page   1
 1                                   Thursday, 26th November 2009
 2   (10.05 am)
 3   THE CHAIRMAN:  I think the arrangement was Mr Macpherson is
 4       going to begin.  Is that the plan?
 5                   Submission by MR MACPHERSON
 6   MR MACPHERSON:  Sir, on behalf of the Chief Constable my
 7       closing statement will be brief.
 8           On looking back, sir, to the opening statements for
 9       the core participants there was much reference to rumour
10       and innuendo.  The Inquiry has, for example, heard the
11       evidence of Mr Brown about Ms McKie and you, sir, may
12       have formed a view as to the truth of what was said.  If
13       it was mere rumour without any substance, Mr Smith was
14       right to say, as he did on Ms McKie's behalf, that it
15       was hurtful and outrageous.
16           The Chief Constable wishes to distance himself from
17       all rumour.  The Chief Constable has never advanced the
18       view that Ms McKie lied nor does he seek to malign her.
19       In Mr Smith's opening statement he did suggest the
20       contrary about, as he put it, many officers of
21       Strathclyde Police.  The Chief Constable wonders whether
22       this idea might also have been distilled from rumour.
23           The Inquiry heard little in the way of evidence that
24       might place Ms McKie within the house when she should
25       not have been there, by the same token the Inquiry did
page   2
 1       not hear evidence from police officers who insisted that
 2       she was.
 3           The Chief Constable's interest, sir, is ensuring his
 4       officers perform their duties to the best of their
 5       abilities and that they maintain their integrity and
 6       trust with the public.  The investigation at the scene
 7       at Irvine Road in January 1997 has been examined by this
 8       Inquiry in some detail.  It has been an investigation
 9       into an investigation.
10           Nobody would suggest that every element of the
11       murder inquiry and every action taken was perfect.
12       However, the Chief Constable submits that no evidence
13       has emerged of a serious failures or omissions.
14           It should be remembered that 1997 is not today.  The
15       world has moved on and one should not look too closely
16       at those events through a lens from 2009.  The Chief
17       Constable recalls the evidence given by David Thurley on
18       the fifth day of this Inquiry.  He said:
19           "Technology is always moving on.  There are always
20       different ways to do it.  Had this happened nowadays or
21       today, then things would have been entirely different.
22       Things have moved on."
23           Mr Thurley was talking about fingerprint techniques
24       but the point may have a more general application.  For
25       example, there is the comment of Alexander McAllister on
page   3
 1       the eighth day talking about procedure at crime scenes.
 2       He said:
 3           "I think it's fair to say the position nowadays
 4       bears little resemblance to where we were 12 years ago."
 5           The murder of Marion Ross was a terrible crime.
 6       There was undoubtedly pressure on the police to get
 7       results but it does not follow that this would create
 8       any pressure to settle for the wrong result.  Indeed,
 9       the contrary might be more likely.
10           The officers on the case worked extremely hard.  The
11       hours were long and the work was not easy.  It would
12       perhaps be surprising if there were no errors in the
13       paperwork or the administration or in the handling of
14       the crime scene.
15           Sir, it is unfair to suggest that there are those
16       within Strathclyde Police who presume that Shirley McKie
17       was guilty, notwithstanding on her acquittal.  No police
18       witness has maintained that.
19           It might be recalled that Mr McKie himself has
20       spoken about the faith he originally had in fingerprint
21       evidence and the doubt he had at the outset given his
22       daughter's insistence that she had not been in the
23       house.  It is a consistent theme that fingerprints were
24       then considered infallible.  Perhaps it would not be
25       surprising if some police officers have been hard to
page   4
 1       persuade otherwise.
 2           There is these days a tendency to look for blame
 3       where there may be only ordinary mistakes.  There is a
 4       desire for the blame to be tracked all the way to the
 5       top.  When something goes wrong in the public sphere
 6       anger is channelled to the institution and there is a
 7       search for wider or systemic failures.  Perhaps
 8       sometimes, sir, there is maybe just an ordinary error.
 9           The evidence in this case has not always painted a
10       picture of a system operating perfectly.  It is, it is
11       submitted, difficult to imagine what a perfectly working
12       system would look like in an imperfect world.  Even if
13       the Inquiry has identified failures, mistakes or
14       omissions, none are indicative of anything systematic or
15       intentional or corrupt.  There is no conspiracy and
16       there never has been.
17           The Chief Constable submits that the public interest
18       is served by identifying where mistakes have been made,
19       where improvements can be found but also in permitting
20       public servants to continue to use their best endeavours
21       recognising that they will not always do so without
22       falling into error.
23           Thank you, sir.
24   THE CHAIRMAN:  Thank you, Mr MacPherson.
25           Ms Jones, I think you were going to come next; is
page   5
 1       that right?
 2   MS JONES:  Yes, sir, thank you.
 3   THE CHAIRMAN:  Very good.
 4                      Submission by MS JONES
 5   MS JONES:  My submission will also be brief, sir.
 6           SPSA has welcomed the opportunity to participate in
 7       the fingerprint Inquiry and has found the process of
 8       involvement helpful in the continuing analysis of its
 9       fingerprint operations.
10           SPSA would also like to record its thanks for the
11       professional conduct of the Inquiry by all of those
12       involved both in relation to the management of the
13       proceedings and the constructive approach taken to the
14       gathering of evidence.  SPSA has also sought to assist
15       as much as possible with the conduct of the Inquiry and
16       has encouraged, facilitated and supported the
17       contribution of its staff in this regard.
18           The Inquiry has heard evidence and received evidence
19       from a number of members of staff of SPSA.  It's not
20       intended to comment in any detail on the evidence
21       already available to the Inquiry.  This, however, should
22       not be taken as an indication that the evidence has not
23       been considered by SPSA or as an attempt to minimise the
24       task of the Inquiry in distilling that evidence in
25       producing a report and recommendations.  It is
page   6
 1       appreciated that this is a substantial and very
 2       significant task.  However, SPSA instead wishes in this
 3       closing statement to make some overarching comments on
 4       the Inquiry and the potential recommendations which may
 5       be made.
 6           It may be of assistance to the Inquiry to know that
 7       operations in relation to fingerprint services represent
 8       around 3 per cent of the various police support services
 9       that are delivered by SPSA.  While SPSA does not wish to
10       diminish in any way the importance of its operations in
11       this regard the issue of recommendations, resources and
12       the issues for fingerprint services raised in the
13       context of this Inquiry must be viewed as specific to
14       SPSA Forensic Services and not to SPSA as a whole.
15           Regard should also be given to the implications on
16       police training, police ICT and criminal justice
17       information systems which are among some of the other
18       obligations and operations of SPSA when considering
19       SPSA's ability to divert its finite budget from one part
20       of its operations to another.  We therefore trust that
21       any such recommendations facilitate a more efficient and
22       effective delivery of fingerprint services within
23       existing resource while taking into account, of course,
24       the interests of all relevant parties.
25           SPSA also wishes to make clear its continued
page   7
 1       willingness to engage in discussion and the provision of
 2       information with the Inquiry team during this concluding
 3       stage of its proceedings.  In particular, the national
 4       forensic modernisation work which has been referred to
 5       in evidence is due to report in the next few months.  It
 6       may be that emerging thinking on that modernisation
 7       approach is of assistance to the Inquiry Team as it
 8       considers its final report and recommendations.
 9           We would be keen to engage with the Inquiry on any
10       draft recommendations to ensure that they are both
11       feasible and realistic in light of the emerging picture
12       of demand and capacity that this work is developing.  We
13       can, however, confirm that SPSA will consider the final
14       recommendations with this Inquiry in developing future
15       proposals relating to systems and procedures for
16       fingerprints which flow from this modernisation work.
17           It is clear from the evidence to the Inquiry that
18       much has changed in relation to the provision of
19       fingerprint services in Scotland since the events which
20       led to this Inquiry.  The organisation of the service
21       itself has been altered a number of times from the
22       creation of the Scottish Fingerprint Service to its
23       current location within the auspices of SPSA.
24           The management of the services has dramatically
25       altered from the structure which was in existence at the
page   8
 1       time of the events which led to this Inquiry.  Perhaps
 2       most notably the service is no longer closely linked
 3       with any one police force and is subject to the scrutiny
 4       of a board which comprises chief constables, police
 5       authority conveners but also independent individuals
 6       drawn from both industry and other areas of public life.
 7       It is submitted that this brings a level of transparency
 8       and independence which is of assistance in improving
 9       performance of the service.
10           There have also been numerous reports and
11       investigations into the provision of the service over
12       the years.  It should again, however, be borne in mind
13       that the senior management in the service is now very
14       different from that which existed at the time of those
15       reports and investigations.  Therefore, while SPSA can
16       be held accountable and responsible for what it has done
17       since its creation in April 2007, it is clear that it
18       cannot be held so accountable for actions and inactions
19       before its creation.  SPSA has, since its creation,
20       sought to look forward and develop the provision of the
21       service rather than analyse in detail the inherited
22       context in which the service previously operated and
23       that is not least in relation to the position
24       surrounding the marks known as Y7 and QI2.
25           There has been some criticism of SPSA by some
page   9
 1       contributions to the Inquiry for adopting this approach.
 2       This has been dealt with, to a large extent, in
 3       evidence.  However, it is important to bear in mind the
 4       sequence of events.  The Inquiry will recall that as
 5       SPSA was being established in early 2007 there was no
 6       strong prospect at that stage of any independent
 7       authoritative re-examination of the marks taking place.
 8       The Scottish election, a new Government and the
 9       commitment to this Inquiry subsequently changed that
10       position.
11           Since it began its work this Inquiry has made clear
12       its intention to carry out the most intensive
13       re-examination of these marks that would be possible.
14       The resources which have been expended in this
15       comprehensive Inquiry dramatically exceed any resources
16       which SPSA with a finite budget, considerable start-up
17       costs and challenges and day-to-day responsibility for
18       meeting the demands of the Scottish Police Service and
19       Crown for Forensic Services could possibly have devoted.
20           We have made clear since the beginning of this
21       Inquiry our commitment as an organisation to support and
22       assist the Inquiry in this task.  If as part of its
23       conclusions the Inquiry, following extensive and
24       thorough re-examination, delivers a clear view on the
25       identification of these marks it is SPSA's intention to
page  10
 1       accept such findings.
 2           As has been indicated, SPSA's response to the issue
 3       surrounding this Inquiry is to look forward and seek to
 4       develop an organisation where an open and transparent
 5       culture is fostered, embedded and developed.  While not
 6       wishing to prejudge the findings of the Inquiry it is
 7       clear the culture of the fingerprint organisation
 8       inherited by SPSA required considerable improvement.
 9       SPSA's approach to this was and continues to be to
10       introduce systems which are robust and demonstrate best
11       practice, to develop a culture which will facilitate the
12       provision of a first class service that meets the needs
13       of its police and fiscal customers, to provide training
14       to staff which would assist in meeting this objective,
15       and to introduce methods of measuring and improving on
16       the quality of the service that is being provided.
17           While it would not be equitable for SPSA to be
18       criticised for failures which were not of its making,
19       equally it would not be appropriate to fail to recognise
20       that a number of these improvements were already in
21       train when SPSA came into existence.
22           One of the particular areas of enquiry has been the
23       introduction and ongoing practice of the non-numeric
24       identification of fingerprints.  SPSA remains committed
25       to this method of analysis and identification and
page  11
 1       remains of the view that it facilitates a more
 2       appropriate approach to the provision of this service.
 3       However, it is recognised that this process, as with any
 4       other, must be subject to constant analysis and
 5       improvement.
 6           One particular issue which has been highlighted
 7       during the Inquiry is the importance of note-taking.  As
 8       indicated by Tom Nelson in his evidence, this is an
 9       issue in respect of which SPSA already accepts that
10       there is a case for enhancing the current approach.  It
11       is accepted there is a good argument for increased
12       note-taking in certain cases.  Work is already planned
13       to ensure that recording processes which are appropriate
14       to the resources available to SPSA and the needs of its
15       customers are developed in the near future and we would
16       be keen to engage further with the Inquiry on defining
17       the scope of future changes.
18           The question of disclosure is also likely to be a
19       matter addressed by the Inquiry in its findings.  Again,
20       as has been heard from Tom Nelson and Scott Pattison
21       this is a matter currently being addressed by both SPSA
22       and the Crown.  In addition, SPSA is keen to facilitate
23       and participate in the ongoing progress of increased
24       research, development and academic study into practises
25       and procedures involved in fingerprint identification.
page  12
 1       It is hoped this will form part of SPSA's vision of
 2       fingerprint services sitting alongside other forensic
 3       sciences as part of a coherent and integrated service.
 4           Again, however it must be recognised that this has
 5       been developed at the same time as we are seeking to
 6       balance increasing demand for Forensic Services within
 7       the finite and challenging budgets to which all public
 8       sector services are likely to be subject for several
 9       years.
10           It is anticipated that recommendations will be made
11       which will directly impact upon the work of SPSA
12       Forensic Services.  SPSA will take a positive and
13       responsible approach to the conclusions of the Inquiry
14       and we will expect our fingerprint staff to respect the
15       conclusions of the Inquiry in carrying out their
16       professional duties and responsibilities.
17           Similarly, we will look to implement in a
18       proportionate and pragmatic way such recommendations
19       that are made to improve further the delivery of
20       fingerprint services in the future.
21           As an organisation that handles approximately 12,000
22       fingerprint cases annually often involving the analysis
23       of multiple prints we would welcome an opportunity to
24       comment on any draft recommendations which are likely to
25       have resource implications on the organisation.  SPSA
page  13
 1       would also wish to engage in discussion over any
 2       recommendations which may impact upon the speed with
 3       which we can support the police and fiscal in order to
 4       properly assess the feasibility of such recommendations.
 5           Finally, and notwithstanding any recommendations for
 6       improvements that are made, we hope and expect that this
 7       Inquiry will acknowledge the dedication that fingerprint
 8       staff in Scotland, past and present, have shown over the
 9       course of the past decade.  In that period they have
10       handled well over 100,000 fingerprint examinations, the
11       vast majority without controversy or challenge and made
12       a substantial and ongoing contribution to the pursuit of
13       justice in this country.  They have coped with
14       unprecedented and sustained levels of scrutiny.  SPSA
15       staff continue to bear that scrutiny with dignity and
16       professionalism.
17           As an organisation, it is our hope for them this
18       Inquiry will be a watershed that will allow the Service
19       to collectively move forward in step with the rest of
20       our valued forensic disciplines.
21           Thank you, sir.
22   THE CHAIRMAN:  Thank you very much.
23           Miss Grahame?
24                    Submission by MISS GRAHAME
25   MISS GRAHAME:  Thank you very much.
page  14
 1           Written submissions have been prepared on behalf of
 2       the Crown and while copies are being distributed I would
 3       like to begin by expressing on behalf of the
 4       Lord Advocate the thanks to the Chair, first of all, for
 5       allowing the Crown to have the opportunity of taking
 6       part in this Inquiry and also to the Inquiry Team for
 7       adopting many of the lines of questioning which have
 8       been proposed by the Crown and, finally, to the core
 9       participants and legal representatives whose constant
10       and constructive efforts have allowed us to make
11       considerable progress during the Inquiry.
12           Turning if I may to the submissions, as can be seen
13       from the index sheet it is split into 11 different
14       issues.  As we all recall within each chapter of the
15       analysis document which was produced by Counsel to the
16       Inquiry at the outset there were a number of issues
17       which were identified at the conclusion of each chapter.
18       These written submissions endeavour to provide a summary
19       of the Crown Office position in relation to all of the
20       issues in which it is considered Crown Office have an
21       interest.
22           All of these issues are important but some of these
23       have featured more prominently during the course of the
24       Inquiry than others and, with that in mind, my
25       submissions today will deal with two of the issues which
page  15
 1       I consider to have featured most significantly.  Those
 2       are the many topics under issue 2, of which I will deal
 3       with majority, and issue 5.
 4           Having said that, I would invite the Inquiry to have
 5       regard to the entire written submissions when forming a
 6       view as to the evidence and the Crown would also request
 7       that the entire written submissions be put on the
 8       Inquiry website in order that any interested members of
 9       the public may have access to the full text.
10   THE CHAIRMAN:  I can assure you that will be done.
11   MISS GRAHAME:  I am much obliged.
12           Before I turn to my submissions on issue 2, may I,
13       first of all, make a deletion within the written
14       submissions.  It is on page 32 and it is in the second
15       paragraph.  In the second paragraph on line 2 I would
16       ask that the words "until 2009" be deleted.  That was an
17       error by myself.
18           If I may now turn to issue 2, this begins, the
19       heading is on the very bottom of page 2 of the
20       submissions and this issue deals with preparation for
21       the prosecution of HMA v McKie.
22           From page 3, when considering the issues which arise
23       in relation to the prosecution, it is important, I would
24       submit, to bear in mind the prevailing view regarding
25       fingerprint evidence at the time that the case was being
page  16
 1       prepared.  It appears that it has been universally
 2       accepted throughout the evidence that prior to the McKie
 3       trial fingerprint evidence was viewed as totally
 4       reliable, infallible even.  If anything, this view was
 5       reinforced by the fact that no-one had experience of any
 6       challenge to an identification of a fingerprint in
 7       Scotland.
 8           We have also heard from Fingerprint Officers who
 9       talk consistently of 100 per cent certainty and this has
10       been repeated by evidence from the police and, indeed,
11       was acknowledged by Mr McKie in his evidence.
12           Turning to the section on the background to the
13       instructions of Mr Kent, if I may, without going through
14       this section in detail because I understand that the
15       Inquiry does not want to hear excessive comment on
16       evidence which has already been led, this does provide a
17       summary of the Crown documentation regarding the
18       instructions of Mr Kent.
19           We have heard of the precognition prepared by
20       Mrs Denise Greaves, who was the Procurator Fiscal, and
21       the documentation that was sent into Crown Office and
22       seen, first of all, by the then Deputy Crown Agent
23       Mr MacFadyen and then passed to Ms Climie, the indicter,
24       who had been the indicter in the David Asbury case.
25           The precognition did raise the issue of whether an
page  17
 1       expert previously unconnected with the case should make
 2       a further comparison in relation to Y7 and made mention
 3       for the first time of Mr Kent.  After the papers were
 4       passed to the DCA, he expressed the view that perhaps it
 5       did make sense to involve an independent expert but, on
 6       the basis of the question of transfer and planting and
 7       on the general basis for concluding that fingerprint
 8       identification was 100 per cent reliable.
 9           He did not recommend that a further expert report be
10       obtained conducting an independent comparison of Y7 with
11       the prints of Ms McKie.  Ms Climie, it is known, did
12       speak to the Advocate Depute who had prosecuted
13       Mr Asbury and her recommendations to the Duty Advocate
14       Depute are set out on page 4 of the written submission
15       and I will not repeat those.
16           She picked up on the DCA's recommendation and she
17       introduced a comment regarding the English standard, of
18       which we have heard evidence.  This was placed in
19       brackets next to the second point regarding the
20       reliability of fingerprints.
21           We have heard that the Duty AD then sent an
22       instruction back to the indicter but Ms Climie then sent
23       the papers through the DCA to the Solicitor-General who
24       ultimately instructed that Ms McKie be placed on
25       petition.  Again, the detail of that is set out on
page  18
 1       page 5 of the submissions.
 2           After that instruction was issued, Ms Climie then
 3       sent a letter from Crown Office to Mrs Greaves on
 4       30th January 1998 and the terms of that are repeated on
 5       page 6.  The three main points are set out towards the
 6       top of that page.  These do not specify that an
 7       independent comparison of Y7 should be made.
 8           Mrs Greaves then in response to that letter sent a
 9       letter of instruction to Mr Kent and it was at that
10       point that six separate points were made in that letter
11       instructing Mr Kent.  We know that Mrs Greaves had some
12       difficulty making contact with Mr Kent by telephone and
13       that is clear from the correspondence which was within
14       the papers and she did write to him around a month later
15       asking him to discuss the matter with her and when his
16       report was likely to be available.  She did speak to him
17       some time prior to 22nd April when she forwarded
18       additional statements to him and then his report was
19       finally submitted with a covering letter in the May.
20           In his evidence, Mr Kent indicated that in relation
21       to instructions 5 and 6 he did not have the expertise to
22       express a view.  Initially in his evidence, and in fact
23       throughout his evidence, Mr Kent said he did not
24       remember having a conversation with Mrs Greaves about
25       the instruction he received.  He could not remember
page  19
 1       exactly what his actions were in response, but he
 2       indicated that what he would have done would be to pick
 3       up the phone to the author of the letter and say, "If
 4       you want advice on the statistics of the 16-point
 5       comparison, then talk to Professor Champod", as he was
 6       the only person doing research in that area.
 7           In cross, he again stated that he could not recall
 8       the conversation with Mrs Greaves although he would not
 9       accept that he could have been mistaken in his
10       suggestion of what he would have done or said.
11           In considering whether Terry Kent advised Denise
12       Greaves to approach Professor Champod, I would wish to
13       make a number of points.  Firstly, there was nothing
14       about Professor Champod in Mr Kent's own covering letter
15       with his report.  There was nothing about
16       Professor Champod in his actual report.  If Mr Kent had
17       already told Mrs Greaves that he was not qualified and
18       she would have to go to another expert abroad, then I
19       wonder why it doesn't appear at the very least in
20       paragraph 33 of the report.
21           Although in evidence Mr Kent tried to suggest that
22       that paragraph was an answer to instruction 3 rather
23       than 5 or 6, even that was queried by Mr Moynihan in
24       evidence and Mr Kent accepted that others would not
25       necessarily read that in that way.
page  20
 1           Thirdly, there was nothing in Mr Kent's statement to
 2       the Inquiry about such a conversation regarding the
 3       Professor and his evidence in July of this year was the
 4       first time that this had ever been mentioned.
 5           Fourthly, there's nothing in Mrs Greaves' own
 6       correspondence about such a discussion taking place or a
 7       note about Professor Champod or his location.
 8           In cross, Mr Kent said he would have phoned Mrs
 9       Greaves.  He said he possibly spoke to someone else in
10       the Fiscal's office.  He also said it was possible he
11       spoke to Chief Inspector Hogg and he also said it was
12       possibly someone in Strathclyde but at no stage in his
13       evidence did he actually say he did contact any of these
14       people.
15           This apparent conversation was not put to
16       Mrs Greaves when she gave evidence because there was no
17       mention of this in Mr Kent's statement.  She had
18       described having general conversations with Mr Kent but
19       nothing about Professor Champod.
20           A supplementary statement was obtained from
21       Mrs Greaves and the Inquiry confirmed last week that
22       that is to be treated as her evidence and she did not
23       require to be recalled.  Mrs Greaves made clear in that
24       statement that Mr Kent did not mention Professor Champod
25       or indeed any foreign experts to her.  This would have
page  21
 1       been very unusual and would have required the
 2       instruction of Crown Counsel and an interpreter and she
 3       said it did not happen.  Accordingly, I would commend
 4       her position to the Inquiry and invite the Chair to
 5       reject the suggestion that Mr Kent gave
 6       Professor Champod's name to Mrs Greaves.
 7           Another reason the Inquiry should not accept the
 8       evidence that Mrs Greaves had this conversation with
 9       Mr Kent is that if it is accepted, then the Inquiry will
10       be finding that Mrs Greaves ignored the advice of an
11       expert, did not tell anyone about it or act upon it and
12       did not take any steps to let anyone know about it,
13       didn't seek the instructions of Crown Counsel or mention
14       it in reminders and this would be contrary to the
15       approach Mrs Greaves was taking to her work which is
16       apparent from the correspondence available.
17           This contrasts with Mr Kent's approach of what is an
18       unexplained delay in producing his report between March
19       and May of 1998 and his failure to set out clearly his
20       position in relation to the points given in the letter
21       of instruction.
22           Moving on, it is accepted that the Crown did not
23       obtain a further report after Mr Kent's report was
24       received.  However, it does not necessarily follow that
25       Crown Counsel did not consider this issue.
page  22
 1           In 1998, the normal procedure in this situation when
 2       an expert has been unable to respond to every aspect of
 3       the instruction would be for the Fiscal to bring the
 4       matter to the attention of Crown Office via the indicter
 5       and then for the indicter to draw that to the attention
 6       of an Advocate Depute, either the one who had originally
 7       issued the instruction or, if unavailable, the Duty
 8       Advocate Depute, then to seek instruction from there
 9       and, thereafter, for the indicter to pass those back to
10       the Fiscal.
11           We have seen from correspondence that indeed
12       Mrs Greaves did contact Crown Office by sending a letter
13       to the indicter, Ms Climie, enclosing the report and
14       seeking her instruction.  It is acknowledged that she
15       did not specifically raise in that letter that Mr Kent
16       had not responded to points 5 or 6.  But Mrs Greaves
17       subsequently had a telephone conversation with Ms Climie
18       during which Ms Climie indicated to Mrs Greaves that she
19       would reread the report and advise if any further
20       matters required clarification.
21           Mrs Greaves wrote to Messrs Levy & McRae indicating
22       to them that:
23           "The Depute at Crown Office assures me I should have
24       Crown Counsel's instructions within the next two weeks."
25           From these documents, together with the evidence of
page  23
 1       Mrs Greaves and Ms Climie I invite the Chair to accept
 2       that Mrs Greaves and Ms Climie were following the normal
 3       procedure at the time, that Mrs Greaves had sought
 4       instruction from Crown Office with the expectation that
 5       Crown Counsel would be asked to provide that by the
 6       indicter and that Ms Climie, the indicter, had expressed
 7       an intention to reread the report and then seek those
 8       instructions from Crown Counsel.
 9           There is subsequent documentation regarding
10       reminders and a handwritten note from Mrs Greaves and
11       Mrs Greaves explained in evidence that these
12       instructions that were sought regarding Terry Kent's
13       report, she anticipated they would come from Crown
14       Counsel and not Ms Climie.
15           All of this documentation shows that Mrs Greaves
16       remained of the view that the instruction would come
17       from Crown Counsel and that Ms Climie had agreed to
18       obtain this and she confirmed this in evidence.  There
19       is also a further letter confirming that that was her
20       understanding at the time.
21           In evidence, Ms Climie indicated that she had
22       absolutely no doubt that Crown Counsel would have looked
23       at the Kent report.  So albeit there is no slip from
24       Crown Counsel and albeit Mrs Greaves and Ms Climie do
25       not recall obtaining or receiving that instruction it is
page  24
 1       clear from the documentation available that the normal
 2       procedure was being followed.  It also indicates that it
 3       was the clear intention that Crown Counsel's
 4       instructions would be sought and it was the view
 5       certainly of Mrs Greaves at the time that they were
 6       ultimately obtained.  Accordingly, at the very least,
 7       what can be said is that none of the documentation is
 8       inconsistent with Crown Counsel having considered the
 9       report of Terry Kent and taken the view that the case
10       could proceed in the absence of a further expert report.
11           In the circumstances, what has not previously been
12       appreciated perhaps by others is that the Crown had a
13       positive interest in finding all of the documentation
14       regarding this issue and it remains a matter of regret
15       that the papers are not entirely complete.  However, I
16       do not wish to add to any of the comments already made
17       by Mr Pattison in his evidence which explained the
18       background to the dissemination and fragmentation of the
19       papers since 1997 and the letter which was previously
20       sent to the Inquiry.
21           Another possibility that was explored in evidence
22       was that the Fiscals themselves would have taken the
23       decision in relation to the outstanding matters in
24       Mr Kent's report and that no instruction was sought from
25       Crown Counsel.  That would not be in accordance with the
page  25
 1       normal procedure and it is not a course of action that
 2       Mrs Greaves considered likely.  It is certainly not the
 3       course that was followed by Mrs Greaves and it is clear,
 4       I would submit, from the evidence that Ms Climie was a
 5       conscientious and careful indicter and would not have
 6       failed to follow the proper procedure.  Her documented
 7       approach from the correspondence clearly shows that she
 8       was a very careful indicter.
 9           In the event, Ms Climie did not remember seeking
10       instructions from Crown Counsel and she accepted in
11       evidence there was a possibility that whoever sought the
12       instructions may have missed that fact, that Mr Kent had
13       not answered all questions, perhaps not drawn it to
14       Crown Counsel's attention and perhaps Crown Counsel
15       missed it but I'd submit that was speculation on the
16       part of Ms Climie and it is not based on anything in
17       documentation to support it.
18           Finally, Mrs Greaves spoke in her evidence of having
19       a general awareness that an expert, Mr Graham in the
20       Asbury case, had agreed with the identification made by
21       SCRO and she described in her statement that this was a
22       fall-back position although perhaps she considered it
23       was not as well phrased as she may have liked.
24           Moving on to the nature of the further expert
25       assistance, finally, regardless of any view taken in
page  26
 1       relation to the view above it is important to consider
 2       Terry Kent's report and the nature of the outstanding
 3       issues.  In other words, to consider what it was that
 4       the prosecutors were seeking to explore in this area.
 5           Crown Office position is that this was not and was
 6       never intended to be a cross-check on the opinion of
 7       SCRO.  The report was not sought due to any doubt about
 8       the reliability of the opinion on Y7.  There did appear
 9       to be some confusion about the basis of it and what was
10       understood between the indicter and the Fiscal, but even
11       Lord Boyd indicated that he would have been surprised if
12       there had been any doubt regarding reliability of the
13       identification because he had been an advocate depute
14       for three years before becoming Solicitor-General and
15       fingerprint evidence was regarded as 100 per cent
16       reliable.
17           Looking at the consequences of not exhausting the
18       instructions to Mr Kent it is appreciated there is an
19       interest in speculating what would have happened or what
20       might have happened had the Crown exhausted these
21       instructions.  Even if a further report had been
22       obtained and if that report was another independent
23       expert report or a comparison of Y7, it does not
24       necessarily follow that the Crown would have received an
25       opinion which contradicted that of the four SCRO
page  27
 1       officers.  If the Crown had obtained a further expert
 2       report it could just as easily have been from an expert
 3       who held the same views as Mr Graham or from Mr Swann or
 4       Mr Leadbetter both of whom are based in England.
 5           Crown Office appreciate that with hindsight,
 6       however, it is clear that there could have been improved
 7       avenues of communication between fiscals, indicters and
 8       Crown Counsel than was the position in 1997.  It was
 9       suggested in evidence that when papers left the fiscal
10       that they went behind closed doors into Crown Office.
11       However, there have been considerable changes since then
12       in practice and procedure.  Lord Boyd was responsible
13       for many of these improvements which have been
14       significant and the Lord Advocate remains committed to
15       achieving improvements in all areas and the report to
16       this Inquiry will be of significant benefit in directing
17       those areas of improvement in the field of fingerprint
18       evidence.
19           I would commend to the Inquiry the evidence which
20       was given by Mr Pattison and Lord Boyd regarding the
21       changes in procedure.  We have heard about the
22       allocation of an advocate depute at a very early stage
23       in complex cases and this assists the direction of those
24       cases.  It is clear that there are much more open lines
25       of communication now in cases from a very early stage
page  28
 1       right up to and including the trial and that is a
 2       significant difference from the position in 1997.
 3           In addition, we have heard that there is now a
 4       mandatory instruction to precognosce all experts in all
 5       High Court cases and there's a presumption in relation
 6       to Sheriff and Jury cases under exception where the
 7       evidence is agreed and we have also heard evidence
 8       regarding the aide-memoire.  We have also heard about
 9       the advocacy skills training which is provided to
10       fiscals and members of staff in Crown Office regarding
11       expert evidence and how to deal with that.
12           With regard to the decision to indict, questions
13       were asked of Lord Boyd of why there appeared to be no
14       separate instruction to indict within the papers
15       available and he explained it might be that the view was
16       taken that because he, as Solicitor-General, had seen
17       all of the papers that would have been considered
18       normally at an indictment stage and because Crown
19       Counsel had separately instructed indictment that it was
20       not necessary for him to see the papers again and the
21       instruction to place on petition by him at an early
22       stage was taken as one to indict.  He did accept that
23       perhaps it might have been better if it had come back
24       for a separate instruction although he was unable to
25       recall if it had.
page  29
 1           He also said it may have gone to an advocate depute
 2       and there may have been an instruction.  In any event,
 3       he said he would not criticise the officials for having
 4       taken that decision if they did and that he did not need
 5       to see it again because he had authorised the
 6       prosecution.  In the circumstances, we would submit it
 7       would be inappropriate for the Inquiry to criticise any
 8       individual officials in that regard.
 9           In relation to the joint report, there was a
10       reference in the first report of 27th March 1997
11       regarding the orientation of Y7, which was not contained
12       in the later report.  There has been evidence led in
13       regard to this about whether a fiscal instructed this.
14           No adverse inferences should be drawn against the
15       COPFS in relation to this entry in the report.  If a
16       query was made by a fiscal then it was not unreasonable
17       to ask an expert whether this could be addressed in a
18       report and although it was removed later, it seems to
19       have been removed against a background where Fingerprint
20       Officers in general did not feel comfortable expressing
21       such opinions or conclusions.
22           There has been some evidence that there is
23       hesitation on the part of experts to make these
24       comments, although I recall that Mr Wertheim did say
25       that he had thought initially about whether it would be
page  30
 1       a woman or a man but the discomfort, as I understand it,
 2       was not on the basis it was an improper question to ask,
 3       more that it was perhaps considered something that was
 4       not within the experts' area of expertise.
 5           Turning to the charted enlargements if I may, there
 6       was clearly a difference of opinion about the purpose of
 7       producing case-specific enlargements.  Crown Office
 8       thought they showed the individual characteristics which
 9       were identified by the experts and formed part of their
10       reasoning and that evidence was given by Mrs Greaves,
11       whereas the fingerprint officers apparently viewed this
12       as a mere illustration to give to the jury.  The
13       understanding of Crown Office was, I would suggest,
14       entirely reasonable.  The enlargements were not generic.
15       They were not designed to show ideal or easily visible
16       examples of individual characteristics.  They were
17       specific to each case, using the prints found and
18       identified and were often marked up with at least
19       16 points thereon which corresponded to the standard at
20       the time.
21           Given the absence of challenge to expert evidence on
22       an identification prior to the McKie case, however, it
23       is perhaps understandable that insofar as SCRO had a
24       different understanding of their purpose that this had
25       never been made obvious to the Crown.
page  31
 1           Regarding their accuracy, the majority of witnesses
 2       asked appeared to agree that the enlargements were not
 3       accurate and this was attributed to the inadequacies in
 4       the charting PC.  Although Mr MacPherson appeared to
 5       feel uncomfortable about accepting that in regard to the
 6       specific enlargements used for the McKie trial he did
 7       appear to concede later in his evidence there were
 8       issues regarding that.
 9           The situation appears to have existed because the
10       charting PC had been purchased at great expense.
11       Management did not appear to be aware of the
12       difficulties individual officers were experiencing and
13       the situation was compounded by the fact that disputes
14       over fingerprint evidence and challenges from the
15       defence were so rare and, perhaps, a certain complacency
16       slipped into the use of the charting PC.
17           What is clear is that Crown Office were not told of
18       the difficulties experienced and we heard from Sheriff
19       Murphy QC that had this been raised he would have
20       considered it to be of grave concern.  Although officers
21       did express the view that they would all have been able
22       to explain the position to the jury at the trial, that
23       was perhaps a little optimistic given the comments made
24       by Sheriff Murphy regarding the actual experience during
25       the McKie trial.
page  32
 1           With regard to the position for the future, these
 2       are, as we have heard, no longer produced as a matter of
 3       course in every case when reports are sought for court.
 4       Having regard to the statistics on fingerprint evidence
 5       and the lack of challenge, this is appropriate and we
 6       would invite the Inquiry to take the view that the
 7       status quo should be maintained.  However, it has
 8       remained the case that enlargements can be requested if
 9       required and that also appears to be the position in
10       England and Wales.
11           As we have heard, it is rare for Fingerprint
12       Officers to be called to give evidence and where they
13       are, it is rare for this to be in relation to a disputed
14       identification.  For the witnesses who have given
15       evidence to this Inquiry, no-one has been able to give
16       an example of such a situation arising other than in the
17       McKie case before or after in this jurisdiction.
18           Clearly, if there is a disputed identification over
19       fingerprints in the future enlargements would be sought
20       by the Crown because it is certainly their position that
21       this would be necessary in order to provide a full
22       explanation of the reasoning and also full disclosure of
23       the individual characteristics found by the officers.
24           The Inquiry have also heard that Crown Office are
25       about to start a project which will test the use of
page  33
 1       case-specific enlargements, although one issue remains
 2       about the practical difficulty of testing their use
 3       given the very small number of cases where fingerprint
 4       evidence is relied on.
 5           In addition, the Inquiry has heard that the Crown
 6       have used and are developing the use of generic
 7       enlargements in court in the area of forensic science,
 8       including fingerprints, and there is considerable
 9       interest between SPSA and the Crown in assessing the
10       system that has been used during the course of this
11       Inquiry.
12           As a result, I invite the Inquiry to make
13       recommendations maintaining the current position and
14       recommend that case-specific enlargements be created by
15       each individual officer and sent to Crown Office showing
16       the points in sequence and agreement along with an
17       explanation of the character and nature of each point
18       identified if they are required to give evidence.  In
19       addition, that other generic visual images continue to
20       be considered and developed in order for use during the
21       giving of evidence to provide a detailed explanation to
22       the jury.  However, Crown Office suggest this be
23       required only where there is a disagreement about
24       identification or where oral evidence is to be led at
25       trial.  Any suggestion they be created for all cases
page  34
 1       would be an unnecessary burden on Fingerprint Officers
 2       and an unreasonable allocation of resources.
 3           Another issue has been raised during the Inquiry as
 4       to whether the Crown ought to have obtained a further
 5       independent expert report outwith SCRO once
 6       Mr Wertheim's acetates became available.  This was dealt
 7       with by Lord Boyd in his evidence and he explained that
 8       as Lord Advocate he would have expected an AD to seek
 9       comment from the experts instructed by the Crown.  If
10       they expressed confidence in dealing with the challenge
11       he would not expect a further independent report to be
12       obtained.
13           Sheriff Murphy QC also explained from his
14       perspective that he did not want to seek another
15       independent expert report prior to the trial for fear of
16       bamboozling the jury.
17           The matter at dispute between the experts is one for
18       the jury to determine rather than introducing more and
19       more expert views into the evidence and, therefore, the
20       Crown would not encourage expert shopping.  So the
21       decision not to go outwith SCRO once the materials were
22       available from Mr Wertheim was an entirely reasonable
23       one in the circumstances.
24           Considering whether the prosecution were properly
25       prepared to present the evidence, what is clear from the
page  35
 1       evidence during the Inquiry is that regardless of how
 2       experienced or senior they are, Fingerprint Officers in
 3       Scotland rarely give evidence in court and on those few
 4       occasions when they do, it is not just exceptional for
 5       the case to involve a disputed ID but, in fact, the
 6       McKie case is the only case of which we have heard where
 7       experts were challenged in court on that basis in
 8       Scotland.
 9           Even when one takes account of the experience of
10       other witnesses who regularly practise in other
11       jurisdictions, including Northern Ireland, England and
12       Wales and the United States, it would appear that it is
13       not unusual in those jurisdictions for a challenge of
14       that sort to be very rare.  Against that background, it
15       is unsurprising that officers were not equipped with the
16       experience required to withstand such a challenge and
17       nor is it surprising that training provided by lawyers
18       and other experts in Scotland who will no doubt be
19       equally unfamiliar with cases involving challenges of
20       that sort would be limited by that lack of familiarity.
21           Firstly, in answering this issue it may assist to
22       consider what the Depute did when approaching the trial
23       and when the Crown became aware that the defence
24       position had changed to mis-identification rather than
25       planting or faking.  In this regard, assistance is
page  36
 1       gained by considering the evidence of Sheriff Murphy QC
 2       who spoke about, in advance of the trial, meeting
 3       Mr Stewart and Mr MacPherson.  Despite some initial
 4       confusion, once he had sight of his statement to the
 5       Mackay Robertson Inquiry in 2000 he accepted that he
 6       found out about the defence some time around 16th April,
 7       which was the Friday prior to the trial starting the
 8       next Wednesday.
 9           This late availability of defence productions
10       clearly had an impact and limited the time available to
11       the Crown and the experts immediately prior to the start
12       of the trial.  We have heard that the trial had
13       previously been adjourned and given the procedures in
14       place at the time this was not an uncommon situation and
15       there was a desire as a result to make progress.  This
16       situation is one of the issues that the new procedures
17       have sought to address.  I will deal with this later.
18           Secondly, it is also vital that consideration be
19       given to the Advocate Depute's assessment of the case as
20       a whole including the anticipated eye witness evidence.
21       Despite many attempts throughout the Inquiry to present
22       this case as one consisting solely of fingerprint
23       evidence that view simply fails to take account of the
24       Depute's assessment of the evidential position prior to
25       the trial.  We have heard that he placed considerable
page  37
 1       weight on the anticipated evidence of Mr Kerr and he did
 2       explain his position regarding Mr Kerr's evidence in his
 3       statement to the Inquiry and also under reference during
 4       his evidence to Mr Kerr's statements and precognitions.
 5           He also spoke about how he had asked the Fiscal to
 6       speak again with Mr Kerr immediately before he gave
 7       evidence and the information he received from that
 8       conversation and the significant difference it made when
 9       Mr Kerr went into the witness box and appeared to have
10       changed his evidence.
11           Up until Mr Kerr's position changed from what was
12       expected by the Depute, the fingerprint identification
13       was not the only evidence in the case and so I submit it
14       is not correct to assess probability or likelihood on
15       the basis that it was.  In any event, criminal trials
16       are based on sufficiency and, ultimately, reasonable
17       doubt and not probability.
18           In the circumstances, Sheriff Murphy explained why
19       he decided to proceed to trial rather than seek an
20       adjournment and he explained in detail the three
21       considerations to which he had regard in reaching his
22       view.  He had met with the experts before the trial
23       proceeded and once his understanding of the defence
24       position became clear.  Both Mr MacPherson and
25       Mr Stewart reviewed the materials prepared by
page  38
 1       Mr Wertheim.  Sheriff Murphy was not asked for more time
 2       by them and he was not advised that they could not
 3       prepare for the trial in the limited time available to
 4       them.  He understood them to be confident in the face of
 5       Mr Wertheim's position and his detailed position on that
 6       is set out in Sheriff Murphy's statement to the Mackay
 7       Robertson Inquiry.
 8           In light of that background, the Inquiry, I would
 9       submit, should hesitate before second-guessing any of
10       the decisions which were taken as part of the
11       prosecutorial discretion of Sheriff Murphy at the time.
12           One further issue arose relating to the late citing
13       of Ms McBride and Mr McKenna for the trial.  It was
14       acknowledged that this was not the normal procedure.
15       They were substitutes for the main signatories on the
16       basis of annual leave.  In relation to Ms McBride, she
17       advised that she had not seen the defence productions
18       before she went into the witness box and it is accepted
19       that this an unsatisfactory position and should be
20       avoided.  Unfortunately, we do not have Sheriff Murphy's
21       position in relation to this matter.  What can be said
22       is that the Inquiry has heard from Scott Pattison
23       regarding the current procedures in place and how there
24       is now a seven-day time limit in place where defence
25       productions and lists of witnesses are lodged prior to a
page  39
 1       preliminary hearing.  We have heard that these are
 2       designed to reduce the very late lodging of defence
 3       productions and that trials are no longer fixed until
 4       all parties are prepared.
 5           Mr Pattison did acknowledge there is still an
 6       element of judicial discretion here and so late lodging
 7       by the defence can never be entirely ruled out because
 8       it is clearly appropriate that that discretion exists to
 9       ensure a fair trial.
10           However, on the part of Crown Office, the Inquiry
11       has also heard about the allocation at an early stage of
12       an Advocate Depute who will conduct a preliminary
13       hearing and the trial in cases, such as a high profile
14       case involving a police officer, and also the continual
15       involvement of indicters and Fiscals who retain control
16       of a case from the beginning to the end.  This allows
17       for a very close monitoring and direction to be given
18       by experienced prosecutors in relation to issues
19       involving expert evidence, even if it comes at a late
20       stage.
21           We have also heard about the guidance set out in the
22       Crown Office Circular and the aide-memoire which is
23       being prepared to give guidance to prosecutors.  Crown
24       Office acknowledges that there have been concerns which
25       have been raised regarding the delay in issuing the
page  40
 1       guidance and the Circular.  However, there was a DVD and
 2       a leaflet issued in 2006 when the new standard was
 3       introduced and previous guidance was available to
 4       precognoscers at that time.
 5           Although it is not possible to say that the lodging
 6       of late defence productions will never happen again in
 7       the future, the new procedures do minimise that risk
 8       significantly and, although a small risk does remain, I
 9       would submit that the Crown Office, now that they have
10       staff closely involved in cases throughout the process,
11       this can be dealt with more appropriately now than
12       perhaps it would have previously.
13           We have also heard with regard to future training
14       that it is clear that considerable work has and will
15       continue to be done by Crown Office.  We have also
16       lodged documentation with the Inquiry team regarding the
17       extent of that training, which includes training in
18       relation to expert evidence, and again that will assist
19       prosecutors in their handling of matters.
20           I would like to now turn, if I may, to issue number
21       5.  This relates to the current arrangements regarding
22       documentation, precognition and the impact of
23       disclosure.  It begins on page 28.  The current
24       arrangements for the provision and disclosure of
25       statements, joint reports and precognition facilities
page  41
 1       have been explained by a number of witnesses.  In the
 2       event of a prosecution, we now know that the Crown is
 3       provided with, first of all, a joint report which
 4       details all prints identified as matching the accused
 5       and a copy of that is given to the defence.  There is an
 6       annex containing details of other prints found at the
 7       scene and examined, whether identified, eliminated or
 8       insufficient.  That is also disclosed to the defence,
 9       subject to any appropriate redactions.  Thirdly, there
10       is a written statement prepared by any fingerprint
11       examiner who signed the report and that is also
12       disclosed automatically to the defence at the outset,
13       again, subject to any appropriate redactions.
14           In addition to the documentation, uniquely in
15       Scotland the Crown have the additional advantage of
16       precognition where the Fingerprint Examiners will
17       explain the report and findings with the prosecutor
18       prior to the trial and a note will be prepared and will
19       form the basis of a document known as a precognition.
20           The purpose of precognition is not simply to
21       understand the evidence but to allow the prosecutor to
22       assess the quality of the evidence given or which will
23       be given by a particular witness.  We have heard about
24       the Circular which makes that mandatory now for experts
25       in High Court cases and there is a presumption in
page  42
 1       Sheriff and Jury cases where that evidence will be
 2       agreed.  We have heard that very few cases involving,
 3       however, the leading of fingerprint evidence and in
 4       those rare cases where evidence is led, this has not
 5       been as a result of a dispute about the identification
 6       of a mark.  Statistics have been provided in relation to
 7       the very limited number of cases proceeding to court
 8       where evidence of Fingerprint Examiners is led.  Other
 9       expert evidence would appear to indicate that it is
10       equally rare in England and Wales and Northern Ireland
11       as it is in Scotland.
12           We have heard, despite all of this, that the Crown
13       Office were not being told about certain material
14       matters, including: occasions when there was a dispute
15       or disagreement between experts as to the identification
16       of a print; occasions when examiners have been unable to
17       find 16 characteristics when that was the national
18       standard (for example, Mr Alister Geddes's involvement);
19       and, thirdly, the existence and results of blind
20       testing.  It is accepted these issues should have been
21       disclosed to the Crown in order that the Crown could
22       fully comply with their duty of disclosure.
23           It has, however, been recognised and accepted by
24       SPSA that although the duty of disclosure is well-known
25       and although the Crown had a legitimate expectation that
page  43
 1       material which might assist the Crown or the defence or
 2       which was exculpatory of the accused would be disclosed,
 3       it is fair to say that this was not perhaps fully
 4       understood by fingerprint staff and the Crown equally
 5       did not make this sufficiently clear to those members of
 6       the fingerprint staff.
 7           Despite the change to the non-numeric system and the
 8       new style documentation, it would appear that this
 9       situation has continued and it is also clear that the
10       failure to disclose was not a one-off situation relating
11       to the circumstances surrounding Y7.  It is thanks to
12       this Inquiry that it is now clear to both SPSA and to
13       Crown Office that there is an unresolved issue in this
14       area and SPSA intend to improve the training of their
15       own staff in this area under reference to the recently
16       issued ACPOS guidance manual.
17           Further, there will be discussions about the matter
18       between Mr Pattison and Mr Nelson to ensure that this
19       situation does not arise again and, in addition, steps
20       have been taken by the Crown to prepare an
21       aide-memoire for precognoscers raising these issues
22       specifically, even where Crown Office have not been
23       advised that any difference of view or disagreement
24       exists between examiners.  This also specifically
25       reminds precognoscers of the importance of disclosing
page  44
 1       any such issue raised at the precognition to
 2       the defence, although there is a continuing duty of the
 3       Crown to disclose material information at any stage that
 4       it comes to light and this will provide some protection
 5       pending the introduction of further training to SPSA
 6       staff.
 7           It is appreciated that the Crown have been aware
 8       since 2001 of the involvement of Alister Geddes and have
 9       been aware that they did not receive evidence in
10       relation to prints which may have been consistent with
11       an accused.  Crown Office is also aware that advocate
12       deputes have known since 1994 that this evidence was not
13       being made available to the Crown.  The example given to
14       show the importance of this related to a print on a
15       murder weapon which was not an accused's but which might
16       relate, for example, to an incriminee.
17           Concerns have been raised about this situation
18       continuing an absence of any instructions or guidelines
19       from the Crown to SCRO, SFS or SPSA and these have also
20       been highlighted during the Inquiry under reference to
21       an example given of the situation where a print was
22       found on a murder weapon.
23           I would invite the Chair to consider the reality of
24       a situation such as this arising.  As the position
25       stands, if a print is found on a murder weapon, then the
page  45
 1       fact that that exists would be disclosed to the defence
 2       in 1997 in the joint report and would now be disclosed
 3       to the defence in the annex to the report.  As a result,
 4       it has always been the position that the defence are
 5       made aware of the existance of such a print and it is
 6       open to the defence to investigate that further to see
 7       whether it is in any way consistent with any line of
 8       defence maintained by them.
 9           If it is marked as insufficient, then the defence
10       will still be able to highlight the existence of this
11       print to the jury and raise the issue of reasonable
12       doubt, even if no further investigations are carried out
13       or even where they are not possible.
14           Further, the existence of such a print is not
15       something that the Crown would ignore because it could
16       raise a reasonable doubt with the jury so the Crown
17       would investigate the existence of a print of that sort
18       further.
19           In addition, if there is an incriminee -- and a
20       notice of incrimination would be lodged if there was
21       one -- then equally the onus is on the Crown to prove
22       beyond reasonable doubt that the incriminee did not
23       commit the crime and so it is actually something that
24       the Crown have an interest in investigating and in fact
25       an onus of disproving.
page  46
 1           So although the Lord Advocate's guidelines which
 2       dealt with this matter or would have dealt with this
 3       matter were not ultimately issued, the reality is that
 4       had that situation arisen in the example given the Crown
 5       would have investigated that print, even if the defence
 6       had failed to investigate.
 7           However, if the Inquiry consider that a further
 8       category of unable to exclude would highlight to the
 9       Crown and the defence that a print which cannot be
10       identified or eliminated may, on further investigation,
11       be of some potential assistance, the Crown would welcome
12       this change and it is understood that this is a category
13       which is used in England and Wales.
14           We should not assume that in the absence of such a
15       category that the Crown or defence have ignored or would
16       ignore unidentified prints if found on weapons or at
17       crime scenes.  Although Fingerprint Officers may not
18       provide the full extent of information available on a
19       particular print in the joint report or an annex, it has
20       always been open to the Crown or the defence to instruct
21       further enquiries where that is appropriate.  We have
22       also heard reference to the ACPOS guidance manual which
23       now provides considerable guidance on disclosure in
24       chapter 7 and that is published now on the website and
25       we have heard that there will be further training given
page  47
 1       in that regard.
 2           Finally, in relation to this aspect of disclosure,
 3       it should be noted that when in force the Criminal
 4       Justice Bill Section 30 will place an obligation on an
 5       accused person where he instructs a person with a view
 6       to his providing an expert opinion for possible use as
 7       evidence at a trial he must give to the court a notice
 8       specifying the person's name and addresses and,
 9       accordingly, once the legislation comes into force where
10       a defence expert gives an opinion contrary to an
11       accused's position this will ultimately come to the
12       attention of the Crown.  This is a change to the
13       situation which exists at the time of the McKie trial
14       where Mr Swann was instructed on behalf of the defence
15       but not relied upon.
16           Finally, I just wish to indicate that the
17       Lord Advocate looks forward to receiving and considering
18       the full report and recommendations in due course and I
19       thank you for your attention.
20   THE CHAIRMAN:  Thank you very much.  Subject to the one
21       deletion, we will arrange for the written submission to
22       be put on the website.
23   MISS GRAHAME:  I am obliged.
24   THE CHAIRMAN:  I suggest that perhaps this might be the time
25       to take the break and we will sit again at 11.40.  Then
page  48
 1       you will be coming next, is that right, Mr Smith?
 2   MR SMITH:  Thank you, sir.  I have agreed with
 3       Mr Holmes that we should reverse that order for no
 4       particular reason.
 5   THE CHAIRMAN:  Whichever way you agree to it, we'll take
 6       whoever it is at 11.40.
 7   (11.20 am)
 8                         (A short break)
 9   (11.40 am)
10   THE CHAIRMAN:  Mr Holmes, when you are ready.
11                     Submission by MR HOLMES
12   MR HOLMES:  Thank you, Mr Chairman.  I will begin by
13       reiterating a remark that was made at the very beginning
14       of these proceedings, which is that this matter arose
15       from a murder investigation in why my clients and the
16       other officers of SCRO played only a part.  Whilst the
17       events of the intervening years have had a dramatic and
18       unwelcome effect on all their lives, the victim in this
19       case always has been and always will be Marion Ross.
20           I would invite you to bear in mind that in 1997 and
21       1999 the SCRO experts who made the identifications were
22       Fingerprint Experts but also employees who did not have
23       any control over policy decisions nor any control of
24       identifications made on the basis of information they
25       provided.  They refrained from media comment as
page  49
 1       instructed by their employers and have conducted
 2       themselves professionally at all times.  Despite this,
 3       they have been ill-served by the decisions made on
 4       behalf of the institutions involved in this case.
 5           My submissions will broadly follow the chapter
 6       framework set out by Inquiry Counsel in his analysis,
 7       although as the Inquiry have developed some issues have
 8       become more relevant than others.
 9           The first chapter relates to the investigations at
10       43 Irvine Road.  Whilst it is unnecessary for me to
11       comment on all the matters pertinent to the murder
12       investigation there are particular issues to be
13       addressed.  The first relates to the comments of
14       Mr Moffat.  In my respectful submission, it is quite
15       clear that Mr Moffat did not make any suggestion to DI
16       McAllister that he thought Y7 was the mark of Gary Gray,
17       although he speaks to it, he acknowledges on day 6 at
18       page 10 that there is no reference to the incident in
19       either one of the notebooks that he has provided to the
20       Inquiry.  DI McAllister in his statement does not recall
21       any reference to the incident, Mr Moffat's position
22       being DI McAllister is lying and DC Gray does not recall
23       his glove being ruptured or Mr Moffat telling him it was
24       ruptured or touching the doorframe at the locus.
25           Chief Inspector Hogg certainly had no recollection
page  50
 1       of the incident when he spoke to the MacKay
 2       investigators.  James Kerr was present when Y7 was found
 3       and has no recollection of any such conversation nor
 4       does David Thurley.  In my submission, the evidence of
 5       these witnesses should be preferred to that of Mr Moffat
 6       and the Inquiry should find that no such account was
 7       ever given.  In any event, this was one of many side
 8       issues which took up a disproportionate amount of
 9       Inquiry time for little purpose and created no real
10       doubt over the identification of mark Y7.
11           I note it is also clear from DI McAllister's
12       evidence that he did not tell Mr Moffat on
13       23rd January 1997 that mark Y7 had been identified as
14       belonging to a police officer.
15           In relation to the issues surrounding the recovery
16       of evidence at Irvine Road, firstly on delay, in my
17       submission, the recovery of fingerprint evidence was not
18       in any way affected by the delay in formal designation
19       as a murder in accordance with normal police procedures.
20       Mr Ferguson, a Scenes of Crime Officer, confirms that he
21       was instructed to treat the incident as a murder as does
22       Mr Thurley who says the scene was treated in exactly the
23       same way as it otherwise would have been.
24           In relation to choice of powder, in my submission,
25       the development of the mark by black powder rather than
page  51
 1       aluminium powder is not a matter the Inquiry should
 2       consider to be significant.  Dr Bleay gave evidence that
 3       either the area in which Y7 was discovered had not been
 4       covered by aluminium powder or that the aluminium powder
 5       did not adhere well to the area before it was re-treated
 6       with the black powder.  He is unable to tell which.
 7           Under those circumstances there is no value in
 8       speculating whether the mark was deposited before the
 9       application of the aluminium powder but that the
10       aluminium powder did not adhere well to it or whether
11       the mark was deposited after the application of the
12       aluminium powder but before the application of the
13       black.
14           In relation to the issue surrounding access to the
15       locus, in my submission, there is contradictory evidence
16       from Ms McKie and from others as to the extent of her
17       entry into the house at Irvine Road.  She stated she
18       entered the porch area whereas the officer in charge of
19       the log states that she did not.  The log is incomplete.
20       It does not record the presence of DC Kerr though he
21       give evidence that he was there.  DC Kerr also gives
22       evidence that Ms McKie was within the porch on at least
23       one occasion when he was there, which contradicts the
24       evidence, again, of PC Lees.
25           The very reason PC Lees gives for not recording the
page  52
 1       presence of Ms McKie is that she did not enter the
 2       vestibule of the house.  This combined with the
 3       demeanour of PC Lees during his evidence to the Inquiry
 4       and the account of his evidence during the trial given
 5       by Chief Inspector Carle is, in my submission, reason to
 6       reject his evidence.
 7           Whilst that does not prove the opposite is true and
 8       that he did allow Ms McKie access to the locus, it does
 9       in my submission show, taken along with the evidence
10       that other officers were present in the house who do not
11       appear on the log, that neither the log nor PC Lees'
12       recollection can be relied upon.
13           In my submission, the Inquiry should find that
14       individuals not on the log, including Ms McKie, at least
15       had the opportunity to access the locus without being
16       recorded in the log.
17           Chapter 2 relates to marks XF and QI2 and to the
18       detention of David Asbury.  In relation to the
19       information available to the officers who examined the
20       tin, there has been a great deal of evidence about the
21       form 13 which was sent to SCRO along with the
22       photographs of the marks found on the Marks & Spencer
23       tin found in David Asbury's house which reads:
24           "Ident required for deceased".
25           Whilst the witnesses agree that in retrospect
page  53
 1       the words were carelessly chosen they also agree that
 2       what would have been intended was merely an instruction
 3       that the marks on the tin were compared to the form in
 4       the name of Marion Ross with some priority rather than
 5       having officers go through the order on the worksheet.
 6       This is, according to Mr Chamberlain, an advisable
 7       approach.
 8           All the witnesses are clear that any comment on
 9       a form 13 would not affect their examination of the mark
10       as against a known print.  The tin was found in
11       Mr Asbury's house so the only relevance of any marks on
12       the tin to the murder inquiry would be if they belonged
13       to the deceased, Miss Ross.  I would invite you to find
14       this comment had no bearing on the comparison of QI2.
15           In relation to the case against Mr Asbury,
16       Mr Gallacher wrote a note outlining the evidence against
17       Mr Asbury aside from the fingerprints dated 28th
18       January 1997.  Crown Counsel instructed full committal
19       on 30th January 1997 and on the same day Mr Heath was
20       contacted by Mr McTaggart in relation to the two pieces
21       of evidence against Mr Asbury on which Mr Gallacher
22       sought clarification.  Mr Asbury was fully committed the
23       following day.
24           The identification of QI2 as the right forefinger of
25       Marion Ross had no bearing on the decision to fully
page  54
 1       commit Mr Asbury as the evidence is that the
 2       identification was made on the day of full committal and
 3       that decision had already been taken by the Crown and I
 4       would invite you to make a finding to that effect.
 5           In relation to XF the identification is not
 6       disputed.  The mark was identified by Mr MacPherson and
 7       checked by three other officers.  Despite many attempts
 8       by Mr Wertheim to throw suspicion on the provenance of
 9       mark XF when confronted with his own notes he was forced
10       to admit he had examination the original gift tag prior
11       to Ms McKie's trial and that there was no evidence that
12       the mark on it was fabricated.
13           Two marks from the end of the Marks & Spencer's tin
14       were identified, one of Miss Ross and one of Mr Asbury,
15       both form QI2.  Mr MacPherson again was the first
16       examiner to identify these and he did so using the
17       original photograph, the original form and a
18       fingerprint glass.  Each mark was checked by three other
19       examiners to the 16-point standard.
20           In relation to QD2 the evidence of the Danish
21       experts on this and all other marks must be regarded now
22       as discredited.  There is no dispute that QD2 was
23       correctly identified by SCRO.
24           In relation to the use of the comparator we have
25       heard evidence that it was normal practice for the
page  55
 1       comparator to be used in some way by Fingerprint
 2       Experts.  Those who were checking the marks after the
 3       initial checker would make use of the comparator screen
 4       to keep a record of who had looked at the mark and
 5       confirmed the identification.  Those details would later
 6       be transferred to the reverse of the photograph.
 7           It was the usual practice of Mr Stewart, Mr Geddes,
 8       Ms McBride, Mr McKenna and Mr MacPherson to carry out
 9       their initial comparisons with fingerprint glasses
10       regardless of whether the mark and print were on the
11       comparator to begin with and they could then move to the
12       comparator if that was required.
13           In relation to documentation, the identification of
14       part of QI2 as the right forefinger of Marion Ross was
15       documented to the accepted standard at the time.  The
16       officers cannot be criticised for following the
17       processes in place.  The officers who checked and
18       verified QI2 as that of the right forefinger of Marion
19       Ross recorded that fact on the reverse of the photograph
20       and the time and date this information was relayed to
21       the murder team was also recorded.  This information was
22       again recorded on the SCRO diary page.  The information
23       was also recorded on the Marks Worksheet.
24           Any criticism is baseless.  On keeping notes in
25       general, Mr Logan gave evidence that he does not keep
page  56
 1       notes on his examinations and that it is impractical to
 2       do so in a working bureau.  He also gave evidence that
 3       it is of limited value to do so anyway since different
 4       examiners may use different characteristics to come to a
 5       view and that even the same examiner may use a different
 6       set of characteristics on each occasion they examine the
 7       mark.  Mr Pugh appeared to have a similar opinion.
 8           Chapter 3 relates to marks Y7 and Z7, the finding of
 9       these marks and the initial assessment.  On the issues
10       of where, when and under what circumstances Y7 was found
11       and when it was identified and checked, mark Y7 was
12       discovered at 43 Irvine Road on 14th January 1997.  The
13       photographs available of the door standard confirm
14       Mr Moffat's notes that Y7 is on the right-hand inner
15       facing of the bathroom door surround about five feet up.
16           There's a piece of palm-print below the mark which
17       is unfortunately insufficient for identification but
18       that, along with Mr Moffat's notes, indicate that the
19       orientation was with the thumb facing upwards.
20           Dr Bleay gave evidence that there was no way to tell
21       whether or not the mark was deposited before or after
22       the application of aluminium powder.  His evidence was
23       that whilst he could not detect aluminium there were a
24       number of possible reasons for this.  There is, in my
25       submission, no way for this Inquiry to reach a safe
page  57
 1       conclusion about this.
 2           Mr Thurley seized the bathroom door on
 3       9th January 1997.  Given the position of mark, in my
 4       submission, it has been demonstrated that it would be
 5       relatively easy to leave a thumbprint if the door had
 6       already been removed, less so if the door remained in
 7       position.  For that reason, in my submission, it is more
 8       likely that the mark was deposited after the door was
 9       removed and I would invite you to make a finding to that
10       effect.
11           Ms McKie's fingerprint form was not on file.  It had
12       to be requested.  The one compared against Y7 is dated
13       6th February 1997 so it cannot be the case that DI
14       McAllister could comment on the identification on
15       23rd January 1997.  In any event, the mark was only
16       checked by four officers and called out of the Bureau on
17       11th February 1997 so again it cannot have been
18       attributed to a police officer prior to this.
19           The evidence before this Inquiry is that in relation
20       to mark Y7 it was in a bundle of marks which are logged
21       as arriving at SCRO on 14th January 1997 that were then
22       dealing with in the normal fashion and compared against
23       ten-print forms for those persons listed on the suspect,
24       elimination and police work sheets.
25           After the identification of mark Y7 as the left
page  58
 1       thumbprint of Shirley McKie by Mr MacPherson, it was
 2       then verified by three other experts in the normal way
 3       before it was telephoned out to DCI Heath on
 4       11th February 1997, as recorded on the reverse of the
 5       photograph.
 6           The process by which Y7 came to be identified as
 7       that of Ms McKie was no different to the procedures
 8       adopted for the other marks in the case.
 9           From the evidence it was Mr MacPherson who took the
10       decision that mark Y7 would be verified using the
11       16-point court standard.  Mr MacPherson had decided that
12       all identifications should be to that standard as this
13       murder inquiry started as what has been termed a
14       "whodunnit".  As it transpired, the mark was identified
15       as belonging to a police officer whose name had appeared
16       on an elimination list of police officers provided by
17       the murder investigation team and, therefore, it ceased
18       to be of any significance to the murder inquiry itself
19       as far as the Fingerprint Officers were concerned at
20       that stage.
21           Mr Geddes states that he was asked by Mr MacPherson
22       to look at the mark and that he was aware that it had
23       been eliminated as belonging to a police officer.
24       Mr Stewart states that he was not aware of this.  Ms
25       McBride was aware that Mr MacPherson had identified the
page  59
 1       mark as the number 6 of Ms McKie.  By the
 2       time Mr Halliday, Mr Dunbar and Mr Mackenzie examined
 3       the mark they were aware of the identification that had
 4       been made.
 5           Mr Geddes states that his recollection is that he
 6       examined the photograph of the mark and the form using a
 7       fingerprint glass.  Mr Stewart states that he carried
 8       out the examination using the photograph, the original
 9       form and a fingerprint glass.  Ms McBride used the
10       original photograph, the original form and a fingerprint
11       glass.
12           After Ms McKie denied having entered the locus at 43
13       Irvine Road, on 11th February DCI Heath says that he
14       gave the instruction for the mark to be checked again.
15       He states that he had no doubt himself but that because
16       fingerprint evidence was likely to be important to the
17       case and because he had already heard Ms McKie denying
18       loudly that the mark was hers he decided to have it
19       checked again.
20           SCRO were instructed by Chief Inspector O'Neill that
21       this identification should be rechecked.  Chief
22       Inspector O'Neill was ordered to do so by the Deputy
23       Divisional Commander at Kilmarnock who had Mr McKie with
24       him at the time.  This was an entirely nonstandard
25       procedure that only took place, on one view, because of
page  60
 1       the intervention of Ms McKie's father.  This was not an
 2       opportunity that is likely to have been afforded to a
 3       civilian.
 4           Mr Mackenzie and Mr Dunbar then independently
 5       checked mark Y7 and were both satisfied that there were
 6       sufficient characteristics in sequence and agreement to
 7       individualise mark Y7 as the left thumbprint of Shirley
 8       McKie.
 9           In relation to the blind test, Mr Mackenzie's
10       evidence makes it clear he considered this to be a
11       training opportunity.  Mr Dunbar's recollection was
12       simply that he had been instructed to organise a further
13       examination of the mark.  The list of those who
14       participated in the exercise has since been lost.  The
15       evidence of Mr Dunbar is that the conclusion of all
16       those who took part was that the mark Y7 was made by the
17       left thumb of Shirley McKie, with the exception of two
18       officers who sought more time to complete the exercise.
19           With regard to the re-photographing and retaking of
20       prints on 18th February again this was an entirely
21       nonstandard procedure that would not have been afforded
22       to a civilian.  The only reason for this was, it is
23       clear from the statement of Chief Inspector O'Neill, the
24       influence exerted by Ms McKie's father.  Chief
25       Superintendent Ferry made it clear to Mr Mackenzie and
page  61
 1       Mr Dunbar during an animated meeting that they
 2       had better be certain of their findings.  Following
 3       this, Mr Mackenzie and Mr Dunbar rechecked the new
 4       photographs and a new ten-print form and once again
 5       confirmed that mark Y7 was the left thumbprint of
 6       Shirley McKie.  This information was then relayed to
 7       Chief Superintendent Ferry by Mr Mackenzie.
 8           Although it is not a matter upon which this Inquiry
 9       has dwelt, the question has been asked whether or not
10       the SCRO examiners were aware that Ms McKie's
11       fingerprint was identified on a production in a case in
12       1993.  This is, in my submission, a ridiculous notion.
13       Evidence has been heard of the huge volume of marks
14       compared by the Glasgow Bureau.  Evidence has also been
15       heard that it was by no means an irregular occurrence
16       that police officers left their marks at loci and on
17       productions.  To suggest that a particular examiner
18       would immediately recall an incident involving a
19       particular officer or the particular characteristics in
20       a mark submitted for comparison would bring a particular
21       officer to mind is, in my submission, inconceivable.
22           I would invite you to find that Y7 was correctly
23       identified as the left thumbprint of Shirley McKie.
24       Mr MacPherson and Mr Mackenzie have spoken to the
25       individual characteristics in Y7 of which they made use
page  62
 1       in their identification.  They have demonstrated where
 2       those characteristics are to be found in the images
 3       before the Inquiry.
 4           They are challenged by Mr Wertheim and Mr Zeelenberg
 5       on the basis that Mr Wertheim and Mr Zeelenberg perceive
 6       a number of differences between Y7 and the left
 7       thumbprint of Shirley McKie.  Firstly, I would urge you
 8       to make use of the images so far as possible in their
 9       unadulterated form.  Both Mr Zeelenberg and
10       Mr Wertheim's images are heavily marked and this, in my
11       submission, is unhelpful.  It indicates what the
12       examiner wishes you to see but it is of course that
13       examiner's own interpretation of the detail not
14       necessarily what is actually there.
15           A pointed case of this came in relation to
16       Mr Wertheim's identification of what has become known as
17       the Rosetta characteristic where he lined out a
18       differing number of intervening ridges between two inked
19       prints used by Mr Swann in his illustrations.
20       Mr Wertheim on that occasion got it wrong.  In that case
21       the illustration serves only to confuse.  No doubt
22       Fingerprint Experts will access the materials published
23       by the Inquiry in future and no doubt they too will bear
24       that in mind.
25           In passing, I would note that Mr Wertheim's
page  63
 1       suggestion that it was Inquiry Counsel who suggested
 2       that the point he was looking at was the Rosetta
 3       characteristic does not accord with the transcript of
 4       the evidence, day 24, page 100 to 102 and the image
 5       FI2309.014.  I would invite you to consider this when
 6       assessing whether Mr Wertheim's evidence to this Inquiry
 7       was credible and to find that it was not.
 8           Secondly, I would invite you to find that where a
 9       sufficient volume of ridge detail in sequence and
10       agreement exists even a supposed difference between the
11       known impression and the crime scene mark does not
12       necessarily matter.  It was accepted by a number of
13       witnesses that nobody will ever know the exact way in
14       which a mark was deposited.  Attribution of differences
15       to movement, pressure distortion or contaminants will
16       always be a matter of coming to a view based on training
17       and experience.  My clients and those who agree with the
18       identification of Y7 all take the view that the mark is
19       heavily distorted.  Mr Swann went into some detail about
20       his own findings and I believe those of Mr Berry who
21       also agrees the identification in this regard.
22           It should also be born in mind that an attempt to
23       challenge an identification on this basis is not new.
24       In the case of Alfred and Albert Stratton in 1905, an
25       expert attempted to challenge a fingerprint
page  64
 1       identification on the basis that there were a number of
 2       dissimilarities between the known print and the crime
 3       scene mark.  The attempt to discredit the fingerprint
 4       evidence failed now and it should fail now.
 5           One feature of that case was that the defence expert
 6       was found not to be a credible witness.  There are a
 7       number of matters which you, Mr Chairman, must consider
 8       when deciding upon the weight to be given to differing
 9       expert evidence.  The credibility of each individual
10       witness must, in my submission, be a relevant factor.
11           Mr Wertheim has clearly become a part of the
12       campaign against those who identified Y7 and QI2.  He
13       cannot be considered for these purposes to be an
14       independent expert.  He says in his own evidence that he
15       considers it part of his role to persuade a jury of his
16       conclusions.  In my submission the fact that any witness
17       states that they see it as their business to influence
18       the outcome of the proceedings is wholly inappropriate.
19       He sought to exact influence in this case by, amongst
20       other things, writing the e-mail enclosed with the
21       letter sent by Mr McKie to the Justice Minister to put
22       pressure on my clients' employment by suggesting that
23       SCRO needed to "clean house", as he puts it.  He has
24       done so by appearing on television and suggesting that
25       Y7 is mis-identified and not in error, but deliberately.
page  65
 1       He has maintained a position on XF that it is
 2       fabricated, even in the knowledge that he had examined
 3       the gift tag himself and declared it "legit".
 4           He has commented constantly on the Internet and in
 5       newspaper articles for a number of years, even during
 6       this Inquiry, and has accused my clients of lying.
 7       Mr Wertheim is described in Sheriff Murphy's note as
 8       "more showman that expert".
 9           I have already invited you to find Mr Wertheim's
10       evidence to this Inquiry is not credible but standing
11       his position as to his recollection on the examination
12       of XF that he carried out in 2000, I would also invite
13       you to find that neither is his evidence to this Inquiry
14       reliable.
15           Mr Zeelenberg accuses my clients of bad practice or
16       malpractice, even in the knowledge that he has had to
17       recant an allegation of mis-identification on behalf of
18       the Danish experts and on behalf of Messrs Bail,
19       McGregor and Dempster.  The Danish experts, it should be
20       remembered, have elected not to co-operate with this
21       Inquiry.  Mr Zeelenberg refuses to accept that another
22       opinion could be honestly held by a competent expert
23       even though when challenged he declares himself only to
24       be an expert who gave his honest opinion.
25           Mr Wertheim says the same, though he does invite
page  66
 1       comment on his competency should the Inquiry find in
 2       favour of the identification of Y7 and QI2.
 3           Mr Logan, Mr Pugh and Mr Chamberlain acknowledge
 4       that fingerprint evidence is subjective, even my own
 5       clients have acknowledged that a competent expert acting
 6       in good faith could have come to a different view.
 7       Mr Mackenzie and Mr Dunbar's perception of the
 8       discussion at Tulliallan is markedly different from
 9       Mr Zeelenberg's and again it is telling that no evidence
10       has been provided by the only independent witness to
11       this incident, Mr Rudrud.
12           Mr Dunbar and Mr Mackenzie have given evidence on
13       their view of whether Mr Zeelenberg was acting in good
14       faith when, whether by threat or merely pointing out the
15       potential consequences for them in a friendly way, he
16       attempted during and after the Tulliallan conference to
17       solicit them to change their views.  We also have
18       Mr Zeelenberg's evidence that he was not there to
19       facilitate a discussion but to persuade the SCRO experts
20       that they were incorrect.
21           Mr Sheppard and Mr Grigg made similar criticisms
22       from a position of having no knowledge of SCRO, its
23       systems or its procedures.
24           Mr MacLeod and Mr Bayle saw fit to call for the
25       closure of the Glasgow Bureau of SCRO on the basis of an
page  67
 1       alleged mis-identification in the Sutherland case which
 2       came at a crucial moment during Justice 1 and which they
 3       have since been forced to acknowledge was wrong.
 4           I was asked by Inquiry Counsel not to cross-examine
 5       Mr MacLeod on any negative aspect of his evidence
 6       because of his failure to properly carry out the task
 7       asked of him during the comparative exercise.  I did ask
 8       Mr Bayle about his admission at Justice 1 that he was
 9       incorrect to criticise Sutherland but he refused to
10       answer.
11           The identification of part of QI2 as being the right
12       middle fingerprint of David Asbury was questioned by
13       this Inquiry with reference to a 7th August 2000 report
14       prepared by Mr Rokkjaer and Mr Rasmussen.  After a
15       lengthy examination, Mr Logan of the Police Service of
16       Northern Ireland has confirmed that the identification
17       was correct.  In my submission all we have learned is
18       that this was another speculative attempt to cast doubt
19       on the ability of the officers involved in this case
20       and, in my submission, it is another attempt which has
21       failed.
22           The Danish experts Mr Rokkjaer and Mr Rasmussen also
23       questioned QD2 as not originating from Mr Asbury.
24       Mr Jensen of the Danish police later confirmed this was
25       incorrect and that he would have expected a novice to be
page  68
 1       able to make the identification.
 2           The Danish experts also indicated that QE2 and QL2
 3       were sufficient for comparison, which has since been
 4       contradicted by the examination carried out by Mr Logan
 5       and the Police Service of Northern Ireland.
 6           The language employed by some of the defence experts
 7       in this case is far beyond what is appropriate for an
 8       independent expert and must, in my submission, cast a
 9       shadow over their credibility.  Contrast that with the
10       level of co-operation and professionalism shown to this
11       Inquiry by those who identified Y7.  My clients have
12       made themselves available and have carried out the work
13       the Inquiry requested of them.  They have explained
14       their opinions and the reasons for disagreeing with the
15       defence experts.  They have given their oral evidence in
16       a professional manner, even when challenged.  The SCRO
17       experts have not shot from answering any question put to
18       them.
19           Attempts have also been made to refer to a general
20       mass of opinion amongst world experts.  Firstly, the
21       reference to world experts is misleading.  These are
22       experts from elsewhere in the world.  I would call
23       attention to the evidence of Mr Logan who indicated that
24       the involvement of experts from jurisdictions with
25       different backgrounds and training is less desirable
page  69
 1       than having a disputed mark looked at by experts from
 2       the same jurisdiction.  I would also invite you to note
 3       that the Interpol European Expert Group of Fingerprint
 4       Identification, which was mentioned by Mr Zeelenberg,
 5       has stated that it is recommended that only the
 6       receiving country can or should decide on the validity
 7       of an identification for its own judicial process and
 8       identifications established by another country should be
 9       confirmed by the receiving country.
10           Secondly, we do not truly know the opinion of any
11       expert who has not offered his or her co-operation to
12       this Inquiry.
13           Thirdly, we do not know what materials, if any,
14       others have looked at.  That being the case, the opinion
15       for or against the identification of Y7 cannot be
16       supported by reference to individuals who have not
17       provided evidence here.
18           In relation to chapter 4 which relates to the Crown
19       Office, the Procurator Fiscal and their preparation for
20       the Asbury trial and chapter 5, the preparation of
21       reports by SCRO in the Asbury and the McKie case,
22       reports were prepared in the normal manner for the
23       Asbury case.  Any additional productions were only made
24       at the request of the Crown.  The SCRO officers had no
25       discretion or input into such matters.  The production
page  70
 1       of books of all identified fingerprints in the case was
 2       at the request of the Crown and was not a standard
 3       procedure.  What this meant was that all the marks and
 4       identifications were available for scrutiny by the
 5       defence Fingerprint Expert, Mr Graham, and he was
 6       satisfied that they were correct.
 7           It was normal practice for only two Fingerprint
 8       Officers to attend court to give evidence.  In the
 9       Asbury trial these two witnesses were Mr Stewart and
10       Mr MacPherson.  Ms McBride and Mr McKenna were the
11       alternates in case of holiday or unavailability.
12           The choice in number of fingerprint reports to
13       request and lodge as productions was entirely a matter
14       for the Crown.  The Crown chose in the McKie case to
15       call all four Fingerprint Experts who had signed the
16       joint reports.  Mr McKenna was unavailable so only three
17       gave evidence, Mr Stewart, Mr MacPherson and Ms McBride.
18       The joint reports and charted enlargements for these
19       trials were prepared by Mr MacPherson.  However, it is
20       important to note that all four officers who signed
21       those reports had to independently satisfy themselves
22       that the information was correct as any of them could
23       have been called to give evidence at the trial.
24           In relation to chapter 6, fingerprint law and
25       practice, the evidence in relation to the signing of the
page  71
 1       case envelope in the Asbury case is these would be the
 2       individuals who had identified the majority of the marks
 3       within the envelope and who would be most likely to be
 4       used in the preparation of a joint report and the giving
 5       of evidence if required.
 6           As mentioned earlier, Ms McBride and Mr McKenna were
 7       the chosen substitutes for other signatories based on
 8       the pattern of annual leave.  The selection of experts
 9       and substitutes for particular cases was a management
10       decision.
11           In relation to the issues raised regarding joint
12       reports, each of the signatories to a joint report would
13       have to satisfy his or herself as to the identifications
14       described therein.  They knew at that stage that they
15       may have to speak to the identification in court so they
16       would satisfy themselves at the time the joint report
17       was prepared.
18           In relation to the selection of images the officer
19       preparing the joint report would choose them and in
20       relation to the choice of forms there would be in all
21       likelihood only one form for each individual so there
22       was no choice but to use that form, although another
23       could be requested if the form was not clear.
24           On the additional comment in the March report, the
25       evidence has been that any derogation from the standard
page  72
 1       form of report would have been on the request of the
 2       Procurator Fiscal or Advocate Depute and there is no
 3       inference that should be drawn from this.
 4           In relation to production number 180, which was only
 5       signed by Mr Stewart and Mr MacPherson, the evidence of
 6       Chief Inspector Wilson was that this was prepared at his
 7       request in relation to disciplinary matters.  In any
 8       event, it was produced at the McKie trial and disclosed
 9       to the defence.  Again, no inference can be drawn from
10       this as any report or charting would only have been
11       prepared by SCRO officers on the request of the Crown
12       or, as in this instance, on the request of the police.
13           As a matter of course for cases on indictment case
14       specific enlargements were prepared to illustrate the
15       processes used by the Fingerprint Experts in reaching
16       their conclusion as to unique identity, although as a
17       matter of fact it used 16 actual characteristics.  This
18       illustration was intended to fulfil the same role as
19       generic fingerprint illustrations.
20           The criticism that has been levelled at my clients,
21       quite wrongly in my submission, is that without some
22       means to demonstrate what they are seeing they are
23       merely making a bald assertion that individual features
24       of a mark are there and expecting the jury, a judge or
25       you, Mr Chairman, to accept that.
page  73
 1           In my submission, it is not necessary for the jury,
 2       a judge or you to see individual characteristics on a
 3       photograph.  Medical experts give evidence a great
 4       deal of the time in criminal cases without reference to
 5       the photographs because to do so would be distressing
 6       for the victim, their family or for the jurors
 7       themselves.  Their evidence of what they saw when they
 8       examined a victim is merely evidence of fact which a
 9       jury can choose to accept or reject, as with any other
10       evidence.  Once that factual basis has been laid their
11       opinion evidence, the interpretation of what they have
12       seen can begin.
13           The suggestion that a jury must be able to see
14       characteristics on a photograph is misleading.  The best
15       evidence is the original photograph used by the examiner
16       for their comparison which the jury would not in any
17       event be able to pick out individual characteristics
18       simply because of scale.
19           Mr Logan agreed with this in his evidence and went
20       so far as to say the production of case specific
21       enlargements was unhelpful since jurors would inevitably
22       fail to see all the characteristics an expert could see.
23       Within the limitations of the performance of the
24       charting PC, the court productions were accurate
25       representations of 16 characteristics in sequence and
page  74
 1       agreement.  Those characteristics may not have been the
 2       ones used by each individual examiner to come to a
 3       conclusion but they were characteristics that each
 4       examiner was willing to agree upon.
 5           The main flaw with the charting PC was the clarity
 6       of the images it produced and the difficulty in
 7       manipulating the points and lines.  As the Inquiry has
 8       seen, the marking up of images, even today, is difficult
 9       with technology considerably more advanced than the
10       charting PC.  Evidence of the actual identification was
11       in the original materials which the expert had used and
12       which were available to any defence expert.
13           Chapter 7 relates to the decision to prosecute in
14       the case of Ms McKie.  The only comment that I would
15       make in relation to the decision to prosecute Ms McKie
16       is that it has been suggested that it would have made a
17       difference had it been known to the Crown that a number
18       of experts who did not sign the joint reports or court
19       production books had confirmed the identification on
20       fewer than 16 points.  We have heard evidence that under
21       the non-numeric system it is a sufficiency of
22       characteristics to individualise that is important in
23       confirming an identification and under this system the
24       actual number of characteristics would make no
25       difference and would not be disclosed to the Crown.  In
page  75
 1       any event, there were circumstances where evidence could
 2       be led in relation to identity, even where the 16-point
 3       standard had not been met.
 4           I would refer in this section to the case of
 5       R v Beeson which is to found in 1990 New Zealand Law
 6       Reports, page 572.  In that case, fingerprint evidence
 7       was led at a trial from two officers for the Crown.  The
 8       accused were convicted and appealed inter alia on the
 9       ground that fingerprint evidence ought to have been
10       rendered inadmissible by a memorandum written by one of
11       the officers prior to trial which apparently indicated
12       that he had achieved fewer than the national standard,
13       which was 12 points, but was content to identify.  The
14       appeal was refused.
15           The case also contains an interesting discussion on
16       whether jurors ought to be able to see individual
17       characteristics on charted enlargements.  The court
18       concluded that they need not.
19           The other two decisions relating to Mr Asbury's
20       appeal and to the settlement of the civil case have been
21       decided not to be part of this Inquiry's remit.  In
22       relation to that, I would note only that I made detailed
23       submissions as to why they ought to be included in the
24       remit and I respectfully remain of the view that this
25       Inquiry should have considered those decisions.
page  76
 1           In relation to chapter 8, which relates to
 2       Ms McKie's trial and the post trial review, firstly, in
 3       relation to whether the Crown failed to take an
 4       appropriate step by exhausting the instructions to
 5       Mr Kent, in my submission the Crown did not fail to
 6       exhaust the instructions to Mr Kent.  The instructions
 7       to Mr Kent were exhausted so far as they could be by
 8       Mr Kent's involvement since he himself has said that he
 9       is not a Fingerprint Expert.
10           It is clear from the evidence that Mrs Greaves
11       failed to appreciate that Mr Kent is not a Fingerprint
12       Expert and that if these instructions were to be carried
13       out a further expert would be required.  Assuming such
14       an independent expert supported the Y7 identification,
15       as Malcolm Graham and Peter Swann had already done, this
16       would have provided valuable independent support to the
17       SCRO officers and the Crown case.
18           In Sheriff Murphy's note of 3rd June 1999, which was
19       not available prior to his giving evidence, he states he
20       was aware of a defence expert who had agreed with SCRO
21       before the trial and asked for this to be investigated.
22       It was not.  This failure prevented the prosecution from
23       citing Mr Swann or putting his agreement with SCRO to
24       Ms McKie in cross-examination.  I would note that
25       Mr Asbury's defence expert, Malcolm Graham, had already
page  77
 1       examined the fingerprint productions and satisfied
 2       himself that the identifications made were correct,
 3       including both Y7 and QI2 and that Mr Graham had given
 4       evidence at Mr Asbury's trial.
 5           A further report not from Mr Kent but from a
 6       Fingerprint Expert would either have confirmed SCRO's
 7       findings and resulted in stronger evidence at trial.
 8       Ms McKie states that her father had some difficulty in
 9       coming up with a Fingerprint Expert who was prepared to
10       contradict the SCRO findings -- so I would suggest that
11       this is the more likely outcome -- or the further report
12       would have contradicted SCRO's findings and led most
13       likely to an adjournment of the case or to a desertion
14       of the case pro loco et tempore for any issues
15       surrounding the fingerprint evidence to be resolved.
16           In my respectful submission, it is also a matter of
17       considerable doubt the SCRO witnesses were properly
18       briefed by the Crown in advance of the McKie trial.  The
19       situation where fingerprint evidence was contested was
20       rare.  The main difference between the SCRO experts and
21       the defence experts has been agreed by the witnesses who
22       have spoken about it to relate to presentation.  The
23       recognition of a need for training in this area is the
24       recognition that when faced with a slick presentation
25       from a defence expert on a difficult topic juries may
page  78
 1       select which witness to prefer based on presentation
 2       skills rather than on expertise.
 3           Despite what Mr Nelson said about the use of
 4       technology there is, in my submission, no good reason to
 5       do so in a court setting other than to apply a veneer of
 6       professionalism which may appeal to non-Fingerprint
 7       Experts but should not be a substitute for the
 8       underlying skills of the expert witness.  I would refer
 9       again to Sheriff Murphy's stated view of Mr Wertheim in
10       that regard.
11           As mentioned previously and bearing in mind the
12       stage at which the defence reports were received, in my
13       submission, it is doubtful that the prosecution were
14       properly prepared to present the SCRO evidence.  The
15       fault, if there be any, for any lack of preparation must
16       lie with the Depute and not with the individual
17       witnesses.
18           Sheriff Murphy gave evidence that he learned of
19       another expert's involvement very soon before the
20       beginning of the trial and did not know that that expert
21       was Mr Swann.  The very fact that her own expert had
22       confirmed SCRO's findings was very damaging to Ms McKie.
23       Sheriff Murphy could reasonably have anticipated that
24       she would be reluctant to disclose his findings.  He
25       could reasonably have anticipated that had he
page  79
 1       demonstrated before the jury that she had lied about
 2       such matters her credibility would have been damaged.
 3       He ought, therefore, to have instigated a
 4       proper investigation into Mr Swann's identity
 5       immediately he discovered someone else had been involved
 6       on Ms McKie's behalf.  He ought, if necessary, to have
 7       sought an adjournment to do so.  Further Sheriff Murphy
 8       could not have been properly prepared to meet
 9       Mr Wertheim's evidence because, with the greatest
10       respect to Mr Findlay and those instructing him, it was
11       made available at the very latest stage.
12           There is a clear divergence between Sheriff Murphy
13       on the one hand and Mr MacPherson and Mr Stewart on the
14       other as to the level of contact between the Crown and
15       the SCRO witnesses in advance of the McKie trial.
16           On any view the defence productions arrived very
17       late in the day and without proper notice of the exact
18       purpose of the US experts.  In advance of the trial the
19       emphasis had been on whether the print could have been
20       fabricated.  No detailed statements were taken from the
21       prosecution experts to inform the AD.  One of the
22       prosecution witnesses was not asked to review the
23       defence productions, nor was she warned of the nature of
24       the challenge being made to the SCRO evidence by the
25       defence, nor was she or any of the prosecution experts
page  80
 1       given copies of the defence productions or time to
 2       examine them under laboratory conditions.
 3           In addition, the large presence at the trial on
 4       behalf of the Identification Bureau, in my submission,
 5       indicates that, even at this stage, it was anticipated
 6       that the defence would be based on an allegation that Y7
 7       was fabricated.
 8           Inquiry counsel has indicated that the issue of
 9       whether Ms McKie gave perjured evidence during her own
10       perjury trial is a matter which will be considered by
11       the Inquiry.  It is clear, in my submission, that she
12       did.  The issues to be considered when coming to that
13       view are, firstly, that Ms McKie was aware of the
14       involvement of Peter Swann before she gave evidence at
15       her own trial.  This is apparent from her statement,
16       from the statement of Mr McKie and that of Mr Swann.
17       That Ms McKie herself met with Mr Swann is not a matter
18       in dispute.  The second issue is whether she states
19       under oath that she did not know of his involvement.  In
20       my submission, looking at the transcript answers this.
21       She was given a number of opportunities by the Advocate
22       Depute to say whether Mr Swann had looked at the
23       fingerprint evidence and failed to do so.  She was
24       finally asked whether she knew if anyone had looked at
25       the fingerprint evidence before Mr Wertheim and said
page  81
 1       that she did not.  It is clear, in my submission, that
 2       this is not true and that Ms McKie knew that it was not
 3       true.
 4           Had the jury been aware that she lied, we do not
 5       know whether this would have had made any difference to
 6       the verdict.  There are 15 jurors alone who would know
 7       whether being aware that Ms McKie lied to them would
 8       have made any difference to their vote.  I do not ask
 9       the Inquiry to make any finding on that, but rather
10       simply to find that Ms McKie was asked questions during
11       her trial to which the answers she gave were not the
12       truth.  In my submission, Mr McKie's attempts to justify
13       his daughter's actions to this Inquiry have no bearing
14       on this question but may bear on this Inquiry's
15       assessment of his own credibility.  His attempts to
16       blame this on Mr Findlay are rebutted by the statement
17       given by Mr Findlay who confirms that he had very
18       limited contact with Mr McKie and would not, in any
19       event, have instructed a witness to lie.
20           In relation to chapter 10, the reviews of
21       fingerprint evidence post McKie and the treatment of
22       SCRO staff.  In my submission, the decision taken
23       relative to the six SCRO officers clearly did not
24       proceed upon a proper analysis of the fingerprint
25       evidence.  Mr Nelson has given evidence that the SPSA
page  82
 1       still does not have an official position on Y7 or QI2.
 2       That fact alone indicates that the decisions taken
 3       relative to these officers had nothing to do with
 4       fingerprints.  The disciplinary investigation by Black
 5       brought up no issues in relation to their work.  The
 6       Advocate Depute was not critical of the expertise of the
 7       officers at the McKie trial and made it clear in his
 8       note to the Home Advocate Depute that, in his view,
 9       where equally competent experts give opposing testimony
10       it is impossible to persuade the jury the Crown has
11       proved its case beyond a reasonable doubt.
12           The officers were suspended on the basis of the
13       controversy surrounding Ms McKie's trial.  They remained
14       suspended pending the outcome of the action brought by
15       Ms McKie against the Scottish Executive.  Lord Boyd made
16       it clear that the decision to refuse to accept evidence
17       from these officers by the Crown was taken on the basis
18       of external factors: firstly, the campaign waged against
19       them by Mr McKie and others leading to their notoriety;
20       secondly, the decision by the Scottish Executive to
21       settle the action brought by Ms McKie, despite the
22       outcome of the procedural hearing; and, thirdly, the
23       fact that the Mackay Report was leaked.
24           Mr Mulhern in turn confirmed that the decision to
25       terminate the employment of these officers was brought
page  83
 1       about by the decision of the Crown no longer to accept
 2       their evidence.  None of this takes any account of the
 3       fingerprints.  The officer who gave evidence at the
 4       McKie trial and who did not leave by agreement had her
 5       employment terminated and was found to have been
 6       unfairly dismissed.
 7           In relation to accreditation, little has been heard
 8       about the accreditation of Fingerprint Officers and
 9       there seems to be no recognised procedure for removal of
10       that accreditation.  If there was a concern about as to
11       a particular officer's competency, however, there was a
12       sufficient structure in place within SCRO, and now SPSA,
13       to assess the competency of an officer and to provide
14       retraining in the event of any deficit.
15           In my submission, it was not appropriate for SCRO,
16       as was, to leave employees (who had abided by their
17       employer's wishes and refrained from public comment
18       despite being caught in the maelstrom of negative
19       publicity as a result of the campaign waged by Mr McKie)
20       uncertain of their fate.  The officers were left on
21       suspension and the reason for this was subject to
22       change.  To treat any employee in this way is manifestly
23       unfair and the utter lack of support from the SCRO is,
24       in my submission, indicative of a directionless,
25       leaderless organisation utterly bereft of any concern
page  84
 1       for its employees and unable to repel criticism from an
 2       uninformed and biased media.
 3           I would also invite this Inquiry to find that the
 4       campaign, in his own words, waged by Mr McKie against
 5       all of the SCRO officers had a direct affect on their
 6       employment.  Mr McKie's own statement makes reference to
 7       the campaign waged against these officers.  Whilst he
 8       said in his evidence that he has been forthright, the
 9       evidence of Lord Boyd makes it clear that he was a great
10       deal more forceful than that would suggest.
11       Mr McKie demanded disciplinary proceedings and a
12       criminal investigation centred on these officers.  When
13       the disciplinary process found no issues with the
14       conduct of the officers and the criminal investigation
15       resulted in no prosecution, Mr McKie continued (and
16       continues) to call for an explanation as to why they
17       still gave evidence in a clear attempt, in my
18       submission, to ensure that they are denied the
19       opportunity to do so in future.  His campaign has
20       clearly contributed much to the demise of these
21       officers' careers and the suffering to which they and
22       their families have been subjected over the intervening
23       years.
24           I would also invite the Inquiry to consider whether
25       SPSA's position that the marks are unsafe is
page  85
 1       appropriate.  Mr Nelson gave evidence that SPSA will not
 2       examine the marks and that they will adopt the position
 3       on the marks put forth in the findings of this Inquiry.
 4       Whilst it is commendable that they are as an
 5       organisation giving due weight to judicial determination
 6       of the issues here, which not every organisation,
 7       particularly the IAI in its cynical attempt to undermine
 8       the findings of this Inquiry by rushing out the findings
 9       of its own committee on Y7, it cannot benefit the sole
10       provider of fingerprint expertise to the police and the
11       prosecution in Scotland to say that they officially
12       don't know whether Y7 is Shirley McKie's and QI2 is
13       Marion Ross's.
14           I would also submit that the influence of the media
15       in the decisions taken by Crown Office and the SCRO was
16       excessive.  Lord Boyd identified as the very first
17       factor in his decision not to accept evidence from the
18       six officers the media campaign against them.  Should a
19       more robust approach not have been taken by SCRO and
20       Crown Office to reassure the public of the competency of
21       these witnesses?  Lord Boyd declined to answer the
22       question of whether this could happen again and
23       Mr Nelson provided no satisfactory answer.  In my
24       submission, it's entirely possible that a competent
25       expert who made an identification that was then
page  86
 1       successfully disputed could be hounded out of their
 2       employment in the same way these officers were.  The
 3       Inquiry cannot legislate for the control of a capricious
 4       media or for the influence of malevolent individuals,
 5       but it can make clear that a stronger approach should be
 6       taken by SPSA than SCRO, who were content simply to
 7       discard professionals with a lengthy record of public
 8       service.  I note in passing that Mr Nelson's evidence
 9       offers no hope of this.  His attempts to place the blame
10       for the so-called notoriety on my clients was
11       disingenuous and, in my submission, wholly unbecoming
12       any individual in a position of leadership.
13           Chapter 11 relates to the non-numeric system.  I
14       would invite you to find that the non-numeric system
15       makes no discernible difference to the way a Fingerprint
16       Officer carries out a comparison.  The non-numeric
17       information pack makes this clear, as does the SPSA
18       video presentation shown to the Inquiry.  The only
19       difference under the non-numeric system is how the
20       opinion is presented in court productions and when
21       giving evidence.  It was confirmed by Mr Pugh that ACE-V
22       is not a new process, merely a new way of describing a
23       process that officers had always carried out.  He also
24       pointed out that even under the numeric system experts
25       were not merely counting points.  Mr Logan of PSNI also
page  87
 1       emphasised the fact that the difference between the
 2       numeric and non-numeric systems was one of presentation
 3       and not in the way that comparison of fingerprints is
 4       carried out.
 5           I would recommend their evidence as being clear,
 6       unbiased and thankfully free of meaningless management
 7       jargon in marked contrast to the management witnesses
 8       from SPSA.
 9           Mr Pugh's evidence was that the role of the
10       Metropolitan Police in relation to fingerprint
11       examination is to service the criminal justice system.
12       I would invite you to consider this consistent with the
13       evidence of my own clients who under both the numeric
14       and non-numeric systems sought to maintain
15       their Independence from the investigation in which they
16       were assisting.  In relation to the practicality of
17       using contemporaneous notes, I would commend the
18       evidence of Mr Pugh and Mr Logan who suggests that,
19       whilst it might be desirable, it is not practical in the
20       context of a busy working Fingerprint Bureau to maintain
21       comprehensive notes on every comparison carried out nor
22       is it necessary to the explanation of an expert's
23       findings.
24           It is worthy of note by this Inquiry that despite
25       suggestions to the contrary, the McKie case has not had
page  88
 1       any lasting impact upon fingerprint evidence and there
 2       are still very few, if any, challenges being made to
 3       fingerprint evidence in court.
 4           Chapter 12 relates to the analysis of Y7, QI2, XF
 5       and certain Q prints.  In relation to whether the
 6       analysis of fingerprints is affected by the development
 7       technique, the evidence has been that the analysis of
 8       fingerprints is conducted in the same way by Fingerprint
 9       Officers regardless of the development technique.
10       Officers have always had the opportunity to request
11       other photographs with different contrasts to assist in
12       their analysis.  Analysis of an electronically stored
13       image is difficult as it is dependent upon the device on
14       which it is being displayed or from which it is being
15       printed, but the analysis of photographs is the same
16       whether the photograph is of a lift developed with
17       powder, superglue or in any other development medium.
18           As to whether image quality affects examination, the
19       answer must be yes.  Image quality must affect
20       examination but it should be borne in mind that crime
21       scene marks by their very nature are not perfect -- very
22       much the opposite.  The quality of the mark is more
23       likely to affect the quality of the examination than the
24       quality of the image.  Good quality photographic images
25       of poor quality marks were produced and used regularly
page  89
 1       for comparison.  The evidence of my clients has not been
 2       critical of the images produced by the Identification
 3       Bureau and that remains their position.  They are
 4       grateful to Mr Kent for the production of further good
 5       images from the original negatives from which the
 6       illustrations used by Mr MacPherson are sourced.
 7           On the question of whether Y7 and QI2 were correctly
 8       identified, I would submit that this Inquiry should find
 9       that Y7 and QI2 were correctly identified and that this
10       is supported by the evidence.
11           My clients have explained their identification in
12       relation to each.  Each mark was independently verified
13       by three officers after the initial identification in
14       the same way that independent verification takes place
15       now.  In relation to each, my clients have given
16       evidence of the characteristics they discovered in
17       sequence and agreement between the two marks.  It is
18       clear, in my submission, that there is a very large
19       volume of ridge characteristics in sequence and
20       agreement between the marks.  It is also clear that
21       there is a particularly distinctive detail in both.  I
22       refer not only to the Rosetta characteristic in Y7 of
23       which Mr Swann says that he has never in his lengthy
24       career seen anything resembling it, but also to the
25       Third Level Detail identified by Mr Mackenzie in his own
page  90
 1       presentation.
 2           These are, in my submission, supportive of a
 3       conclusion of identity.  Taking into account even the
 4       views of Professor Champod, in my submission, the volume
 5       of characteristics in sequence and agreement identified
 6       by Mr Mackenzie in particular must surely exceed the
 7       number present in any non-match seen by any of the
 8       fingerprint practitioners who have given evidence to
 9       this Inquiry.  Certainly none has given evidence to the
10       contrary.
11           Mark Y7 is clearly a complex mark and there are
12       those who are of that view who do not agree the
13       identification.  They insist, in particular Mr Wertheim
14       and Mr Zeelenberg, but also the Durham examiners, that
15       the mark is straightforward is indicative only, in my
16       submission, of the fact that they need to discount the
17       explanation given by those identifying Y7 of differences
18       by reference to movement and distortion.  I would
19       recommend the evidence of those willing to recognise the
20       complexity of the mark and recommend the images prepared
21       by Dr Bleay.  In my submission, looking at those images
22       it is undeniable that there are two distinct pieces to
23       the mark: one lying close to the horizontal at the
24       bottom of the mark and one aligned closer to vertical at
25       the top.  This is, in my submission, supportive of the
page  91
 1       explanation given for perceived differences and
 2       contradicts those who insist the mark is
 3       straightforward.
 4           I would commend the Inquiry to the materials
 5       produced by the officers I represent and, in particular,
 6       the charts prepared by Mr MacPherson, TC2310 1 to 4 in
 7       which he identifies significant detail, more than he
 8       would have been required to do to meet the standard in
 9       place in 1997 and, in my submission, without obscuring
10       the underlying image to the extent that other examiners
11       who have marked images for this Inquiry have in their
12       own illustrations.
13           In relation to QI2, I would recommend the evidence
14       of Mr Mackenzie and Mr MacPherson who again explained
15       the significant volume of distinctive ridge detail
16       within the mark.  In my submission, the contradicters
17       failed to raise any real doubt about this
18       identification.  In Mr Wertheim's evidence it is clear,
19       in my submission, that he has, for example,
20       significantly overstated the scale of the characteristic
21       at the core of the mark referred to by him as the chilli
22       pepper.  As another example, he has dismissed an area of
23       the mark as being a smear when it is clear from his own
24       colour photographs that what he is looking at is the
25       underlying pattern on the surface from which the mark is
page  92
 1       recovered.  I would recommend the evidence supporting
 2       this identification, including Mr Mackenzie's chart
 3       prepared for Mr Gilchrist.
 4           I would remind the Inquiry that no other donor has
 5       been discovered in respect of either mark Y7 or of mark
 6       QI2.  I would ask the Inquiry to make a finding that XF
 7       was a mark of natural origin and correctly identified as
 8       the mark of David Asbury.  This is a matter that is not
 9       in dispute.  Mr Wertheim has now confirmed that his view
10       in 2000 was that the mark was placed on the gift tag by
11       contact with the finger of the donor and, despite his
12       speculation in the intervening period, this remains his
13       view.  The identification of XF as a mark properly
14       attributable to David Asbury has never been in dispute.
15           I would also ask you to find that what had been
16       referred to as the Asbury Q marks -- that is QI2
17       (Asbury), QE2 and QL2 -- were all correctly identified.
18       The officers of PSNI have now confirmed this.  Yet
19       another challenge brought to bear on fingerprint
20       comparisons in this case other than Y7 and QI2 has been
21       resolved in a manner which supports absolutely the
22       original identifications made by SCRO.
23           I would also ask you to make a finding that QD2 was
24       correctly identified as that of David Asbury and finally
25       to put to rest any possibility of doubt about this mark
page  93
 1       caused by the report by Mr Rokkjaer and Mr Rasmussen.
 2           Mr Chairman, one minor clarification on a misreading
 3       in my own notes, I should have indicated that
 4       Mr Wertheim examined the gift tag after Ms McKie's trial
 5       not prior to.
 6   THE CHAIRMAN:  Yes.
 7   MR HOLMES:  In my submission, it is significant that of the
 8       contradicters, the Danes, Mr Rokkjaer and Mr Rasmussen,
 9       chose not to co-operate with this Inquiry in order to
10       support their findings.  Mr Wertheim and Mr Bayle chose
11       not to answer questions legitimately put to them.
12       Mr MacLeod completed the comparative exercise in such a
13       way that it cannot be relied upon.  The Aberdeen
14       officers, Mr McGregor, Mr Dingwall and Mr Dempster, who
15       took it upon themselves to author a report on Y7 and one
16       on QI2 have not given evidence.  In my submission, any
17       comments or opinions given by them or attributed to them
18       should be disregarded by this Inquiry as that evidence
19       has not been tested.
20           Ms McKie's knowledge that Mr Swann had examined Y7
21       prior to her trial, having been admitted by her father
22       Ms McKie, for whatever reason, did not attend this
23       Inquiry to give evidence.
24           The explanation offered by Mr McKie and in the
25       written statement provided by Mr McKie is, in my
page  94
 1       submission, inherently incredible and I would invite you
 2       to consider that issue specifically and to make a
 3       finding to that effect.
 4           The main findings for this Inquiry, in my
 5       submission, should be that Y7 is the left thumbprint of
 6       Shirley McKie; QI2 is the right forefinger of Marion
 7       Ross; all the other so-called disputed marks in the
 8       Asbury case (that is to say QD2, XF, QI2 (Asbury) QE2
 9       and QL2) were correctly identified; that Shirley McKie
10       gave evidence which was not truthful at her perjury
11       trial; and that the treatment of those who have honestly
12       given their expert opinion in favour of these
13       identifications has been unwarranted, unjustified and
14       has had a devastating effect on their lives.
15           There is clearly, in my submission, no evidence of
16       malpractice or dishonesty on the part of any of those
17       SCRO experts who identified the marks connected with
18       HMA v Asbury or HMA v McKie and I would invite you to
19       make a finding to that effect.
20           Whilst there might be a superficial attraction in
21       criticising the officers and former officers who
22       identified the marks in this case as that requires no
23       acknowledgement of any institutional failings or indeed
24       any change to the way in which fingerprint evidence is
25       provided at present by SPSA, it would also, in my
page  95
 1       submission, be wholly wrong.  I would discourage this
 2       Inquiry from taking, as others have done in the past,
 3       the convenient option and further damaging the lives and
 4       careers of these individuals who were doing no more or
 5       less than giving their honest expert opinion.
 6           My clients, the SCRO now SPSA and the taxpayer have
 7       all suffered the consequences of this whole affair.
 8       This Inquiry should not shrink from reaching the correct
 9       conclusion that Y7 is the left thumbprint of Shirley
10       McKie and QI2 is the right forefinger of Marion Ross, no
11       matter how unpalatable that shows the earlier decisions
12       made by the institutions involved in this case, along
13       with the Scottish Executive and the Justice 1 Committee
14       to be.
15           Those are my submissions, sir.  I will make a
16       written copy available to the Inquiry together with the
17       Inquiry reference numbers of the documents that I have
18       referred to.
19   THE CHAIRMAN:  I am obliged to you.  Thank you very much, Mr
20       Holmes.
21           It is 1.50.  It is probably fair to start after
22       lunch.
23   MR SMITH:  I am content to do that, sir, but there are one
24       or two comments I think I can usefully make before
25       detailing the submission.  I will stop at 1.00.
page  96
 1   THE CHAIRMAN:  Certainly if you wish to do that.
 2                      Submission by MR SMITH
 3   MR SMITH:  I should say by way of explanation we have a
 4       written submission to go in.  What I intend to say is
 5       certainly not verbatim of the written submission but it
 6       covers, pretty well, the same issues.
 7           Sir, before dealing with the submission, my own
 8       submission, there are one or two matters I think should
 9       be clarified relating to various things that Mr Holmes
10       has said.
11           In his submission he indicated that as far as
12       Mr Wertheim was concerned he launched a fairly full
13       scale attack on his credibility and one of the attacks
14       was in respect of his suggestion when he carried out the
15       exercise that the Rosetta point was in a different place
16       in Mr Swann's presentations.  The comment was made about
17       the transcript of evidence and it was said that
18       Mr Wertheim's position, he asked for clarification from
19       Counsel to the Inquiry about whether the same point was
20       being referred to in both presentations.  It was
21       suggested that that evidence was wrong.  I may say, sir,
22       that it was my own recollection that accorded with
23       Mr Wertheim's and just shortly after he gave his
24       evidence I asked the Inquiry Stenographer and Editor if
25       there was some means of checking the position.  I am
page  97
 1       advised that there is a tape recording of the evidence
 2       and I didn't think it would be necessary to pursue that,
 3       to have the transcript corrected, but I am told it is
 4       something that can be achieved and if it becomes an
 5       issue for you, sir, if you consider that is an important
 6       point, I would encourage it is clarified because it was
 7       my own recollection quite independently of Mr Wertheim's
 8       that he did ask Counsel to the Inquiry are these the
 9       same points, and the answer given was, yes, they were.
10   THE CHAIRMAN:  Well, arrangements can be made for that to be
11       done.
12   MR SMITH:  Thank you, sir.
13           I wonder if we can also deal with another general
14       comment raised by Mr Holmes and I must confess to a
15       little confusion.  His position appeared to be that
16       those who did not give evidence before this Inquiry,
17       effectively their evidence should be put to one side.
18       In that regard, as I understand it, he was principally
19       referring to, for example, the Danish experts and I
20       suppose by implication Mr Ashbaugh.  One can see the
21       merit of that but one should have, in my respectful
22       submission, some consistency.  If we are going to say
23       that the Danes should not have their opinion accepted
24       because they were not cross-examined equally and, in my
25       submission, Mr Holmes should not criticise the Danes
page  98
 1       for, as it was put I think in evidence at least, getting
 2       it wrong with regards to QD2.  Mr Zeelenberg explained,
 3       and I think it is in his written statement to the
 4       Inquiry, that his understanding from a direct
 5       conversation with the Danes was they were given the
 6       incorrect materials.  So I submit, therefore, that if we
 7       are going to adopt a policy that those who have not
 8       given evidence before this Inquiry should not have their
 9       evidence, their positive evidence accepted, they should
10       neither be subject to criticism on the basis that they
11       haven't been given an opportunity to explain what the
12       position actually is.
13           The same goes, frankly, for Shirley McKie.  The
14       suggestion was made at the end of the submission
15       presented by Mr Holmes, towards the end at least, that
16       Ms McKie didn't give evidence for reasons that no doubt
17       it was being suggested she was trying to avoid coming
18       here.  The reason why Shirley McKie didn't give evidence
19       is that you, sir, as you are well aware, considered on
20       the basis of information provided that she was not
21       required to do so for medical reasons.  That's why is
22       she did not give evidence.  The suggestion that somehow
23       this Inquiry can leap to a conclusion that she committed
24       perjury in the course of the perjury trial, in my
25       submission, again should be subject to the scrutiny that
page  99
 1       one should not be making these allegations when she
 2       didn't give her evidence before this Inquiry in person.
 3           Criticism was directed to Iain McKie and suggested
 4       that, on the basis of Mr Findlay's statement, it was
 5       quite clear that Mr McKie was being at best
 6       disingenuous.  Mr Findlay didn't give evidence.  The
 7       prospect of cross-examining Mr Findlay is not one that
 8       appeals to anyone but nonetheless he did not give
 9       evidence and if we are going to that rule it should be
10       applied consistently.
11           Finally, as far as the generality is concerned one
12       of the comments I will be making in due course is there
13       has been a consistent pattern throughout the past ten
14       years or so in response to those who criticise or
15       contradict the SCRO position, it appears to be, first of
16       all, an attack on the messenger not on the basis of the
17       message that is being brought and it appears that that
18       particular pattern has continued even up to the point of
19       Mr Holmes' submissions.
20           So with these general comments what I would intend
21       to do, sir, in the afternoon is to explain my position
22       from my submission itself.  I should say I would only
23       imagine I would take about 15 or 20 minutes.
24   THE CHAIRMAN:  Of course, take such time as required.
25           I think I should make clear that my attitude is that
page 100
 1       statements taken from witnesses by the Inquiry I said
 2       would be treated as the evidence-in-chief, therefore, it
 3       will be a matter of weight that I can attach to that
 4       where the person has not been cross-examined and been
 5       asked to attend to give oral evidence.
 6   MR SMITH:  Of course I fully accept that, sir.  I simply
 7       make the comment that whatever is done should be
 8       consistent across the board and I detected what -- and I
 9       make no personal criticism of Mr Holmes and I wish to
10       make that clear -- but I detect something of an
11       inconsistency on one hand of saying we should reject
12       evidence and of course we didn't hear from Mr Berry.  By
13       that token, Mr Berry's evidence should not be accepted
14       and Mr Graham, of course, didn't give evidence about the
15       fingerprint analysis itself.  He declined on the basis
16       that he had not been involved in fingerprints for some
17       time.  I am content with that, with either approach, as
18       long as it is applied consistently and that is the
19       simple comment I wish to make.
20   THE CHAIRMAN:  No, well I intend to apply it consistently.
21   MR MOYNIHAN:  Sir, perhaps just to complete the picture in
22       relation to that, it should be a matter of record in
23       relation to the Danish experts, Mr Rasmussen and
24       Mr Rokkjaer, knowing that they were unavailable to the
25       Inquiry, what I specifically asked Mr Zeelenberg, you
page 101
 1       may recollect, to delete from his presentation his
 2       exchange with them simply because they were not
 3       available for cross-examination and, accordingly, what I
 4       would be commending to you is a neutral position in
 5       respect of Mr Rasmussen and Mr Rokkjaer.  Insofar as
 6       their evidence had relevance what we, of course, did was
 7       went to the PSNI to ask them independently to revisit
 8       the question and to that extent my position would be
 9       that Mr Rasmussen and Mr Rokkjaer have been superseded
10       by the PSNI and I certainly had not anticipated anything
11       adverse being said about Mr Rasmussen and Mr Rokkjaer
12       because otherwise it would have been fairer to have
13       allowed Mr Zeelenberg to have said what he had otherwise
14       been prepared to say in that regard.
15   THE CHAIRMAN:  Yes, very good.
16           We will sit again at 1.50.
17   (1.00 pm)
18                      (Luncheon Adjournment)
19   (1.50 pm)
20   MR SMITH:  Although this Inquiry is considering events
21       dating over the past ten years, it is clear that
22       significant parts of the criminal justice system have
23       since then lacked integrity and professionalism that the
24       public is entitled to expect.
25           If one word can be used generously it is the word
page 102
 1       "complacency".  There has been complacency in respect of
 2       the debacle at numerous levels: SCRO were complacent in
 3       the management structures; Strathclyde Police were
 4       complacent in their investigation and the response to
 5       the acquittal of Shirley McKie; the SPSA were -- and
 6       remain -- complacent; and finally the Crown Office
 7       were -- and remain -- complacent, promising to react now
 8       to the problems that have plainly arisen in the past.
 9           It is our position that this complacency was
10       palpable on the individuals, all the way from Stephen
11       Heath, who remained proud of the investigation into the
12       investigation of Marion Ross; from Tom Nelson of the
13       SPSA, who would rather that this Inquiry directed the
14       SPSA as to what to do; and from the former Lord Advocate
15       Lord Boyd, who plainly saw Iain McKie as an irritation,
16       an irritating factor from the outset and only reacted
17       when Frontline Scotland provoked the Crown Office into
18       action.  It is indeed a sad day when the Crown Office
19       and the Lord Advocate fail to appreciate a criminal
20       justice catastrophe and react only when the media set
21       out to expose it.  Justice when dictated by the media is
22       a dangerous concept.
23           This Inquiry is about public confidence.  Although
24       Lord Boyd was rather quick to point out the lack of
25       interest in the Inquiry, plainly suggesting that there
page 103
 1       was little public demand for review, the fact remains
 2       that the system has failed and needs to be repaired and
 3       repaired urgently.
 4           It seems to us that there are four main issues that
 5       have to be considered: the first is were there
 6       mis-identifications in respect of Y7 and QI2; second, if
 7       so, how did they happen; third, what can be done to
 8       prevent errors happening again; and, fourth, how can
 9       public confidence be restored in the criminal justice
10       system and, indeed, in the science of fingerprinting.
11           As far as mis-identification is concerned, dealing
12       with that, there is overwhelming evidence that there
13       were mis-identifications in respect of both Y7 and QI2.
14       I do not intend to rehearse the evidence.  However, we
15       submit that Mr Swann, Mr Leadbetter, Mr Berry and
16       Mr Graham are all totally discredited.  They were
17       mutually contradictory and they contradict the SCRO on
18       numerous issues.  They could not demonstrate points said
19       to be there and could not explain differences.  However,
20       they resorted to the mantra of distortion, movement,
21       pressure of unspecified types.
22           The same can be said of the SCRO.  Their attempts to
23       demonstrate analyses was, frankly, desperation.  Worthy
24       of special mention was Mr Mackenzie who said he could
25       see things no-one else could: he draw serpents; he drew
page 104
 1       a foetus; he told us that the Emperor was wearing the
 2       most beautiful clothes.  If Professor Champod is to be
 3       accepted, this lack of demonstrability and failure to
 4       explain and replicate distortion is wholly unacceptable.
 5           In our written submission, which will be made
 6       available shortly, we point out that the timing in
 7       respect of QI2 and Y7 is important.  QI2 was originally
 8       identified and said to be that of Marion Ross.  It was
 9       critical to the murder investigation and if the evidence
10       of Pat Wertheim, Arie Zeelenberg, Mr Sheppard, Mr Grigg
11       and indeed, to the extent that it is important, of
12       Mr Frank Crowe (Sheriff Frank Crowe) regarding the Danes
13       almost literally throwing their hands in the air in
14       disbelief, and indeed the evidence of our own eyes in
15       this Inquiry, is accepted then it's not only wrong but
16       clearly so.  The note "ident required" may in fact be
17       what we thought and what it says.
18           It was after that that Y7 was identified as being
19       that of Shirley McKie.  When she denied she was there,
20       then of course that provoked a reaction.  What happened
21       thereafter is quite clear is that there was an effort to
22       ensure that the fingerprint Y7 and the inked mark of
23       Shirley McKie was not passed out of the Bureau.  One
24       questions this: what if it had been?  What if it had
25       been found to be a mis-identification?  The conclusion
page 105
 1       that one can draw from that is that it is likely
 2       questions would have been raised by either Asbury's
 3       defence team, or indeed by the Crown Office, as to the
 4       veracity of all fingerprints involved in the murder
 5       inquiry.  That would, of course, have included the
 6       fingerprint QI2.
 7           The question that arises is this: was there a
 8       desperation that QI2 should not be looked at and, if so,
 9       it raises serious questions of whether it was known or
10       at least strongly suspected that the identification of
11       QI2 was incorrect.  It will be recalled that Mr Sheppard
12       stated that he could only assume that QI2 was identified
13       as a correct match to support the case against David
14       Asbury and he may well be correct.
15           So what was the cause of the mis-identifications?
16       The starting point for this exercise must be that SCRO,
17       as they maintain, were competent and if we proceed on
18       that assumption, we have a number of difficult questions
19       to answer.  What we have then is within one murder
20       investigation, two fingerprints are mis-identified and
21       all of that in the face of a denial of the
22       identification of Y7.  It has always been accepted by
23       those representing Shirley McKie that it is probable
24       that Y7 was originally mis-identified by mistake.
25       However, once the challenge was presented, any
page 106
 1       reconsideration would have alerted any competent
 2       examiner to the error.  This Inquiry cannot of course
 3       determine criminality directly but if the level of
 4       gravity of a failure on QI2 is accepted, there are a
 5       number of options.
 6           The first option is that there were competent
 7       examiners and they made two honest mistakes in the same
 8       case, which we say is improbable.  The second option is
 9       that they were not competent.  The third option is, of
10       course, that they were competent, they erred, they knew
11       it and were not prepared to do anything to disclose that
12       they had in fact made the error.
13           There are a number of worrying features about the
14       evidence that was presented before this Inquiry that
15       gave rise to suspicion.  The first of these is the
16       continual approach by the SCRO, aided by Mr Leadbetter
17       and Mr Swann, which has been to attack anyone who
18       disagrees with them.  Whilst Pat Wertheim and Arie
19       Zeelenberg in particular provided demonstrations of how
20       they reached their conclusion, there was clearly
21       demonstrable there was something that was open to
22       challenge if it was chosen, they did not reduce
23       themselves to personal attacks.
24           I would invite you, Chairman, to consider the manner
25       in which evidence was given on the one side effectively
page 107
 1       by those supporting Ms McKie's position and compare that
 2       to the manner of the evidence given by those supporting
 3       the SCRO.
 4           I would draw attention again to something Mr Holmes
 5       said earlier today which related to the way in which the
 6       witnesses who were denying the SCRO identification gave
 7       their evidence and the language that they used.  I must
 8       say that the language used by Mr Leadbetter in his
 9       statement, and indeed by Mr Swann in his statement,
10       appears to be something that is not in any sense
11       replicated in any statement or a report by those who
12       support Ms McKie's position.
13           The second worrying feature about this particular
14       Inquiry is the presentations prepared by Mr Mackenzie.
15       Those presentations were not only to Tulliallan but
16       before this Inquiry and what we suggest is that the
17       quality of the presentation was something that gives
18       rise to serious questions over its veracity.
19           What he was doing was, amongst other things,
20       charting points that are plainly not on the print,
21       arguably and possibly on the wood-grain itself.  He was
22       drawing circles that were empty and he was telling us
23       that he could see things in them.  What we say is this
24       appears to be a desperate attempt and the desperation
25       shows he is either deluded or, frankly, attempting to
page 108
 1       deceive.  Either way he is, we say, utterly discredited.
 2           The third matter of concern is what appears to be
 3       three instances of what we say are quite clearly lies
 4       before the Inquiry.  They are as follows: the first is
 5       the suggestion that was made before this Inquiry that
 6       the blind test was a routine test and was not devised to
 7       manage the panic within the office.  It is submitted
 8       that simply cannot be right and deifies all logic and
 9       common sense.
10           The second lie is the suggestion that the meeting
11       with Sean Murphy lasted only a few minutes and that is
12       of course a lie that casts directly into question the
13       integrity of Sean Murphy, which we say is frankly
14       unforgivable.
15           The third is the astonishing evidence of Ms McBride
16       that she was unaware of the nature of the challenge that
17       was being levelled by the American experts until she
18       nearly fell off the seat after she completed her
19       evidence.
20           I should perhaps remind the Inquiry the Scenes of
21       Crime Officers, Michael Moffat, knew the challenge was
22       the talk of the office and that was why he tried to
23       provide assistance by suggesting the fingerprint may be
24       that of Gary Gray.
25           When we take all of this on board and if it is
page 109
 1       thought that these are lies then what we have is three
 2       out of the four who signed the report that was critical
 3       to the prosecution of Ms McKie and three out of the
 4       three who gave evidence in her trial lied to this
 5       Inquiry.  When you start from that point that point,
 6       that professionals, experts, those in the criminal
 7       justice system have lied here, the problem is we don't
 8       know when the lies stop and the truth commences and,
 9       accordingly, it might be said in the absence of any
10       acceptable, supporting, corroborative evidence on a
11       critical matter the Inquiry should be very slow to
12       accept what is said by these witnesses.
13           It is perhaps worth remembering what Mr Zeelenberg
14       said regarding Mr Mackenzie's presentation at Tulliallan
15       that it was, he said, the closest to malpractice that he
16       had ever seen.
17           The SCRO and the SPSA of course have an opportunity
18       to manage the difficulty.  From the outset there has
19       been not only complacency but a failure to take any
20       opportunity to reform the systems.  The reaction of the
21       SCRO was a rebranding.  The SCRO becoming the Scottish
22       Fingerprint Service and then becoming the SPSA.
23       Changing the name does not change the structure.  The
24       SPSA's profuse misuse of terminology down to the
25       description of users as "customers".  The SPSA provides
page 110
 1       a service at the heart of the criminal justice system;
 2       it is not providing a consumer product.
 3           The problems with the SPSA are cultural and, at its
 4       heart, it is an organisation that is divided.  The
 5       individual bureaux within it are divided from the
 6       Glasgow Bureau and it is difficult to imagine how this
 7       matter can be addressed other than by radical action.
 8       It is suggested that if, and especially if, Y7 and QI2
 9       are held to be mis-identified, the only result that
10       would permit confidence to be returned would be the
11       closure of the Glasgow Bureau at this time, thereafter a
12       reassessment of the systems and the competency of
13       individuals involved in it, and outside scrutiny of
14       whether there has been improvement before the Bureau can
15       be permitted to reopen.
16           The watchword, of course, is transparency --
17       transparency for the public.  We contrast what happened
18       here to what happened in the Mayfield case and what
19       happened in Boston following the McKern(?) case.  In the
20       former matter the investigation was transparent, the
21       results were published, the public could see what had
22       taken place.  In the latter case in Boston, the Bureau
23       was closed until the system was fit for purpose.
24           One contrasts that with what happened here.  Ten
25       years later, numerous investigations and inquiries
page 111
 1       later, millions of pounds later, the SPSA is still
 2       telling us, "We will wait and see what the Inquiry
 3       decides" when asked this: "If another problem arises,
 4       will we expect no change until a further public inquiry
 5       is ordered?"  A system of management that so operates is
 6       a completely shirking of responsibility.
 7           The Crown Office too have had ample opportunity to
 8       react, to recognise the problem, to investigate it, to
 9       demand change.  However, that was not done.  Iain McKie
10       was seen as an irritation.  He was only one person,
11       according to Lord Boyd, and it seems that the message
12       was only of importance if it was delivered publicly.
13           It is acknowledged by both the Crown Office and by
14       SPSA that there are serious issues that have to be
15       addressed for the Crown's disclosure and for the SPSA's
16       disclosure.  Mistakes may happen, they did happen, but
17       one can judge the integrity of any organisation by its
18       reaction to those mistakes.  As already said, both by
19       the Crown and the SPSA, that reaction was woeful.
20           Far from being critical of Iain McKie for, as is
21       pejoratively described, his "campaign" there should be a
22       recognition of the debt owed to him.  Few come out this
23       well but I suggest, frankly, that Iain McKie has for his
24       tenacity and, frankly, dignity in the face of the most
25       disgraceful and unfounded allegations about his
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 1       daughter.  He emerges from this entirely unscathed.  It
 2       is a pity, frankly, that Lord Boyd failed to acknowledge
 3       that matter in his evidence.
 4           Few have in this Inquiry acknowledged mistakes.  Pat
 5       Wertheim did but the mistake was explicable.  Gillian
 6       Climie did, even though she cannot carry any blame.  You
 7       might think this Ms Climie deserves considerable credit
 8       for her evidence.
 9           Over the years, many have come forward and placed
10       their reputations on the line on both sides of the
11       debate.  Although Pat Wertheim was employed as an
12       expert, Mr Zeelenberg has staked his reputation on his
13       evidence and others likewise.  The result of this
14       Inquiry on QI2 and Y7 will undoubtedly affect the
15       reputation of those individuals.  It is hard to see how
16       Mr Wertheim, Mr Zeelenberg, Mr Sheppard, Mr Grigg, the
17       PSNI and others can justify their position should the
18       decision of this Inquiry agree with the identifications
19       by SCRO.
20           Conversely, the same applies in respect of
21       Mr Leadbetter, Mr Swann and the others who support SCRO.
22       Should the decision of this Inquiry be to the opposite
23       effect and deny the identification of SCRO, clearly
24       their reputations are going to be seriously damaged.
25       There are a number of victims in this matter, not just
page 113
 1       Shirley McKie and David Asbury, but Michael Moffat and
 2       Gillian Climie and no doubt many individuals within SCRO
 3       and SPSA.  Some, of course, only have themselves to
 4       blame.
 5           But at the end of the day the victim that remains
 6       above all is Marion Ross.  To date, no-one has been
 7       convicted of her murder and that is a tragedy.
 8           What we invite you to do, Chairman, is as follows.
 9       We invite that an interim report under the Act is
10       prepared on the issue of QI2 and Y7 simply indicating
11       whether the SCRO identifications were correct or
12       incorrect.  What this will do is will enable the SPSA to
13       take immediate action as managers.  It will permit them
14       to show leadership and control change in the best way
15       possible.  I have no doubt that they would welcome this
16       to ensure that there is no prospect of a miscarriage of
17       justice in the interim.  This is so no matter what
18       decision is taken.  On any basis, some within SPSA are
19       wrong.  Even if it is concluded that the marks are
20       incapable of identification, in that event it appears
21       that they are all wrong.
22           The second thing that we invite you to recommend,
23       sir, is a recommendation that all changes within SPSA,
24       and indeed with regards to the Glasgow Bureau, are
25       reviewed by an outside agency, whether set up
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 1       specifically, or an agency that was also in existence to
 2       carry out the review.  Timescales should also be set.
 3           Finally, there should be transparency of the changes
 4       proposed and implemented.
 5           Similar procedures should be implemented in respect
 6       of the Crown Office.  Disclosure is, it would seem,
 7       something of an abstract concept for the Crown Office.
 8       There has been a theoretical concept.  It's no use
 9       having obligation of disclosure if those who possess the
10       information don't know that they have to hand it over.
11       It's almost as if Crown policy is what should be
12       disclosed is what can easily be found out by the defence
13       from other sources.
14           You recall that Lord Boyd fundamentally disagreed --
15       his words -- with the suggestion that disclosure after
16       conviction should be Crown-led.  It is apparently for
17       the defence to appeal -- on what grounds, we can only
18       guess -- to trigger that disclosure.
19           It appears almost on a Rumsfeld analysis that there
20       are "unknown unknowns".  That may relieve the Crown of
21       the responsibility of disclosure but it does nothing for
22       a mature system of justice with more than mere lip
23       service to an accused's rights.
24           The Inquiry has exposed failings.  As a result of
25       those failings, apart from the massive cost to the
page 115
 1       public purse, Shirley McKie was prosecuted, David Asbury
 2       was convicted of murder, and no-one has been convicted
 3       of the appalling murder of Marion Ross.
 4           We would like to thank all those present for the
 5       professional approach to what has been a difficult and
 6       thorough fact-finding exercise.  In particular, we would
 7       like to pay tribute to Mr Moynihan for his exhaustive
 8       and careful analysis of the evidence.  The Inquiry has
 9       provided many answers but has raised many questions, the
10       answers to which we look forward to reading in the
11       report of the Inquiry.  Thank you, sir.
12   THE CHAIRMAN:  Thank you very much.  Unfortunately, we
13       underestimated the time that would be required today and
14       Mr Russell was not asked to come until tomorrow.  I am
15       not sure what the current position is but at one stage
16       he raised a question about Mr Swann's evidence and
17       whether we had the correct version of it.  We put to
18       Mr Russell the Inquiry's understanding of Mr Swann's
19       evidence but we have not had confirmation from
20       Mr Russell that that is accepted by Mr Swann.  So I
21       can't rule out the possibility that Mr Russell may ask
22       for Mr Swann to be recalled about that.  I do not think
23       we have had a response, though we have been waiting for
24       one for some days.
25   MR MOYNIHAN:  Apparently, sir.  I am looking to see those at
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 1       the back of the hall.  We have not had a response to
 2       that particular question.
 3   THE CHAIRMAN:  Unfortunately, he has not been able to
 4       respond.  We will sit tomorrow then or I shall sit
 5       tomorrow at 10.00 and, as I said earlier, anyone who
 6       finds they are otherwise engaged I quite understand
 7       that.  Otherwise, I am afraid that is as far as we can
 8       go today, isn't it?
 9   MR MOYNIHAN:  Sir, that is indeed the position.  I myself
10       invited Mr Russell to give his closing statement
11       tomorrow and, therefore, it is no fault of his that he
12       is not available this afternoon.
13   THE CHAIRMAN:  I am sorry about that, otherwise we might
14       have been able to finish the Inquiry or the oral part of
15       the Inquiry today but it is not to be.  Very good.
16       Tomorrow morning at 10.00.  Thank you.
17   (2.13 pm)
18        (Adjourned until 10.00 am the following morning)
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