page 1 1 Friday, 27th November 2009 2 (10.00 am) 3 THE CHAIRMAN: Before we begin this morning with 4 Mr Russell's closing statement, there was a question 5 yesterday about the transcript. It has been checked and 6 I am told that the stenographer is happy with the 7 transcript as it is. If there's still any anxiety about 8 it, an opportunity will be given to you to listen to it 9 and if there is still a dispute about it then I can 10 listen to it. But for the moment after listening to the 11 tape recording or the digital recording I think it is it 12 is thought to be accurate. 13 MR SMITH: Thank you, sir, I'd prefer the opportunity to 14 consider the position. I wasn't told just until about a 15 minute ago what the position was but I would welcome the 16 opportunity to discuss it with the stenographers if I 17 could. 18 THE CHAIRMAN: Yes, you can do that and I give you an 19 opportunity to listen to it if you wish to. 20 The next matter I think is that you wish to 21 recall -- 22 MR MOYNIHAN: No, sir, I was going to suggest that we 23 complete yesterday's submissions or closing statements. 24 I think that my learned friend Miss Grahame suggested 25 there had ben an error. page 2 1 THE CHAIRMAN: Yes, I understand there was some point you 2 want to raise. 3 MISS GRAHAME: Yes, Mr Chairman, I am obliged. It has been 4 drawn to my attention that, in fact, there is an error 5 in my submissions from yesterday and in the 6 circumstances I would ask that a particular paragraph be 7 deleted from them. This is at page 32 of my 8 submissions, the final paragraph which extends into the 9 top of page 33 and it relates to Section 30 of the 10 Criminal Justice Bill. 11 It has been drawn to my attention that section does 12 not apply to Scotland and, in fact, the relevant 13 legislation for Scotland is the Criminal Justice and 14 Licensing (Scotland) Bill. The relevant section in that 15 Bill is section 6 which applies to disclosure. 16 Section 94 requires that defence statements be 17 produced by the defence when an indictment is served on 18 an accused he is to lodge that within at least 14 days 19 before a preliminary hearing and within 7 days before a 20 trial diet if there has been any material change in the 21 line of defence, but I wish to apologise for that error 22 which is entirely my responsibility. 23 THE CHAIRMAN: As long as it is corrected there is no 24 difficulty about it. Thank you very much for doing 25 that. page 3 1 I see Mr Swann is here and you would like to recall 2 him -- 3 MR MOYNIHAN: Yes, sir. 4 THE CHAIRMAN: -- to clarify one issue. 5 MR MOYNIHAN: To clarify one issue. It is not a subject of 6 any great difficulty but it may simply be preferable to 7 clarify it with Mr Swann's assistance because he is 8 here. 9 THE CHAIRMAN: Yes, is that all right, Mr Swann, if you 10 would like to come up. 11 You have already been sworn so there is no need to 12 repeat that. 13 PETER SWANN (recalled) 14 Further examined by MR MOYNIHAN 15 Q. Mr Swann, what I would like to do is just to clarify the 16 sequence of events relating to -- 17 A. Sorry, Mr Chairman. Could someone just move those 18 curtains. The glare of the sun is right in my face. 19 THE CHAIRMAN: We will see if we can do that. The sun 20 hasn't been a problem recently. 21 MR MOYNIHAN: What I am being told also is the flex for the 22 microphone is caught, I think, by something being placed 23 on top of it so we will free that up just to make sure 24 that you are comfortable in the witness box. 25 Mr Swann, I am grateful to you. All I wanted to do page 4 1 was to clarify the position relating to the document 2 that you produced for us on 22nd October and I am not 3 going to go over the whole of your testimony again. 4 What I am trying to do is just to reconcile some 5 passages that were thought on one view to have some 6 inconsistencies. 7 As you know, I have prepared nine propositions that 8 I have taken from your evidence and we will proceed 9 through them and use these propositions as a basis to 10 get some accuracy in relation to this position but, 11 please, feel free just to add or detract from the 12 propositions as we proceed. 13 A. Yes. 14 Q. First of all, my understanding is that Levy & McRae sent 15 you a package? 16 A. That's correct, yes. 17 Q. You were asked to concentrate on one particular exhibit 18 within that package, a comparison chart copy? 19 A. I was. 20 Q. The comparison chart provided was itself a copy? 21 A. It was. 22 Q. You have described it as not being a particularly clear 23 copy? 24 A. As I recall it was adequate for the job I had to do but 25 it wasn't obviously as clear as the original. It page 5 1 couldn't have been. 2 Q. So if I then, in the sheet that you have in front of 3 you, if I adapt it to say it was not a particularly 4 clear copy but was adequate for the purposes of 5 identification? 6 A. It was, yes. 7 Q. You have also given a description from recollection, 8 insofar as you can recollect the description you gave 9 was that it was a sort of matt finish, grey, dull 10 reproduction and one that you had to take time with, 11 which you did? 12 A. Correct. 13 Q. You studied that image on alternate days? 14 A. I did. 15 Q. You formed an opinion on Y7 at that point by reference 16 to that material? 17 A. Yes. 18 Q. You sent the package, including the comparison chart, 19 back to Levy & McRae and did not keep a copy of it? 20 A. That's correct. 21 Q. The document that you produced on 22nd October to the 22 Inquiry is, therefore, a separate copy of the comparison 23 chart? 24 A. Yes. 25 Q. You received that copy some time later? page 6 1 A. Correct. 2 Q. And you received it from someone other than 3 Levy & McRae? 4 A. Correct. 5 Q. But I take it you now have no clear recollection of when 6 you received it? 7 A. No, I haven't, no. 8 Q. Nor, in fact, from whom it came? 9 A. No, no idea. 10 Q. What I will do, because when my learned friend Mr Smith 11 was questioning you one of the images that we had was 12 overwritten, I will just check, in fact ... I am sorry, 13 it is simply the way my notes were. In fact, the image 14 was not overwritten. 15 You were asked some questions by Mr Smith about two 16 different possible originals and you had available to 17 you items on screen that are FI2210.02. 18 What I actually want to do, just for the avoidance 19 of any doubt, is just to look at this again for my 20 purposes. You have been provided in the witness box 21 with all the various originals of the documents. 22 First of all, the copy document that you produced on 23 22nd October is TS0019. We may just have to rotate it. 24 Mr Swann, because there are differences in the 25 numbering of the characteristics, I just have to be page 7 1 quite clear in trying to figure out which original this 2 is taken from. The way that I sought to differentiate 3 is to look at the bifurcation that is above the core 4 which, on the item, if I look at Shirley McKie's 5 fingerprint as the clearer copy on the screen, at least 6 for me, is characteristic number 9? 7 A. Correct. 8 Q. Do you see that? 9 A. Yes. 10 Q. As to the possible sources of the underlying original, 11 if I begin just to discount it, please, I will begin 12 with production number 189. On a previous occasion you 13 were shown a copy which is SG0126. What I will use is a 14 better copy, DB0012H. You have, in fact, in front of 15 you the original, if you look at production 189. 16 A. Yes, I have. 17 Q. On screen we have brought up digital page 6 and you have 18 the original in front of you. Do we see, again, because 19 it is clearer if I look at Ms McKie's fingerprint, that 20 the bifurcation above the core in this version is 21 numbered characteristic number 8? 22 A. It is, yes. 23 Q. For that reason alone one could conclude that the 24 material that you were working from could not have been 25 a copy of production 189? page 8 1 A. At the time when it was sent down to me? 2 Q. Yes. 3 A. It would appear so, yes. 4 Q. It would appear so. 5 A. Mm-hm. 6 Q. Because I don't wish to overstretch it, you have no 7 clear recollection of the original material? 8 A. No, I haven't. I mean, I can't cast my mind back that 9 length of time obviously but I cannot categorically 10 state that it wasn't this one that I saw because I can't 11 remember. I know it was a chart of this showing, 12 depicting, what I'm looking at but I can't be categoric 13 about it. 14 Q. That's fine, Mr Swann, in fact what I will then do is 15 the preferable line of question would be that the copy 16 that you produced for us, which is TS0019, just compare 17 it with what is on screen, the copy TS0019 cannot be a 18 photocopy of what we have on screen just now because the 19 bifurcation in what you have is numbered 9 not 8? 20 A. That's correct, that's correct, yes. 21 Q. Then if we look to the other two possibilities, the next 22 possibility -- and it was the one put to you in the 23 witness box on the previous occasion -- is that what you 24 produced on 22nd October is, in fact, a copy of 25 production 152. So if I bring up on screen ST0006H and page 9 1 again we will just proceed through to the charting. On 2 this occasion it is page 7. The bifurcation, again 3 using Ms McKie's print as the clearer one, the 4 bifurcation is numbered 9? 5 A. It is, yes. 6 Q. Therefore, this is a possible source of what you 7 produced to the Inquiry? 8 A. Yes. 9 Q. What I will ask you to look at is, as I have already 10 shown you this morning, the way that I can differentiate 11 this from another version of something similar is if I 12 look to the spacing beneath the main pattern in Y7 on 13 the left-hand image. If I could bring up, please, a 14 second image side-by-side, if I bring up, please, 15 production 180 which is DB0011H. What I will do, 16 Mr Swann, is just enlarge the relevant images -- that is 17 the images of Y7. In each of these two productions, the 18 bifurcation immediately above the core remains numbered 19 9? 20 A. It is, yes. 21 Q. The difference between the two is that in DB0011 the 22 image has been cropped in such a way that there is less 23 unmarked area at the bottom of the image than there is 24 in production 152? 25 A. That's correct, yes. page 10 1 Q. Looking at what we have on screen, may I take it that 2 the image, that the copy that you were able to provide 3 to the Inquiry looks more like the top one rather than 4 the bottom? 5 A. That's right, yes. 6 Q. So, therefore, the evidence that you gave, in fact, on 7 21st and 22nd October would be correct, that it is 8 likely that the ultimate source of the copy that you 9 produced is more consistent with the image on the top, 10 which is production 152, for the Inquiry ST0006H? 11 A. Yes, I would agree. 12 MR MOYNIHAN: Thank you very much, Mr Swann. That clarifies 13 the matter for me. 14 Sir, I do not know if there are any other questions 15 following on from that. 16 THE CHAIRMAN: Yes, has anyone any ...? 17 MR SMITH: Sir, can I just ask one question just to be clear 18 about it, which relates to the fact that this was just 19 an error that Mr Swann made? 20 THE CHAIRMAN: Yes. 21 Further cross-examined by MR SMITH 22 Q. Mr Swann, I just simply want to ask this: it was a long 23 time ago, of course, that you had available that 24 particular document and you thought that that was the 25 one that was sent by Levy & McRae. Have I got that page 11 1 right? 2 A. I can't be accurate as to which one I received in the 3 bundle from Levy & McRae. I can't answer that. 4 Q. But just simply when you gave your evidence before it 5 was a mistake, as far as your recollection was 6 concerned. You just made a mistake. I am not 7 criticising you for that. 8 A. A mistake in what? 9 Q. In telling us before in the Inquiry that that was the 10 one that actually was sent by Levy & McRae. That's as I 11 understand your evidence? 12 A. Well, I made it clear at the start that I kept nothing 13 back; so therefore it couldn't have been a copy of what 14 I received. It's just the way the questions came that 15 there was some confusion, agreed. 16 Q. But when you told me you thought that was the one you 17 had been sent by Levy & McRae, as I understand your 18 evidence then you made a mistake in that evidence? 19 A. If you want to put it that way, then yes. 20 Q. I am simply wanting to clarify that, Mr Swann, because I 21 think we all understand people do make mistakes in the 22 course of their evidence occasionally because it is a 23 long time ago and you accept it is really just the 24 passage of time; is that right? 25 A. Indeed. page 12 1 MR SMITH: Thank you. 2 MR HOLMES: No, thank you, sir. 3 THE CHAIRMAN: Thank you very much for making the journey 4 back again and clarifying that, Mr Swann. I am grateful 5 to you. 6 MR RUSSELL: Sir? 7 THE CHAIRMAN: I am sorry, Mr Russell, I should have asked 8 you. 9 MR RUSSELL: Sir, thank you. 10 Further cross-examined by MR RUSSELL 11 Q. Mr Swann, is it correct that on 2nd November on your 12 instructions I set out the correct events in an e-mail 13 to Gerry Moynihan? 14 A. That's correct, yes. 15 Q. Is that a hard copy of the e-mail in your possession? 16 A. It is, yes. 17 Q. Are you able to place that before the Inquiry? 18 A. I can, yes. 19 Q. Is it also correct that late yesterday afternoon while 20 we were travelling here in your car from England, on 21 your express instructions, we sent by Blackberry an 22 e-mail to the Inquiry confirming the events in the 23 following terms: we don't have a hard copy because it 24 was by Blackberry. On your behalf, it was said to the 25 Inquiry, to John Grady: page 13 1 "Your summary of 17 November was substantially 2 accurate save for a couple of points. Peter Swann 3 obtained the copy chart referred to in his evidence 4 several years after his 1999 report was sent to 5 Levy & McRae. Whilst he cannot now recall from whom he 6 received that chart he can say with certainty that its 7 source was not Levy & McRae. In this connection 8 Mr Swann received nothing further from that firm. The 9 chart produced by Mr Swann was most certainly not, 10 therefore, the one provided by Levy & McRae nor was it a 11 copy of that particular chart. The actual chart 12 originally examined by Mr Swann was returned to 13 Levy & McRae without any copy having been made or 14 retained. The chart originally provided by Levy & McRae 15 and examined by Mr Swann had been entirely adequate for 16 fingerprint identification purposes." 17 Is that a correct account of your instructions which 18 were conveyed to Mr Grady on behalf of the Inquiry? 19 A. Yes, they were, yes. 20 MR RUSSELL: Thank you, sir. 21 THE CHAIRMAN: Thank you again, Mr Swann. 22 (The witness withdrew) 23 THE CHAIRMAN: Mr Russell, when you are ready, if you will 24 make your closing statement. 25 MISS GRAHAME: Mr Chairman, before that starts I wonder if I page 14 1 can interrupt. I am having problems with my LiveNote 2 connection. I wonder if this could be rectified before 3 Mr Russell begins if possible? 4 THE CHAIRMAN: Yes, shall we see if we can rectify that 5 before Mr Russell begins. (Pause) 6 Submission by MR RUSSELL 7 MR RUSSELL: Thank you, sir. I represent Michael Ross on 8 his own behalf and on behalf of Marion Ross; Peter 9 Swann, Shirley McKie's Independent Fingerprint Expert 10 prior to her trial for perjury, Her Majesty's Advocate v 11 Shirley Jane McKie; Martin Leadbetter; and John Berry. 12 I make a statement on their collective behalf. 13 As you know, we have had profoundly serious 14 misgivings concerning this Inquiry. We refused to sign 15 confidentiality undertakings and consequently have never 16 had access to the confidential core participants' 17 database. 18 Sir, this may be the Fingerprint Inquiry but the 19 fact remains it's very foundation rests on the 20 commission of murder and perjury. 21 In addressing the Inquiry yesterday Andrew Smith 22 referred to the evidence of Pat Wertheim and Arie 23 Zeelenberg and placed reliance upon the fact that: 24 "They did not reduce themselves to personal 25 attacks." page 15 1 And invited you to contrast that with: 2 "The continual approach by the SCRO, aided by 3 Mr Leadbetter and Mr Swann, which has been to attack 4 anyone who disagrees with them." 5 Mr Smith added that the language used by Mr Swann 6 and Mr Leadbetter was: 7 "Not in any sense replicated in any statement or a 8 report by those who support Ms McKie's position." 9 Mr Smith's statement was manifestly untrue. The 10 McKie experts, Pat Wertheim, Arie Zeelenberg and Allan 11 Bayle, have each launched personalised, grossly abusive 12 and deeply offensive attacks upon the SCRO experts and 13 any other expert who got in their way, notably Peter 14 Swann and Martin Leadbetter. By way of example it was 15 Wertheim who said the SCRO officers had about them the 16 odour of corruption and alleged fraud on their part. It 17 was Zeelenberg who made false allegations of 18 criminality -- 19 THE CHAIRMAN: I think there is difficulty for the 20 stenographer picking up. 21 MR RUSSELL: Thank you, sir. 22 It was Zeelenberg who made false allegations of 23 criminality trying to rally the so-called world Internet 24 experts and it was Bayle who wrote that those experts 25 who wrote that those experts who would not take up page 16 1 Shirley McKie's cause were no better than the Gestapo 2 who herded the Jews into the gas chambers. 3 These people are sanctimonious liars. Andrew Smith 4 again yesterday afternoon alleged that in his 5 presentations, to include those of this Inquiry, Robert 6 Mackenzie's evidence triggered: 7 "Serious questions over its veracity", 8 -- and that his: 9 "... desperation shows he is either deluded or, 10 frankly, attempting to deceive. Either way he is, we 11 say, utterly discredited." 12 That was, however, an inherently dishonest and 13 unwarranted attack upon the integrity and character of 14 Robert Mackenzie. However, I cite it for one good 15 reason and that is to demonstrate how the McKies and 16 their lawyers operate and have operated throughout. The 17 fact is, however, that the character, professionalism, 18 expertise and honesty of Peter Swann, Martin Leadbetter, 19 John Berry, Robert Mackenzie, Fiona McBride, Allister 20 Geddes, Hugh MacPherson, Terry Foley, Alan Dunbar and 21 those at SCRO is beyond reproach, as has been 22 demonstrated before this Inquiry. 23 For their parts the Ms McKies and their lawyers are 24 nothing if not consistent and an example of that is to 25 be found in the letter of 14th July 2000 from Bill page 17 1 Gilchrist, Regional Procurator Fiscal, to Frank Crowe, 2 the then Deputy Crown Agent. The letter is useful 3 because it shows that Mr Iain McKie and James Cassel, 4 his solicitor, met with Mr Gilchrist and alleged that 5 the conspiracy against Shirley, as they put it, 6 essentially started with the Asbury case and it is 7 recounted how McKie and Cassels made allegations of 8 conspiracy and perjury, both in the Asbury and the McKie 9 cases. It demonstrates how the McKies worked in tandem, 10 in harness, with their lawyers. 11 That was back in July 2000 but yesterday afternoon 12 Andrew Smith was, again, on the attack this time 13 alleging: 14 "That professionals, experts, those in the criminal 15 justice system have lied here. The problem is we don't 16 know when the lies stop and the truth commences." 17 Mr Smith went on to say: 18 "There are a number of victims in this matter, not 19 just Shirley McKie and David Asbury." 20 That again is the character approach of portraying 21 Shirley McKie and David Asbury as victims, which is the 22 last thing in this world that they are. 23 Mr Smith eventually got round to Marion Ross with an 24 observation which ranked as sanctimonious hypocrisy of 25 the highest order saying: page 18 1 "At the end of the day, the victim that remains 2 above all is Marion Ross. To date no-one has been 3 convicted of her murder and that is a tragedy." 4 However, we say that Mr Smith's client, David 5 Asbury, was properly convicted of Marion Ross's murder 6 on overwhelming evidence. The McKie/Asbury team, before 7 this Inquiry, has even had to abandon the fiction that 8 David Asbury's fingerprint on the gift tag of the Marion 9 Ross Christmas present was a forgery. The only tragedy 10 in relation to the murder conviction was that it was 11 deliberately and dishonestly undermined by Iain and 12 Shirley McKie, which was the grossest conceivable 13 betrayal of their Police Service. 14 It was Mr Smith who alleged yesterday that: 15 "Professionals, experts, those in the criminal 16 justice system have lied here and that the problem is we 17 don't know where the lies stop and the truth commences". 18 Since Mr Smith poses the question as to not knowing, 19 "when the lies stop and the truth commences", we can do 20 no better than to refer him and this Inquiry to the 21 evidence of Iain McKie on 15th October. The very 22 specific allegation put to Mr McKie by Mr Moynihan which 23 had been made by us was that Shirley McKie, "did not 24 give a true account in her perjury trial". Mr McKie 25 admitted that, notwithstanding her answers on oath page 19 1 whilst under cross-examination by the Advocate Depute 2 during her perjury trial, Shirley McKie was fully aware 3 of Peter Swann's work as her Fingerprint Expert and that 4 he had reported that mark Y7 was her left thumbprint. 5 Mr McKie made his admission of 15th October in the face 6 of overwhelming evidence which had been presented 7 previously by us and others. 8 Andrew Smith told the Inquiry yesterday, however, 9 that they didn't know, "when the lies stop in the truth 10 commences". Applying that statement, it is clear that 11 Iain McKie and Shirley McKie were fully aware of the 12 fact that to adopt Mr Moynihan's question of 13 15th October Shirley McKie, "did not give a true account 14 in her perjury trial". 15 Useful guidance is to be found in the Perjury Act 16 1911, section 1 of which is couched in the clearest 17 possible terms and is merciless: 18 "If any person lawfully sworn as a witness in a 19 judicial proceeding wilfully makes a statement material 20 in that proceeding which he knows to be false or does 21 not believe to be true and shall on conviction thereof 22 on indictment be liable to penal servitude for a term 23 not exceeding 7 years." 24 If, as is clear from the evidence and Mr McKie's 25 belated admission of 15th October, that Shirley McKie page 20 1 was prepared to lie in her perjury trial concerning her 2 Fingerprint Expert Peter Swann and his identification of 3 mark Y7 as being her left thumbprint, then we say she 4 would certainly have had no reservations about giving 5 equally false testimony in the trial Her Majesty's 6 Advocate v David Asbury concerning her entry into the 7 crime scene of Marion Ross's murder. 8 Andrew Smith and the McKie lawyers themselves ask 9 this Inquiry when do the lies stop and the truth 10 commences? So I ask them why they collectively lied to 11 the Scottish Parliament in their signed statement of 12 April 2006 which must be contrasted with Mr McKie's 13 evidence of 15th October 2009. The statement was, and 14 it was signed by Andrew Smith and others: 15 "Shirley McKie advises us and we have no reason to 16 doubt this that she was not aware of the opinion of 17 Swann on the matters that she was asked about. At all 18 material times her father was being advised of the 19 developments and not all matters were communicated to 20 her." 21 That was a manifestly false statement. 22 Adopting Andrew Smith's words from yesterday, "we don't 23 know where the lies stop and the truth commences", but 24 it doesn't end there. Andrew Smith and his team have 25 for years contended that: page 21 1 "No expert who was asked to provide an opinion on 2 the matter of comparison of the prints prior to Shirley 3 McKie's perjury trial stated that there was a match 4 between the prints", that is to say, mark Y7 and Shirley 5 McKie's left thumbprint. Again, a gross false 6 statement. 7 That brings me full circle, sir, back to the 8 disappearance of all of the legal files of Levy & McRae, 9 Shirley McKie's solicitors in the perjury trial Her 10 Majesty's Advocate v Shirley Jane McKie a/k/a Cardwell. 11 On 13th November I communicated with the Inquiry and 12 said: 13 "The Chairman has been content to excuse both David 14 Asbury and Shirley McKie from giving evidence on oath. 15 It is, however, a matter of record that both Asbury and 16 McKie have been of sufficiently robust health to 17 entertain countless journalists and to record media 18 interviews. Ms McKie was certainly well enough to 19 attend the Court of Session in order to give evidence 20 but then again the incentive of such appearance was the 21 prospect of her claiming £1 million in compensation. 22 Ms McKie was well enough to attend the Justice 1 23 Committee of the Scottish Parliament but quickly feigned 24 outrage when her victim status was challenged. For her 25 part, Ms McKie has publicly characterised the page 22 1 SCRO experts and others as spineless maggots and 2 criminals. Ms McKie also made many poisonous 3 allegations against Mr Swann. 4 "However, whilst Ms McKie's health permits her to 5 utter insults with the propensity of a fish wife she is 6 apparently too ill to submit to cross-examination on 7 behalf of those she abuses. The Chairman is on notice 8 that Ms McKie committed perjury in her perjury trial, 9 HMA V Shirley McKie. As matters stand, the Chairman has 10 been entirely content to revoke Ms McKie's statutory 11 notice by reliance upon such testimony, notwithstanding 12 the fact that it was perjorious, as was finally admitted 13 by Iain McKie on 15th October 2009." 14 "The Chairman conducted his investigation of 15 Ms McKie's medical condition with inappropriate secrecy 16 and entirely to the conclusion of those entitled to 17 maintain an interest. Indeed, I am not even permitted 18 to know the name of the medical practitioner who 19 conducted Ms McKie's examination. 20 "As matters stand, Mr Swann stated clearly at an 21 early stage in giving his evidence-in-chief to the 22 Inquiry that all exhibits received from Ms McKie's then 23 solicitors, Levy & McRae, had been returned to them. 24 Since the Chairman will not allow the issue to be put to 25 Mr McKie the question arises as to our right to secure page 23 1 corroboration through inspection of Levy & McRae's 2 files. Such files will inevitably have been passed on 3 to the successor solicitors and having regard to the 4 nature of the intervening civil proceedings will 5 doubtless have been preserved. Would you, please, 6 therefore confirm that such files have been obtained by 7 the Inquiry and they will be made available to me in 8 their entirety for inspection prior to Mr Swann's 9 resumption of evidence. It is of course unacceptable to 10 have Mr Swann re-examined as to the documentary 11 instructions received from and returned to Levy & McRae 12 when both that firm's file of papers and Ms McKie 13 herself are being protected from examination within the 14 Inquiry." 15 That was followed -- and I will say this fairly 16 briefly -- by a communication to the Inquiry from me on 17 16th November where I took issue concerning the report 18 that Levy & McRae's files had been lost and I said: 19 "I would remind the Inquiry that in our submission 20 of 14th November 2008 I raised this very issue: 21 'Thereafter the Inquiry should request the files of 22 Levy & McRae in their capacity as solicitors for Shirley 23 McKie in the case of HM Advocate v Shirley McKie. If 24 Shirley McKie refuses to give authority for disclosure 25 of Levy & McRae's papers, then that will be a matter to page 24 1 be addressed by the Chairman.'" 2 Continuing the quotation: 3 "In the circumstances and having regard to the 4 passage of a full 12 months the question arises as to 5 what steps were taken by the Inquiry to secure such 6 evidence and more importantly precisely when. 7 Immediately I have the Inquiry's response I will be in a 8 position to further advise Mr Swann. As matters stand, 9 the loss of Levy & McRae's files, if confirmed, will 10 constitute a flagrant attempt to pervert the course of 11 justice as well as the further criminal offence of 12 obstruction contrary to section 35 of the Inquiries Act 13 2005. Such offences will have been committed by or on 14 behalf of Shirley McKie who, by her own father's 15 admission, gave perjured evidence in the proceedings Her 16 Majesty's Advocate v Shirley McKie." 17 As at 7.00 pm yesterday evening I received an update 18 from John Grady who, in summary, gives an account of the 19 way in which the file may or may not have been passed 20 between four firms of solicitors representing Shirley 21 McKie to include Levy & McRae, Hughes Dowdall, Cussells, 22 Digby Brown and, as matters stand, the Levy & McRae 23 files cannot be found. So between four firms of 24 Scottish solicitors acting for Shirley McKie they claim 25 to have lost all of her files from the perjury case. page 25 1 For our part we do not believe a word of it. As stated, 2 I first asked this Inquiry to obtain those files in 3 December 2008 since I recognised the importance of them. 4 So, sir, as matters stand Shirley McKie has not 5 appeared before this Inquiry in order to give evidence 6 on oath claiming that medical grounds prevent such 7 appearance. At the same time all of her files from her 8 perjury trial have disappeared, supposedly lost by one 9 or more of her many lawyers. 10 I cite that in stark contrast to the positions of 11 Peter Swann, Martin Leadbetter, Allister Geddes, Fiona 12 McBride, Terry Foley, Robert Mackenzie, Hugh MacPherson, 13 Alan Dunbar and others, all of whom have appeared before 14 the Inquiry and presented themselves for 15 cross-examination on oath and, no, we did not lose our 16 files along the way nor did any of us commit perjury. 17 Which brings me to another of Andrew Smith's 18 victims, David Asbury. We ask where is he? This was 19 his opportunity to give his evidence. Asbury has the 20 same penchant as McKie and that is that they give their 21 evidence through the press, through the media, through 22 the BBC, through documentaries. They do not appear on 23 the day. 24 What I say, sir, is that David Asbury has 25 demonstrated the same traits of cowardice that led him page 26 1 to trick his way into the home of Marion Ross leaving 2 behind his fingerprint on a Christmas present gift tag 3 bearing the seasonal greeting: 4 "To Katy love and best wishes, Marion". 5 Knowing that he had left behind that fingerprint was 6 one reason perhaps why it took David Asbury 38 seconds 7 to answer the question: 8 "Did you murder Marion Ross?" 9 So there we have it, sir. No David Asbury, no 10 Shirley McKie and none of Shirley McKie's files from her 11 lawyers. 12 I would however point out one matter to Andrew 13 Smith. Yesterday he raised comment as to the fact that 14 John Berry had not appeared before the Inquiry. I would 15 respond by pointing out three matters. Firstly, John 16 Berry's 2005 signed statement was lodged with the 17 Inquiry. Secondly, Mr Berry stands by his evidence to 18 the Justice 1 Committee of the Scottish Parliament, a 19 transcript of which was lodged with this Inquiry. 20 Thirdly, Mr Berry stands by his identification of each 21 mark in relation to Shirley McKie, David Asbury and 22 Marion Ross as has also been evidenced by his signature 23 having been endorsed upon a number of the original 24 fingerprint charts previously lodged with the Inquiry. 25 I point out, sir, that as I have previously advised page 27 1 this Inquiry Mr Berry remains terminally ill in 2 consequence of metastatic prostate cancer. He remains 3 in the Queen Victoria Hospital being nursed and 4 comforted by his devoted wife Diane and family. He has 5 been seriously ill throughout the course of this Inquiry 6 and, indeed, was gravely ill when he made the journey to 7 the Scottish Parliament in order to give his evidence to 8 the Justice 1 Committee. 9 Martin Leadbetter visits Mr Berry on a regular basis 10 and attests to his condition. We have put it at its 11 bluntest, as perhaps the only way it can be put is that 12 Mr Berry is nearing the end. If it was not for that, 13 nothing, coach and horses would not have prevented 14 Mr Berry coming before this Inquiry. 15 Malcolm Ross has also made a brief closing statement 16 to the Inquiry. It is signed and dated 25th November. 17 I say it is signed and dated because the last time I 18 cited a statement from Mr Ross the McKie's Internet 19 supporters suggested that I had made it up, which is 20 their way, when they are not in Barlinnie Prison they 21 are making allegations on the Internet. 22 What Mr Ross says is this: 23 "It has been quite clear from the outset with the 24 very restricted Terms of Reference agreed between the 25 Chairman and Government that any kind of justice for page 28 1 Marion Ross was going to be a pipe dream. Any misguided 2 hope that the Inquiry would cast light into the shadows 3 of the injustice perpetrated on the SCRO team and Marion 4 Ross was quickly dispelled by this serial malfeasance of 5 members of the law profession in Scotland, both in the 6 Inquiry team and in those involved in the earlier facets 7 of the McKie and Asbury cases. These malfeasances were 8 manifest in the following ways: the untruthful 9 declaration that the Inquiry lawyers were independent of 10 Government; the cloak of obscurity thrown around the 11 process of the appointment of advisers to the Inquiry; 12 the failure of the Inquiry to deal with the blatant 13 attempts of the International Association for 14 Identification to pervert the course of justice by 15 actions prejudicial to the evidence of Messrs Leadbetter 16 and Swann or to investigate the role of other core 17 participants and advisers to the Inquiry in the 18 instigation of the proceedings of the IAI; the failure 19 of the Inquiry to require the attendance as witnesses 20 under oath of Shirley McKie and David Asbury; the 21 failure to allow the interrogation of Lord Boyd of 22 Duncansby on the matters concerning the disappearance of 23 evidence vital to the identification of person 24 responsible for the Marion Ross; the apparent conspiracy 25 among lawyers involved with the McKie family over the page 29 1 years to ensure the disappearance of files detrimental 2 to the McKies but beneficial to the course of justice; 3 the failure of the Inquiry to investigate and identify 4 those responsible for the gross dereliction of duty in 5 failing to apply for a retrial of David Asbury for the 6 murder of Marion Ross. 7 "If the primary underlying purpose of the Government 8 behind the setting up of the Inquiry was to re-establish 9 public confidence in the legal processes in Scotland, 10 then the Scottish public has been let down by the 11 Inquiry's abuse of its powers. The only thing that will 12 be clear to the Scottish people is that justice is 13 ill-served by the law and that the law is ill-served by 14 Scottish lawyers. 15 "D Malcolm Ross, 25 November 2009." 16 The SCRO core participants, the Fingerprint Experts, 17 have each come before this Inquiry and defended their 18 identifications in respect of Shirley McKie, David 19 Asbury and Marion Ross. They have been supported in 20 those identifications by the independent experts: Peter 21 Swann, Shirley McKie's own Fingerprint Expert; Malcolm 22 Graham, David Asbury's own Fingerprint Expert; John 23 Berry, and Martin Leadbetter. 24 The fact that Shirley McKie's own Fingerprint Expert 25 and David Asbury's own Fingerprint Expert came before page 30 1 this Inquiry maintaining each identification 2 demonstrates the immense integrity and invaluable 3 Independence of these independent experts. 4 I now bring this to a close. In so doing, in 5 respect of a man who has suffered a barrage of 6 criticism, I take a moment to pay tribute to the 7 dedication, determination, tenacity and integrity of Les 8 Brown in conducting his investigation into these 9 matters. We are very grateful to Mr Brown. 10 I say, sir, that Scotland should be proud of its 11 Fingerprint Experts, Robert Mackenzie, Allister Geddes, 12 Terry Foley, Fiona McBride, Alan Dunbar, Hugh McPherson 13 and those who have appeared. They have each been 14 supported by Peter Swann, Martin Leadbetter and John 15 Berry. 16 We simply leave the McKies and their lawyers to the 17 media, the Americans, the Danes and the Dutch and, of 18 course, their worldwide Internet experts. Thank you, 19 sir. 20 THE CHAIRMAN: Thank you. 21 MR MOYNIHAN: Sorry, sir, can I just make one point clear 22 because Mr Russell has made some statements about some 23 individuals, in particular some individuals who have not 24 been called to this Inquiry and therefore not had an 25 opportunity to answer, in particular in relation to page 31 1 Mr David Asbury. This is of course an inquisitorial 2 process. The Inquiry Team has considered what witnesses 3 would have relevant evidence to provide. We have been 4 open to suggestions by core participants and, indeed, we 5 have called, as you will be aware, witnesses who other 6 core participants have suggested to us may have relevant 7 evidence. 8 I should make it clear, sir, that I, on behalf of 9 the Inquiry Team, did not consider that Mr David Asbury 10 had relevant evidence and, accordingly, I never did ask 11 Mr David Asbury to give evidence. Mr Russell did raise 12 with us the question of calling Mr Asbury and on 13 6th November he was told that the appropriate procedure 14 was to make an application to have Mr Asbury give 15 evidence, specifying what would be relevant in the 16 evidence of Mr Asbury and Mr Russell did not make such 17 an application. So the position is that Mr Asbury has 18 not been invited to give evidence because the position, 19 as far as the Inquiry Team is concerned, is that 20 Mr Asbury does not have evidence that would be relevant 21 to the limited Terms of Reference of this Inquiry. 22 THE CHAIRMAN: I need hardly say that I have listened to 23 each closing submission without interruption or comment 24 but of course the fact that these points have been made 25 does not mean for one moment, the fact that I have page 32 1 remained silent, that I accept them. 2 That then concludes the oral part of the Inquiry. 3 The position is of course that the Inquiry does not end 4 until the report is published but, as I say, it 5 concludes the oral part. 6 I would just indicate that I intend to inspect the 7 doorframe which had the mark Y7 on it and also the tin 8 on which there were the number of marks, including the 9 one attributed QI2. Then I propose to review all of the 10 evidence and by that I mean not only the statements and 11 oral evidence that I have heard from witnesses who have 12 been called to give evidence, but also those statements 13 that have been taken by the Inquiry from others who have 14 not been called to give oral evidence. I shall also, of 15 course, have regard to the opening and closing 16 statements of the legal representatives. 17 I know that one question that people ask when one 18 gets to this stage of any Inquiry is when can they 19 expect to have the report. The position there is that I 20 should explain that the next course then is that when I 21 have reviewed the evidence I will prepare a draft of the 22 report and then I am going to give anyone, in accordance 23 with rule 12, who might be the subject of criticism in 24 the report or any organisation an opportunity to respond 25 to that. page 33 1 I also intend, where I plan to make recommendations, 2 to give any organisation or person that is likely to be 3 affected directly by those recommendations an 4 opportunity to comment on them because the last thing, 5 as I explained in the course of the evidence, that I 6 want to do is to make recommendations which for some 7 reason unknown to me could not be put into practice and 8 I think that is only fair that that should happen. 9 Then when I have given a reasonable time for anyone 10 who might be the subject of criticism to respond or 11 those who might be the subject of recommendations to 12 express their views, then I will finalise the report and 13 it will be prepared for printing and publication. 14 So all I can say at the moment is that I will 15 endeavour and hope to complete all this as soon as I can 16 but, as I say, it will only be when that happens and the 17 publication takes place that the Inquiry will come to an 18 end. 19 Although I decided that the murder of Marion Ross 20 was not within the remit of the Inquiry, I need hardly 21 say that any material or information that has come to 22 light in the course of the Inquiry which may not have 23 been the subject of evidence because it was not directly 24 relevant to the Inquiry that could assist in the 25 investigation of this very grave, serious and appalling page 34 1 crime that that is going to be made available to the 2 proper authorities. 3 The only remaining thing to say is that as this is 4 the last sitting here at the Community Central Hall I 5 want to thank the Chief Executive, the General Manager 6 and all the staff for giving up such a large area of 7 their premises for the Inquiry and I believe, certainly 8 as far as I am concerned, for looking after us so well. 9 My task would be all the more difficult, if not 10 impossible, without the note of the transcript. I am 11 sure we are all grateful to Georgina Ford who has been 12 our stenographer and has done it solo, other than with 13 her editor and husband, Ian Ford, and has provided I 14 think with quiet efficiency such a good transcript of 15 the proceedings and indeed has carried on late on 16 occasions without any sort of complaint. I am grateful 17 to her and also sitting on my left Miss Bahrami and her 18 predecessor, Miss Skene, who have been so efficient at 19 operating the Trial Director which I think has been very 20 helpful to the proceedings. 21 It only remains now for me to thank all those who 22 have assisted me, whether as legal representatives, 23 witnesses or indeed by coming along and showing an 24 interest in the Inquiry for their assistance and, as I 25 say, while for some the task may now be over I think page 35 1 mine is probably just beginning but there we are. 2 Thank you all very much. 3 (11.05 am) 4 (The oral hearings concluded) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25