendations to ensure that they are both
12       feasible and realistic in light of the emerging picture
13       of demand and capacity that this work is developing.  We
14       can, however, confirm that SPSA will consider the final
15       recommendations with this Inquiry in developing future
16       proposals relating to systems and procedures for
17       fingerprints which flow from this modernisation work.
18           It is clear from the evidence to the Inquiry that
19       much has changed in relation to the provision of
20       fingerprint services in Scotland since the events which
21       led to this Inquiry.  The organisation of the service
22       itself has been altered a number of times from the
23       creation of the Scottish Fingerprint Service to its
24       current location within the auspices of SPSA.
25           The management of the services has dramatically
page   8
 1       altered from the structure which was in existence at the
 2       time of the events which led to this Inquiry.  Perhaps
 3       most notably the service is no longer closely linked
 4       with any one police force and is subject to the scrutiny
 5       of a board which comprises chief constables, police
 6       authority conveners but also independent individuals
 7       drawn from both industry and other areas of public life.
 8       It is submitted that this brings a level of transparency
 9       and independence which is of assistance in improving
10       performance of the service.
11           There have also been numerous reports and
12       investigations into the provision of the service over
13       the years.  It should again, however, be borne in mind
14       that the senior management in the service is now very
15       different from that which existed at the time of those
16       reports and investigations.  Therefore, while SPSA can
17       be held accountable and responsible for what it has done
18       since its creation in April 2007, it is clear that it
19       cannot be held so accountable for actions and inactions
20       before its creation.  SPSA has, since its creation,
21       sought to look forward and develop the provision of the
22       service rather than analyse in detail the inherited
23       context in which the service previously operated and
24       that is not least in relation to the position
25       surrounding the marks known as Y7 and QI2.
page   9
 1           There has been some criticism of SPSA by some
 2       contributions to the Inquiry for adopting this approach.
 3       This has been dealt with, to a large extent, in
 4       evidence.  However, it is important to bear in mind the
 5       sequence of events.  The Inquiry will recall that as
 6       SPSA was being established in early 2007 there was no
 7       strong prospect at that stage of any independent
 8       authoritative re-examination of the marks taking place.
 9       The Scottish election, a new Government and the
10       commitment to this Inquiry subsequently changed that
11       position.
12           Since it began its work this Inquiry has made clear
13       its intention to carry out the most intensive
14       re-examination of these marks that would be possible.
15       The resources which have been expended in this
16       comprehensive Inquiry dramatically exceed any resources
17       which SPSA with a finite budget, considerable start-up
18       costs and challenges and day-to-day responsibility for
19       meeting the demands of the Scottish Police Service and
20       Crown for Forensic Services could possibly have devoted.
21           We have made clear since the beginning of this
22       Inquiry our commitment as an organisation to support and
23       assist the Inquiry in this task.  If as part of its
24       conclusions the Inquiry, following extensive and
25       thorough re-examination, delivers a clear view on the
page  10
 1       identification of these marks it is SPSA's intention to
 2       accept such findings.
 3           As has been indicated, SPSA's response to the issue
 4       surrounding this Inquiry is to look forward and seek to
 5       develop an organisation where an open and transparent
 6       culture is fostered, embedded and developed.  While not
 7       wishing to prejudge the findings of the Inquiry it is
 8       clear the culture of the fingerprint organisation
 9       inherited by SPSA required considerable improvement.
10       SPSA's approach to this was and continues to be to
11       introduce systems which are robust and demonstrate best
12       practice, to develop a culture which will facilitate the
13       provision of a first class service that meets the needs
14       of its police and fiscal customers, to provide training
15       to staff which would assist in meeting this objective,
16       and to introduce methods of measuring and improving on
17       the quality of the service that is being provided.
18           While it would not be equitable for SPSA to be
19       criticised for failures which were not of its making,
20       equally it would not be appropriate to fail to recognise
21       that a number of these improvements were already in
22       train when SPSA came into existence.
23           One of the particular areas of enquiry has been the
24       introduction and ongoing practice of the non-numeric
25       identification of fingerprints.  SPSA remains committed
page  11
 1       to this method of analysis and identification and
 2       remains of the view that it facilitates a more
 3       appropriate approach to the provision of this service.
 4       However, it is recognised that this process, as with any
 5       other, must be subject to constant analysis and
 6       improvement.
 7           One particular issue which has been highlighted
 8       during the Inquiry is the importance of note-taking.  As
 9       indicated by Tom Nelson in his evidence, this is an
10       issue in respect of which SPSA already accepts that
11       there is a case for enhancing the current approach.  It
12       is accepted there is a good argument for increased
13       note-taking in certain cases.  Work is already planned
14       to ensure that recording processes which are appropriate
15       to the resources available to SPSA and the needs of its
16       customers are developed in the near future and we would
17       be keen to engage further with the Inquiry on defining
18       the scope of future changes.
19           The question of disclosure is also likely to be a
20       matter addressed by the Inquiry in its findings.  Again,
21       as has been heard from Tom Nelson and Scott Pattison
22       this is a matter currently being addressed by both SPSA
23       and the Crown.  In addition, SPSA is keen to facilitate
24       and participate in the ongoing progress of increased
25       research, development and academic study into practises
page  12
 1       and procedures involved in fingerprint identification.
 2       It is hoped this will form part of SPSA's vision of
 3       fingerprint services sitting alongside other forensic
 4       sciences as part of a coherent and integrated service.
 5           Again, however it must be recognised that this has
 6       been developed at the same time as we are seeking to
 7       balance increasing demand for Forensic Services within
 8       the finite and challenging budgets to which all public
 9       sector services are likely to be subject for several
10       years.
11           It is anticipated that recommendations will be made
12       which will directly impact upon the work of SPSA
13       Forensic Services.  SPSA will take a positive and
14       responsible approach to the conclusions of the Inquiry
15       and we will expect our fingerprint staff to respect the
16       conclusions of the Inquiry in carrying out their
17       professional duties and responsibilities.
18           Similarly, we will look to implement in a
19       proportionate and pragmatic way such recommendations
20       that are made to improve further the delivery of
21       fingerprint services in the future.
22           As an organisation that handles approximately 12,000
23       fingerprint cases annually often involving the analysis
24       of multiple prints we would welcome an opportunity to
25       comment on any draft recommendations which are likely to
page  13
 1       have resource implications on the organisation.  SPSA
 2       would also wish to engage in discussion over any
 3       recommendations which may impact upon the speed with
 4       which we can support the police and fiscal in order to
 5       properly assess the feasibility of such recommendations.
 6           Finally, and notwithstanding any recommendations for
 7       improvements that are made, we hope and expect that this
 8       Inquiry will acknowledge the dedication that fingerprint
 9       staff in Scotland, past and present, have shown over the
10       course of the past decade.  In that period they have
11       handled well over 100,000 fingerprint examinations, the
12       vast majority without controversy or challenge and made
13       a substantial and ongoing contribution to the pursuit of
14       justice in this country.  They have coped with
15       unprecedented and sustained levels of scrutiny.  SPSA
16       staff continue to bear that scrutiny with dignity and
17       professionalism.
18           As an organisation, it is our hope for them this
19       Inquiry will be a watershed that will allow the Service
20       to collectively move forward in step with the rest of
21       our valued forensic disciplines.
22           Thank you, sir.
23   THE CHAIRMAN:  Thank you very much.
24           Miss Grahame?
25                    Submission by MISS GRAHAME
page  14
 1   MISS GRAHAME:  Thank you very much.
 2           Written submissions have been prepared on behalf of
 3       the Crown and while copies are being distributed I would
 4       like to begin by expressing on behalf of the
 5       Lord Advocate the thanks to the Chair, first of all, for
 6       allowing the Crown to have the opportunity of taking
 7       part in this Inquiry and also to the Inquiry Team for
 8       adopting many of the lines of questioning which have
 9       been proposed by the Crown and, finally, to the core
10       participants and legal representatives whose constant
11       and constructive efforts have allowed us to make
12       considerable progress during the Inquiry.
13           Turning if I may to the submissions, as can be seen
14       from the index sheet it is split into 11 different
15       issues.  As we all recall within each chapter of the
16       analysis document which was produced by Counsel to the
17       Inquiry at the outset there were a number of issues
18       which were identified at the conclusion of each chapter.
19       These written submissions endeavour to provide a summary
20       of the Crown Office position in relation to all of the
21       issues in which it is considered Crown Office have an
22       interest.
23           All of these issues are important but some of these
24       have featured more prominently during the course of the
25       Inquiry than others and, with that in mind, my
page  15
 1       submissions today will deal with two of the issues which
 2       I consider to have featured most significantly.  Those
 3       are the many topics under issue 2, of which I will deal
 4       with majority, and issue 5.
 5           Having said that, I would invite the Inquiry to have
 6       regard to the entire written submissions when forming a
 7       view as to the evidence and the Crown would also request
 8       that the entire written submissions be put on the
 9       Inquiry website in order that any interested members of
10       the public may have access to the full text.
11   THE CHAIRMAN:  I can assure you that will be done.
12   MISS GRAHAME:  I am much obliged.
13           Before I turn to my submissions on issue 2, may I,
14       first of all, make a deletion within the written
15       submissions.  It is on page 32 and it is in the second
16       paragraph.  In the second paragraph on line 2 I would
17       ask that the words "until 2009" be deleted.  That was an
18       error by myself.
19           If I may now turn to issue 2, this begins, the
20       heading is on the very bottom of page 2 of the
21       submissions and this issue deals with preparation for
22       the prosecution of HMA v McKie.
23           From page 3, when considering the issues which arise
24       in relation to the prosecution, it is important, I would
25       submit, to bear in mind the prevailing view regarding
page  16
 1       fingerprint evidence at the time that the case was being
 2       prepared.  It appears that it has been universally
 3       accepted throughout the evidence that prior to the McKie
 4       trial fingerprint evidence was viewed as totally
 5       reliable, infallible even.  If anything, this view was
 6       reinforced by the fact that no-one had experience of any
 7       challenge to an identification of a fingerprint in
 8       Scotland.
 9           We have also heard from Fingerprint Officers who
10       talk consistently of 100 per cent certainty and this has
11       been repeated by evidence from the police and, indeed,
12       was acknowledged by Mr McKie in his evidence.
13           Turning to the section on the background to the
14       instructions of Mr Kent, if I may, without going through
15       this section in detail because I understand that the
16       Inquiry does not want to hear excessive comment on
17       evidence which has already been led, this does provide a
18       summary of the Crown documentation regarding the
19       instructions of Mr Kent.
20           We have heard of the precognition prepared by
21       Mrs Denise Greaves, who was the Procurator Fiscal, and
22       the documentation that was sent into Crown Office and
23       seen, first of all, by the then Deputy Crown Agent
24       Mr MacFadyen and then passed to Ms Climie, the indicter,
25       who had been the indicter in the David Asbury case.
page  17
 1           The precognition did raise the issue of whether an
 2       expert previously unconnected with the case should make
 3       a further comparison in relation to Y7 and made mention
 4       for the first time of Mr Kent.  After the papers were
 5       passed to the DCA, he expressed the view that perhaps it
 6       did make sense to involve an independent expert but, on
 7       the basis of the question of transfer and planting and
 8       on the general basis for concluding that fingerprint
 9       identification was 100 per cent reliable.
10           He did not recommend that a further expert report be
11       obtained conducting an independent comparison of Y7 with
12       the prints of Ms McKie.  Ms Climie, it is known, did
13       speak to the Advocate Depute who had prosecuted
14       Mr Asbury and her recommendations to the Duty Advocate
15       Depute are set out on page 4 of the written submission
16       and I will not repeat those.
17           She picked up on the DCA's recommendation and she
18       introduced a comment regarding the English standard, of
19       which we have heard evidence.  This was placed in
20       brackets next to the second point regarding the
21       reliability of fingerprints.
22           We have heard that the Duty AD then sent an
23       instruction back to the indicter but Ms Climie then sent
24       the papers through the DCA to the Solicitor-General who
25       ultimately instructed that Ms McKie be placed on
page  18
 1       petition.  Again, the detail of that is set out on
 2       page 5 of the submissions.
 3           After that instruction was issued, Ms Climie then
 4       sent a letter from Crown Office to Mrs Greaves on
 5       30th January 1998 and the terms of that are repeated on
 6       page 6.  The three main points are set out towards the
 7       top of that page.  These do not specify that an
 8       independent comparison of Y7 should be made.
 9           Mrs Greaves then in response to that letter sent a
10       letter of instruction to Mr Kent and it was at that
11       point that six separate points were made in that letter
12       instructing Mr Kent.  We know that Mrs Greaves had some
13       difficulty making contact with Mr Kent by telephone and
14       that is clear from the correspondence which was within
15       the papers and she did write to him around a month later
16       asking him to discuss the matter with her and when his
17       report was likely to be available.  She did speak to him
18       some time prior to 22nd April when she forwarded
19       additional statements to him and then his report was
20       finally submitted with a covering letter in the May.
21           In his evidence, Mr Kent indicated that in relation
22       to instructions 5 and 6 he did not have the expertise to
23       express a view.  Initially in his evidence, and in fact
24       throughout his evidence, Mr Kent said he did not
25       remember having a conversation with Mrs Greaves about
page  19
 1       the instruction he received.  He could not remember
 2       exactly what his actions were in response, but he
 3       indicated that what he would have done would be to pick
 4       up the phone to the author of the letter and say, "If
 5       you want advice on the statistics of the 16-point
 6       comparison, then talk to Professor Champod", as he was
 7       the only person doing research in that area.
 8           In cross, he again stated that he could not recall
 9       the conversation with Mrs Greaves although he would not
10       accept that he could have been mistaken in his
11       suggestion of what he would have done or said.
12           In considering whether Terry Kent advised Denise
13       Greaves to approach Professor Champod, I would wish to
14       make a number of points.  Firstly, there was nothing
15       about Professor Champod in Mr Kent's own covering letter
16       with his report.  There was nothing about
17       Professor Champod in his actual report.  If Mr Kent had
18       already told Mrs Greaves that he was not qualified and
19       she would have to go to another expert abroad, then I
20       wonder why it doesn't appear at the very least in
21       paragraph 33 of the report.
22           Although in evidence Mr Kent tried to suggest that
23       that paragraph was an answer to instruction 3 rather
24       than 5 or 6, even that was queried by Mr Moynihan in
25       evidence and Mr Kent accepted that others would not
page  20
 1       necessarily read that in that way.
 2           Thirdly, there was nothing in Mr Kent's statement to
 3       the Inquiry about such a conversation regarding the
 4       Professor and his evidence in July of this year was the
 5       first time that this had ever been mentioned.
 6           Fourthly, there's nothing in Mrs Greaves' own
 7       correspondence about such a discussion taking place or a
 8       note about Professor Champod or his location.
 9           In cross, Mr Kent said he would have phoned Mrs
10       Greaves.  He said he possibly spoke to someone else in
11       the Fiscal's office.  He also said it was possible he
12       spoke to Chief Inspector Hogg and he also said it was
13       possibly someone in Strathclyde but at no stage in his
14       evidence did he actually say he did contact any of these
15       people.
16           This apparent conversation was not put to
17       Mrs Greaves when she gave evidence because there was no
18       mention of this in Mr Kent's statement.  She had
19       described having general conversations with Mr Kent but
20       nothing about Professor Champod.
21           A supplementary statement was obtained from
22       Mrs Greaves and the Inquiry confirmed last week that
23       that is to be treated as her evidence and she did not
24       require to be recalled.  Mrs Greaves made clear in that
25       statement that Mr Kent did not mention Professor Champod
page  21
 1       or indeed any foreign experts to her.  This would have
 2       been very unusual and would have required the
 3       instruction of Crown Counsel and an interpreter and she
 4       said it did not happen.  Accordingly, I would commend
 5       her position to the Inquiry and invite the Chair to
 6       reject the suggestion that Mr Kent gave
 7       Professor Champod's name to Mrs Greaves.
 8           Another reason the Inquiry should not accept the
 9       evidence that Mrs Greaves had this conversation with
10       Mr Kent is that if it is accepted, then the Inquiry will
11       be finding that Mrs Greaves ignored the advice of an
12       expert, did not tell anyone about it or act upon it and
13       did not take any steps to let anyone know about it,
14       didn't seek the instructions of Crown Counsel or mention
15       it in reminders and this would be contrary to the
16       approach Mrs Greaves was taking to her work which is
17       apparent from the correspondence available.
18           This contrasts with Mr Kent's approach of what is an
19       unexplained delay in producing his report between March
20       and May of 1998 and his failure to set out clearly his
21       position in relation to the points given in the letter
22       of instruction.
23           Moving on, it is accepted that the Crown did not
24       obtain a further report after Mr Kent's report was
25       received.  However, it does not necessarily follow that
page  22
 1       Crown Counsel did not consider this issue.
 2           In 1998, the normal procedure in this situation when
 3       an expert has been unable to respond to every aspect of
 4       the instruction would be for the Fiscal to bring the
 5       matter to the attention of Crown Office via the indicter
 6       and then for the indicter to draw that to the attention
 7       of an Advocate Depute, either the one who had originally
 8       issued the instruction or, if unavailable, the Duty
 9       Advocate Depute, then to seek instruction from there
10       and, thereafter, for the indicter to pass those back to
11       the Fiscal.
12           We have seen from correspondence that indeed
13       Mrs Greaves did contact Crown Office by sending a letter
14       to the indicter, Ms Climie, enclosing the report and
15       seeking her instruction.  It is acknowledged that she
16       did not specifically raise in that letter that Mr Kent
17       had not responded to points 5 or 6.  But Mrs Greaves
18       subsequently had a telephone conversation with Ms Climie
19       during which Ms Climie indicated to Mrs Greaves that she
20       would reread the report and advise if any further
21       matters required clarification.
22           Mrs Greaves wrote to Messrs Levy & McRae indicating
23       to them that:
24           "The Depute at Crown Office assures me I should have
25       Crown Counsel's instructions within the next two weeks."
page  23
 1           From these documents, together with the evidence of
 2       Mrs Greaves and Ms Climie I invite the Chair to accept
 3       that Mrs Greaves and Ms Climie were following the normal
 4       procedure at the time, that Mrs Greaves had sought
 5       instruction from Crown Office with the expectation that
 6       Crown Counsel would be asked to provide that by the
 7       indicter and that Ms Climie, the indicter, had expressed
 8       an intention to reread the report and then seek those
 9       instructions from Crown Counsel.
10           There is subsequent documentation regarding
11       reminders and a handwritten note from Mrs Greaves and
12       Mrs Greaves explained in evidence that these
13       instructions that were sought regarding Terry Kent's
14       report, she anticipated they would come from Crown
15       Counsel and not Ms Climie.
16           All of this documentation shows that Mrs Greaves
17       remained of the view that the instruction would come
18       from Crown Counsel and that Ms Climie had agreed to
19       obtain this and she confirmed this in evidence.  There
20       is also a further letter confirming that that was her
21       understanding at the time.
22           In evidence, Ms Climie indicated that she had
23       absolutely no doubt that Crown Counsel would have looked
24       at the Kent report.  So albeit there is no slip from
25       Crown Counsel and albeit Mrs Greaves and Ms Climie do
page  24
 1       not recall obtaining or receiving that instruction it is
 2       clear from the documentation available that the normal
 3       procedure was being followed.  It also indicates that it
 4       was the clear intention that Crown Counsel's
 5       instructions would be sought and it was the view
 6       certainly of Mrs Greaves at the time that they were
 7       ultimately obtained.  Accordingly, at the very least,
 8       what can be said is that none of the documentation is
 9       inconsistent with Crown Counsel having considered the
10       report of Terry Kent and taken the view that the case
11       could proceed in the absence of a further expert report.
12           In the circumstances, what has not previously been
13       appreciated perhaps by others is that the Crown had a
14       positive interest in finding all of the documentation
15       regarding this issue and it remains a matter of regret
16       that the papers are not entirely complete.  However, I
17       do not wish to add to any of the comments already made
18       by Mr Pattison in his evidence which explained the
19       background to the dissemination and fragmentation of the
20       papers since 1997 and the letter which was previously
21       sent to the Inquiry.
22           Another possibility that was explored in evidence
23       was that the Fiscals themselves would have taken the
24       decision in relation to the outstanding matters in
25       Mr Kent's report and that no instruction was sought from
page  25
 1       Crown Counsel.  That would not be in accordance with the
 2       normal procedure and it is not a course of action that
 3       Mrs Greaves considered likely.  It is certainly not the
 4       course that was followed by Mrs Greaves and it is clear,
 5       I would submit, from the evidence that Ms Climie was a
 6       conscientious and careful indicter and would not have
 7       failed to follow the proper procedure.  Her documented
 8       approach from the correspondence clearly shows that she
 9       was a very careful indicter.
10           In the event, Ms Climie did not remember seeking
11       instructions from Crown Counsel and she accepted in
12       evidence there was a possibility that whoever sought the
13       instructions may have missed that fact, that Mr Kent had
14       not answered all questions, perhaps not drawn it to
15       Crown Counsel's attention and perhaps Crown Counsel
16       missed it but I'd submit that was speculation on the
17       part of Ms Climie and it is not based on anything in
18       documentation to support it.
19           Finally, Mrs Greaves spoke in her evidence of having
20       a general awareness that an expert, Mr Graham in the
21       Asbury case, had agreed with the identification made by
22       SCRO and she described in her statement that this was a
23       fall-back position although perhaps she considered it
24       was not as well phrased as she may have liked.
25           Moving on to the nature of the further expert
page  26
 1       assistance, finally, regardless of any view taken in
 2       relation to the view above it is important to consider
 3       Terry Kent's report and the nature of the outstanding
 4       issues.  In other words, to consider what it was that
 5       the prosecutors were seeking to explore in this area.
 6           Crown Office position is that this was not and was
 7       never intended to be a cross-check on the opinion of
 8       SCRO.  The report was not sought due to any doubt about
 9       the reliability of the opinion on Y7.  There did appear
10       to be some confusion about the basis of it and what was
11       understood between the indicter and the Fiscal, but even
12       Lord Boyd indicated that he would have been surprised if
13       there had been any doubt regarding reliability of the
14       identification because he had been an advocate depute
15       for three years before becoming Solicitor-General and
16       fingerprint evidence was regarded as 100 per cent
17       reliable.
18           Looking at the consequences of not exhausting the
19       instructions to Mr Kent it is appreciated there is an
20       interest in speculating what would have happened or what
21       might have happened had the Crown exhausted these
22       instructions.  Even if a further report had been
23       obtained and if that report was another independent
24       expert report or a comparison of Y7, it does not
25       necessarily follow that the Crown would have received an
page  27
 1       opinion which contradicted that of the four SCRO
 2       officers.  If the Crown had obtained a further expert
 3       report it could just as easily have been from an expert
 4       who held the same views as Mr Graham or from Mr Swann or
 5       Mr Leadbetter both of whom are based in England.
 6           Crown Office appreciate that with hindsight,
 7       however, it is clear that there could have been improved
 8       avenues of communication between fiscals, indicters and
 9       Crown Counsel than was the position in 1997.  It was
10       suggested in evidence that when papers left the fiscal
11       that they went behind closed doors into Crown Office.
12       However, there have been considerable changes since then
13       in practice and procedure.  Lord Boyd was responsible
14       for many of these improvements which have been
15       significant and the Lord Advocate remains committed to
16       achieving improvements in all areas and the report to
17       this Inquiry will be of significant benefit in directing
18       those areas of improvement in the field of fingerprint
19       evidence.
20           I would commend to the Inquiry the evidence which
21       was given by Mr Pattison and Lord Boyd regarding the
22       changes in procedure.  We have heard about the
23       allocation of an advocate depute at a very early stage
24       in complex cases and this assists the direction of those
25       cases.  It is clear that there are much more open lines
page  28
 1       of communication now in cases from a very early stage
 2       right up to and including the trial and that is a
 3       significant difference from the position in 1997.
 4           In addition, we have heard that there is now a
 5       mandatory instruction to precognosce all experts in all
 6       High Court cases and there's a presumption in relation
 7       to Sheriff and Jury cases under exception where the
 8       evidence is agreed and we have also heard evidence
 9       regarding the aide-memoire.  We have also heard about
10       the advocacy skills training which is provided to
11       fiscals and members of staff in Crown Office regarding
12       expert evidence and how to deal with that.
13           With regard to the decision to indict, questions
14       were asked of Lord Boyd of why there appeared to be no
15       separate instruction to indict within the papers
16       available and he explained it might be that the view was
17       taken that because he, as Solicitor-General, had seen
18       all of the papers that would have been considered
19       normally at an indictment stage and because Crown
20       Counsel had separately instructed indictment that it was
21       not necessary for him to see the papers again and the
22       instruction to place on petition by him at an early
23       stage was taken as one to indict.  He did accept that
24       perhaps it might have been better if it had come back
25       for a separate instruction although he was unable to
page  29
 1       recall if it had.
 2           He also said it may have gone to an advocate depute
 3       and there may have been an instruction.  In any event,
 4       he said he would not criticise the officials for having
 5       taken that decision if they did and that he did not need
 6       to see it again because he had authorised the
 7       prosecution.  In the circumstances, we would submit it
 8       would be inappropriate for the Inquiry to criticise any
 9       individual officials in that regard.
10           In relation to the joint report, there was a
11       reference in the first report of 27th March 1997
12       regarding the orientation of Y7, which was not contained
13       in the later report.  There has been evidence led in
14       regard to this about whether a fiscal instructed this.
15           No adverse inferences should be drawn against the
16       COPFS in relation to this entry in the report.  If a
17       query was made by a fiscal then it was not unreasonable
18       to ask an expert whether this could be addressed in a
19       report and although it was removed later, it seems to
20       have been removed against a background where Fingerprint
21       Officers in general did not feel comfortable expressing
22       such opinions or conclusions.
23           There has been some evidence that there is
24       hesitation on the part of experts to make these
25       comments, although I recall that Mr Wertheim did say
page  30
 1       that he had thought initially about whether it would be
 2       a woman or a man but the discomfort, as I understand it,
 3       was not on the basis it was an improper question to ask,
 4       more that it was perhaps considered something that was
 5       not within the experts' area of expertise.
 6           Turning to the charted enlargements if I may, there
 7       was clearly a difference of opinion about the purpose of
 8       producing case-specific enlargements.  Crown Office
 9       thought they showed the individual characteristics which
10       were identified by the experts and formed part of their
11       reasoning and that evidence was given by Mrs Greaves,
12       whereas the fingerprint officers apparently viewed this
13       as a mere illustration to give to the jury.  The
14       understanding of Crown Office was, I would suggest,
15       entirely reasonable.  The enlargements were not generic.
16       They were not designed to show ideal or easily visible
17       examples of individual characteristics.  They were
18       specific to each case, using the prints found and
19       identified and were often marked up with at least
20       16 points thereon which corresponded to the standard at
21       the time.
22           Given the absence of challenge to expert evidence on
23       an identification prior to the McKie case, however, it
24       is perhaps understandable that insofar as SCRO had a
25       different understanding of their purpose that this had
page  31
 1       never been made obvious to the Crown.
 2           Regarding their accuracy, the majority of witnesses
 3       asked appeared to agree that the enlargements were not
 4       accurate and this was attributed to the inadequacies in
 5       the charting PC.  Although Mr MacPherson appeared to
 6       feel uncomfortable about accepting that in regard to the
 7       specific enlargements used for the McKie trial he did
 8       appear to concede later in his evidence there were
 9       issues regarding that.
10           The situation appears to have existed because the
11       charting PC had been purchased at great expense.
12       Management did not appear to be aware of the
13       difficulties individual officers were experiencing and
14       the situation was compounded by the fact that disputes
15       over fingerprint evidence and challenges from the
16       defence were so rare and, perhaps, a certain complacency
17       slipped into the use of the charting PC.
18           What is clear is that Crown Office were not told of
19       the difficulties experienced and we heard from Sheriff
20       Murphy QC that had this been raised he would have
21       considered it to be of grave concern.  Although officers
22       did express the view that they would all have been able
23       to explain the position to the jury at the trial, that
24       was perhaps a little optimistic given the comments made
25       by Sheriff Murphy regarding the actual experience during
page  32
 1       the McKie trial.
 2           With regard to the position for the future, these
 3       are, as we have heard, no longer produced as a matter of
 4       course in every case when reports are sought for court.
 5       Having regard to the statistics on fingerprint evidence
 6       and the lack of challenge, this is appropriate and we
 7       would invite the Inquiry to take the view that the
 8       status quo should be maintained.  However, it has
 9       remained the case that enlargements can be requested if
10       required and that also appears to be the position in
11       England and Wales.
12           As we have heard, it is rare for Fingerprint
13       Officers to be called to give evidence and where they
14       are, it is rare for this to be in relation to a disputed
15       identification.  For the witnesses who have given
16       evidence to this Inquiry, no-one has been able to give
17       an example of such a situation arising other than in the
18       McKie case before or after in this jurisdiction.
19           Clearly, if there is a disputed identification over
20       fingerprints in the future enlargements would be sought
21       by the Crown because it is certainly their position that
22       this would be necessary in order to provide a full
23       explanation of the reasoning and also full disclosure of
24       the individual characteristics found by the officers.
25           The Inquiry have also heard that Crown Office are
page  33
 1       about to start a project which will test the use of
 2       case-specific enlargements, although one issue remains
 3       about the practical difficulty of testing their use
 4       given the very small number of cases where fingerprint
 5       evidence is relied on.
 6           In addition, the Inquiry has heard that the Crown
 7       have used and are developing the use of generic
 8       enlargements in court in the area of forensic science,
 9       including fingerprints, and there is considerable
10       interest between SPSA and the Crown in assessing the
11       system that has been used during the course of this
12       Inquiry.
13           As a result, I invite the Inquiry to make
14       recommendations maintaining the current position and
15       recommend that case-specific enlargements be created by
16       each individual officer and sent to Crown Office showing
17       the points in sequence and agreement along with an
18       explanation of the character and nature of each point
19       identified if they are required to give evidence.  In
20       addition, that other generic visual images continue to
21       be considered and developed in order for use during the
22       giving of evidence to provide a detailed explanation to
23       the jury.  However, Crown Office suggest this be
24       required only where there is a disagreement about
25       identification or where oral evidence is to be led at
page  34
 1       trial.  Any suggestion they be created for all cases
 2       would be an unnecessary burden on Fingerprint Officers
 3       and an unreasonable allocation of resources.
 4           Another issue has been raised during the Inquiry as
 5       to whether the Crown ought to have obtained a further
 6       independent expert report outwith SCRO once
 7       Mr Wertheim's acetates became available.  This was dealt
 8       with by Lord Boyd in his evidence and he explained that
 9       as Lord Advocate he would have expected an AD to seek
10       comment from the experts instructed by the Crown.  If
11       they expressed confidence in dealing with the challenge
12       he would not expect a further independent report to be
13       obtained.
14           Sheriff Murphy QC also explained from his
15       perspective that he did not want to seek another
16       independent expert report prior to the trial for fear of
17       bamboozling the jury.
18           The matter at dispute between the experts is one for
19       the jury to determine rather than introducing more and
20       more expert views into the evidence and, therefore, the
21       Crown would not encourage expert shopping.  So the
22       decision not to go outwith SCRO once the materials were
23       available from Mr Wertheim was an entirely reasonable
24       one in the circumstances.
25           Considering whether the prosecution were properly
page  35
 1       prepared to present the evidence, what is clear from the
 2       evidence during the Inquiry is that regardless of how
 3       experienced or senior they are, Fingerprint Officers in
 4       Scotland rarely give evidence in court and on those few
 5       occasions when they do, it is not just exceptional for
 6       the case to involve a disputed ID but, in fact, the
 7       McKie case is the only case of which we have heard where
 8       experts were challenged in court on that basis in
 9       Scotland.
10           Even when one takes account of the experience of
11       other witnesses who regularly practise in other
12       jurisdictions, including Northern Ireland, England and
13       Wales and the United States, it would appear that it is
14       not unusual in those jurisdictions for a challenge of
15       that sort to be very rare.  Against that background, it
16       is unsurprising that officers were not equipped with the
17       experience required to withstand such a challenge and
18       nor is it surprising that training provided by lawyers
19       and other experts in Scotland who will no doubt be
20       equally unfamiliar with cases involving challenges of
21       that sort would be limited by that lack of familiarity.
22           Firstly, in answering this issue it may assist to
23       consider what the Depute did when approaching the trial
24       and when the Crown became aware that the defence
25       position had changed to mis-identification rather than
page  36
 1       planting or faking.  In this regard, assistance is
 2       gained by considering the evidence of Sheriff Murphy QC
 3       who spoke about, in advance of the trial, meeting
 4       Mr Stewart and Mr MacPherson.  Despite some initial
 5       confusion, once he had sight of his statement to the
 6       Mackay Robertson Inquiry in 2000 he accepted that he
 7       found out about the defence some time around 16th April,
 8       which was the Friday prior to the trial starting the
 9       next Wednesday.
10           This late availability of defence productions
11       clearly had an impact and limited the time available to
12       the Crown and the experts immediately prior to the start
13       of the trial.  We have heard that the trial had
14       previously been adjourned and given the procedures in
15       place at the time this was not an uncommon situation and
16       there was a desire as a result to make progress.  This
17       situation is one of the issues that the new procedures
18       have sought to address.  I will deal with this later.
19           Secondly, it is also vital that consideration be
20       given to the Advocate Depute's assessment of the case as
21       a whole including the anticipated eye witness evidence.
22       Despite many attempts throughout the Inquiry to present
23       this case as one consisting solely of fingerprint
24       evidence that view simply fails to take account of the
25       Depute's assessment of the evidential position prior to
page  37
 1       the trial.  We have heard that he placed considerable
 2       weight on the anticipated evidence of Mr Kerr and he did
 3       explain his position regarding Mr Kerr's evidence in his
 4       statement to the Inquiry and also under reference during
 5       his evidence to Mr Kerr's statements and precognitions.
 6           He also spoke about how he had asked the Fiscal to
 7       speak again with Mr Kerr immediately before he gave
 8       evidence and the information he received from that
 9       conversation and the significant difference it made when
10       Mr Kerr went into the witness box and appeared to have
11       changed his evidence.
12           Up until Mr Kerr's position changed from what was
13       expected by the Depute, the fingerprint identification
14       was not the only evidence in the case and so I submit it
15       is not correct to assess probability or likelihood on
16       the basis that it was.  In any event, criminal trials
17       are based on sufficiency and, ultimately, reasonable
18       doubt and not probability.
19           In the circumstances, Sheriff Murphy explained why
20       he decided to proceed to trial rather than seek an
21       adjournment and he explained in detail the three
22       considerations to which he had regard in reaching his
23       view.  He had met with the experts before the trial
24       proceeded and once his understanding of the defence
25       position became clear.  Both Mr MacPherson and
page  38
 1       Mr Stewart reviewed the materials prepared by
 2       Mr Wertheim.  Sheriff Murphy was not asked for more time
 3       by them and he was not advised that they could not
 4       prepare for the trial in the limited time available to
 5       them.  He understood them to be confident in the face of
 6       Mr Wertheim's position and his detailed position on that
 7       is set out in Sheriff Murphy's statement to the Mackay
 8       Robertson Inquiry.
 9           In light of that background, the Inquiry, I would
10       submit, should hesitate before second-guessing any of
11       the decisions which were taken as part of the
12       prosecutorial discretion of Sheriff Murphy at the time.
13           One further issue arose relating to the late citing
14       of Ms McBride and Mr McKenna for the trial.  It was
15       acknowledged that this was not the normal procedure.
16       They were substitutes for the main signatories on the
17       basis of annual leave.  In relation to Ms McBride, she
18       advised that she had not seen the defence productions
19       before she went into the witness box and it is accepted
20       that this an unsatisfactory position and should be
21       avoided.  Unfortunately, we do not have Sheriff Murphy's
22       position in relation to this matter.  What can be said
23       is that the Inquiry has heard from Scott Pattison
24       regarding the current procedures in place and how there
25       is now a seven-day time limit in place where defence
page  39
 1       productions and lists of witnesses are lodged prior to a
 2       preliminary hearing.  We have heard that these are
 3       designed to reduce the very late lodging of defence
 4       productions and that trials are no longer fixed until
 5       all parties are prepared.
 6           Mr Pattison did acknowledge there is still an
 7       element of judicial discretion here and so late lodging
 8       by the defence can never be entirely ruled out because
 9       it is clearly appropriate that that discretion exists to
10       ensure a fair trial.
11           However, on the part of Crown Office, the Inquiry
12       has also heard about the allocation at an early stage of
13       an Advocate Depute who will conduct a preliminary
14       hearing and the trial in cases, such as a high profile
15       case involving a police officer, and also the continual
16       involvement of indicters and Fiscals who retain control
17       of a case from the beginning to the end.  This allows
18       for a very close monitoring and direction to be given
19       by experienced prosecutors in relation to issues
20       involving expert evidence, even if it comes at a late
21       stage.
22           We have also heard about the guidance set out in the
23       Crown Office Circular and the aide-memoire which is
24       being prepared to give guidance to prosecutors.  Crown
25       Office acknowledges that there have been concerns which
page  40
 1       have been raised regarding the delay in issuing the
 2       guidance and the Circular.  However, there was a DVD and
 3       a leaflet issued in 2006 when the new standard was
 4       introduced and previous guidance was available to
 5       precognoscers at that time.
 6           Although it is not possible to say that the lodging
 7       of late defence productions will never happen again in
 8       the future, the new procedures do minimise that risk
 9       significantly and, although a small risk does remain, I
10       would submit that the Crown Office, now that they have
11       staff closely involved in cases throughout the process,
12       this can be dealt with more appropriately now than
13       perhaps it would have previously.
14           We have also heard with regard to future training
15       that it is clear that considerable work has and will
16       continue to be done by Crown Office.  We have also
17       lodged documentation with the Inquiry team regarding the
18       extent of that training, which includes training in
19       relation to expert evidence, and again that will assist
20       prosecutors in their handling of matters.
21           I would like to now turn, if I may, to issue number
22       5.  This relates to the current arrangements regarding
23       documentation, precognition and the impact of
24       disclosure.  It begins on page 28.  The current
25       arrangements for the provision and disclosure of
page  41
 1       statements, joint reports and precognition facilities
 2       have been explained by a number of witnesses.  In the
 3       event of a prosecution, we now know that the Crown is
 4       provided with, first of all, a joint report which
 5       details all prints identified as matching the accused
 6       and a copy of that is given to the defence.  There is an
 7       annex containing details of other prints found at the
 8       scene and examined, whether identified, eliminated or
 9       insufficient.  That is also disclosed to the defence,
10       subject to any appropriate redactions.  Thirdly, there
11       is a written statement prepared by any fingerprint
12       examiner who signed the report and that is also
13       disclosed automatically to the defence at the outset,
14       again, subject to any appropriate redactions.
15           In addition to the documentation, uniquely in
16       Scotland the Crown have the additional advantage of
17       precognition where the Fingerprint Examiners will
18       explain the report and findings with the prosecutor
19       prior to the trial and a note will be prepared and will
20       form the basis of a document known as a precognition.
21           The purpose of precognition is not simply to
22       understand the evidence but to allow the prosecutor to
23       assess the quality of the evidence given or which will
24       be given by a particular witness.  We have heard about
25       the Circular which makes that mandatory now for experts
page  42
 1       in High Court cases and there is a presumption in
 2       Sheriff and Jury cases where that evidence will be
 3       agreed.  We have heard that very few cases involving,
 4       however, the leading of fingerprint evidence and in
 5       those rare cases where evidence is led, this has not
 6       been as a result of a dispute about the identification
 7       of a mark.  Statistics have been provided in relation to
 8       the very limited number of cases proceeding to court
 9       where evidence of Fingerprint Examiners is led.  Other
10       expert evidence would appear to indicate that it is
11       equally rare in England and Wales and Northern Ireland
12       as it is in Scotland.
13           We have heard, despite all of this, that the Crown
14       Office were not being told about certain material
15       matters, including: occasions when there was a dispute
16       or disagreement between experts as to the identification
17       of a print; occasions when examiners have been unable to
18       find 16 characteristics when that was the national
19       standard (for example, Mr Alister Geddes's involvement);
20       and, thirdly, the existence and results of blind
21       testing.  It is accepted these issues should have been
22       disclosed to the Crown in order that the Crown could
23       fully comply with their duty of disclosure.
24           It has, however, been recognised and accepted by
25       SPSA that although the duty of disclosure is well-known
page  43
 1       and although the Crown had a legitimate expectation that
 2       material which might assist the Crown or the defence or
 3       which was exculpatory of the accused would be disclosed,
 4       it is fair to say that this was not perhaps fully
 5       understood by fingerprint staff and the Crown equally
 6       did not make this sufficiently clear to those members of
 7       the fingerprint staff.
 8           Despite the change to the non-numeric system and the
 9       new style documentation, it would appear that this
10       situation has continued and it is also clear that the
11       failure to disclose was not a one-off situation relating
12       to the circumstances surrounding Y7.  It is thanks to
13       this Inquiry that it is now clear to both SPSA and to
14       Crown Office that there is an unresolved issue in this
15       area and SPSA intend to improve the training of their
16       own staff in this area under reference to the recently
17       issued ACPOS guidance manual.
18           Further, there will be discussions about the matter
19       between Mr Pattison and Mr Nelson to ensure that this
20       situation does not arise again and, in addition, steps
21       have been taken by the Crown to prepare an
22       aide-memoire for precognoscers raising these issues
23       specifically, even where Crown Office have not been
24       advised that any difference of view or disagreement
25       exists between examiners.  This also specifically
page  44
 1       reminds precognoscers of the importance of disclosing
 2       any such issue raised at the precognition to
 3       the defence, although there is a continuing duty of the
 4       Crown to disclose material information at any stage that
 5       it comes to light and this will provide some protection
 6       pending the introduction of further training to SPSA
 7       staff.
 8           It is appreciated that the Crown have been aware
 9       since 2001 of the involvement of Alister Geddes and have
10       been aware that they did not receive evidence in
11       relation to prints which may have been consistent with
12       an accused.  Crown Office is also aware that advocate
13       deputes have known since 1994 that this evidence was not
14       being made available to the Crown.  The example given to
15       show the importance of this related to a print on a
16       murder weapon which was not an accused's but which might
17       relate, for example, to an incriminee.
18           Concerns have been raised about this situation
19       continuing an absence of any instructions or guidelines
20       from the Crown to SCRO, SFS or SPSA and these have also
21       been highlighted during the Inquiry under reference to
22       an example given of the situation where a print was
23       found on a murder weapon.
24           I would invite the Chair to consider the reality of
25       a situation such as this arising.  As the position
page  45
 1       stands, if a print is found on a murder weapon, then the
 2       fact that that exists would be disclosed to the defence
 3       in 1997 in the joint report and would now be disclosed
 4       to the defence in the annex to the report.  As a result,
 5       it has always been the position that the defence are
 6       made aware of the existance of such a print and it is
 7       open to the defence to investigate that further to see
 8       whether it is in any way consistent with any line of
 9       defence maintained by them.
10           If it is marked as insufficient, then the defence
11       will still be able to highlight the existence of this
12       print to the jury and raise the issue of reasonable
13       doubt, even if no further investigations are carried out
14       or even where they are not possible.
15           Further, the existence of such a print is not
16       something that the Crown would ignore because it could
17       raise a reasonable doubt with the jury so the Crown
18       would investigate the existence of a print of that sort
19       further.
20           In addition, if there is an incriminee -- and a
21       notice of incrimination would be lodged if there was
22       one -- then equally the onus is on the Crown to prove
23       beyond reasonable doubt that the incriminee did not
24       commit the crime and so it is actually something that
25       the Crown have an interest in investigating and in fact
page  46
 1       an onus of disproving.
 2           So although the Lord Advocate's guidelines which
 3       dealt with this matter or would have dealt with this
 4       matter were not ultimately issued, the reality is that
 5       had that situation arisen in the example given the Crown
 6       would have investigated that print, even if the defence
 7       had failed to investigate.
 8           However, if the Inquiry consider that a further
 9       category of unable to exclude would highlight to the
10       Crown and the defence that a print which cannot be
11       identified or eliminated may, on further investigation,
12       be of some potential assistance, the Crown would welcome
13       this change and it is understood that this is a category
14       which is used in England and Wales.
15           We should not assume that in the absence of such a
16       category that the Crown or defence have ignored or would
17       ignore unidentified prints if found on weapons or at
18       crime scenes.  Although Fingerprint Officers may not
19       provide the full extent of information available on a
20       particular print in the joint report or an annex, it has
21       always been open to the Crown or the defence to instruct
22       further enquiries where that is appropriate.  We have
23       also heard reference to the ACPOS guidance manual which
24       now provides considerable guidance on disclosure in
25       chapter 7 and that is published now on the website and
page  47
 1       we have heard that there will be further training given
 2       in that regard.
 3           Finally, in relation to this aspect of disclosure,
 4       it should be noted that when in force the Criminal
 5       Justice Bill Section 30 will place an obligation on an
 6       accused person where he instructs a person with a view
 7       to his providing an expert opinion for possible use as
 8       evidence at a trial he must give to the court a notice
 9       specifying the person's name and addresses and,
10       accordingly, once the legislation comes into force where
11       a defence expert gives an opinion contrary to an
12       accused's position this will ultimately come to the
13       attention of the Crown.  This is a change to the
14       situation which exists at the time of the McKie trial
15       where Mr Swann was instructed on behalf of the defence
16       but not relied upon.
17           Finally, I just wish to indicate that the
18       Lord Advocate looks forward to receiving and considering
19       the full report and recommendations in due course and I
20       thank you for your attention.
21   THE CHAIRMAN:  Thank you very much.  Subject to the one
22       deletion, we will arrange for the written submission to
23       be put on the website.
24   MISS GRAHAME:  I am obliged.
25   THE CHAIRMAN:  I suggest that perhaps this might be the time
page  48
 1       to take the break and we will sit again at 11.40.  Then
 2       you will be coming next, is that right, Mr Smith?
 3   MR SMITH:  Thank you, sir.  I have agreed with
 4       Mr Holmes that we should reverse that order for no
 5       particular reason.
 6   THE CHAIRMAN:  Whichever way you agree to it, we'll take
 7       whoever it is at 11.40.
 8   (11.20 am)
 9                         (A short break)
10   (11.40 am)
11   THE CHAIRMAN:  Mr Holmes, when you are ready.
12                     Submission by MR HOLMES
13   MR HOLMES:  Thank you, Mr Chairman.  I will begin by
14       reiterating a remark that was made at the very beginning
15       of these proceedings, which is that this matter arose
16       from a murder investigation in why my clients and the
17       other officers of SCRO played only a part.  Whilst the
18       events of the intervening years have had a dramatic and
19       unwelcome effect on all their lives, the victim in this
20       case always has been and always will be Marion Ross.
21           I would invite you to bear in mind that in 1997 and
22       1999 the SCRO experts who made the identifications were
23       Fingerprint Experts but also employees who did not have
24       any control over policy decisions nor any control of
25       identifications made on the basis of information they
page  49
 1       provided.  They refrained from media comment as
 2       instructed by their employers and have conducted
 3       themselves professionally at all times.  Despite this,
 4       they have been ill-served by the decisions made on
 5       behalf of the institutions involved in this case.
 6           My submissions will broadly follow the chapter
 7       framework set out by Inquiry Counsel in his analysis,
 8       although as the Inquiry have developed some issues have
 9       become more relevant than others.
10           The first chapter relates to the investigations at
11       43 Irvine Road.  Whilst it is unnecessary for me to
12       comment on all the matters pertinent to the murder
13       investigation there are particular issues to be
14       addressed.  The first relates to the comments of
15       Mr Moffat.  In my respectful submission, it is quite
16       clear that Mr Moffat did not make any suggestion to DI
17       McAllister that he thought Y7 was the mark of Gary Gray,
18       although he speaks to it, he acknowledges on day 6 at
19       page 10 that there is no reference to the incident in
20       either one of the notebooks that he has provided to the
21       Inquiry.  DI McAllister in his statement does not recall
22       any reference to the incident, Mr Moffat's position
23       being DI McAllister is lying and DC Gray does not recall
24       his glove being ruptured or Mr Moffat telling him it was
25       ruptured or touching the doorframe at the locus.
page  50
 1           Chief Inspector Hogg certainly had no recollection
 2       of the incident when he spoke to the MacKay
 3       investigators.  James Kerr was present when Y7 was found
 4       and has no recollection of any such conversation nor
 5       does David Thurley.  In my submission, the evidence of
 6       these witnesses should be preferred to that of Mr Moffat
 7       and the Inquiry should find that no such account was
 8       ever given.  In any event, this was one of many side
 9       issues which took up a disproportionate amount of
10       Inquiry time for little purpose and created no real
11       doubt over the identification of mark Y7.
12           I note it is also clear from DI McAllister's
13       evidence that he did not tell Mr Moffat on
14       23rd January 1997 that mark Y7 had been identified as
15       belonging to a police officer.
16           In relation to the issues surrounding the recovery
17       of evidence at Irvine Road, firstly on delay, in my
18       submission, the recovery of fingerprint evidence was not
19       in any way affected by the delay in formal designation
20       as a murder in accordance with normal police procedures.
21       Mr Ferguson, a Scenes of Crime Officer, confirms that he
22       was instructed to treat the incident as a murder as does
23       Mr Thurley who says the scene was treated in exactly the
24       same way as it otherwise would have been.
25           In relation to choice of powder, in my submission,
page  51
 1       the development of the mark by black powder rather than
 2       aluminium powder is not a matter the Inquiry should
 3       consider to be significant.  Dr Bleay gave evidence that
 4       either the area in which Y7 was discovered had not been
 5       covered by aluminium powder or that the aluminium powder
 6       did not adhere well to the area before it was re-treated
 7       with the black powder.  He is unable to tell which.
 8           Under those circumstances there is no value in
 9       speculating whether the mark was deposited before the
10       application of the aluminium powder but that the
11       aluminium powder did not adhere well to it or whether
12       the mark was deposited after the application of the
13       aluminium powder but before the application of the
14       black.
15           In relation to the issue surrounding access to the
16       locus, in my submission, there is contradictory evidence
17       from Ms McKie and from others as to the extent of her
18       entry into the house at Irvine Road.  She stated she
19       entered the porch area whereas the officer in charge of
20       the log states that she did not.  The log is incomplete.
21       It does not record the presence of DC Kerr though he
22       give evidence that he was there.  DC Kerr also gives
23       evidence that Ms McKie was within the porch on at least
24       one occasion when he was there, which contradicts the
25       evidence, again, of PC Lees.
page  52
 1           The very reason PC Lees gives for not recording the
 2       presence of Ms McKie is that she did not enter the
 3       vestibule of the house.  This combined with the
 4       demeanour of PC Lees during his evidence to the Inquiry
 5       and the account of his evidence during the trial given
 6       by Chief Inspector Carle is, in my submission, reason to
 7       reject his evidence.
 8           Whilst that does not prove the opposite is true and
 9       that he did allow Ms McKie access to the locus, it does
10       in my submission show, taken along with the evidence
11       that other officers were present in the house who do not
12       appear on the log, that neither the log nor PC Lees'
13       recollection can be relied upon.
14           In my submission, the Inquiry should find that
15       individuals not on the log, including Ms McKie, at least
16       had the opportunity to access the locus without being
17       recorded in the log.
18           Chapter 2 relates to marks XF and QI2 and to the
19       detention of David Asbury.  In relation to the
20       information available to the officers who examined the
21       tin, there has been a great deal of evidence about the
22       form 13 which was sent to SCRO along with the
23       photographs of the marks found on the Marks & Spencer
24       tin found in David Asbury's house which reads:
25           "Ident required for deceased".
page  53
 1           Whilst the witnesses agree that in retrospect
 2       the words were carelessly chosen they also agree that
 3       what would have been intended was merely an instruction
 4       that the marks on the tin were compared to the form in
 5       the name of Marion Ross with some priority rather than
 6       having officers go through the order on the worksheet.
 7       This is, according to Mr Chamberlain, an advisable
 8       approach.
 9           All the witnesses are clear that any comment on
10       a form 13 would not affect their examination of the mark
11       as against a known print.  The tin was found in
12       Mr Asbury's house so the only relevance of any marks on
13       the tin to the murder inquiry would be if they belonged
14       to the deceased, Miss Ross.  I would invite you to find
15       this comment had no bearing on the comparison of QI2.
16           In relation to the case against Mr Asbury,
17       Mr Gallacher wrote a note outlining the evidence against
18       Mr Asbury aside from the fingerprints dated 28th
19       January 1997.  Crown Counsel instructed full committal
20       on 30th January 1997 and on the same day Mr Heath was
21       contacted by Mr McTaggart in relation to the two pieces
22       of evidence against Mr Asbury on which Mr Gallacher
23       sought clarification.  Mr Asbury was fully committed the
24       following day.
25           The identification of QI2 as the right forefinger of
page  54
 1       Marion Ross had no bearing on the decision to fully
 2       commit Mr Asbury as the evidence is that the
 3       identification was made on the day of full committal and
 4       that decision had already been taken by the Crown and I
 5       would invite you to make a finding to that effect.
 6           In relation to XF the identification is not
 7       disputed.  The mark was identified by Mr MacPherson and
 8       checked by three other officers.  Despite many attempts
 9       by Mr Wertheim to throw suspicion on the provenance of
10       mark XF when confronted with his own notes he was forced
11       to admit he had examination the original gift tag prior
12       to Ms McKie's trial and that there was no evidence that
13       the mark on it was fabricated.
14           Two marks from the end of the Marks & Spencer's tin
15       were identified, one of Miss Ross and one of Mr Asbury,
16       both form QI2.  Mr MacPherson again was the first
17       examiner to identify these and he did so using the
18       original photograph, the original form and a
19       fingerprint glass.  Each mark was checked by three other
20       examiners to the 16-point standard.
21           In relation to QD2 the evidence of the Danish
22       experts on this and all other marks must be regarded now
23       as discredited.  There is no dispute that QD2 was
24       correctly identified by SCRO.
25           In relation to the use of the comparator we have
page  55
 1       heard evidence that it was normal practice for the
 2       comparator to be used in some way by Fingerprint
 3       Experts.  Those who were checking the marks after the
 4       initial checker would make use of the comparator screen
 5       to keep a record of who had looked at the mark and
 6       confirmed the identification.  Those details would later
 7       be transferred to the reverse of the photograph.
 8           It was the usual practice of Mr Stewart, Mr Geddes,
 9       Ms McBride, Mr McKenna and Mr MacPherson to carry out
10       their initial comparisons with fingerprint glasses
11       regardless of whether the mark and print were on the
12       comparator to begin with and they could then move to the
13       comparator if that was required.
14           In relation to documentation, the identification of
15       part of QI2 as the right forefinger of Marion Ross was
16       documented to the accepted standard at the time.  The
17       officers cannot be criticised for following the
18       processes in place.  The officers who checked and
19       verified QI2 as that of the right forefinger of Marion
20       Ross recorded that fact on the reverse of the photograph
21       and the time and date this information was relayed to
22       the murder team was also recorded.  This information was
23       again recorded on the SCRO diary page.  The information
24       was also recorded on the Marks Worksheet.
25           Any criticism is baseless.  On keeping notes in
page  56
 1       general, Mr Logan gave evidence that he does not keep
 2       notes on his examinations and that it is impractical to
 3       do so in a working bureau.  He also gave evidence that
 4       it is of limited value to do so anyway since different
 5       examiners may use different characteristics to come to a
 6       view and that even the same examiner may use a different
 7       set of characteristics on each occasion they examine the
 8       mark.  Mr Pugh appeared to have a similar opinion.
 9           Chapter 3 relates to marks Y7 and Z7, the finding of
10       these marks and the initial assessment.  On the issues
11       of where, when and under what circumstances Y7 was found
12       and when it was identified and checked, mark Y7 was
13       discovered at 43 Irvine Road on 14th January 1997.  The
14       photographs available of the door standard confirm
15       Mr Moffat's notes that Y7 is on the right-hand inner
16       facing of the bathroom door surround about five feet up.
17           There's a piece of palm-print below the mark which
18       is unfortunately insufficient for identification but
19       that, along with Mr Moffat's notes, indicate that the
20       orientation was with the thumb facing upwards.
21           Dr Bleay gave evidence that there was no way to tell
22       whether or not the mark was deposited before or after
23       the application of aluminium powder.  His evidence was
24       that whilst he could not detect aluminium there were a
25       number of possible reasons for this.  There is, in my
page  57
 1       submission, no way for this Inquiry to reach a safe
 2       conclusion about this.
 3           Mr Thurley seized the bathroom door on
 4       9th January 1997.  Given the position of mark, in my
 5       submission, it has been demonstrated that it would be
 6       relatively easy to leave a thumbprint if the door had
 7       already been removed, less so if the door remained in
 8       position.  For that reason, in my submission, it is more
 9       likely that the mark was deposited after the door was
10       removed and I would invite you to make a finding to that
11       effect.
12           Ms McKie's fingerprint form was not on file.  It had
13       to be requested.  The one compared against Y7 is dated
14       6th February 1997 so it cannot be the case that DI
15       McAllister could comment on the identification on
16       23rd January 1997.  In any event, the mark was only
17       checked by four officers and called out of the Bureau on
18       11th February 1997 so again it cannot have been
19       attributed to a police officer prior to this.
20           The evidence before this Inquiry is that in relation
21       to mark Y7 it was in a bundle of marks which are logged
22       as arriving at SCRO on 14th January 1997 that were then
23       dealing with in the normal fashion and compared against
24       ten-print forms for those persons listed on the suspect,
25       elimination and police work sheets.
page  58
 1           After the identification of mark Y7 as the left
 2       thumbprint of Shirley McKie by Mr MacPherson, it was
 3       then verified by three other experts in the normal way
 4       before it was telephoned out to DCI Heath on
 5       11th February 1997, as recorded on the reverse of the
 6       photograph.
 7           The process by which Y7 came to be identified as
 8       that of Ms McKie was no different to the procedures
 9       adopted for the other marks in the case.
10           From the evidence it was Mr MacPherson who took the
11       decision that mark Y7 would be verified using the
12       16-point court standard.  Mr MacPherson had decided that
13       all identifications should be to that standard as this
14       murder inquiry started as what has been termed a
15       "whodunnit".  As it transpired, the mark was identified
16       as belonging to a police officer whose name had appeared
17       on an elimination list of police officers provided by
18       the murder investigation team and, therefore, it ceased
19       to be of any significance to the murder inquiry itself
20       as far as the Fingerprint Officers were concerned at
21       that stage.
22           Mr Geddes states that he was asked by Mr MacPherson
23       to look at the mark and that he was aware that it had
24       been eliminated as belonging to a police officer.
25       Mr Stewart states that he was not aware of this.  Ms
page  59
 1       McBride was aware that Mr MacPherson had identified the
 2       mark as the number 6 of Ms McKie.  By the
 3       time Mr Halliday, Mr Dunbar and Mr Mackenzie examined
 4       the mark they were aware of the identification that had
 5       been made.
 6           Mr Geddes states that his recollection is that he
 7       examined the photograph of the mark and the form using a
 8       fingerprint glass.  Mr Stewart states that he carried
 9       out the examination using the photograph, the original
10       form and a fingerprint glass.  Ms McBride used the
11       original photograph, the original form and a fingerprint
12       glass.
13           After Ms McKie denied having entered the locus at 43
14       Irvine Road, on 11th February DCI Heath says that he
15       gave the instruction for the mark to be checked again.
16       He states that he had no doubt himself but that because
17       fingerprint evidence was likely to be important to the
18       case and because he had already heard Ms McKie denying
19       loudly that the mark was hers he decided to have it
20       checked again.
21           SCRO were instructed by Chief Inspector O'Neill that
22       this identification should be rechecked.  Chief
23       Inspector O'Neill was ordered to do so by the Deputy
24       Divisional Commander at Kilmarnock who had Mr McKie with
25       him at the time.  This was an entirely nonstandard
page  60
 1       procedure that only took place, on one view, because of
 2       the intervention of Ms McKie's father.  This was not an
 3       opportunity that is likely to have been afforded to a
 4       civilian.
 5           Mr Mackenzie and Mr Dunbar then independently
 6       checked mark Y7 and were both satisfied that there were
 7       sufficient characteristics in sequence and agreement to
 8       individualise mark Y7 as the left thumbprint of Shirley
 9       McKie.
10           In relation to the blind test, Mr Mackenzie's
11       evidence makes it clear he considered this to be a
12       training opportunity.  Mr Dunbar's recollection was
13       simply that he had been instructed to organise a further
14       examination of the mark.  The list of those who
15       participated in the exercise has since been lost.  The
16       evidence of Mr Dunbar is that the conclusion of all
17       those who took part was that the mark Y7 was made by the
18       left thumb of Shirley McKie, with the exception of two
19       officers who sought more time to complete the exercise.
20           With regard to the re-photographing and retaking of
21       prints on 18th February again this was an entirely
22       nonstandard procedure that would not have been afforded
23       to a civilian.  The only reason for this was, it is
24       clear from the statement of Chief Inspector O'Neill, the
25       influence exerted by Ms McKie's father.  Chief
page  61
 1       Superintendent Ferry made it clear to Mr Mackenzie and
 2       Mr Dunbar during an animated meeting that they
 3       had better be certain of their findings.  Following
 4       this, Mr Mackenzie and Mr Dunbar rechecked the new
 5       photographs and a new ten-print form and once again
 6       confirmed that mark Y7 was the left thumbprint of
 7       Shirley McKie.  This information was then relayed to
 8       Chief Superintendent Ferry by Mr Mackenzie.
 9           Although it is not a matter upon which this Inquiry
10       has dwelt, the question has been asked whether or not
11       the SCRO examiners were aware that Ms McKie's
12       fingerprint was identified on a production in a case in
13       1993.  This is, in my submission, a ridiculous notion.
14       Evidence has been heard of the huge volume of marks
15       compared by the Glasgow Bureau.  Evidence has also been
16       heard that it was by no means an irregular occurrence
17       that police officers left their marks at loci and on
18       productions.  To suggest that a particular examiner
19       would immediately recall an incident involving a
20       particular officer or the particular characteristics in
21       a mark submitted for comparison would bring a particular
22       officer to mind is, in my submission, inconceivable.
23           I would invite you to find that Y7 was correctly
24       identified as the left thumbprint of Shirley McKie.
25       Mr MacPherson and Mr Mackenzie have spoken to the
page  62
 1       individual characteristics in Y7 of which they made use
 2       in their identification.  They have demonstrated where
 3       those characteristics are to be found in the images
 4       before the Inquiry.
 5           They are challenged by Mr Wertheim and Mr Zeelenberg
 6       on the basis that Mr Wertheim and Mr Zeelenberg perceive
 7       a number of differences between Y7 and the left
 8       thumbprint of Shirley McKie.  Firstly, I would urge you
 9       to make use of the images so far as possible in their
10       unadulterated form.  Both Mr Zeelenberg and
11       Mr Wertheim's images are heavily marked and this, in my
12       submission, is unhelpful.  It indicates what the
13       examiner wishes you to see but it is of course that
14       examiner's own interpretation of the detail not
15       necessarily what is actually there.
16           A pointed case of this came in relation to
17       Mr Wertheim's identification of what has become known as
18       the Rosetta characteristic where he lined out a
19       differing number of intervening ridges between two inked
20       prints used by Mr Swann in his illustrations.
21       Mr Wertheim on that occasion got it wrong.  In that case
22       the illustration serves only to confuse.  No doubt
23       Fingerprint Experts will access the materials published
24       by the Inquiry in future and no doubt they too will bear
25       that in mind.
page  63
 1           In passing, I would note that Mr Wertheim's
 2       suggestion that it was Inquiry Counsel who suggested
 3       that the point he was looking at was the Rosetta
 4       characteristic does not accord with the transcript of
 5       the evidence, day 24, page 100 to 102 and the image
 6       FI2309.014.  I would invite you to consider this when
 7       assessing whether Mr Wertheim's evidence to this Inquiry
 8       was credible and to find that it was not.
 9           Secondly, I would invite you to find that where a
10       sufficient volume of ridge detail in sequence and
11       agreement exists even a supposed difference between the
12       known impression and the crime scene mark does not
13       necessarily matter.  It was accepted by a number of
14       witnesses that nobody will ever know the exact way in
15       which a mark was deposited.  Attribution of differences
16       to movement, pressure distortion or contaminants will
17       always be a matter of coming to a view based on training
18       and experience.  My clients and those who agree with the
19       identification of Y7 all take the view that the mark is
20       heavily distorted.  Mr Swann went into some detail about
21       his own findings and I believe those of Mr Berry who
22       also agrees the identification in this regard.
23           It should also be born in mind that an attempt to
24       challenge an identification on this basis is not new.
25       In the case of Alfred and Albert Stratton in 1905, an
page  64
 1       expert attempted to challenge a fingerprint
 2       identification on the basis that there were a number of
 3       dissimilarities between the known print and the crime
 4       scene mark.  The attempt to discredit the fingerprint
 5       evidence failed now and it should fail now.
 6           One feature of that case was that the defence expert
 7       was found not to be a credible witness.  There are a
 8       number of matters which you, Mr Chairman, must consider
 9       when deciding upon the weight to be given to differing
10       expert evidence.  The credibility of each individual
11       witness must, in my submission, be a relevant factor.
12           Mr Wertheim has clearly become a part of the
13       campaign against those who identified Y7 and QI2.  He
14       cannot be considered for these purposes to be an
15       independent expert.  He says in his own evidence that he
16       considers it part of his role to persuade a jury of his
17       conclusions.  In my submission the fact that any witness
18       states that they see it as their business to influence
19       the outcome of the proceedings is wholly inappropriate.
20       He sought to exact influence in this case by, amongst
21       other things, writing the e-mail enclosed with the
22       letter sent by Mr McKie to the Justice Minister to put
23       pressure on my clients' employment by suggesting that
24       SCRO needed to "clean house", as he puts it.  He has
25       done so by appearing on television and suggesting that
page  65
 1       Y7 is mis-identified and not in error, but deliberately.
 2       He has maintained a position on XF that it is
 3       fabricated, even in the knowledge that he had examined
 4       the gift tag himself and declared it "legit".
 5           He has commented constantly on the Internet and in
 6       newspaper articles for a number of years, even during
 7       this Inquiry, and has accused my clients of lying.
 8       Mr Wertheim is described in Sheriff Murphy's note as
 9       "more showman that expert".
10           I have already invited you to find Mr Wertheim's
11       evidence to this Inquiry is not credible but standing
12       his position as to his recollection on the examination
13       of XF that he carried out in 2000, I would also invite
14       you to find that neither is his evidence to this Inquiry
15       reliable.
16           Mr Zeelenberg accuses my clients of bad practice or
17       malpractice, even in the knowledge that he has had to
18       recant an allegation of mis-identification on behalf of
19       the Danish experts and on behalf of Messrs Bail,
20       McGregor [sic, MacLeod] and Dempster.  The Danish
21       experts, it should be remembered, have elected not to
22       co-operate with this Inquiry.  Mr Zeelenberg refuses to
23       accept that another opinion could be honestly held by a
24       competent expert even though when challenged he declares
25       himself only to be an expert who gave his honest
page  66
 1       opinion.
 2           Mr Wertheim says the same, though he does invite
 3       comment on his competency should the Inquiry find in
 4       favour of the identification of Y7 and QI2.
 5           Mr Logan, Mr Pugh and Mr Chamberlain acknowledge
 6       that fingerprint evidence is subjective, even my own
 7       clients have acknowledged that a competent expert acting
 8       in good faith could have come to a different view.
 9       Mr Mackenzie and Mr Dunbar's perception of the
10       discussion at Tulliallan is markedly different from
11       Mr Zeelenberg's and again it is telling that no evidence
12       has been provided by the only independent witness to
13       this incident, Mr Rudrud.
14           Mr Dunbar and Mr Mackenzie have given evidence on
15       their view of whether Mr Zeelenberg was acting in good
16       faith when, whether by threat or merely pointing out the
17       potential consequences for them in a friendly way, he
18       attempted during and after the Tulliallan conference to
19       solicit them to change their views.  We also have
20       Mr Zeelenberg's evidence that he was not there to
21       facilitate a discussion but to persuade the SCRO experts
22       that they were incorrect.
23           Mr Sheppard and Mr Grigg made similar criticisms
24       from a position of having no knowledge of SCRO, its
25       systems or its procedures.
page  67
 1           Mr MacLeod and Mr Bayle saw fit to call for the
 2       closure of the Glasgow Bureau of SCRO on the basis of an
 3       alleged mis-identification in the Sutherland case which
 4       came at a crucial moment during Justice 1 and which they
 5       have since been forced to acknowledge was wrong.
 6           I was asked by Inquiry Counsel not to cross-examine
 7       Mr MacLeod on any negative aspect of his evidence
 8       because of his failure to properly carry out the task
 9       asked of him during the comparative exercise.  I did ask
10       Mr Bayle about his admission at Justice 1 that he was
11       incorrect to criticise Sutherland but he refused to
12       answer.
13           The identification of part of QI2 as being the right
14       middle fingerprint of David Asbury was questioned by
15       this Inquiry with reference to a 7th August 2000 report
16       prepared by Mr Rokkjaer and Mr Rasmussen.  After a
17       lengthy examination, Mr Logan of the Police Service of
18       Northern Ireland has confirmed that the identification
19       was correct.  In my submission all we have learned is
20       that this was another speculative attempt to cast doubt
21       on the ability of the officers involved in this case
22       and, in my submission, it is another attempt which has
23       failed.
24           The Danish experts Mr Rokkjaer and Mr Rasmussen also
25       questioned QD2 as not originating from Mr Asbury.
page  68
 1       Mr Jensen of the Danish police later confirmed this was
 2       incorrect and that he would have expected a novice to be
 3       able to make the identification.
 4           The Danish experts also indicated that QE2 and QL2
 5       were sufficient for comparison, which has since been
 6       contradicted by the examination carried out by Mr Logan
 7       and the Police Service of Northern Ireland.
 8           The language employed by some of the defence experts
 9       in this case is far beyond what is appropriate for an
10       independent expert and must, in my submission, cast a
11       shadow over their credibility.  Contrast that with the
12       level of co-operation and professionalism shown to this
13       Inquiry by those who identified Y7.  My clients have
14       made themselves available and have carried out the work
15       the Inquiry requested of them.  They have explained
16       their opinions and the reasons for disagreeing with the
17       defence experts.  They have given their oral evidence in
18       a professional manner, even when challenged.  The SCRO
19       experts have not shot from answering any question put to
20       them.
21           Attempts have also been made to refer to a general
22       mass of opinion amongst world experts.  Firstly, the
23       reference to world experts is misleading.  These are
24       experts from elsewhere in the world.  I would call
25       attention to the evidence of Mr Logan who indicated that
page  69
 1       the involvement of experts from jurisdictions with
 2       different backgrounds and training is less desirable
 3       than having a disputed mark looked at by experts from
 4       the same jurisdiction.  I would also invite you to note
 5       that the Interpol European Expert Group of Fingerprint
 6       Identification, which was mentioned by Mr Zeelenberg,
 7       has stated that it is recommended that only the
 8       receiving country can or should decide on the validity
 9       of an identification for its own judicial process and
10       identifications established by another country should be
11       confirmed by the receiving country.
12           Secondly, we do not truly know the opinion of any
13       expert who has not offered his or her co-operation to
14       this Inquiry.
15           Thirdly, we do not know what materials, if any,
16       others have looked at.  That being the case, the opinion
17       for or against the identification of Y7 cannot be
18       supported by reference to individuals who have not
19       provided evidence here.
20           In relation to chapter 4 which relates to the Crown
21       Office, the Procurator Fiscal and their preparation for
22       the Asbury trial and chapter 5, the preparation of
23       reports by SCRO in the Asbury and the McKie case,
24       reports were prepared in the normal manner for the
25       Asbury case.  Any additional productions were only made
page  70
 1       at the request of the Crown.  The SCRO officers had no
 2       discretion or input into such matters.  The production
 3       of books of all identified fingerprints in the case was
 4       at the request of the Crown and was not a standard
 5       procedure.  What this meant was that all the marks and
 6       identifications were available for scrutiny by the
 7       defence Fingerprint Expert, Mr Graham, and he was
 8       satisfied that they were correct.
 9           It was normal practice for only two Fingerprint
10       Officers to attend court to give evidence.  In the
11       Asbury trial these two witnesses were Mr Stewart and
12       Mr MacPherson.  Ms McBride and Mr McKenna were the
13       alternates in case of holiday or unavailability.
14           The choice in number of fingerprint reports to
15       request and lodge as productions was entirely a matter
16       for the Crown.  The Crown chose in the McKie case to
17       call all four Fingerprint Experts who had signed the
18       joint reports.  Mr McKenna was unavailable so only three
19       gave evidence, Mr Stewart, Mr MacPherson and Ms McBride.
20       The joint reports and charted enlargements for these
21       trials were prepared by Mr MacPherson.  However, it is
22       important to note that all four officers who signed
23       those reports had to independently satisfy themselves
24       that the information was correct as any of them could
25       have been called to give evidence at the trial.
page  71
 1           In relation to chapter 6, fingerprint law and
 2       practice, the evidence in relation to the signing of the
 3       case envelope in the Asbury case is these would be the
 4       individuals who had identified the majority of the marks
 5       within the envelope and who would be most likely to be
 6       used in the preparation of a joint report and the giving
 7       of evidence if required.
 8           As mentioned earlier, Ms McBride and Mr McKenna were
 9       the chosen substitutes for other signatories based on
10       the pattern of annual leave.  The selection of experts
11       and substitutes for particular cases was a management
12       decision.
13           In relation to the issues raised regarding joint
14       reports, each of the signatories to a joint report would
15       have to satisfy his or herself as to the identifications
16       described therein.  They knew at that stage that they
17       may have to speak to the identification in court so they
18       would satisfy themselves at the time the joint report
19       was prepared.
20           In relation to the selection of images the officer
21       preparing the joint report would choose them and in
22       relation to the choice of forms there would be in all
23       likelihood only one form for each individual so there
24       was no choice but to use that form, although another
25       could be requested if the form was not clear.
page  72
 1           On the additional comment in the March report, the
 2       evidence has been that any derogation from the standard
 3       form of report would have been on the request of the
 4       Procurator Fiscal or Advocate Depute and there is no
 5       inference that should be drawn from this.
 6           In relation to production number 180, which was only
 7       signed by Mr Stewart and Mr MacPherson, the evidence of
 8       Chief Inspector Wilson was that this was prepared at his
 9       request in relation to disciplinary matters.  In any
10       event, it was produced at the McKie trial and disclosed
11       to the defence.  Again, no inference can be drawn from
12       this as any report or charting would only have been
13       prepared by SCRO officers on the request of the Crown
14       or, as in this instance, on the request of the police.
15           As a matter of course for cases on indictment case
16       specific enlargements were prepared to illustrate the
17       processes used by the Fingerprint Experts in reaching
18       their conclusion as to unique identity, although as a
19       matter of fact it used 16 actual characteristics.  This
20       illustration was intended to fulfil the same role as
21       generic fingerprint illustrations.
22           The criticism that has been levelled at my clients,
23       quite wrongly in my submission, is that without some
24       means to demonstrate what they are seeing they are
25       merely making a bald assertion that individual features
page  73
 1       of a mark are there and expecting the jury, a judge or
 2       you, Mr Chairman, to accept that.
 3           In my submission, it is not necessary for the jury,
 4       a judge or you to see individual characteristics on a
 5       photograph.  Medical experts give evidence a great
 6       deal of the time in criminal cases without reference to
 7       the photographs because to do so would be distressing
 8       for the victim, their family or for the jurors
 9       themselves.  Their evidence of what they saw when they
10       examined a victim is merely evidence of fact which a
11       jury can choose to accept or reject, as with any other
12       evidence.  Once that factual basis has been laid their
13       opinion evidence, the interpretation of what they have
14       seen can begin.
15           The suggestion that a jury must be able to see
16       characteristics on a photograph is misleading.  The best
17       evidence is the original photograph used by the examiner
18       for their comparison which the jury would not in any
19       event be able to pick out individual characteristics
20       simply because of scale.
21           Mr Logan agreed with this in his evidence and went
22       so far as to say the production of case specific
23       enlargements was unhelpful since jurors would inevitably
24       fail to see all the characteristics an expert could see.
25       Within the limitations of the performance of the
page  74
 1       charting PC, the court productions were accurate
 2       representations of 16 characteristics in sequence and
 3       agreement.  Those characteristics may not have been the
 4       ones used by each individual examiner to come to a
 5       conclusion but they were characteristics that each
 6       examiner was willing to agree upon.
 7           The main flaw with the charting PC was the clarity
 8       of the images it produced and the difficulty in
 9       manipulating the points and lines.  As the Inquiry has
10       seen, the marking up of images, even today, is difficult
11       with technology considerably more advanced than the
12       charting PC.  Evidence of the actual identification was
13       in the original materials which the expert had used and
14       which were available to any defence expert.
15           Chapter 7 relates to the decision to prosecute in
16       the case of Ms McKie.  The only comment that I would
17       make in relation to the decision to prosecute Ms McKie
18       is that it has been suggested that it would have made a
19       difference had it been known to the Crown that a number
20       of experts who did not sign the joint reports or court
21       production books had confirmed the identification on
22       fewer than 16 points.  We have heard evidence that under
23       the non-numeric system it is a sufficiency of
24       characteristics to individualise that is important in
25       confirming an identification and under this system the
page  75
 1       actual number of characteristics would make no
 2       difference and would not be disclosed to the Crown.  In
 3       any event, there were circumstances where evidence could
 4       be led in relation to identity, even where the 16-point
 5       standard had not been met.
 6           I would refer in this section to the case of
 7       R v Beeson which is to found in 1990 New Zealand Law
 8       Reports, page 572.  In that case, fingerprint evidence
 9       was led at a trial from two officers for the Crown.  The
10       accused were convicted and appealed inter alia on the
11       ground that fingerprint evidence ought to have been
12       rendered inadmissible by a memorandum written by one of
13       the officers prior to trial which apparently indicated
14       that he had achieved fewer than the national standard,
15       which was 12 points, but was content to identify.  The
16       appeal was refused.
17           The case also contains an interesting discussion on
18       whether jurors ought to be able to see individual
19       characteristics on charted enlargements.  The court
20       concluded that they need not.
21           The other two decisions relating to Mr Asbury's
22       appeal and to the settlement of the civil case have been
23       decided not to be part of this Inquiry's remit.  In
24       relation to that, I would note only that I made detailed
25       submissions as to why they ought to be included in the
page  76
 1       remit and I respectfully remain of the view that this
 2       Inquiry should have considered those decisions.
 3           In relation to chapter 8, which relates to
 4       Ms McKie's trial and the post trial review, firstly, in
 5       relation to whether the Crown failed to take an
 6       appropriate step by exhausting the instructions to
 7       Mr Kent, in my submission the Crown did not fail to
 8       exhaust the instructions to Mr Kent.  The instructions
 9       to Mr Kent were exhausted so far as they could be by
10       Mr Kent's involvement since he himself has said that he
11       is not a Fingerprint Expert.
12           It is clear from the evidence that Mrs Greaves
13       failed to appreciate that Mr Kent is not a Fingerprint
14       Expert and that if these instructions were to be carried
15       out a further expert would be required.  Assuming such
16       an independent expert supported the Y7 identification,
17       as Malcolm Graham and Peter Swann had already done, this
18       would have provided valuable independent support to the
19       SCRO officers and the Crown case.
20           In Sheriff Murphy's note of 3rd June 1999, which was
21       not available prior to his giving evidence, he states he
22       was aware of a defence expert who had agreed with SCRO
23       before the trial and asked for this to be investigated.
24       It was not.  This failure prevented the prosecution from
25       citing Mr Swann or putting his agreement with SCRO to
page  77
 1       Ms McKie in cross-examination.  I would note that
 2       Mr Asbury's defence expert, Malcolm Graham, had already
 3       examined the fingerprint productions and satisfied
 4       himself that the identifications made were correct,
 5       including both Y7 and QI2 and that Mr Graham had given
 6       evidence at Mr Asbury's trial.
 7           A further report not from Mr Kent but from a
 8       Fingerprint Expert would either have confirmed SCRO's
 9       findings and resulted in stronger evidence at trial.
10       Ms McKie states that her father had some difficulty in
11       coming up with a Fingerprint Expert who was prepared to
12       contradict the SCRO findings -- so I would suggest that
13       this is the more likely outcome -- or the further report
14       would have contradicted SCRO's findings and led most
15       likely to an adjournment of the case or to a desertion
16       of the case pro loco et tempore for any issues
17       surrounding the fingerprint evidence to be resolved.
18           In my respectful submission, it is also a matter of
19       considerable doubt the SCRO witnesses were properly
20       briefed by the Crown in advance of the McKie trial.  The
21       situation where fingerprint evidence was contested was
22       rare.  The main difference between the SCRO experts and
23       the defence experts has been agreed by the witnesses who
24       have spoken about it to relate to presentation.  The
25       recognition of a need for training in this area is the
page  78
 1       recognition that when faced with a slick presentation
 2       from a defence expert on a difficult topic juries may
 3       select which witness to prefer based on presentation
 4       skills rather than on expertise.
 5           Despite what Mr Nelson said about the use of
 6       technology there is, in my submission, no good reason to
 7       do so in a court setting other than to apply a veneer of
 8       professionalism which may appeal to non-Fingerprint
 9       Experts but should not be a substitute for the
10       underlying skills of the expert witness.  I would refer
11       again to Sheriff Murphy's stated view of Mr Wertheim in
12       that regard.
13           As mentioned previously and bearing in mind the
14       stage at which the defence reports were received, in my
15       submission, it is doubtful that the prosecution were
16       properly prepared to present the SCRO evidence.  The
17       fault, if there be any, for any lack of preparation must
18       lie with the Depute and not with the individual
19       witnesses.
20           Sheriff Murphy gave evidence that he learned of
21       another expert's involvement very soon before the
22       beginning of the trial and did not know that that expert
23       was Mr Swann.  The very fact that her own expert had
24       confirmed SCRO's findings was very damaging to Ms McKie.
25       Sheriff Murphy could reasonably have anticipated that
page  79
 1       she would be reluctant to disclose his findings.  He
 2       could reasonably have anticipated that had he
 3       demonstrated before the jury that she had lied about
 4       such matters her credibility would have been damaged.
 5       He ought, therefore, to have instigated a
 6       proper investigation into Mr Swann's identity
 7       immediately he discovered someone else had been involved
 8       on Ms McKie's behalf.  He ought, if necessary, to have
 9       sought an adjournment to do so.  Further Sheriff Murphy
10       could not have been properly prepared to meet
11       Mr Wertheim's evidence because, with the greatest
12       respect to Mr Findlay and those instructing him, it was
13       made available at the very latest stage.
14           There is a clear divergence between Sheriff Murphy
15       on the one hand and Mr MacPherson and Mr Stewart on the
16       other as to the level of contact between the Crown and
17       the SCRO witnesses in advance of the McKie trial.
18           On any view the defence productions arrived very
19       late in the day and without proper notice of the exact
20       purpose of the US experts.  In advance of the trial the
21       emphasis had been on whether the print could have been
22       fabricated.  No detailed statements were taken from the
23       prosecution experts to inform the AD.  One of the
24       prosecution witnesses was not asked to review the
25       defence productions, nor was she warned of the nature of
page  80
 1       the challenge being made to the SCRO evidence by the
 2       defence, nor was she or any of the prosecution experts
 3       given copies of the defence productions or time to
 4       examine them under laboratory conditions.
 5           In addition, the large presence at the trial on
 6       behalf of the Identification Bureau, in my submission,
 7       indicates that, even at this stage, it was anticipated
 8       that the defence would be based on an allegation that Y7
 9       was fabricated.
10           Inquiry counsel has indicated that the issue of
11       whether Ms McKie gave perjured evidence during her own
12       perjury trial is a matter which will be considered by
13       the Inquiry.  It is clear, in my submission, that she
14       did.  The issues to be considered when coming to that
15       view are, firstly, that Ms McKie was aware of the
16       involvement of Peter Swann before she gave evidence at
17       her own trial.  This is apparent from her statement,
18       from the statement of Mr McKie and that of Mr Swann.
19       That Ms McKie herself met with Mr Swann is not a matter
20       in dispute.  The second issue is whether she states
21       under oath that she did not know of his involvement.  In
22       my submission, looking at the transcript answers this.
23       She was given a number of opportunities by the Advocate
24       Depute to say whether Mr Swann had looked at the
25       fingerprint evidence and failed to do so.  She was
page  81
 1       finally asked whether she knew if anyone had looked at
 2       the fingerprint evidence before Mr Wertheim and said
 3       that she did not.  It is clear, in my submission, that
 4       this is not true and that Ms McKie knew that it was not
 5       true.
 6           Had the jury been aware that she lied, we do not
 7       know whether this would have had made any difference to
 8       the verdict.  There are 15 jurors alone who would know
 9       whether being aware that Ms McKie lied to them would
10       have made any difference to their vote.  I do not ask
11       the Inquiry to make any finding on that, but rather
12       simply to find that Ms McKie was asked questions during
13       her trial to which the answers she gave were not the
14       truth.  In my submission, Mr McKie's attempts to justify
15       his daughter's actions to this Inquiry have no bearing
16       on this question but may bear on this Inquiry's
17       assessment of his own credibility.  His attempts to
18       blame this on Mr Findlay are rebutted by the statement
19       given by Mr Findlay who confirms that he had very
20       limited contact with Mr McKie and would not, in any
21       event, have instructed a witness to lie.
22           In relation to chapter 10, the reviews of
23       fingerprint evidence post McKie and the treatment of
24       SCRO staff.  In my submission, the decision taken
25       relative to the six SCRO officers clearly did not
page  82
 1       proceed upon a proper analysis of the fingerprint
 2       evidence.  Mr Nelson has given evidence that the SPSA
 3       still does not have an official position on Y7 or QI2.
 4       That fact alone indicates that the decisions taken
 5       relative to these officers had nothing to do with
 6       fingerprints.  The disciplinary investigation by Black
 7       brought up no issues in relation to their work.  The
 8       Advocate Depute was not critical of the expertise of the
 9       officers at the McKie trial and made it clear in his
10       note to the Home Advocate Depute that, in his view,
11       where equally competent experts give opposing testimony
12       it is impossible to persuade the jury the Crown has
13       proved its case beyond a reasonable doubt.
14           The officers were suspended on the basis of the
15       controversy surrounding Ms McKie's trial.  They remained
16       suspended pending the outcome of the action brought by
17       Ms McKie against the Scottish Executive.  Lord Boyd made
18       it clear that the decision to refuse to accept evidence
19       from these officers by the Crown was taken on the basis
20       of external factors: firstly, the campaign waged against
21       them by Mr McKie and others leading to their notoriety;
22       secondly, the decision by the Scottish Executive to
23       settle the action brought by Ms McKie, despite the
24       outcome of the procedural hearing; and, thirdly, the
25       fact that the Mackay Report was leaked.
page  83
 1           Mr Mulhern in turn confirmed that the decision to
 2       terminate the employment of these officers was brought
 3       about by the decision of the Crown no longer to accept
 4       their evidence.  None of this takes any account of the
 5       fingerprints.  The officer who gave evidence at the
 6       McKie trial and who did not leave by agreement had her
 7       employment terminated and was found to have been
 8       unfairly dismissed.
 9           In relation to accreditation, little has been heard
10       about the accreditation of Fingerprint Officers and
11       there seems to be no recognised procedure for removal of
12       that accreditation.  If there was a concern about as to
13       a particular officer's competency, however, there was a
14       sufficient structure in place within SCRO, and now SPSA,
15       to assess the competency of an officer and to provide
16       retraining in the event of any deficit.
17           In my submission, it was not appropriate for SCRO,
18       as was, to leave employees (who had abided by their
19       employer's wishes and refrained from public comment
20       despite being caught in the maelstrom of negative
21       publicity as a result of the campaign waged by Mr McKie)
22       uncertain of their fate.  The officers were left on
23       suspension and the reason for this was subject to
24       change.  To treat any employee in this way is manifestly
25       unfair and the utter lack of support from the SCRO is,
page  84
 1       in my submission, indicative of a directionless,
 2       leaderless organisation utterly bereft of any concern
 3       for its employees and unable to repel criticism from an
 4       uninformed and biased media.
 5           I would also invite this Inquiry to find that the
 6       campaign, in his own words, waged by Mr McKie against
 7       all of the SCRO officers had a direct affect on their
 8       employment.  Mr McKie's own statement makes reference to
 9       the campaign waged against these officers.  Whilst he
10       said in his evidence that he has been forthright, the
11       evidence of Lord Boyd makes it clear that he was a great
12       deal more forceful than that would suggest.
13       Mr McKie demanded disciplinary proceedings and a
14       criminal investigation centred on these officers.  When
15       the disciplinary process found no issues with the
16       conduct of the officers and the criminal investigation
17       resulted in no prosecution, Mr McKie continued (and
18       continues) to call for an explanation as to why they
19       still gave evidence in a clear attempt, in my
20       submission, to ensure that they are denied the
21       opportunity to do so in future.  His campaign has
22       clearly contributed much to the demise of these
23       officers' careers and the suffering to which they and
24       their families have been subjected over the intervening
25       years.
page  85
 1           I would also invite the Inquiry to consider whether
 2       SPSA's position that the marks are unsafe is
 3       appropriate.  Mr Nelson gave evidence that SPSA will not
 4       examine the marks and that they will adopt the position
 5       on the marks put forth in the findings of this Inquiry.
 6       Whilst it is commendable that they are as an
 7       organisation giving due weight to judicial determination
 8       of the issues here, which not every organisation,
 9       particularly the IAI in its cynical attempt to undermine
10       the findings of this Inquiry by rushing out the findings
11       of its own committee on Y7, it cannot benefit the sole
12       provider of fingerprint expertise to the police and the
13       prosecution in Scotland to say that they officially
14       don't know whether Y7 is Shirley McKie's and QI2 is
15       Marion Ross's.
16           I would also submit that the influence of the media
17       in the decisions taken by Crown Office and the SCRO was
18       excessive.  Lord Boyd identified as the very first
19       factor in his decision not to accept evidence from the
20       six officers the media campaign against them.  Should a
21       more robust approach not have been taken by SCRO and
22       Crown Office to reassure the public of the competency of
23       these witnesses?  Lord Boyd declined to answer the
24       question of whether this could happen again and
25       Mr Nelson provided no satisfactory answer.  In my
page  86
 1       submission, it's entirely possible that a competent
 2       expert who made an identification that was then
 3       successfully disputed could be hounded out of their
 4       employment in the same way these officers were.  The
 5       Inquiry cannot legislate for the control of a capricious
 6       media or for the influence of malevolent individuals,
 7       but it can make clear that a stronger approach should be
 8       taken by SPSA than SCRO, who were content simply to
 9       discard professionals with a lengthy record of public
10       service.  I note in passing that Mr Nelson's evidence
11       offers no hope of this.  His attempts to place the blame
12       for the so-called notoriety on my clients was
13       disingenuous and, in my submission, wholly unbecoming
14       any individual in a position of leadership.
15           Chapter 11 relates to the non-numeric system.  I
16       would invite you to find that the non-numeric system
17       makes no discernible difference to the way a Fingerprint
18       Officer carries out a comparison.  The non-numeric
19       information pack makes this clear, as does the SPSA
20       video presentation shown to the Inquiry.  The only
21       difference under the non-numeric system is how the
22       opinion is presented in court productions and when
23       giving evidence.  It was confirmed by Mr Pugh that ACE-V
24       is not a new process, merely a new way of describing a
25       process that officers had always carried out.  He also
page  87
 1       pointed out that even under the numeric system experts
 2       were not merely counting points.  Mr Logan of PSNI also
 3       emphasised the fact that the difference between the
 4       numeric and non-numeric systems was one of presentation
 5       and not in the way that comparison of fingerprints is
 6       carried out.
 7           I would recommend their evidence as being clear,
 8       unbiased and thankfully free of meaningless management
 9       jargon in marked contrast to the management witnesses
10       from SPSA.
11           Mr Pugh's evidence was that the role of the
12       Metropolitan Police in relation to fingerprint
13       examination is to service the criminal justice system.
14       I would invite you to consider this consistent with the
15       evidence of my own clients who under both the numeric
16       and non-numeric systems sought to maintain
17       their Independence from the investigation in which they
18       were assisting.  In relation to the practicality of
19       using contemporaneous notes, I would commend the
20       evidence of Mr Pugh and Mr Logan who suggests that,
21       whilst it might be desirable, it is not practical in the
22       context of a busy working Fingerprint Bureau to maintain
23       comprehensive notes on every comparison carried out nor
24       is it necessary to the explanation of an expert's
25       findings.
page  88
 1           It is worthy of note by this Inquiry that despite
 2       suggestions to the contrary, the McKie case has not had
 3       any lasting impact upon fingerprint evidence and there
 4       are still very few, if any, challenges being made to
 5       fingerprint evidence in court.
 6           Chapter 12 relates to the analysis of Y7, QI2, XF
 7       and certain Q prints.  In relation to whether the
 8       analysis of fingerprints is affected by the development
 9       technique, the evidence has been that the analysis of
10       fingerprints is conducted in the same way by Fingerprint
11       Officers regardless of the development technique.
12       Officers have always had the opportunity to request
13       other photographs with different contrasts to assist in
14       their analysis.  Analysis of an electronically stored
15       image is difficult as it is dependent upon the device on
16       which it is being displayed or from which it is being
17       printed, but the analysis of photographs is the same
18       whether the photograph is of a lift developed with
19       powder, superglue or in any other development medium.
20           As to whether image quality affects examination, the
21       answer must be yes.  Image quality must affect
22       examination but it should be borne in mind that crime
23       scene marks by their very nature are not perfect -- very
24       much the opposite.  The quality of the mark is more
25       likely to affect the quality of the examination than the
page  89
 1       quality of the image.  Good quality photographic images
 2       of poor quality marks were produced and used regularly
 3       for comparison.  The evidence of my clients has not been
 4       critical of the images produced by the Identification
 5       Bureau and that remains their position.  They are
 6       grateful to Mr Kent for the production of further good
 7       images from the original negatives from which the
 8       illustrations used by Mr MacPherson are sourced.
 9           On the question of whether Y7 and QI2 were correctly
10       identified, I would submit that this Inquiry should find
11       that Y7 and QI2 were correctly identified and that this
12       is supported by the evidence.
13           My clients have explained their identification in
14       relation to each.  Each mark was independently verified
15       by three officers after the initial identification in
16       the same way that independent verification takes place
17       now.  In relation to each, my clients have given
18       evidence of the characteristics they discovered in
19       sequence and agreement between the two marks.  It is
20       clear, in my submission, that there is a very large
21       volume of ridge characteristics in sequence and
22       agreement between the marks.  It is also clear that
23       there is a particularly distinctive detail in both.  I
24       refer not only to the Rosetta characteristic in Y7 of
25       which Mr Swann says that he has never in his lengthy
page  90
 1       career seen anything resembling it, but also to the
 2       Third Level Detail identified by Mr Mackenzie in his own
 3       presentation.
 4           These are, in my submission, supportive of a
 5       conclusion of identity.  Taking into account even the
 6       views of Professor Champod, in my submission, the volume
 7       of characteristics in sequence and agreement identified
 8       by Mr Mackenzie in particular must surely exceed the
 9       number present in any non-match seen by any of the
10       fingerprint practitioners who have given evidence to
11       this Inquiry.  Certainly none has given evidence to the
12       contrary.
13           Mark Y7 is clearly a complex mark and there are
14       those who are of that view who do not agree the
15       identification.  They insist, in particular Mr Wertheim
16       and Mr Zeelenberg, but also the Durham examiners, that
17       the mark is straightforward is indicative only, in my
18       submission, of the fact that they need to discount the
19       explanation given by those identifying Y7 of differences
20       by reference to movement and distortion.  I would
21       recommend the evidence of those willing to recognise the
22       complexity of the mark and recommend the images prepared
23       by Dr Bleay.  In my submission, looking at those images
24       it is undeniable that there are two distinct pieces to
25       the mark: one lying close to the horizontal at the
page  91
 1       bottom of the mark and one aligned closer to vertical at
 2       the top.  This is, in my submission, supportive of the
 3       explanation given for perceived differences and
 4       contradicts those who insist the mark is
 5       straightforward.
 6           I would commend the Inquiry to the materials
 7       produced by the officers I represent and, in particular,
 8       the charts prepared by Mr MacPherson, TC2310 1 to 4 in
 9       which he identifies significant detail, more than he
10       would have been required to do to meet the standard in
11       place in 1997 and, in my submission, without obscuring
12       the underlying image to the extent that other examiners
13       who have marked images for this Inquiry have in their
14       own illustrations.
15           In relation to QI2, I would recommend the evidence
16       of Mr Mackenzie and Mr MacPherson who again explained
17       the significant volume of distinctive ridge detail
18       within the mark.  In my submission, the contradicters
19       failed to raise any real doubt about this
20       identification.  In Mr Wertheim's evidence it is clear,
21       in my submission, that he has, for example,
22       significantly overstated the scale of the characteristic
23       at the core of the mark referred to by him as the chilli
24       pepper.  As another example, he has dismissed an area of
25       the mark as being a smear when it is clear from his own
page  92
 1       colour photographs that what he is looking at is the
 2       underlying pattern on the surface from which the mark is
 3       recovered.  I would recommend the evidence supporting
 4       this identification, including Mr Mackenzie's chart
 5       prepared for Mr Gilchrist.
 6           I would remind the Inquiry that no other donor has
 7       been discovered in respect of either mark Y7 or of mark
 8       QI2.  I would ask the Inquiry to make a finding that XF
 9       was a mark of natural origin and correctly identified as
10       the mark of David Asbury.  This is a matter that is not
11       in dispute.  Mr Wertheim has now confirmed that his view
12       in 2000 was that the mark was placed on the gift tag by
13       contact with the finger of the donor and, despite his
14       speculation in the intervening period, this remains his
15       view.  The identification of XF as a mark properly
16       attributable to David Asbury has never been in dispute.
17           I would also ask you to find that what had been
18       referred to as the Asbury Q marks -- that is QI2
19       (Asbury), QE2 and QL2 -- were all correctly identified.
20       The officers of PSNI have now confirmed this.  Yet
21       another challenge brought to bear on fingerprint
22       comparisons in this case other than Y7 and QI2 has been
23       resolved in a manner which supports absolutely the
24       original identifications made by SCRO.
25           I would also ask you to make a finding that QD2 was
page  93
 1       correctly identified as that of David Asbury and finally
 2       to put to rest any possibility of doubt about this mark
 3       caused by the report by Mr Rokkjaer and Mr Rasmussen.
 4           Mr Chairman, one minor clarification on a misreading
 5       in my own notes, I should have indicated that
 6       Mr Wertheim examined the gift tag after Ms McKie's trial
 7       not prior to.
 8   THE CHAIRMAN:  Yes.
 9   MR HOLMES:  In my submission, it is significant that of the
10       contradicters, the Danes, Mr Rokkjaer and Mr Rasmussen,
11       chose not to co-operate with this Inquiry in order to
12       support their findings.  Mr Wertheim and Mr Bayle chose
13       not to answer questions legitimately put to them.
14       Mr MacLeod completed the comparative exercise in such a
15       way that it cannot be relied upon.  The Aberdeen
16       officers, Mr McGregor, Mr Dingwall and Mr Dempster, who
17       took it upon themselves to author a report on Y7 and one
18       on QI2 have not given evidence.  In my submission, any
19       comments or opinions given by them or attributed to them
20       should be disregarded by this Inquiry as that evidence
21       has not been tested.
22           Ms McKie's knowledge that Mr Swann had examined Y7
23       prior to her trial, having been admitted by her father
24       Ms McKie, for whatever reason, did not attend this
25       Inquiry to give evidence.
page  94
 1           The explanation offered by Mr McKie and in the
 2       written statement provided by Mr McKie is, in my
 3       submission, inherently incredible and I would invite you
 4       to consider that issue specifically and to make a
 5       finding to that effect.
 6           The main findings for this Inquiry, in my
 7       submission, should be that Y7 is the left thumbprint of
 8       Shirley McKie; QI2 is the right forefinger of Marion
 9       Ross; all the other so-called disputed marks in the
10       Asbury case (that is to say QD2, XF, QI2 (Asbury) QE2
11       and QL2) were correctly identified; that Shirley McKie
12       gave evidence which was not truthful at her perjury
13       trial; and that the treatment of those who have honestly
14       given their expert opinion in favour of these
15       identifications has been unwarranted, unjustified and
16       has had a devastating effect on their lives.
17           There is clearly, in my submission, no evidence of
18       malpractice or dishonesty on the part of any of those
19       SCRO experts who identified the marks connected with
20       HMA v Asbury or HMA v McKie and I would invite you to
21       make a finding to that effect.
22           Whilst there might be a superficial attraction in
23       criticising the officers and former officers who
24       identified the marks in this case as that requires no
25       acknowledgement of any institutional failings or indeed
page  95
 1       any change to the way in which fingerprint evidence is
 2       provided at present by SPSA, it would also, in my
 3       submission, be wholly wrong.  I would discourage this
 4       Inquiry from taking, as others have done in the past,
 5       the convenient option and further damaging the lives and
 6       careers of these individuals who were doing no more or
 7       less than giving their honest expert opinion.
 8           My clients, the SCRO now SPSA and the taxpayer have
 9       all suffered the consequences of this whole affair.
10       This Inquiry should not shrink from reaching the correct
11       conclusion that Y7 is the left thumbprint of Shirley
12       McKie and QI2 is the right forefinger of Marion Ross, no
13       matter how unpalatable that shows the earlier decisions
14       made by the institutions involved in this case, along
15       with the Scottish Executive and the Justice 1 Committee
16       to be.
17           Those are my submissions, sir.  I will make a
18       written copy available to the Inquiry together with the
19       Inquiry reference numbers of the documents that I have
20       referred to.
21   THE CHAIRMAN:  I am obliged to you.  Thank you very much, Mr
22       Holmes.
23           It is 1.50.  It is probably fair to start after
24       lunch.
25   MR SMITH:  I am content to do that, sir, but there are one
page  96
 1       or two comments I think I can usefully make before
 2       detailing the submission.  I will stop at 1.00.
 3   THE CHAIRMAN:  Certainly if you wish to do that.
 4                      Submission by MR SMITH
 5   MR SMITH:  I should say by way of explanation we have a
 6       written submission to go in.  What I intend to say is
 7       certainly not verbatim of the written submission but it
 8       covers, pretty well, the same issues.
 9           Sir, before dealing with the submission, my own
10       submission, there are one or two matters I think should
11       be clarified relating to various things that Mr Holmes
12       has said.
13           In his submission he indicated that as far as
14       Mr Wertheim was concerned he launched a fairly full
15       scale attack on his credibility and one of the attacks
16       was in respect of his suggestion when he carried out the
17       exercise that the Rosetta point was in a different place
18       in Mr Swann's presentations.  The comment was made about
19       the transcript of evidence and it was said that
20       Mr Wertheim's position, he asked for clarification from
21       Counsel to the Inquiry about whether the same point was
22       being referred to in both presentations.  It was
23       suggested that that evidence was wrong.  I may say, sir,
24       that it was my own recollection that accorded with
25       Mr Wertheim's and just shortly after he gave his
page  97
 1       evidence I asked the Inquiry Stenographer and Editor if
 2       there was some means of checking the position.  I am
 3       advised that there is a tape recording of the evidence
 4       and I didn't think it would be necessary to pursue that,
 5       to have the transcript corrected, but I am told it is
 6       something that can be achieved and if it becomes an
 7       issue for you, sir, if you consider that is an important
 8       point, I would encourage it is clarified because it was
 9       my own recollection quite independently of Mr Wertheim's
10       that he did ask Counsel to the Inquiry are these the
11       same points, and the answer given was, yes, they were.
12   THE CHAIRMAN:  Well, arrangements can be made for that to be
13       done.
14   MR SMITH:  Thank you, sir.
15           I wonder if we can also deal with another general
16       comment raised by Mr Holmes and I must confess to a
17       little confusion.  His position appeared to be that
18       those who did not give evidence before this Inquiry,
19       effectively their evidence should be put to one side.
20       In that regard, as I understand it, he was principally
21       referring to, for example, the Danish experts and I
22       suppose by implication Mr Ashbaugh.  One can see the
23       merit of that but one should have, in my respectful
24       submission, some consistency.  If we are going to say
25       that the Danes should not have their opinion accepted
page  98
 1       because they were not cross-examined equally and, in my
 2       submission, Mr Holmes should not criticise the Danes
 3       for, as it was put I think in evidence at least, getting
 4       it wrong with regards to QD2.  Mr Zeelenberg explained,
 5       and I think it is in his written statement to the
 6       Inquiry, that his understanding from a direct
 7       conversation with the Danes was they were given the
 8       incorrect materials.  So I submit, therefore, that if we
 9       are going to adopt a policy that those who have not
10       given evidence before this Inquiry should not have their
11       evidence, their positive evidence accepted, they should
12       neither be subject to criticism on the basis that they
13       haven't been given an opportunity to explain what the
14       position actually is.
15           The same goes, frankly, for Shirley McKie.  The
16       suggestion was made at the end of the submission
17       presented by Mr Holmes, towards the end at least, that
18       Ms McKie didn't give evidence for reasons that no doubt
19       it was being suggested she was trying to avoid coming
20       here.  The reason why Shirley McKie didn't give evidence
21       is that you, sir, as you are well aware, considered on
22       the basis of information provided that she was not
23       required to do so for medical reasons.  That's why is
24       she did not give evidence.  The suggestion that somehow
25       this Inquiry can leap to a conclusion that she committed
page  99
 1       perjury in the course of the perjury trial, in my
 2       submission, again should be subject to the scrutiny that
 3       one should not be making these allegations when she
 4       didn't give her evidence before this Inquiry in person.
 5           Criticism was directed to Iain McKie and suggested
 6       that, on the basis of Mr Findlay's statement, it was
 7       quite clear that Mr McKie was being at best
 8       disingenuous.  Mr Findlay didn't give evidence.  The
 9       prospect of cross-examining Mr Findlay is not one that
10       appeals to anyone but nonetheless he did not give
11       evidence and if we are going to that rule it should be
12       applied consistently.
13           Finally, as far as the generality is concerned one
14       of the comments I will be making in due course is there
15       has been a consistent pattern throughout the past ten
16       years or so in response to those who criticise or
17       contradict the SCRO position, it appears to be, first of
18       all, an attack on the messenger not on the basis of the
19       message that is being brought and it appears that that
20       particular pattern has continued even up to the point of
21       Mr Holmes' submissions.
22           So with these general comments what I would intend
23       to do, sir, in the afternoon is to explain my position
24       from my submission itself.  I should say I would only
25       imagine I would take about 15 or 20 minutes.
page 100
 1   THE CHAIRMAN:  Of course, take such time as required.
 2           I think I should make clear that my attitude is that
 3       statements taken from witnesses by the Inquiry I said
 4       would be treated as the evidence-in-chief, therefore, it
 5       will be a matter of weight that I can attach to that
 6       where the person has not been cross-examined and been
 7       asked to attend to give oral evidence.
 8   MR SMITH:  Of course I fully accept that, sir.  I simply
 9       make the comment that whatever is done should be
10       consistent across the board and I detected what -- and I
11       make no personal criticism of Mr Holmes and I wish to
12       make that clear -- but I detect something of an
13       inconsistency on one hand of saying we should reject
14       evidence and of course we didn't hear from Mr Berry.  By
15       that token, Mr Berry's evidence should not be accepted
16       and Mr Graham, of course, didn't give evidence about the
17       fingerprint analysis itself.  He declined on the basis
18       that he had not been involved in fingerprints for some
19       time.  I am content with that, with either approach, as
20       long as it is applied consistently and that is the
21       simple comment I wish to make.
22   THE CHAIRMAN:  No, well I intend to apply it consistently.
23   MR MOYNIHAN:  Sir, perhaps just to complete the picture in
24       relation to that, it should be a matter of record in
25       relation to the Danish experts, Mr Rasmussen and
page 101
 1       Mr Rokkjaer, knowing that they were unavailable to the
 2       Inquiry, what I specifically asked Mr Zeelenberg, you
 3       may recollect, to delete from his presentation his
 4       exchange with them simply because they were not
 5       available for cross-examination and, accordingly, what I
 6       would be commending to you is a neutral position in
 7       respect of Mr Rasmussen and Mr Rokkjaer.  Insofar as
 8       their evidence had relevance what we, of course, did was
 9       went to the PSNI to ask them independently to revisit
10       the question and to that extent my position would be
11       that Mr Rasmussen and Mr Rokkjaer have been superseded
12       by the PSNI and I certainly had not anticipated anything
13       adverse being said about Mr Rasmussen and Mr Rokkjaer
14       because otherwise it would have been fairer to have
15       allowed Mr Zeelenberg to have said what he had otherwise
16       been prepared to say in that regard.
17   THE CHAIRMAN:  Yes, very good.
18           We will sit again at 1.50.
19   (1.00 pm)
20                      (Luncheon Adjournment)
21
22
23
24
25