Introduction
3.1 The narrative begins with an outline of initial events at the scene in the hours after the discovery of the body of Miss Ross, and continues with an account of salient aspects of the murder investigation at the scene.
3.2 The conduct of the murder investigation by Strathclyde Police was not within the scope of the Inquiry save where its review was necessary to consider whether any deficiency in the investigation had been relevant to the detection and identification of the marks with which the Inquiry was concerned. In that context there were three specific matters that I considered to be relevant and addressed.
3.3 The first relates to criticisms of the forensic examination made by Mr David Ferguson, a scene of crime officer, in an e-mail that he sent to Mr McKie in January 20001 suggesting that the forensic examination had been delayed pending the result of the post-mortem, because of the possibility that Miss Ross's death had been by suicide, and also criticising the choice of aluminium powder as the first powder used to detect fingerprints.
3.4 These criticisms are linked to an associated issue concerning the presence of uniformed officers inside the house on the first night of the investigation, that gave rise to the possibility of contamination of evidence and, in particular, the possibility that Y7 might have been made by some officer other than Ms McKie.
3.5 Finally, a specific issue was raised by the evidence of Mr Michael Moffat which suggested that Y7 may have been a mark made by a specific police officer, Detective Constable Gary Gray, when he touched the door-frame as the body of Miss Ross was being removed.
3.6 The account of the first few hours is taken mainly from statements to the Mackay enquiry, many of which have not previously been published, and from the scene entry log. Unlike statements made to this Inquiry those who gave them to the Mackay enquiry did not have an opportunity to check them for accuracy and their statements were not signed or given under oath, and there were questions over the accuracy of the scene entry log. Nevertheless these sources serve to provide a general outline in relation to matters which are not controversial and about which the Inquiry did not require to take fresh evidence.
The evening of 8 January 1997 and overnight
The finding of Miss Ross's body
3.7 On Wednesday, 8 January 1997, Miss Ross was found dead in her home in Kilmarnock. The post-mortem next day established that she had died as a result of multiple stab wounds to her head and neck. She was 51 years old.
3.8 Miss Ross's death was investigated on behalf of the Crown by the procurator fiscal in Kilmarnock and Strathclyde Police. Miss Ross had lived at 43 Irvine Road, Kilmarnock, with her mother who had died in 1989 and her father who had died in 1991. After their deaths she lived alone. Miss Ross had worked as a clerk with the Royal Bank of Scotland in Kilmarnock until around 1982 when she took early retirement.
3.9 Miss Ross's house was a semi-detached bungalow that had been extended twice. The more recent of these was in 1995, when she had added a porch at the front door, a shower-room and living accommodation in the roof space. The latter appeared virtually unused since their installation.
3.10 Miss Ross had last been seen about 16:00 on Monday, 6 January 1997. Two days later her cousin, Miss Marion Campbell, became concerned when Miss Ross did not answer her telephone calls2 and Miss Campbell contacted a neighbour, Mr Alan Kinnaird,3 who kept a set of keys for the house. At about 18:00 on 8 January Mr Kinnaird went in and found the body of Miss Ross lying in a ground floor bathroom.4 He immediately summoned the emergency services.
3.11 Miss Campbell and her brother Mr James Campbell,5 who had already been on their way to Irvine Road, then arrived. Mr Kinnaird went back into the house accompanied by Mr Campbell. When they came out all three assumed that Miss Ross must have committed suicide.6
3.12 There was no sign of forced entry to the house. At the front, where Mr Kinnaird went in, there were three entrance doors, one of which Mr Kinnaird had to unlock to gain entry. The back door was locked with the keys in place on the inside.7 The sequence of opening and unlocking the front doors was something about which Mr Kinnaird would later be questioned by Ms McKie and her police partner Detective Sergeant William Shields.
The first hour
3.13 The emergency services, both ambulance and police, were on the scene within minutes.
3.14 The first two police officers to arrive, Police Constables Hope and Stirling, were met by Mr Kinnaird and Mr Campbell and told that Miss Ross had committed suicide. The ambulance crew showed them the body. A pair of black handled scissors was deeply embedded in the neck and a blood stained cutlery knife, with the blade bent to an angle of 90 degrees, was lying beside the left foot.10 It was clear that Miss Ross was dead and as the death "was obviously suspicious" the officers summoned a supervisory officer and the CID.11
3.15 The on-call GP attended12 and, when three detective constables arrived, the ambulance crew, the doctor, Mr Kinnaird and Mr Campbell were all at the scene. One of the three detectives, Detective Constable Wallace, went and viewed the body.13 He "very quickly" formed the opinion that Miss Ross had been murdered, and asked those present if they had touched anything or been anywhere. One of the ambulance crew told him that he had moved a vacuum cleaner to allow access to give them more room to work, and one had used the telephone. Mr Wallace instructed everyone to leave the house, and he looked in each room on the ground floor to check for signs of disturbance or forced entry. He left the house, met Mr Gray who had arrived at the house and gave him control of the locus.14
3.16 Mr Hope and Mr Gray,15 wearing gloves, "carried out a cursory interior check of the locus returning out to the front on being satisfied that no-one was inside." Neither Mr Hope nor Ms Stirling had been wearing gloves when they were inside earlier.16
3.17 As Mr Wallace was leaving "the locus" he met17 the police surgeon Dr Lennox18 who entered and spoke with Mr Gray. This was about 18:45.
3.18 Prior to this at about 18:30, two other police officers had arrived, Sergeant McVicar19 and Inspector Reilly.20 The ambulance had gone by then. Mr McVicar decided no persons further should enter the scene and he and Mr Reilly installed barrier tape around the entire locus. Although Mr Hope had been recording information in his notebook, no log had been kept up to this point and Mr McVicar created one in the form of blank A4 sheets of paper held within his clipboard. He then arranged for a uniformed police officer, Constable Jamison,21 to attend for log-keeping duty. Mr Jamison took up position "outside the tape on the public footpath, outside the locus." Shortly after that, about 18:50, Dr Lennox pronounced life extinct.22
3.19 Most of the police officers who attended the scene did not remain for long. It would appear that a total of ten or eleven people were inside the house beyond the porch at some point during the first hour, at a time when no, or limited, protective clothing was being worn.
The first evening
3.20 At about 18:30 Detective Chief Inspector Stephen Heath had been called from home and briefed at Kilmarnock police office by one of the officers who had attended the scene. "He informed me that there was an inference of suicide although his assessment of the situation was that the deceased had been murdered. In view of this I instructed that no other persons enter the house and arranged for a photographer, forensic scientist and a pathologist to attend at my office to be briefed of the circumstances prior to attending the locus. This is my normal practice. I also informed the duty fiscal however he elected not to attend."23
3.21 At about 19:25 Police Constable Ellis took over the log-keeping from Mr Jamison. When she arrived "there was not any activity in the house."24 As noted above, by this time detectives had attended and the ground floor and then the whole house had been checked through briefly; Mr Kinnaird and Mr Campbell, the ambulance crew, the two police officers first on the scene, other officers, and the on-call GP and police surgeon had all come and gone; and a tape cordon was in place.
3.22 Mr Moffat, a scene of crime officer, arrived about 20:10 followed about 20 minutes later by Mr Heath with a pathologist Dr Marie Cassidy and a forensic scientist from Strathclyde Police forensic science laboratory, Mr Martin Fairley.25 Detective Superintendent Malcolm and Detective Inspector Alexander McAllister arrived shortly after this.
3.23 Mr Fairley carried out an examination for blood in the area of the bathroom, which was off the hall. As well as blood in the immediate vicinity of the bathroom, he observed blood on a vacuum cleaner in a nearby bedroom.26
3.24 Mr Moffat was at the scene until the early hours of 9 January. He made a video of the inside of the house27 and took a series of still photographs of the scene and of the body.28 He placed metal tread plates on the porch floor for the use of those who had to enter.29
3.25 Mr Heath was aware of the suggestion that there was a possibility of suicide and his initial impression was suicide as there was no sign of forced entry. He had some recollection of the pathologist remarking that she had seen worse injuries in cases of suicide.30 However, murder was a strong possibility and he said that he took action at the highest level, with a strategy beginning that night involving control of the scene, house-to-house inquiries, seizure of clothing and interviewing of witnesses. He approached it as a very suspicious death but official designation as a murder investigation, and the administrative and other steps associated with that, had to await the post-mortem results.31
3.26 He instructed that the house was to be secured and kept under guard. No-one was to be admitted to the house, save those involved in forensic work. He said he would not have given detailed instructions since the decision as to how to guard a locus was one for officers junior to him, and this would have been left to Mr McAllister and Mr Gray. But he would have expected one or two uniformed officers, dependent on resource availability, to be assigned and for their supervisor to manage the task. Two officers was best practice, and covered matters such as breaks, but was not always achievable due to competing demands for limited resources.32 Among other steps, the locus was to be videoed and the body was to be photographed and taken to the mortuary.
3.27 So far as fingerprints were concerned, they needed to be addressed as part of a forensic strategy. Since it was an inside location and the house was to be secured Mr Heath was confident that the evidence would be preserved overnight. Once the body had been removed it was not a time to call out resources that would be tired by the next morning and as a result unable to be engaged full time in the task. A forensic strategy needed to be designed the next morning. The results of a post-mortem could also have an effect on this, for example on the order in which a forensic examination was carried out.33
3.28 Mr Heath was among those inside the house that evening.34 For Mr Heath, Dr Cassidy and Mr Fairley the log recorded: "arrive locus enter house" at 20:31 and "depart locus" at 23:10.35 Mr McAllister said that during the time he was at the scene that evening he did not enter the house.36 The log recorded for him: "arrives at locus" at 20:40 and that, with others, he left to do door-to-door enquiries at 21:00.37 The log-keeper remained outside, on the pavement at the gate, and would have recorded anyone who entered the scene, i.e. the garden/front ground and not just the house. Nothing appears to turn on this point of detail however it appears that there was no inconsistency. Mr McAllister could have entered the locus but not the house. Insofar as there is any inconsistency with the log, I prefer the sworn testimony of Mr McAllister that he was at the scene but not in the house.
Overnight
3.29 In the period after Mr Heath and others left at 23:10 Mr Moffat, the scene of crime officer, continued his work, and around midnight undertakers removed Miss Ross's body to the mortuary.
3.30 Mr Gray left the scene at the same time as the undertakers to accompany Miss Ross's body to the mortuary. Mr Moffat departed about 01:30, leaving only the uniformed officers at the locus.38
Mr Moffat and the possibility that Y7 was the mark of Mr Gray
3.31 An incident from the first night was to become a concern to Mr Moffat when he became aware, shortly before the trial in HMA v McKie, that the identification of Y7 was disputed. He believed that Y7 could have been left accidentally by Mr Gray and sought to alert his superiors to this.39
3.32 At around midnight when the two undertakers attended and took Miss Ross's body to the mortuary,40 Mr Gray and Mr Moffat were both inside the house and Mr Moffat's recollection was that he and Mr Gray helped the undertakers remove Miss Ross's body.41 Mr Moffat explained that when they were lifting the body he noticed Mr Gray leaning on the doorway with his left hand resting on the door-frame of the bathroom. Mr Moffat said that at the time he told Mr Gray to watch where he was leaning. Later he noticed that the thumb of a glove that Mr Gray was wearing was torn.42 He brought this to the attention of Mr Gray, and suggested to Mr Gray that he should let his boss know what had occurred.
3.33 Mr Gray's recollections of that night have varied. In some statements he is noted as saying that the undertakers placed the body of Miss Ross in the bag43 and that he may have been involved in moving the body.44 However, in his Mackay statement he is noted as saying that he could not recall directly being involved in removing the body but he may have been involved. In his statement to the Inquiry he said that he did not recall moving the body from the bathroom.45 In oral evidence, however, he did recall moving the body from the bathroom with Mr Moffat,46 having thought further since giving his statement.47 He acknowledged the time taken and efforts made by the Inquiry to obtain a signed statement from him48 and he did not remember giving a statement during the Mackay enquiry.49 A suggestion was put to him by counsel for Ms McKie to the effect that he had altered his position in oral evidence because he knew that the Inquiry had made arrangements to have his fingerprints compared with Y7. In oral evidence he did not recall touching the door-frame, or Mr Moffat warning him about a burst glove. He did, however, concede that it was possible that these events might have occurred.
3.34 In light of Mr Moffat's particular concerns I arranged for the fingerprints of Mr Gray to be taken by Livescan and inked impression50 and compared with Y7 by the Metropolitan Police. They reported that Mr Gray's prints did not match Y7.51 Mr Gray's prints had earlier been compared against Y7 and eliminated by examiners from the National Training Centre in Durham in the course of the Mackay enquiry.
3.35 Although I am satisfied that Mr Gray was not the donor of mark Y7, I find that he did touch the door-frame and that Mr Moffat did speak to him as Mr Moffat recalled. On this point I regard Mr Moffat as credible and reliable. When giving evidence on oath, Mr Gray did not disagree with the proposition that Mr Moffat's account was in material respects correct.
Presence of other officers in the house
3.36 Police Constable Hutchison52 took over log-keeping from Ms Ellis at about 23:10. The log recorded for Mr McAllister: 23:15 "enters locus" and at 23:20 "departs locus."53 At the time of this second short visit Mr McAllister observed that a cordon was already in place and an officer was noting details of those that attended.54 At this time the log-keeper was still stationed outside on the pavement.55
3.37 It was soon after this that a change in arrangements occurred, and the log-keepers moved inside. By that time, an instruction had been given that the house should be secured by two uniformed officers56 and Mr Hutchison was joined about 23:30 by Police Constable Lynne Nicol. She brought with her the instruction that they were to take up position in the sitting room of the house.
3.38 The Inquiry took a statement from Ms Nicol, now Ms McNally.57 She had been instructed by the staff sergeant at Kilmarnock Police Office to attend the scene. On arrival they were told by Mr Gray to take up position in the living room and not to move from there.58 They were to keep a log of those who came and went from the scene. The officers stationed themselves in the living room, the room that was first on the left as one entered the hall.
3.39 Ms Nicol said she was in the hallway while the body was being removed.59 Other than the uniformed officers' sergeant who called round briefly there were no visitors overnight. Another two pairs of officers in turn took over the log-keeping duties overnight and these officers also based themselves in the living room.
3.40 Mr McAllister said that after removal of the body the house was secured and there was, at the very least, a police guard by the door to prevent anyone from accessing the house. He said that he was not directly involved in this instruction and so did not know when a guard or log-keeper would have been deployed.60 He had no recollection of uniformed officers being in the living room at 43 Irvine Road and in particular had no recollection of coming across any inside when he arrived on 9 January.61 He would have expected them to have remained either outside the house or in the porch and not to have been any further inside than the porch.62
3.41 By the morning of 9 January the uniformed officers had moved to the porch. Police Constable Baird, who was on duty when Mr McAllister arrived that day, said that he told her and her colleague to take up a position outside the house.63 The evidence is that from the afternoon of 9 January the log-keepers were stationed in the front porch of the house and a single officer, rather than two officers, was on duty.64
Comment on presence of officers in house
3.42 Mr Heath learned of the presence of uniformed officers in the house that first night only while he was giving oral evidence to the Inquiry. He was surprised, as any room in the house would have been of importance to the investigation and he had left instructions that the locus was to be protected.65
3.43 I am satisfied that uniformed officers were present in the house during the night of 8 - 9 January 1997. This represented a departure not only from best practice, but also from common practice at the time.66 There was a risk attached to the presence of officers who did not need to be within a crime scene. They might accidentally damage or remove a mark of significance.67 Potential scientific and other scene examination was not confined to the immediate area where Miss Ross's body was found, as the attack on her had not necessarily taken place there. Only those with good reason to go inside the house should have done so.68 As Mr Heath remarked, having numbers of officers within a house which was a crime scene was not good practice. In particular there could be no call whatsoever for officers who were guarding the scene to enter it, and that should not have occurred.
3.44 Extensive comparisons were carried out by Mr Michael Thompson and Mr Geoffrey Sheppard of the National Training Centre at Durham in the course of the Mackay enquiry. In total the prints of 191 police and scene of crime officers and other persons potentially relevant to Y7, including Mr Gray, were compared against the mark Y7. None was found to have made that mark. Mr Sheppard and Mr Thompson confirmed their position to the Inquiry.69
3.45 Accordingly the presence of the various officers in the house does not appear to me to have had a bearing on the detection or identification of mark Y7. Any suggestion that one of these officers deposited Y7 can be dismissed.
3.46 For completeness, Mr James Kerr70 told the Inquiry that he had been concerned that he might have been the donor of the mark Y7. He had been working in the vicinity, including for example helping to take off the bathroom door, and had a concern that his latex gloves appeared to be thin.71 He was among those whose prints were checked and eliminated at Durham during the course of the Mackay enquiry.
3.47 I should record that I heard some evidence about the changes and improvements in crime scene management which had taken place in the period between 1997 and the Inquiry hearings. As I have concluded that the management of the crime scene did not affect detrimentally the detection and identification of the fingerprints with which the Inquiry is concerned, I have not reported at length on this matter. Even had I found it necessary to consider this matter in more detail, I would not have been minded to make any recommendation for change, given that crime scene management has changed significantly since 1997. It suffices to say that there is now a formal role of crime scene manager, and specific training for police officers who are to fulfil that role.
9 - 10 January
9 January
3.48 On 9 January the investigation was designated a murder investigation, and, as part of a forensic strategy, fingerprint examination at the crime scene began.
Ms McKie
3.49 Ms McKie was one of the enquiry team from 9 January. Her involvement in the investigation is considered separately in Chapter 14.
Scene of crime examination
3.50 Chief Inspector Ian Hogg, as Head of the Identification Bureau, was informed of the death on 9 January and told that it could be a murder or possibly a suicide.72 The fact that he went to the scene was, he said, indicative that it was being looked at as a murder by his department as he would not go to a suicide at that stage.73
3.51 He was recorded as arriving at the scene at 10:55 and was accompanied by Police Constable David Thurley from the Identification Bureau. Mr Stuart Wilson, Mr Graham Hunter and Mr Ferguson, scene of crime officers and Mr McAllister were all recorded as attending then also.74 The photography had been completed overnight and Mr Hogg assumed, correctly as it turned out, that a forensic scientist had also been there.75
3.52 Mr Hogg said he assessed the scene and decided what resources were required. He realised that a full examination would take some time76 and before he left a strategy had been agreed.77
3.53 A lot of loose material was lying about on the ground floor and Mr Hogg decided that it was not the best use of resources to have four scene of crime officers there before the productions had been removed so he sent two of them away until this was completed.78 They were Mr Wilson,79 who said that he understood this to be the reason for their leaving, and Mr Hunter.
3.54 Mr Hogg, Mr Wilson and Mr Hunter were all recorded as leaving at 11:30.80
3.55 This left Mr Thurley, the lead scene of crime examiner, and Mr Ferguson. In a note written by Mr Thurley after the examination he indicated that they were instructed by Mr Heath and Mr McAllister on that morning to treat the incident as murder until the post-mortem findings were known.81 Mr Ferguson also said that they were told to treat the incident as a murder until the cause of death was confirmed. Generally with a suicide there was no need for a fingerprint examination but he thought the fact that two officers had been sent away and he and Mr Thurley were to do a limited examination was an indication that suicide was being considered.82
3.56 Mr McAllister was present and a party to the agreed strategy.83 With photography completed, the next stages were a further forensic examination for blood or other biological material followed by an examination for latent fingerprints.84 He explained that police procedures when a death is deemed to be suspicious are, in effect, on a scale. "Sometime the suspicion might simply be some minor unexplained bruising which is noted by the police casualty surgeon. So the level of suspicion can be very low. In this case the level of suspicion was very high indeed, so we were effectively treating it as a homicide notwithstanding the fact that ultimately it was for the pathologist to provide the cause of death."85
3.57 Mr Hogg instructed Mr Thurley and Mr Ferguson to begin their examination in the hall as it was an area that was relatively free of loose items.86
3.58 Mr McAllister, Mr Thurley and Mr Ferguson were recorded as having left at 12:10, and Mr Thurley and Mr Ferguson as having returned again at 12:55 and remaining until 16:30.
3.59 Mr Ferguson began the scene of crime examination around the area of the porch and Mr Thurley in the bathroom area87 and they continued their examination that day at various parts of the property.
3.60 A post-mortem examination of the body of Miss Ross was being undertaken and around 14:00 Mr Heath learned that the cause of death was certified as multiple stab wounds to the head and neck. The investigation became a murder inquiry led by Mr Heath as the senior investigating officer with Mr McAllister as his deputy.88
3.61 When Mr Hogg was told about the post-mortem findings that afternoon, he spoke to the forensic science department to make sure that there was nothing else that they needed from the locus. He was told that they wished to return and have another look. He then instructed Mr Thurley and Mr Ferguson to stop the work they were doing pending this further forensic examination. At about 16:00 Mr Thurley received a call from the forensic laboratory and was asked to take possession of a banister.89
3.62 Mr Ferguson's recollection was that the door-frame of the bathroom would have been dusted not long before they received the telephone call.90 At this stage only aluminium powder had been used.91 Mr Thurley and Mr Ferguson had covered any marks they had found with adhesive tape to protect them. They stopped the dusting and taping at this point.92 As well as the banister, Mr Thurley removed certain other items including the bathroom door (see below), leaving the door-frame in place.93
3.63 Mr Thurley said that about fifteen marks were found on and around the bathroom door using aluminium powder.94
3.64 Detective Constable Kerr was put in charge of investigations at the house with Police Constable Graeme McIntyre to assist.95 They were to co-ordinate with the forensic scientists and scene of crime officers the extraction of evidence from the house and to co-ordinate the search of the house.96 It was clear that this would be a big job.97 Everything needed to be logged, photographed, labelled and a system of examination and production, transit and prioritisation put in place. Detective Constable Kirkland and Police Constable Alan Stevens were put in charge of the productions, based at the police station in a productions room that was kept locked.98 An instruction was issued that with the exception of those officers and scene of crime and identification bureau staff other people were not to enter the house.99
3.65 Mr McAllister was to take overall control of this and direct the process. At that time there was not a dedicated role for forensic liaison, and Mr McAllister was specifically assigned to manage the relationship with the identification bureau, SCRO and the laboratory on a daily basis. These support functions were very important. Mr Heath said that at the time there were around 80-90 murders a year in Strathclyde and it was essential for these relationships to be properly managed so that things were dealt with in a structured way.100
3.66 At a briefing at 16:10 the video of the locus was shown to help officers understand the scene without needing to enter it.101 A plan of the building was obtained and displayed in the general office and in the incident room for the information of all staff. Photographs and the video of the locus were also available for enquiry officers.102 The Inquiry recovered both a sketch plan drawn by Mr Thurley103 and an annotated building works plan.104
The removal of the bathroom door
3.67 It is convenient to mention here an issue that arose concerning Y7. This was whether any inference could be drawn as to when the mark was made from the fact that the bathroom door was removed from the house on 9 January.
3.68 Ms McKie, who viewed Y7 at the scene,105 thought that the mark could only have been made after the door had been taken off and that she mentioned this to Mr Heath and the others who were present. Mr Shields recollected this suggestion being made.107
3.69 The Malcolm report to the procurator fiscal dated 1 April 1997108 included a brief reference to the door. It said that an opinion had been sought (from SCRO) on what the person might have been doing to leave the mark in the position it was found. The report noted that the opinion was that the bathroom door was off, but that the fingerprint officers were not prepared to include such an opinion in their report.109 It continued that Chief Inspector Hogg of the Identification Bureau was not in a position to offer "an opinion in evidence" as to what the person was doing when the print was left however he was of the opinion that the door was off, and "significantly this means that the print may not have been present when the aluminium powder examination was carried out."110
3.70 Mr Hogg's opinion on this point was explored with him during his oral evidence to the Inquiry. He had not specifically seen Y7 at the scene111 and it emerged that he thought that Y7 had been found in what he called "the door check" i.e. the strip of wood at the hinges that would be covered over completely when the door was closed. If there, the mark could not have been made with the door shut and would have been difficult to make with the door in place but open. Y7 was not, however, on that strip of wood, but on the frame that remained visible with the door shut112 and Mr Hogg agreed that this meant that the mark could have been deposited with the door in place.113
3.71 In the course of Mr Moffat's evidence on 11 June, he demonstrated, using a doorway in the hearing room similarly configured to the bathroom doorway at the locus, that it was indeed possible for an individual to touch a strip of wood in an equivalent position with the door in place.114
3.72 Having considered whether the position of the mark was such that it could not have been made with the door in place I am satisfied on the evidence that the mark could have been made either with the door in place or after it had been removed.
10 January
3.73 On 10 January the 15 marks found on 9 January were lifted.115 Two other marks were listed in the marks worksheet116 which, according to the numbering of rooms on Mr Thurley's sketch of the floor plan of the ground floor,117 were also in the vicinity of the bathroom.118 No marks were recorded as being found on the right-hand surface of the door-frame at that time, which is where Y7 and Z7 were subsequently found on 14 January.
14 - 16 January
14 January - the discovery of Y7
3.74 On 14 January, scene of crime officers (SOCOs) Mr Moffat, Mr Hunter and Mr Wilson were continuing work at the house when Mr Kerr asked Mr Moffat about a mark on a skirting board in the hall. It had been dusted with aluminium powder but not much detail was showing. Mr Moffat gave it a further dusting with black powder and that seemed to give a good result and the skirting was removed for further examination.119 Mr Moffat, Mr Hunter and Mr Wilson then decided to do a further examination using black powder of the area within the hallway around the entrance to the kitchen and bathroom,120 because of the significance of that area.121
3.75 The SOCOs described the door-frame as nicotine stained and it was likely to have been contaminated with condensation and grease due to its proximity to the bathroom and kitchen.122 On 14 January the SOCOs were using portable lights about 18" wide and before Mr Wilson applied the black powder Mr Hunter examined the surface of the door-frame.123 To the best of Mr Wilson's recollection Y7 was not visible before he started dusting with black powder.124
3.76 There were variations among the SOCOs in relation to their recollections of the coverage of aluminium powder in the vicinity. Mr Wilson spoke of a "patchiness" in the overall area that they were re-powdering.125 Mr Moffat said that it looked to him as if the area where Y7 was found had had a light coating of aluminium powder126 but it was Mr Hunter's evidence that they could see that the aluminium powder had not taken because paint was showing through.127 No one of the three of them saw any sign of disturbance such as might have been caused by something touching any powder that was present.128
3.77 The dusting with black powder revealed new marks. A total of 12 "impressions" were recorded as having been found in various locations, including Y7, Z7 and A8.129 Of those 12, two (D8 and E8) were in due course eliminated by SCRO to Miss Ross, while C8 remained listed with no result.130
3.78 Mr Moffat noted the location and used arrowheads to depict the orientation of Y7 in his notebook.131 On page four of his notebook he recorded: "Y7 rhs hallway bathroom door surround 5ft" and then an arrow which he used as a rough guide.132 He also marked Z7 and made a corresponding entry for A8 which was found on the left-hand side of the bathroom door facing and directly opposite where the other prints were found.133
3.79 The arrows that Mr Moffat drew for Y7, Z7 and A8 all pointed upwards. Beneath these three entries he wrote: "possible sweat print appears fresh" however this was, he said, a reference to A8. These were not scientific terms; he used "fresh" to signify a mark that showed up well with good contrast to the surface it was on. He explained that he thought Y7 was "fresh" but Z7 was not, though they could have been deposited at the same time, and that A8 was darker in colour indicating the possibility that it was more recent than the marks of the deceased which he recollected as being very faded and light grey in colour. However, he agreed that there was no reliable way of establishing the age of a print.134
3.80 Mr Moffat recorded the finding of these marks on the marks worksheet BY31135 which was filled in at the scene and accompanied the form 13B that went to the fingerprint bureau136 along with a number of other impressions and lifts taken that day.137 There is a difference in the direction of the arrows for A8 as between the entry in the worksheet and in Mr Moffat's notebook. He said that the entry in his notebook would be the more accurate138 and the arrow should be pointing straight up.139
3.81 Mr Moffat took photographs, and the film went for development on 15 January before the photographs went on to SCRO.140 He confirmed that the Y7 image PS_0002, which was used by the SCRO examiners who first identified Y7, was a copy of a photograph that may have been taken by him.141 He also confirmed that the negatives of marks Y7-T9 in the envelope ST_0005 were the negatives of the photographs taken by him.142 These were the first images of Y7.
15-16 January
3.82 Examination at the scene concluded on 15 January143 and on 16 January Mr Hogg and Mr Thurley visited the locus to confirm completion of the examination. Much of the detail of the investigations carried out by police officers and other personnel during the period from 9 January is not of relevance to the Inquiry.
Commentary
The designation as a murder investigation
3.83 The issue for the Inquiry is whether the fact that the investigation became a murder investigation only after the post-mortem had any bearing on the detection and identification of mark Y7.
3.84 In his evidence to the Inquiry144 Mr Ferguson accepted that Mr Heath had said at the outset that it was to be treated as a murder however he felt that it was not really treated as such until later on.
3.85 I am satisfied that, while the investigation did not formally become a murder inquiry until after the post-mortem examination, the death was treated as if it could be a murder. The scene was photographed and videotaped, and a forensic scientist (Mr Fairley) was at the scene on the same evening as the body was discovered, and Mr Ferguson accepted this.145 Mr Heath acted appropriately. The fact that the house was cluttered and that productions required to be recovered before a full scene of crime examination proceeded provides a rational explanation for the two scene of crime officers being sent to other duties on the following morning of 9 January.
3.86 There is no evidence that the fact that Miss Ross's death was thought potentially to have been a suicide adversely affected the forensic examination. I am satisfied that the question of whether the investigation was one into murder or suicide had no bearing on the detection or identification of mark Y7.
Y7 being found at second powdering
3.87 Mr Ferguson was critical of the decision by Mr Thurley to begin with aluminium powder on the door-frame and Mr Thurley himself accepted that the contamination of the surface by nicotine and the effects of steam or condensation might have called for the use of black powder.146 Views differed among the SOCOs as to whether the correct procedure was to start with aluminium powder with the option of using black powder later and practice in that regard is reviewed in chapter 18.
3.88 The SOCOs were asked whether the fact that Y7 was first found at the second examination of the door-frame was consistent with the mark having been made after the aluminium dusting. Mr Hunter said that a conclusion could not be reached on that point because he had seen aluminium touched without a mark being left;147 and Mr Ferguson said that he was also unable to comment on this matter.148 Mr Wilson expressed the personal opinion that the mark had been there before the aluminium powdering but in reaching that conclusion he was influenced by the fact that at the same time as Y7 was found other marks identified as having been made by Miss Ross were also found and those must have been in place before 9 January.149
3.89 In his report to the procurator fiscal dated 13 May 1998150 Mr Kent did infer that Y7 must have been placed after the aluminium powdering and that was because aluminium powdering was considered to be so sensitive. That is predicated on a number of assumptions.
3.90 The first is that the sensitivity of aluminium powder is such that it will not 'miss' a fingerprint mark that will be disclosed by black granular powder. Dr Bleay carried out a brief experiment and found that 5-10% of marks were first disclosed on a second examination with black powder.151
3.91 The second is that the aluminium powdering of the door-frame had been effective. The recollections of the SOCOs suggest that it had not been effective, or at least not fully effective. That coincides with the observations of those who subsequently examined the door-frame. Mr Swann saw no sign of dual powdering on visual inspection.152 Mr Kent examined it under an ordinary optical microscope and saw no obvious sign of aluminium powder.153 In 2009 Dr Bleay examined the door-frame. He observed aluminium powder at the top with the majority being over-powdered with black powder.154 He proceeded to carry out an examination using optical coherence tomography and found no aluminium on the surface in the vicinity of Y7.155 Both Mr Kent and Dr Bleay indicated that there might be a number of possible explanations for the absence of aluminium powder, including the contaminated condition of the surface causing the powder not to take. In light of the evidence of the SOCOs that is the most probable explanation.
3.92 In any event, given the absence of evidence of any disturbance to the aluminium powder (if present), there is no necessary inference that Y7 could only have been placed after the aluminium powdering on 9 January 1997.
1. CO_1327
2. CO_3171 and CO_3173 Statements of Miss Campbell from original police investigation
3. CO_3180 Statement of Mr Kinnaird from original police investigation
4. The plans of the locus held by the Inquiry are DB_0014 and CO_1425
5. CO_3177 Statement of Mr Campbell from original police investigation
6. CO_3173 Statement of Miss Campbell from original police investigation and CO_3177 Statement of Mr Campbell from original police investigation
7. CO_3180 Statement of Mr Kinnaird from original police investigation
8. CO_1257 and CO_1258 Mackay enquiry statements of Mr Hope
9. CO_1271 Mackay enquiry statement of Ms Stirling
10. CO_2922 Statement of Mr Hope from original police investigation
11. CO_1257 Mackay enquiry statement of Mr Hope
12. CO_2277 Mackay enquiry statement of Mr Richards (GP)
13. CO_1210 and CO_1211 Mackay enquiry statements of Mr Wallace
14. CO_1210 Mackay enquiry statement of Mr Wallace
15. CO_1090 and CO_1091 Mackay enquiry statements of Mr Gray
16. CO_1258 Mackay enquiry statement of Mr Hope
17. CO_1210 Mackay enquiry statement of Mr Wallace
18. CO_2361 Mackay enquiry statement of Ms Lennox
19. CO_1252 Mackay enquiry statement of Mr McVicar
20. CO_2261 Mackay enquiry statement of Mr Reilly
21. CO_1248 Mackay enquiry statement of Mr Jamison
22. CO_2361 Mackay enquiry statement of Ms Lennox
23. CO_1171 Mackay enquiry statement of Mr Heath
24. CO_1268 Mackay enquiry statement of Ms Ellis
25. CO_1225 Mackay enquiry statement of Mr Fairley
26. CO_1225 Mackay enquiry statement of Mr Fairley
27. FI_0003 paras 7 and 13 Inquiry Witness Statement of Mr Moffat. The video, edited to remove potentially distressing images, was shown at the Inquiry hearing on 10 June (see Mr Moffat 10 June page 136ff) but it has not been published on the Inquiry website. Relevant images from production ST_0003 are on the website.
28. FI_0003 para 14 Inquiry Witness Statement of Mr Moffat. The photographs later became production 13 in HMA v Asbury (ST_0003).
29. FI_0003 para 9 Inquiry Witness Statement of Mr Moffat and Mr Moffat 10 June page 130ff
30. Mr Heath 9 June page 19
31. FI_0013 paras 28-30 Inquiry Witness Statement of Mr Heath, Mr Heath 9 June pages 20-22, 103-104 and FI_0068 para 21 Inquiry Witness Statement of Mr McAllister
32. FI_0013 para 23 Inquiry Witness Statement of Mr Heath and Mr Heath 9 June pages 22, 24
33. Mr Heath 9 June pages 21-22
34. FI_0013 para 10 Inquiry Witness Statement of Mr Heath
35. SG_0537 - handwritten log; a typed version is SG_0538. Mr Malcolm was also recorded as leaving at 23:10.
36. Mr McAllister 12 June page 112, Mr McAllister 16 June page 4 and FI_0068 paras 11, 14 Inquiry Witness Statement of Mr McAllister
37. SG_0537
38. SG_0537 and FI_0003 para 25 Inquiry Witness Statement of Mr Moffat
39. See Chapter 4
40. SG_0537
41. FI_0003 paras 20-24 Inquiry Witness Statement of Mr Moffat
42. Mr Moffat 10 June page 150
43. CO_3274 Statement of Mr Gray from original police investigation and CO_1090 Mackay enquiry statement of Mr Gray
44. CO_1090 Mackay enquiry statement of Mr Gray
45. FI_0069 para 16 Inquiry Witness Statement of Mr Gray
46. Mr Gray 12 June page 68
47. Mr Gray 12 June page 72
48. Mr Gray 12 June pages 74-76
49. CO_1090 and CO_1091 Mackay enquiry statements of Mr Gray
50. FI_0087h and FI 0088h
51. Senior Counsel to the Inquiry 10 July page 85 and MP_0002
52. CO_1294 Mackay enquiry statement of Mr Hutchison
53. SG_0537
54. CO_2022 Mackay enquiry statement of Mr McAllister
55. CO_1242 Mackay enquiry statement of Ms Nicol
56. CO_1147 Mackay enquiry statement of Mr Dunipace
57. FI_0107 Inquiry Witness Statement of Ms Nicol/McNally
58. FI_0107 paras 5-9 Inquiry Witness Statement of Ms Nicol/McNally
59. FI_0107 para 10 Inquiry Witness Statement of Ms Nicol/McNally
60. FI_0068 para 15 Inquiry Witness Statement of Mr McAllister
61. Mr McAllister 16 June pages 45-46
62. Mr McAllister 12 June pages 114-115
63. CO_2098 Mackay enquiry statement of Ms Baird
64. CO_2666 Statement of Ms Halliday from original police investigation and CO_2098 Mackay enquiry statement of Ms Baird
65. Mr Heath 9 June pages 22-25, 103-110
66. Mr Thurley 10 June page 55, Mr Hogg 17 June pages 6-7 and FI_0034 para 14 Inquiry Witness Statement of Mr Hogg
67. Mr Thurley 10 June page 54
68. Mr Heath 9 June pages 25, 104ff and 117ff
69. FI_0206 Inquiry Witness Statement (Supp.) of Mr Sheppard and FI_0207 Inquiry Witness Statement of Mr Thompson, and see Chapter 13
70. Then a detective constable - see below.
71. Mr Kerr 18 June page 38
72. FI_0034 para 14 Inquiry Witness Statement of Mr Hogg
73. Mr Hogg 17 June page 6
74. SG_0537
75. FI_0034 para 16 Inquiry Witness Statement of Mr Hogg and Mr Hogg 17 June pages 4-5
76. FI_0034 paras 17-18 Inquiry Witness Statement of Mr Hogg
77. FI_0034 para 31 Inquiry Witness Statement of Mr Hogg
78. Mr Hogg 17 June page 6
79. Mr Wilson 17 June page 96
80. SG_0537
81. Mr Thurley 10 June page 64
82. FI_0010 paras 8-10 Inquiry Witness Statement of Mr Ferguson
83. FI_0068 para 24 Inquiry Witness Statement of Mr McAllister
84. FI_0068 para 25 Inquiry Witness Statement of Mr McAllister
85. Mr McAllister 12 June page 113
86. FI_0034 paras 18-19 Inquiry Witness Statement of Mr Hogg
87. FI_0010 para 14 Inquiry Witness Statement of Mr Ferguson
88. FI_0013 paras 31-33 Inquiry Witness Statement of Mr Heath, FI_0068 paras 19-20 Inquiry Witness Statement of Mr McAllister and Mr McAllister 12 June page 96
89. FI_0037 paras 23, 33 Inquiry Witness Statement of Mr Thurley
90. FI_0010 para 19 Inquiry Witness Statement of Mr Ferguson
91. FI_0010 para 19 Inquiry Witness Statement of Mr Ferguson, FI_0033 para 33 Inquiry Witness Statement of Mr Stevens and Mr Thurley 10 June pages 28-29
92. Mr Thurley 10 June pages 27-28
93. FI_0044 para 21 Inquiry Witness Statement of Mr Kerr, FI_0037 para 23 Inquiry Witness Statement of Mr Thurley and Mr Thurley 10 June pages 28, 37
94. FI_0037 paras 32 and 46 Inquiry Witness Statement of Mr Thurley, DB_0003 and SG_0402
95. FI_0041 para 5 Inquiry Witness Statement of Mr McIntyre
96. FI_0013 para 71 Inquiry Witness Statement of Mr Heath and FI_0044 para 7 Inquiry Witness Statement of Mr Kerr
97. FI_0013 para 71 Inquiry Witness Statement of Mr Heath, FI_0068 para 23 Inquiry Witness Statement of Mr McAllister, FI_0034 para 18 Inquiry Witness Statement of Mr Hogg and FI_0037 paras 18-19 Inquiry Witness Statement of Mr Thurley
98. FI_0013 para 71 Inquiry Witness Statement of Mr Heath and FI_0033 paras 4ff Inquiry Witness Statement of Mr Stevens
99. FI_0013 para 51 Inquiry Witness Statement of Mr Heath and FI_0068 para 24 Inquiry Witness Statement of Mr McAllister
100. FI_0013 para 72 Inquiry Witness Statement of Mr Heath and FI_0068 paras 31-37 Inquiry Witness Statement of Mr McAllister
101. FI_0013 para 49 Inquiry Witness Statement of Mr Heath
102. CO_1256 Mackay enquiry statement of James Thomson (He was Officer Manager and in charge of the incident room and records for the case - FI_0013 paras 33-38 Inquiry Witness Statement of Mr Heath.)
103. DB_0014
104. CO_1425
105. See Chapter 7
106. FI_0071 para 70 Inquiry Witness Statement of Ms McKie
107. FI_0080 para 51 Inquiry Witness Statement of Mr Shields
108. CO_0998 and CO_3850 pdf page 60 para 5.2
109. See Chapter 8
110. CO_3850 pdf page 60 paras 6.4 and 6.5
111. Mr Hogg 17 June page 21 and FI_0034 para 52 Inquiry Witness Statement of Mr Hogg - the only time he specifically saw it was when the procurator fiscal brought the door-frame to his office.
112 See Chapter 1 paras 31-32
113. Mr Hogg 17 June pages 16-26
114. FI_1106-A, FI_1106-D and FI_1106-E
115. PS_0019, DB_0003 (the marks worksheet) and SG_0402 (the typed version of DB_0003 Mr Thurley had prepared - FI_0037 paras 29-31 Inquiry Witness Statement of Mr Thurley). Surface left-hand door facing, bathroom door hallside-T2, L/H hall bathroom door facing hallside-U2, eight marks on the surface of hall bathroom door hallside, four marks on I/S surface of hall bathroom door, surface of bathroom door LHS at hallside-D3. Of the 15, SCRO eliminated two as made by Miss Ross and two by relatives and found the other 11 to be fragmentary and insufficient.
116. SG_0402 pdf page 6
117. DB_0014
118. R/H side of bedroom two door-hallside-R2 and R/H side of bedroom two door-hallside-S2. Both were eliminated as the deceased's.
119. FI_0044 para 52 Inquiry Witness Statement Mr Kerr, Mr Moffat 11 June page 38 and FI_0003 paras 34-35 Inquiry Witness Statement of Mr Moffat
120. FI_0019 para 24 Inquiry Witness Statement Mr Wilson
121. Mr Wilson 17 June page 100
122. e.g. FI_0037 para 35 Inquiry Witness Statement of Mr Thurley
123. Mr Wilson 17 June page 102
124. FI_0019 para 28 Inquiry Witness Statement of Mr Wilson
125. Mr Wilson 17 June pages 100-101
126. Mr Moffat 11 June pages 40-43
127. Mr Hunter 10 June pages 110-111 and FI_0042 paras 19-21 Inquiry Witness Statement of Mr Hunter
128. Mr Hunter 10 June page 113, Mr Wilson 17 June page 102 and Mr Moffat 11 June page 49
129. SG_0402 and FI_0019 para 26 Inquiry Witness Statement of Mr Wilson
130. DB_0003 pdf page 17
131. FI_0003 para 39 Inquiry Witness Statement of Mr Moffat and AA_0002
132. Mr Moffat 11 June page 43
133. Mr Moffat 11 June pages 44-45 and AA_0002
134. Mr Moffat 11 June pages 45-46 and 49, FI_0003 paras 48- 50 Inquiry Witness Statement of Mr Moffat. Because of what he had seen on the night of 8 January, he was thinking that Mr Gray might have made the marks Y7 and Z7, so he associated them together, with perhaps Z7 being made through a glove and Y7 perhaps through a tear in a glove, whereas he did not think of A8 being linked. (Mr Moffat 11 June page 45 and also pages 92 - 93)
135. FI_0003 para 53 Inquiry Witness Statement of Mr Moffat, DB_0003
136. Mr Moffat 11 June page 47, FI_0003 para 53 Inquiry Witness Statement of Mr Moffat
137. FI_0037 paras 29-31 Inquiry Witness Statement of Mr Thurley. Y7 is listed at pdf page 17 of DB_0003 and pdf page 16 of SG_0402. Re 'lifts' see Chapter 19 paras 6 and 20.
138. Mr Moffat 11 June page 48
139. FI_0003 para 58 Inquiry Witness Statement of Mr Moffat
140. FI_0003 para 56 Inquiry Witness Statement of Mr Moffat
141. FI_0003 para 46 Inquiry Witness Statement of Mr Moffat
142. FI_0003 para 47 Inquiry Witness Statement of Mr Moffat
143. CO_1402
144. Mr Ferguson 10 June page 70ff
145. Mr Ferguson 10 June pages 71-72
146. FI_0037 para 35 Inquiry Witness Statement of Mr Thurley
147. Mr Hunter 10 June pages 117-118
148. Mr Ferguson 10 June pages 81-82
149. Mr Wilson 17 June pages 103-104 and FI_0019 paras 28-29 Inquiry Witness Statement of Mr Wilson
150. CO_3876
151. Dr Bleay 16 November pages 142-143
152. SG_0285 pdf page 2
153. Mr Kent 7 July pages 30-31
154. Dr Bleay 16 November pages 137-138
155. Dr Bleay 16 November page 145ff and EA_0165