Introduction
7.1. The evidence clearly indicates that it was not unknown for the prints of police officers and SOCOs to be identified on exhibits relevant to a criminal investigation. Indeed, in the Marion Ross murder investigation a print identified as that of the SOCO Mr Ferguson was found on one of the tape lifts that he had taken during the examination of the house.1 From the point that she first learned of the identification of Y7 as her mark, Ms McKie denied that she had been near the bathroom. The police and SCRO found themselves in an unprecedented position in a case where, in addition to any disciplinary consequences for Ms McKie, the integrity of the fingerprint evidence was central to the murder investigation and the prosecution of Mr Asbury. Despite belief at the time in the infallibility of fingerprint evidence, a series of unique steps were taken on the instructions of the police to have the conclusion checked and re-checked by SCRO.
7.2. These checks, which were undertaken in the period between 11 and 18 February 1997, comprised:
(i) the police seeking confirmation of the identification on 11 February;
(ii) a new photograph being 'checked' on 12 February;
(iii) escalation of the issue on 14 February;
(iv) a further comparison on 17 February by two examiners with no prior involvement;
(v) a 'blind test' on 17 February; and
(vi) a further comparison on 18 February.
7.3. The end result was that the identification of Y7 was confirmed but no single individual was aware of the full level of detail and individuals were, at times, at cross-purposes both as to what was being instructed and as to the true nature of the results of the inquiries.
7.4. The broad sequence of events is consistent with two contemporaneous police reports (1) one by Mr Heath dated 14 February with an addendum down to 21 February by Detective Superintendent Scott Thomson2 and (2) the second by Detective Chief Superintendent James Orr dated 24 February with an addendum dated 26 February3 to which reference is made in the next chapter. Evidence that the Inquiry has obtained, including material drawn from the disciplinary investigation carried out by Chief Inspector Wilson in 1997,4 gives a more complete picture of events at the time.
Tuesday 11 February 1997
Immediate reactions to the identification
7.5. Once the police learned the result from Mr MacPherson, noted by Mr MacPherson as at 16:05,5 Mr McAllister told Ms McKie who, although no longer working on the murder investigation, was in the Kilmarnock police office. Ms McKie was not surprised because she expected a mark of hers to be found on the tin, which she had handled without gloves when she and Mr Shields visited Mr Asbury's home in January.
7.6. She was "completely taken aback" to be told that the mark identified was not on the tin but on the wooden door surround of the bathroom where Miss Ross's body had been found. She thought there must be a mistake as her visits to the house had been restricted to the front porch. Perhaps, she thought, the Identification Bureau or SCRO had mixed a mark obtained from the tin with one from the murder locus.6
7.7. Mr McAllister was not surprised that a police officer's print had been found as this was not uncommon, but when Ms McKie immediately said she had not been in the house and there must be some mistake he phoned SCRO and asked for confirmation of the elimination of Y7. He conveyed in his call that Ms McKie's position was that the mark could not be hers and he asked the person to whom he spoke to confirm that this particular mark was hers. Mr McAllister thought "to the best of his recollection" that SCRO phoned him back slightly later that afternoon after having checked it, but certainly they confirmed that day that it was her print. In an undated statement that he had prepared himself in 1997 and in his 1997 statement for the Wilson investigation, Mr McAllister said he contacted Mr MacPherson for confirmation though by the time of the Inquiry he was not certain that it was to Mr MacPherson that he had spoken.7 In both statements he stated that he was informed there was no possibility of an error and the elimination had been made from a set of prints supplied by Ms McKie.8
7.8. Mr MacPherson recalled Mr McAllister phoning and wanting to make sure the identification had been confirmed.9 He only had one conversation with Mr McAllister who asked if he was definite in his conclusion that Y7 was left by Ms McKie. Mr MacPherson replied that he was and that it had been signed up to by four experts including himself.10 He was not asked to recheck. Mr McAllister mentioned there might be some difficulty, but to leave it with him. He did not explain the nature of the difficulty. There was no follow up call from Mr McAllister and no further discussion with Mr MacPherson as regards checking the mark again.11
7.9. Mr McAllister advised Ms McKie that there was no mistake about the elimination; it had been confirmed with SCRO. She was to give a statement about the presence of her print in the house. Ms McKie conducted her conversations with him professionally but was "adamant" from the outset that she had not been inside the house and her only access to the locus had been to the front porch area.12
7.10. Mr Heath, who was also in Kilmarnock police station, was being kept informed. Often on investigations he had known police officers to leave fingerprints at crime scenes. Though not professional it was "not a huge deal, as such" and at this stage it was not critical.13 He overheard Ms McKie in conversation, denying loudly that she had been in the house, and he told Mr McAllister or Detective Inspector McDonald to say to her that this was not a matter for general office discussion.14 Ms McKie recalled Ms McDonald telling her she was not to discuss it.15
7.11. In Mr Heath's report of 14 February to the Divisional Commander, Chief Superintendent Cameron, he recounted that Ms McKie protested vigorously that she had not been in the house beyond the porch and that she was supported in her protestation by Mr Shields.16
7.12. Mr Heath was concerned at Ms McKie's strong reaction. He wondered why she was making such a fuss. He knew at the time that Ms McKie was well aware of his views on entering the locus. He had made it clear that he did not want people going into the house and she and her colleague Mr Shields were told this specifically on at least one occasion. He knew that she had been to the house and at a location only a few metres away from where her print had been found. He thought perhaps her reaction was a natural one "if someone says to you the inference is you have not done your job properly or you made a mistake" and decided that the best approach was to let Ms McKie take her two scheduled rest days and see if there was an explanation "once the whole thing settled a bit". The matter could be looked at again when she was calmer.
7.13. Ms McKie went on her rest days, 12 and 13 February. At this point she was quite concerned but not worried as she thought "the mistake would be sorted out" while she was off.17
7.14. Although personally he had no doubts over the veracity of the identification, Mr Heath instructed Mr McAllister to liaise with the Identification Bureau and SCRO to verify the situation. This was unprecedented. For the first time in Mr Heath's service of over 20 years he was questioning a SCRO identification. He felt he was taking a big step in raising these issues. As far as he was aware the identification of a fingerprint had never been wrong. It was not something that had ever really been questioned at all. In the years since 1997 it had become evident, he observed, that it was evidence of opinion and that opinions can differ, but at the time one of the core beliefs that "was drummed into you" was "that fingerprint evidence is infallible. No-one has the same fingerprint."18
12 and 13 February
7.15. Mr Heath's recollection was that over 12 and 13 February there were a number of conversations with SCRO to find out the strength of the identification.19
A new photograph of Y7
7.16. On 12 February a sequence of activities involved a new photograph of Y7 being taken and looked at by SCRO but there were different understandings as to what this process was and what it showed. In particular, if it was intended to be a fresh comparison, this was not how it was dealt with by SCRO.
7.17. In most instances reliance has to be placed by the Inquiry on witnesses' 1997 statements, as their recall by the time of the Inquiry was limited.20
The instruction
7.18. Mr Heath's report of 14 February recorded that he gave instructions that the questioned fingerprint be re-photographed in situ and re-examined,21 although by the time of the Inquiry he did not recall this. He thought he and his colleagues might well have considered getting the mark re-photographed, and showing a photograph to Ms McKie,22 but did not recall being involved in this particular action.23
7.19. Mr McAllister accepted as accurate his statement from June 1997 which recorded that Mr Heath instructed him to have Y7 re-photographed and that he contacted the Identification Bureau and arranged for this to be done and the developed film taken to SCRO "for comparison".24
7.20. Mr Hogg, Head of the Identification Bureau, was on holiday at the time.25 Inspector Thomas Fraser was Operations Inspector there. He also had little recollection but thought that his June 1997 statement would be the most accurate of those he had given.26 In it he said that on 12 February he had a telephone request from Mr Heath at Kilmarnock asking that a mark found at the scene be photographed as soon as possible. He instructed Mr Stuart Wilson to do the photography and to proceed to Strathclyde Police headquarters in Glasgow.27 He was not told the specific purpose for the photography, but thought Mr Heath was adopting a 'belt and braces' approach to make sure it was clear in everybody's mind that the fingerprint Y7 was properly identified as that of Ms McKie. He thought "he was trying to be overt about the whole thing".28
7.21. Mr Wilson had first been at the scene on 9 January29 and was one of the SOCOs present when Y7 was found.30 He received instructions from both Mr Heath and Mr Fraser. The instruction from Mr Heath was simply to go back to the locus and re-photograph Y7. He did not say why and gave no indication as to the type or quality of photographs he wanted taken. Mr Wilson assumed that the photograph of Y7 had not turned out or had not turned out sufficiently clear for identification purposes. Similarly, the instruction from Mr Fraser was to go back to the locus and photograph Y7, once again without explanation or further instruction.31
The activity at the locus, in the Identification Bureau and at SCRO
7.22. Mr Wilson attended the locus and took photographs of Y7 in the presence of PC Stevens. As instructed he drove to Pitt Street, Glasgow with the roll of film which he gave to Mr Fraser who asked him to wait. Once it was developed he and Mr Fraser took the strip of negatives and some prints across the corridor to the SCRO office.32 Mr Fraser said that two photographs were produced.33
7.23. In the SCRO office the photographs and ten-print form were looked at over a period of approximately 20 minutes by three or four male fingerprint officers, who used linen testers and talked together.34 In his 1997 statement Mr Fraser said the photographs were examined by Mr MacPherson who compared them with the elimination form for Ms McKie.35
7.24. Mr MacPherson in his 1997 statement said he was on duty in SCRO on 12 February when Mr Fraser asked him to confirm that a photograph he gave him, which was labelled Y7, was the same impression as the one received on 16 January also labelled Y7. This he did and "confirmed they were the same". He was also asked to provide, and did provide, a photocopy of Ms McKie's elimination form with the digit shown in red ink.36
7.25. By the time of the Inquiry Mr MacPherson said he was aware there was a re-photographing by the Identification Bureau in February 1997 but he did not recollect these photographs being hand-delivered to him. He did not remember comparing the new photograph with the prints "as they were just another photograph of what I had already seen".37
7.26. The Inquiry endeavoured unsuccessfully to discover who else was involved in this work in SCRO that day. Ms McBride had no recollection of the photographs of 12 February 1997, nor did Mr McKenna or Mr Stewart.38
What emerged from SCRO on 12 February
7.27. Mr Wilson said he did not learn the outcome other than possibly someone saying it was a serving officer's print. Mr Fraser put a ten-print form with one of the prints circled in red in an envelope and asked Mr Wilson to deliver it to Mr Heath in Kilmarnock. The photographs were also in the envelope. Mr Wilson said he took the envelope to Kilmarnock39 although Mr Heath, whose notebook showed he was heavily involved in conducting job interviews that day,40 said in a statement to the Mackay enquiry he had no recollection of receiving such an envelope.41
7.28. What Mr MacPherson had done was only to confirm that the new photograph was of the same mark as the photograph he had used in his comparison, and then to indicate the relevant matching print on the form.42 He did not carry out a further fingerprint comparison. That was not appreciated by others at the time. Mr Fraser said, in his 1997 statement, that Mr MacPherson confirmed that the mark Y7 corresponded with the left thumb on the elimination form.43
The 12 February photographs
7.29. The photographs taken on 12 February were not handled in the normal way. They do not appear to have been accompanied by a form 13B.
7.30. Normally photographic images would be retained in SCRO. On this occasion they were taken away, and delivered to the police at Kilmarnock.
7.31. On 12 June 2006 Mr Hogg asked Mr Thurley to go through various photographic envelopes that were scheduled for routine destruction to look out any of public interest and Mr Thurley found negatives of these photographs.44 Mr Hogg reported this to Mr Malcolm who took possession of the negatives, and, as Mr Hogg understood, contacted the Crown.45 Mr Hogg had no knowledge of a visit to the scene by Mr Wilson on 12 February 1997 and until 12 June 2006 he had no knowledge of the existence of the negatives.46
7.32. The Inquiry obtained the envelope of negatives from Strathclyde Police, which included a report from Mr Malcolm addressed to the Deputy Crown Agent in which he referred to telephone discussions on 12 and 13 June 2006 with the Crown Agent and the Deputy Crown Agent respectively. The Inquiry had the negatives developed.47
13 February
7.33. Mr Heath, in his 1997 statement, said that on 12 or 13 February Mr McAllister told him that the identification of Ms McKie's fingerprint "was not in doubt".48 He could not recall the specific conversations but he was sure he was told there were numerous points of identification.49
7.34. His recollection was that he was in Glasgow on other business on 13 February and he called in to the Identification Bureau and SCRO50 to ask "are we absolutely certain about this?" He could not recall whom he met.51
7.35. It was a difficult position to be in but he thought the issue might affect Ms McKie's career and she was a member of his staff, so he wanted to make sure that the position was totally secure. He was also concerned to maintain the professional relationship with the SCRO staff since, unusually, instead of taking their word for it, he was questioning a print. He knew there were verification procedures in SCRO and he was conscious of professional courtesies in questioning their work, but he was aware of the paramount importance of fingerprints to the case and he also wanted to be very sure because he was going to be challenging one of his officers about the matter on her return.52
7.36. SCRO confirmed that the print was hers. "The print had been rechecked."53 Mr Heath said that the issue would have been among the matters he discussed with Mr Orr, Deputy Chief Superintendent, that day and that he then discussed it with Mr Malcolm, Detective Superintendent.54 In his report of 14 February, with reference to his instruction that the mark be re-photographed and re-examined, he wrote "on 12 February this further examination was carried out and on 13 February the impression was confirmed" as being the left thumb of Ms McKie.55
Senior staff in SCRO
7.37. It is not clear when the matter came to the attention of senior staff within SCRO. Mr O'Neill, Head of the Fingerprint Bureau, did not have a clear recollection by the time of the Inquiry but accepted as broadly correct his statement to the Mackay enquiry.56 In this he said that Mr MacPherson or Mr Dunbar told him about an identification of a mark as a police officer's. He thought that he had immediately told Mr Ferry, Head of SCRO, and recalled that soon after he did so he had a telephone call with Mr Heath who was looking for reassurance because the officer was disputing the mark as being hers. He had told Mr Heath he had total faith in his staff and if they said the mark was made by her then as far as Mr O'Neill was concerned this would be the case. He told the Inquiry that although police officers are trained to avoid leaving fingerprints they do leave prints from time to time and accordingly, even if he did know about the identification of Y7 at this point he would not have placed any great importance on this fact.57
7.38. Although the date cannot be determined it seems possible that this reassurance was sought during the period that Mr Heath was looking into the matter which was over 12 and 13 February, and before he referred it to senior officers.
7.39. Mr Ferry was deceased by the time of the Inquiry. As mentioned, he provided a statement to the Mackay enquiry.58 He also gave evidence to the Justice 1 Committee inquiry at the Scottish Parliament, during which he indicated that he had not had an opportunity to check his Mackay enquiry statement for accuracy.59
7.40. In his Mackay enquiry statement Mr Ferry is recorded as saying that he would have been updated as to the progress of the crime scene marks in relation to Miss Ross's murder at his Monday morning meetings with his senior team and that he would have communicated the updates to the Assistant Chief Constable Crime, Mr Welsh,60 at a subsequent meeting. He is also noted as saying that Mr O'Neill told him of the identification of a mark as that of Ms McKie.
7.41. In his evidence to the Parliament he indicated that his recollection was that he was informed that a mark had been identified as that of a police officer and she had denied it. On the day in question he was attending a meeting so he asked the expert who told him this to have it checked again just in case there was any dubiety. When he got back from the meeting the expert told him another three experts had looked at it and it was definitely the person's but she was still denying it. He then went to see the Assistant Chief Constable Crime and because of the gravity of the matter - if it was her fingerprint she was telling lies - the Assistant Chief Constable asked Mr Ferry to get another three experts to check it. He did that and got the same result.61
7.42. It is known that Mr Ferry was not in the office on Monday 17 February62 and that he went to a SCRO management conference in Peebles on 18 February and arrived there after it started,63 but it is difficult to date Mr Ferry's account and assess it with reference to the evidence that follows.
Friday 14 February
7.43. Ms McKie returned from her rest days and went to see Mr Heath, before 8:00 on 14 February, to ask if the fingerprint identification had been resolved. This was the first time he had spoken directly with her about the matter. He told her the mark had been verified as hers. Ms McKie said this was not possible and was emphatic that she had not been in the house. Shortly afterwards they had a second conversation, in the presence of Mr Shields, when Ms McKie again denied having been in the house and was backed up by Mr Shields.64
7.44. Mr Heath thought a visit to the locus might help in terms of memory. He was trying to be "really fair" because of two concerns: the case, and the situation for two of his officers which was becoming serious. He arranged for the mark to be viewed that morning by Mr McAllister, Ms McKie, Mr Shields and himself.65 Ms McKie's recollection was that Mr Heath intimated that he intended to show her and the others the mark at the locus and that she said she did not need to be shown it as it was not hers. She was "becoming extremely distressed".66
7.45. At the house Ms McKie made it clear to Mr Heath and Mr McAllister that this was the first time she had been near the bathroom where Miss Ross's body was found. She was confused in relation to the mark being said to be her left thumb print as her impression was that from its position and the shape of the door-frame it would have been very difficult for it to have been a left thumb and she also thought it could only have been made after the door had been taken off. She explained this to Mr Heath and the others though she thought they did not seem interested.67
7.46. Mr Heath said nothing altered after the visit. Ms McKie repeated her denial and was supported by Mr Shields.68 She said again that she had been at the front porch but not in the house.69
7.47. Mr Heath felt that he had done all he could and that the matter now had to be dealt with formally. On return to the police station he placed an instruction through the HOLMES system70 for Ms McKie and Mr Shields to provide witness statements. It was important that there was an audit trail.71 He compiled a report for Mr Cameron, the Divisional Commander,72 and had a meeting with him and Mr Thomson, who was Deputy Divisional Commander, during which Chief Superintendent Norman Gibb, Head of Complaints and Discipline, was contacted by phone.73
7.48. In Mr Heath's report he wrote: "Unless a serious mistake has been made twice by Identification Bureau and SCRO fingerprint officers there is overwhelming legally accepted scientific evidence that [Ms McKie] has been in the bathroom area of the house ¿ The Identification Bureau and SCRO staff are trained professionals who pride themselves in the accuracy of their work and it is offensive to suggest that they have made a mistake particularly on an identification which has been checked twice. [I] have basically had to offer [my] apologies to both of these departments in requesting that the check be carried out for a second time. [Ms McKie] remains emphatic that she had not been in the interior ¿before or after the murder and her stance in relation to the evidence against David Asbury has serious implications for the case particularly since her fingerprint is found near the body and her non-acceptance of the identification questions the professionalism of the whole enquiry and in particular SCRO and IB" (emphasis added). Mr Heath's references to "twice" reflect the fact that the police understood that a second comparison had been carried out by SCRO on 12 February. His report proceeds to mention that Mr Shields was emphatic that Ms McKie did not enter when he was with her and if he was not mistaken then the only possible scenario was that Ms McKie visited the locus herself between 9 and 14 January. He concluded that the integrity of Ms McKie had been seriously questioned and there were grave concerns about her continuing to work in the office while the murder investigation continued.
7.49. It was decided that Ms McKie's absence management would be overseen by Mr Thomson and the investigation into the presence of her print in the house passed to Mr Malcolm.
7.50. Mr Heath said that at this meeting the three senior officers decided to keep the matter within the division and not to take formal disciplinary steps at this stage. The instruction he received from them was to ask Ms McKie to report for duty, but when she could not be reached by phone it was decided instead that Mr Thomson would see her on Monday 17 February.74 Mr Thomson was deceased by the time of the Inquiry but according to his statement to the Mackay enquiry his meeting with her was in order to establish "if a resolution could be found to the issue".75
Saturday 15 February
7.51. Mr Heath recalled Ms McKie phoning him. She was convinced it was a terrible mistake and wanted the fingerprints and eliminations checked again. He told her she had to report to Mr Thomson on 17 February and to discuss these matters with Mr Thomson.76
7.52. Ms McKie described this weekend as "a nightmare". She kept hoping for a phone call to say that a mistake had been made.77
Commentary - 11 - 16 February
Steps taken by Mr Heath
7.53. The process reflects well on Mr Heath. He was perceptive and quick to respond when he noted Ms McKie's reaction to the news about her mark being found at the scene. He did not accept SCRO's assurance on 11 February at face value but instructed that the mark be photographed again and a re-examination carried out, despite never having questioned a fingerprint before. The situation was embarrassing as these were officers he used in investigations, and he took the additional step of visiting both the identification and the fingerprint bureaux to check the situation first hand and as a professional courtesy. He saw that Ms McKie's career was on the line, and that the murder investigation was in jeopardy. But he was assured that SCRO were certain. By the time he reported the matter into the audit system and to his superiors he understood that the mark had been checked twice.
7.54. From this point onwards decisions as regards further steps were taken by more senior police officers.
Steps taken by SCRO
7.55. There was no 'checking' of the result on 11 February. Mr MacPherson was confident of SCRO's finding on Y7 and based his assurance to Mr McAllister on these factors: four examiners had agreed, and the print form was Ms McKie's. Mr MacPherson also knew that he had applied the 16-point standard and assured Mr McAllister there was no mistake. The police appear to have recognised that the check that day was merely confirmation of what had already been done.
7.56. A confirmatory exercise was carried out on 12 February. It does not appear that, even in 1997 when statements were being made to Mr Wilson, the purpose of the instruction was entirely clear to those to whom it was communicated and there was no evidence of an instruction being conveyed direct to SCRO to undertake a specific task.
7.57. As a result, by 13 February a misunderstanding had entered the process. Mr Heath had instructed re-photographing and a re-examination. His understanding by close on 13 February was that the comparison had been re-checked. In fact, all that had been checked was that the photograph was definitely of the mark in question and that the print form was definitely Ms McKie's. There had been no re-examination. The 'confirmation' of the identification was still based upon the decision taken by Mr MacPherson and three checkers on 10/11 February.
7.58. The instruction relayed to the Identification Bureau had either been lost in the onwards communication to SCRO or SCRO did not recognise its nature. Mr MacPherson was confident in the result phoned out, which was based on an examination by himself and three others to the 16-point standard. On 12 February he checked there was no mistake with the items examined - it was Y7 and it was Ms McKie's form. Fingerprint examiners both then and now are trained that they can have 100% certainty in their decisions and, in consequence, Mr MacPherson's checks were limited to practicalities. Mr Heath raised the matter with SCRO in person. He left reassured, but SCRO and the police were not at one.
Monday 17 February
Ms McKie's meeting with Mr Thomson
7.59. Ms McKie was interviewed by Mr Thomson and once again she said a mistake had been made.78 In his statement to the Mackay enquiry, Mr Thomson is recorded as saying that with regard to the second photograph of Y7 "that had been also identified as hers" she alluded to a cover up by the Identification Bureau for an initial mistake made by them. She was quite upset during the interview with comments such as "she would not make such a fundamental blunder." He indicated in the statement that he "was not necessarily being sympathetic towards her point of view". He tried to reason with her saying that fingerprint evidence was infallible and no two fingerprints had ever been found to be the same.79
7.60. Ms McKie requested that she be permitted to witness the taking of new photographs of the mark and their subsequent comparison with her prints. This was because she had never seen fingerprints being compared for the purposes of establishing identification and also she was still convinced that the mark was not hers.80
7.61. Mr Thomson's statement to the Mackay enquiry said it had been agreed at the meeting with Mr Heath and Mr Cameron on Friday 14 February that, if no resolution could be reached, they would go through the whole process of photographing the mark and demonstrating the identification process to Ms McKie in her presence.
7.62. Arrangements were made for this to be done on 18 February. He contacted Mr O'Neill and requested that he facilitate the demonstration.81
Police requests to SCRO
7.63. Mr O'Neill's recollection was that his involvement was over two days beginning the day before the SCRO Senior Management conference in Peebles. He took a call late afternoon82 from the Deputy Divisional Commander in Kilmarnock (i.e. Mr Thomson) who asked him to arrange two things. The first was that Ms McKie would come to SCRO next day with a copy of her prints and a photograph of Y7 and stand beside a fingerprint officer while the officer checked whether Y7 was made by her. The second was that the identification of Y7 be checked again.
7.64. The first request was "highly irregular" and at first he refused it, acceding reluctantly when the higher ranking officer insisted upon it. He agreed to the second request and said he would phone back the next day with the results. When Mr Thomson demanded that the results be phoned back the same day he agreed to do so.
7.65. His recollection was that the proposal was also that a new set of prints and a new photograph would be taken and that it would be the comparison of those items Ms McKie would watch, but he could not remember if he learned this detail during his conversation with Mr Thomson or next day in discussion with Mr Ferry.83
SCRO activity on 17 February
7.66. There was therefore a requirement that SCRO check the identification of Y7 that day. Mr O'Neill said that after the call he asked Mr Dunbar to check the identification. How the mark was checked was up to Mr Dunbar. He could not remember whether Mr Mackenzie was also involved in the discussion. He could not remember any discussion about how many officers should check the mark but the number might have been discussed.84
7.67. Mr Mackenzie as Assistant Chief Fingerprint Officer was the most senior fingerprint officer in the bureau at the time85 and Mr Dunbar was the Quality Assurance Officer and Mr Mackenzie's deputy.86 If no principal fingerprint officer was available due to shift patterns they would when requested do final checks on comparisons, and Mr Dunbar had a role to play in checking work at various stages.87
7.68. Mr Mackenzie said he had a very clear recollection of events.88 He timed the phone call Mr O'Neill received as around 4pm.89
7.69. Two steps were taken within SCRO that evening. First Mr Mackenzie and Mr Dunbar compared Y7 with Ms McKie's prints, and second there was what came to be known as the "blind comparison", "blind test"90 or "blind trial".91
The basis of the re-checking on 17 and 18 February
7.70. The Y7 result that had been telephoned out to the police was one made by four examiners as an 'identification' to the 16-point standard. At that stage Ms McKie was no more than an individual whose prints required to be 'eliminated' from the investigation. An 'elimination' conclusion could be reached by examiners without finding 16 points.92 With the exception of Mr Halliday, the additional examiners who participated in the re-checking exercises on 17 and 18 February approached it as one requiring at most an 'elimination' and did not find 16 points. At most, therefore, the re-checking exercises confirmed an 'elimination' but no one outside SCRO was alerted to this distinction.
Mr Mackenzie's and Mr Dunbar's comparisons of Y7 on 17 February
7.71. Mr Dunbar said that he and Mr Mackenzie were requested by Mr O'Neill to examine the mark independently against an elimination form. He knew that the identity of the mark had already been reported to the police as belonging to a police officer and SCRO was being asked to re-examine it. They were not given a specific instruction whether to eliminate or identify the mark, but were to say if they agreed as to the identity of it.93
7.72. He discussed the matter with Mr Mackenzie because this was an unusual request. Even though they had been asked to do such checks before, in this case four officers had signed as to the elimination of the mark. He and Mr Mackenzie agreed to discuss their findings after they had both independently checked the mark.94
7.73. Mr Mackenzie was aware the request came through Mr O'Neill. They did the work some time between 4pm and 6pm.95 He recalled that Mr Dunbar got the material from the file and was the first to do a comparison. The material was then passed to Mr Mackenzie. He knew Y7 had been eliminated as the left thumb print of a police officer96 but was not at the time aware that the officer was disputing that it was her mark.97
7.74. Mr Dunbar and Mr Mackenzie both confirmed the mark as having been made by the left thumb of Ms McKie. Mr Mackenzie said they each reported their findings to Mr O'Neill and he understood that at this juncture Mr O'Neill informed the Divisional Commander at Kilmarnock that the comparison had been done again and that the conclusion was that the elimination was correct as being Ms McKie.98 Mr Dunbar recalled that they discussed their findings in front of Mr O'Neill and the information was conveyed to Mr Ferry that day.99
7.75. It is not clear whether Mr Ferry was informed that day. In his evidence to the Parliament he said that when he got back from his meeting he was informed that another three experts had looked at the mark.100 It may be that he was referring to the discussion that he had next morning, 18 February.
7.76. Mr Mackenzie said he did not discuss his findings with any other SCRO officers. They had done their own comparison and come to their own conclusions.101
7.77. Mr Dunbar recorded in his diary that night: "Mark from UC01050197 Imp Y7 Cop - Elim On to 7.40." He explained that it was unusual for him to be there until that time as he did not work shifts.102
7.78. Mr O'Neill recounted that later in the day he was told "the result of the check" by Mr Dunbar. He phoned the Deputy Divisional Commander (Mr Thomson) with it.103 Mr Thomson's statement to the Mackay enquiry concerning 17 February does not mention this; it is confined to his meeting with Ms McKie and the call he made to Mr O'Neill about arrangements for the next day.104 Mr Mackenzie's recollection was that Mr O'Neill then went home, which would be soon after 6pm. That was the end of this part of the proceedings, the identification had been confirmed to Kilmarnock at that point.105
The bases for the conclusions
Mr Dunbar
7.79. Mr Dunbar approached the piece of work as a quality assurance exercise, essentially on a non-numeric basis.106 As he was being asked as Quality Assurance Officer to ensure that the correct information had gone out of the office, he knew the result but he nevertheless analysed the mark at full arms' length.107
7.80. The mark was quite complex. He described seeing a fault line in it and trying to reconcile the top, where there was movement or distortion, with the bottom. He used glass and also the comparator to see if it would assist with the area above the line, which it did not. There was "an area of concern in the mark. [In] this area was the presence of possible movement or distortion in the mark or potentially a double touch. Everything below this area I considered to be identical and in sequence and agreement with the ridge characteristics on the elimination form of Shirley Cardwell. Although I could not account for certain characteristics in the top half of the mark against that form there was far too much detail in the bottom of the mark in sequence and agreement for it not to be this individual. There has always got to be a reason for things not to be in agreement and I was satisfied that the movement and distortion in that area of the mark meant I could not see anything from that area and that that was sufficient justification as to why there were disagreements in that part of the mark and the elimination form."108
7.81. The elimination form could have been clearer as it was not rolled enough or tipped enough. He would like to have seen more detail higher up on the form and would have preferred to have seen another form to compare. Despite these shortcomings: "there was nothing to suggest, using the elimination form I had at the time on 17 February, that this was not the individual and indeed there was far too much information to suggest that it was."109
7.82. Mr Dunbar said he eliminated the mark as that of the officer. As there was no magic number when an expert would be satisfied, he was not looking in particular for 16 characteristics in sequence and agreement. That was used only for court purposes. His witness statement is contradictory in that one paragraph said that he found at least ten characteristics, while in another he said that he did not know the number that he found.110 In oral evidence he said that he could not recall exactly the number of characteristics he found but it was certainly less than 16.111
Mr Mackenzie
7.83. The examination was of an actual size photo of Y7 and an elimination print form for Ms McKie. The prints were taken by means of ink on paper, as this was just before the introduction of Livescan.112 The photograph the Inquiry had113 was of similar quality to the image he saw that day. By the time of the Inquiry he could not recollect if it had writing on the back.114 He used two magnifying glasses in a binocular manner, augmented by the comparator.115
7.84. His initial assessment indicated that the mark was a thumb and he thought the photograph had a number 6 on it which would denote a left thumb so he was looking at left thumb prints on the elimination form.116
7.85. On the form the rolled impression was smudged and he chose to work with the plain impression which was suitable for comparison.117 He had no issue with the quality of the mark for examination purposes; he was "totally satisfied with the quality of the photograph taken by Strathclyde Police".118
7.86. His conclusion made that day, recorded on the form, within time constraints, was that he was satisfied that Y7 was eliminated as the left thumb print of Ms McKie. He explained that normally an expert should not, and would not, be constrained by time but the circumstances that day demanded a result being sent back to the Divisional Commander at Kilmarnock.119
7.87. This was one of "two occasions in [his] career when [he had] actually looked at very complex marks".120 Mark Y7 was significantly distorted due to major movement. There was a fault line from right to left dissecting the mark.121 His "initial assessment was that there was major movement and disruption".122 His conclusion was that the mark "was at least more than one piece and from the orientation and the deposition ¿ [he] was satisfied that there was major disruption, particularly in the top half".123
7.88. There were characteristics available in the top half but based on the material available to him that day he was not able to make a comparison of this area, and his assessment was made in the area below the fault line.124 He was "satisfied that the top half of the print would have been made by the same individual".125
7.89. Mr Mackenzie said he saw what came to be known as the Rosetta characteristic, an unusual feature in the upper part of the mark.126 It was a difference between mark and print in the material he had available to him but he thought it could be explained by movement or some kind of distortion.127
7.90. Where an examiner observed differences between a mark and a print he could get enlargements and another option was to use the comparator. On this occasion he did not ask for enlargements. "The window for this comparison was between 4.00 and 6.00 on a Monday night and there was no need for me to ask for enlargements because I had sufficient detail present to come to a conclusion on my comparison."128
7.91. During this examination Mr Mackenzie saw "in the vicinity of" ten or eleven points in sequence and agreement.129 He was approaching it as an elimination and not looking to the 16-point standard for an identification.130 But "my analysis of the mark against that individual finger was it was the same person. So I would not differentiate between an elimination and an identification. They are both the same thing."131
The 'blind test'
The background
7.92. A further exercise was undertaken on 17 February. Mr Mackenzie and Mr Dunbar took different positions as regards its background and purpose. Mr Mackenzie recalled that the opportunity had been taken to carry out a form of training exercise, whereas Mr Dunbar recalled that it was something that they were instructed by senior officers to do in face of argument to the contrary from Mr Dunbar.132 There were also differences of recollection among the examiners involved regarding the question that they were being asked to address.
7.93. Be that as it may, the more critical point is that it is undoubtedly the case that the exercise was not a fingerprint comparison carried out in accordance with normal practice. The examiners were simply presented with mark and print displayed on a comparator machine. The comparator machine may display only part of it and the examiners were not afforded an opportunity to carry out a full analysis of the mark nor to compare mark and print using glasses at their desk or anywhere else.
7.94. Mr Mackenzie considered it was "a blind test, or said to be a blind test"133 (emphasis added). His evidence was that, although there had been no particular discussion in relation to Y7, it had been noted as a complex mark and it was at that time deemed a good example which could be used as training material for a blind test.134 It was an opportunity to get other experts involved "purely as a test scenario". He considered it to be a training exercise, a test of experts' skills using a complex mark.135 It had "nothing to do with in any way the earlier information that had been imparted back to Kilmarnock police office".136 "It was a different scenario altogether."137 The exercise fitted within the context of the development of competency testing. Although SCRO had not done blind tests before, staff were encouraged to bring forward complex marks for training purposes. History had shown that "if any mark was suitable for a test then this mark was."138
7.95. From memory there was only himself, Mr O'Neill and Mr Dunbar in the bureau that evening that would be party to starting the exercise. He thought he would have had an input in suggesting this was a good opportunity for doing such an exercise because he had been instrumental in bringing in competency tests and auditing and he knew "from the first minute, the first assessment of that mark, how complex it was".139
7.96. Looking back on it, he took issue with any suggestion there might have been in the intervening years that he had set up a test because he had doubts about the identification he had imparted to Mr O'Neill. He had not. "If I had any doubts in my mind, I would not have been setting myself up for a different decision."140
7.97. Mr Dunbar was to administer the exercise. It was a one-off test opportunity and there were never any thoughts in his mind that the whole of the bureau would do it.141
7.98. He was not aware that "a serious investigation into Shirley McKie was on that day". "The day that test was carried out there was a query from the Kilmarnock police office who asked for another comparison and that comparison was done by myself and Alan Dunbar and that result was then imparted to Kilmarnock police office."142
7.99. Mr Mackenzie was not aware of Mr O'Neill having suggested there be a blind test or of Mr Dunbar having opposition to it.143
7.100. Mr Dunbar said the exercise144 was instructed by Mr O'Neill or Mr Ferry.145 Mr Mackenzie had told the Inquiry he was nearly certain Mr Ferry was not present in the bureau at the time146 but Mr Dunbar explained that he was not claiming that Mr Ferry was present, rather that he believed the instruction came from there.147
7.101. Mr Dunbar said he voiced opposition to the proposed exercise because by then six fingerprint officers (the four who had initialled the photograph, plus himself and Mr Mackenzie) had made a comparison and were of the same view.148 (He did not know at the time anything about Mr Geddes being "another signature".149 ) He saw no relevance to the particular case. He recalled commenting to Mr O'Neill with Mr Mackenzie present that he was not happy about it for these reasons "but it became very clear that we were going to go ahead with it come hell or high water", and it ended up as an instruction to him to carry it out.150
7.102. Six people had confirmed the identification "and then we were asked to go and put it in front of others. I still fail to grasp the true meaning behind it." So it left him believing that the only reason it was being done was because the individual concerned was a police officer.151
7.103. The instruction was to have as many people look at the mark as possible without telling anyone of the details, namely withholding the origin of the mark or the identity of the known prints.152
7.104. In his evidence to the Inquiry Mr O'Neill said he was not familiar with the term 'blind test' and had not instructed one. He had asked Mr Dunbar to have the identification checked and remembered that at some point that day the comparator screen was set up in Mr Ferry's room, he assumed so that fingerprint officers checking the mark could work in quiet surroundings.153 In his Mackay enquiry statement he is recorded as saying "In view of the discussion I had held with the Deputy Commander I wanted to ensure that the mark and the elimination was that of [Ms McKie]. As I wanted to have it double checked, I told Alan Dunbar to have this done immediately. Alan Dunbar went off and set up the comparator for this check to be made. I think this was set up in the Chief Superintendent's office."154
7.105. In his evidence to the Justice 1 Committee Mr Ferry appeared to say that he gave authority for a blind test but did not specifically authorise it. "The head of department¿would be responsible for that."155
7.106. At this stage, Mr O'Neill was aware of the proposal that Ms McKie attend a comparison of her print with the mark the following day. There was not evidence that he discussed this with Mr Mackenzie and Mr Dunbar that evening.
The exercise
7.107. Mr Mackenzie explained that SCRO anonymised test material, and with this being a blind test the material was to be contained on the comparator machine with no other information and staff were to be asked basically "would you eliminate this?", "with no restriction saying they had to find 16 or whatever".156 "It was not a normal like-for-like comparison¿ part of the reason for that was to keep the thing anonymised."157
7.108. Mr Dunbar said that "blind trial" only loosely described what they did. A comparator was moved into Mr Ferry's room and, to try and keep the anonymity of what the decision was, what it was about and who was involved, it was decided that they would use a comparator with the mark clamped down on one side and the form clamped down on the other. Examiners might or might not have been able to see it was an elimination form but they would not know to whom it referred. The way the mark was clamped meant that no detail about the locus or crime was visible.158
7.109. Mr Dunbar approached officers to take part as Mr Mackenzie was out of the office.159 This was in the time-frame between 6pm and 8pm.160
7.110. Mr Dunbar explained that the number of characteristics was not in the equation at this time. He was never asked about the number of characteristics, nor given instructions about the number of characteristics. The result that had left the office prior to 17 February was that the mark had been made by a particular individual and that it was an elimination. "That was where we took it from."161 Therefore examiners were asked whether they would eliminate the mark.162 They each returned to him and gave that confirmation and only then were their initials recorded by him. He did not discuss with them how many points they could see.163
7.111. Mr Dunbar had never been involved in an exercise like it before or since.164
The conclusion of the exercise
7.112. From his diary entry (which did not mention this exercise) Mr Dunbar knew that he finished work at 7.40 that evening.165 Mr Mackenzie came back into the office during the exercise166 and shortly before 7.40pm the decision was taken to stop the exercise when Mr Dunbar informed him that he had a total of twelve examiners in agreement (including the six who had previously expressed an opinion), with none in disagreement. Two officers had asked if they could continue their comparison the next morning.
7.113. Mr Mackenzie's recollection was that Mr Dunbar told him the result of the exercise. At least two officers had concluded that there was sufficient detail to eliminate the mark. He understood that one other asked for photographic enlargements and another had inadequate time to complete the comparison.167
7.114. Mr Ferry told the Parliament inquiry that he did not receive the results of the blind test.168
7.115. Mr O'Neill's observation in his Mackay enquiry statement was: "I do not know how Alan went about checking it or whose assistance he sought to do this, as I left the office for the day without knowing the result."169
7.116. Mr Dunbar kept a note of initials on a slip of paper and gave this to Mr O'Neill on his return to the office.170 It has not been traced.
The participants
7.117. Mr Mackenzie was not sure how many had participated in the 'blind test'. To his knowledge it was at least four.171 Mr Dunbar told the Inquiry that as he had twelve initials on his list that meant that he must have had at least another six further examiners look at the mark as part of the exercise.172 The two he recalled were Mr Foley and Mr Bruce.173
7.118. During the hearings the Inquiry was able to develop a list of those it was thought might have participated in this exercise. In all evidence was obtained from eight examiners: Jean McClure174 , Terence Foley,175 Greg Padden,176 Edward Bruce,177 Raymond Brown,178 Alexander Macleod,179 Lorna McQueen180 and Anne Noble.181 In their statements to the Inquiry four of them (Mr Brown, Mr Macleod, Ms McQueen and Ms Noble) said they had no recollection of being involved. The other four gave an account of their own involvement in the exercise but, if another two were involved, the Inquiry was unable to identify them.
7.119. Mr Foley and Mr Bruce completed their examination that evening but Ms McClure and Mr Padden did not, asking to be permitted to look at it again in the morning.
Mr Foley
7.120. Mr Foley's evidence was that he was asked by Mr Dunbar to view a comparator screen set up in Mr Ferry's office. The mark and the print were already on the comparator and the screen was blank. Mr Dunbar asked if he could eliminate it, "he wanted me to see if I was happy that one was made by the other." Mr Dunbar "was not looking for a full 16 on it".182
7.121. Mr Foley noticed distortion in the mark. He assumed it was a double touch or twist. He saw a crease line above the core. He did not go near the area above that line but concentrated on the area just above and to the right of the core. It was not a very nice mark in quality terms. He found ten points in sequence and agreement and was happy to assign ownership to the mark. He would have been happy to speak to that in court: "To eliminate you must identify because you are assigning ownership of that mark. If I eliminated that to 10 I would not have said it was that person without me being satisfied it was that person."183
7.122. In February 2006, Mr Foley did a charting for the civil action184 and found 16 points in sequence and agreement.185 He attributed the increased number of characteristics to greater experience on his part, and also to the fact that in 1997 he only had the comparator whereas in 2006 he had images, access to his eyeglasses etc.186
Mr Bruce
7.123. Mr Bruce's recollection was vague.187 He was asked by Mr Mackenzie or Mr Dunbar to look at a mark and a print on a comparator machine as part of a quality assurance exercise. He did not know whether the subject of the test was to check the comparator machine, or the prints or what.188 His recollection was that he was asked to take a look and see how many points he could find.189 It was not a case of reaching a conclusion, but reporting how many points he saw. Any sense he had that it was an elimination exercise would have been from seeing the back of the form that was on the comparator, not from being told.190
7.124. The exercise was not in accordance with normal practice because he was viewing only on a comparator screen.191 He examined it for not more than 10-15 minutes.192 He could not remember whether the screen was clear.193 He believed that he exhausted his examination.194 It was quite a complex mark and he struggled to see anything at first.195 There was quite a bit of movement in the mark and he found it particularly fragmented.196 From memory he got eight points197 but he could not recall if those points were in sequence and agreement, nor whether they were in one piece of the mark or in different pieces.198 He was not thinking in terms of a conclusion as to either identity or elimination, only how many points of comparison he could see.199 He could neither confirm nor deny identity200 and his evidence was that neither then nor at any time since had he been able to attribute ownership to Ms McKie.201 He could not have regarded it even as an 'elimination' because ten was the minimum number for that and the furthest that he went at the Inquiry was that he had a suspicion (of a match).202
7.125. He was cross-examined on the basis that his evidence to the Inquiry was inconsistent with the statement that the Mackay team noted from him but he said that he had never been given the opportunity to check the accuracy of that statement.203 He was also asked about the letter to the Lord President of the Court of Session in which, along with Mr Geddes and Mr Foley, he signed the statement that
"We... confirm that at the time the above cases were being worked on within the Fingerprint Bureau we also carried out a comparison in relation to mark Y7 and independently reached the conclusion that the mark Y7 and the left thumb print of the donor fingerprint form (Shirley McKie) were made by one and the same person."204
His evidence was that he had not reached that conclusion but was confident in the opinion of those who had.205
7.126. Mr Bruce's evidence was contradicted by Mr Dunbar, who said:
" ... Mr Bruce did not discuss the number of characteristics that he saw, he answered the question that he believed that it was eliminated. That is what he told me on 17th February.
Q. So what he told you was it had been eliminated?
A. Correct." 206
Ms McClure
7.127. Ms McClure's evidence was that Mr Dunbar asked her to follow him to Mr Ferry's room. The mark and print were already on a comparator machine. Mr Dunbar asked her to look at them and tell him what she thought. He told her nothing else and left the room to let her carry out a comparison. The screen was clear. She struggled because it was not her normal practice to begin a comparison on the comparison machine. The mark was poor and she could see there was movement in it. When Mr Dunbar returned she had no answer for him. She asked to look at the mark again in the morning when her eyes were less tired. Mr Dunbar said that was fine but this was the last she saw of it.207
Mr Padden
7.128. Mr Padden's recollection208 was that Mr Dunbar described the exercise as a quality assurance one and not a live case.209 The circumstances around it were unusual. He was not aware of such an exercise happening before or since. Mr Dunbar led people into Mr Ferry's office and nobody talked about it after they came out.210 A mark and a print were set up on a comparator screen and he was to compare the two and see what he thought. There was no guidance as to the purpose of the exercise.211
7.129. Mr Padden's main issue with the exercise was that the normal contextual information that an officer would have was not provided. He did not consider it the correct way to carry out an examination as that meant that the first couple of steps that an examiner would normally take were removed. These were a familiarisation with the mark, where it was from, where it was in situ in relation to the rest of that impression. Instead they went straight to the comparison. Also, "when you are looking at something on a comparator it is only a specific area that is enlarged. So, again, it is stopping you ...see [ing] everything in relation to even that impression itself¿.It could be the way it is captured you would not have that pre-knowledge that perhaps you might be looking at a thumb, for example."212
7.130. The comparator screen was already marked with a previous officer's markings, which was a bit sloppy.213 He had a quick look and told Mr Dunbar that he did not think all the markings were correct and was told to wipe them and start again. This happened occasionally.214 The previous examiner might have been Mr Foley.215
7.131. The mark was close to insufficient for comparison. Because of the circumstances he felt he was not able to get the volume of information that would allow him to make a decision one way or another. He therefore asked if he could look at it the next day under his magnifying glasses, which was his normal method of carrying out a comparison, to see if he could reach a decision as to the donor, but Mr Dunbar said that he would rather have a decision now. He was not prepared to do that and Mr Dunbar accepted this.216
7.132. Though there had been office chat later that the exercise had featured Y7 the first official confirmation Mr Padden had that it did came in 2000 when he was interviewed by Tayside Police for the Mackay enquiry.217 Mr Bruce also said that it was only later that he became aware that the print had been that of Ms McKie.218
Contact with officers at home
7.133. Mr Dunbar phoned Mr MacPherson at home as a professional courtesy "to let him know what was going on".219
7.134. Mr MacPherson said that at one point when he was off he received a telephone call from Mr Dunbar, Quality Assurance Officer, indicating that senior management had asked him to have available experts compare Y7 against the elimination fingerprints of Ms McKie, in the form of a 'blind trial'. Mr Dunbar had later informed him that all experts who undertook this comparison had agreed with the identification of Y7.220
7.135. In the context of questions from me about an examiner being expected to be 100% certain of his conclusion, Mr MacPherson indicated that he had never known an exercise like the 'blind test' to have been carried out "for an accused person or for anyone else for that matter". It was an ad hoc decision taken by management and as an examiner one felt slightly "irked that your professionalism has been called into question, but that was a thing put in place by management and I just had to live with it".221
7.136. Mr Dunbar did not know of Mr Geddes' involvement until "later" than his initial examination of Y7, but when he "discovered that Mr Geddes had actually been party to the elimination" he phoned him at home to clarify his position.222 He thought that the phone call took place "a day or so" after the 'blind test' but before either of the two trials, although he could not specify a date. Mr Geddes confirmed to him that he had eliminated the mark but he had not found 16 characteristics. However that was not the question Mr Dunbar asked, he just wanted to know what Mr Geddes's position was.223
7.137. Mr Geddes thought this telephone conversation would have been around the time of the 'blind test'. He told Mr Dunbar that he had identified Y7 as a fingerprint of Ms McKie but had only managed to find ten characteristics. He reported orally to Mr Dunbar in this phone call.224
Others' knowledge of the 'blind test'
7.138. Ms McBride remembered the 'blind test' although she had no idea then that this was what was going on. She was in the office at the time it was being carried out and could remember feeling very angry on the day in question. People were filing past her desk being quiet. Whatever was going on took place in Mr Ferry's room. Mr MacPherson was not in the office at the time, she thought he was on annual leave. She later found out, probably months later, that mark Y7 and Shirley McKie's prints were being compared on the comparator.225
7.139. Mr Stewart said he found out about the 'blind test' a long time afterwards, perhaps even after the trial in HMA v Asbury. He described it as a management decision that was not widely disseminated. He eventually found out that Mr MacPherson had been informed about this exercise. A 'blind test' was not standard procedure. This was the first time he had heard about such a thing taking place.226
Commentary - the events of 17 February
The comparison by Mr Dunbar and Mr Mackenzie
7.140. A fresh comparison of mark and print had now been carried out by two of the most experienced examiners in the bureau, Mr Dunbar and Mr Mackenzie, acting independently.
7.141. The circumstances were not normal, with Mr Mackenzie, who examined the mark and print after Mr Dunbar, feeling under some pressure to complete his comparison.
7.142. Though they were satisfied of a match between mark and print, like Mr Geddes, neither of them found 16 characteristics in sequence and agreement.
7.143. The result was understood by the police and Ms McKie to be another confirmation of the identification. It was in fact the first confirmation to be undertaken after the original identification and verification on 11 February.
The 'blind test'
7.144. SCRO were in an unusual situation; their conclusion on a mark was under challenge. The conclusion had already been signed off by four of their number and was now attested to by two of the most senior examiners in the bureau. Next day there was to be a further comparison which, as it stood at this point, the maker of the mark was to attend. Mr O'Neill wanted the situation double-checked.
7.145. I accept Mr Mackenzie's assertion that this exercise was not undertaken because he had doubts about his own conclusion on the mark. The difficulty the senior officers had that evening was how to do a double-check without undermining the team that had identified the mark in the first place, perhaps in particular Mr MacPherson the lead examiner. The answer was to call it a training exercise. Calling it a training exercise provided 'cover' in presenting the unorthodox exercise to those asked to take part.
7.146. Mr MacPherson saw its very conduct as being a criticism of his professional standing. The fact that it turned into an instruction as far as Mr Dunbar was concerned helped. He could present it, in his telephone call to Mr MacPherson, as a management decision that he had to go along with. The secrecy in which it was cloaked served further to protect Mr MacPherson's standing.
7.147. The fact that Mr Dunbar passed over his note with twelve sets of initials to Mr O'Neill detracts from the notion that this was truly a training exercise. But the process itself was unusual and, moreover, unsatisfactory, as examiners were deprived of the normal information they would have about a mark, and not permitted to examine it under glasses.
7.148. Time was pressing that evening and it was a difficult mark. It appears likely that in fact only two examiners reached any conclusion during the exercise and the weight that can now be applied to the conclusion of one of them (Mr Bruce) is open to question given his evidence that he believed that he was only being asked how many points of comparison he could see and not what opinion he would form on the comparison.
Results of the comparisons
7.149. Mr Mackenzie's evidence was clear. At no time in 1997 (or subsequently) was he aware of any fingerprint officer coming to him and saying he or she did not think it was Ms McKie's print.227 Two officers had not completed their examination. He understood that one wanted to see photographic enlargements and the other had insufficient time because it was near the end of the shift. No-one had come back with a negative result.228
7.150. Mr Dunbar was also clear in his evidence. No-one had doubted the match. If someone had doubted it he would have passed that information on. The dispute between Mr Dunbar and Mr Bruce as to whether or not the latter positively agreed the 'elimination' cannot be resolved due to the absence of contemporaneous note-taking in SCRO. Nonetheless, even on the evidence that Mr Bruce gave to the Inquiry he was not positively disputing the conclusion: he could neither confirm nor deny.
7.151. The fact remains that neither Mr Foley nor Mr Bruce found 16 points in sequence and agreement during the 'blind test'. This meant that by now, although the original four SCRO examiners had identified the mark to the 16-point standard, five had not - Mr Geddes, Mr Mackenzie, Mr Dunbar, Mr Foley and Mr Bruce. This was not information disclosed at the time.
Tuesday 18 February
At SCRO
7.152. On the morning of 18 February Mr O'Neill met Mr Ferry and informed him of the request that Ms McKie come into the office to watch a comparison of her prints with Y7. Mr O'Neill recalled that Mr Ferry was unhappy at the suggestion that a police officer come and "oversee" the checking of a mark, being concerned that it could create a legal precedent.229
7.153. Mr Ferry phoned Mr Thomson to say that SCRO had a difficulty with the ad hoc request for Ms McKie to be present during the comparison but would attempt to do so if officially requested. Mr Thomson relayed this back to Mr Cameron and understood that it was decided by Mr Cameron, Mr Orr and Mr Gibb not to make an official request to SCRO but to accept the findings of the experts in relation to the new photograph of the mark and new ten-print form from Ms McKie.230 Mr O'Neill said that Mr Ferry refused the request to have Ms McKie present but agreed to have the mark checked again.231
7.154. Mr Mackenzie was called to Mr Ferry's office.232 He assumed that Mr Ferry, who he thought had not been in the office in the later part of the previous day, had had an update and learned the results of re-examination. Mr Ferry appeared angry. Mr Mackenzie presumed "from the tone of Mr Ferry somebody must have been pressurising him in the background". Mr Mackenzie was asked if he was sure it was Ms McKie's print and replied that he was.233
7.155. At some stage they were joined by the Head of CID and Mr Mackenzie learned that the police were going to take a new photograph and new prints. These would be brought to SCRO for comparison.234 Mr Mackenzie was aware that Mr Ferry had refused the request to have Ms McKie present and thought this decision was correct because it would not be normal to have the officer present.235
7.156. Mr Mackenzie attended a meeting in Mr Ferry's room which as he recalled was while they were waiting that morning for the new materials to arrive. Mr Ferry wanted to clarify with them that they were satisfied with the elimination because, as he put it, an officer's career was on the line.236 There was no discussion about numbers of points. "He got reassurance from me based on my comparison of the first form the night before that I was totally satisfied."237
7.157. Mr Dunbar said he and Mr Mackenzie were called to Mr Ferry's room and he described the meeting as a rant. Mr Ferry seemed to be concerned because of the damage that could be done to a serving officer. Mr Dunbar thought that this was after Mr Ferry returned from Peebles, but that is difficult to reconcile if, as it appears, the re-examination was on the morning of 18 February and the Peebles conference began at noon that day. Mr Dunbar assumed that Mr Ferry had got himself into a state of excitement because of conversations that he was having with other officers.238
7.158. Mr O'Neill went to the event in Peebles and left Mr Mackenzie in the office to make arrangements for the check.239
7.159. In his statement to the Mackay enquiry Mr Ferry is recorded as saying that his recollection was that Mr Mackenzie had confirmed the identification before he (Mr Ferry) was informed because he remembered asking him if he was sure and he said that he was confident.240 In his evidence to the Parliament inquiry he mentioned that he was told that three experts had looked at it.241 It is difficult to reconcile this with the second examination by only Mr Mackenzie and Mr Dunbar the day before unless there had been factored into the discussion on the morning of 18 February the fact that other officers had agreed the result through their participation in the 'blind trial' or alternatively the "three" includes Mr MacPherson from the first examination.
7.160. As indicated above, in that statement Mr Ferry also said that he informed Mr Welsh who asked that he have the mark re-examined to make absolutely certain before any further action was taken. He made a similar statement in his evidence to the Parliament in which he added that at this point he was asked to get "another three experts" to check it. In his Mackay enquiry statement he said he asked Mr O'Neill to have the mark checked again.242 It would appear that this coincides with the exercise instigated by the police namely a fresh comparison with a new photograph and new prints.
The new print form and photographs
7.161. Mr Shields took a further set of elimination prints from Ms McKie,243 and Ms McKie was told that SCRO would not accept her being present when these were compared with the mark.244
7.162. Ms McKie then returned to the locus with Mr McAllister and other officers including Sergeant Derek Thomson and PC Archibald McKinlay, two scene of crime officers from the Identification Bureau. A label was applied to the wooden door surround and signed by Ms McKie and others who attended.245
7.163. Mr McKinlay confirmed he took photographs of Y7 with its original label and with a new label and that the photographs in Production 189 were both taken by him that day.246
The examiners
7.164. Once the new fingerprint form and photographs were delivered to SCRO, some time after 11:00, independent comparisons were undertaken, Mr Mackenzie thought by four examiners.247 Mr Mackenzie and Mr Dunbar both examined the mark again,248 and the third examiner was Sergeant David Halliday.249
7.165. The fourth examiner was Mr Stewart, who said that he was asked to compare the second image and second set of elimination prints on 18 February by Mr Mackenzie.250 He could remember "the second mark coming in when Ms McKie was present at the locus".251 Mr Stewart explained "Not all of us who had signed it first time round were in the office. Accordingly different people would have looked at it. Hugh MacPherson was on the late shift."252
7.166. Mr Halliday was a police officer who had been a fingerprint examiner in the Glasgow bureau for many years having started his training in 1979. At the time he was the AFR Manager and worked slightly separate from the main fingerprint hall. Mr Dunbar came and asked him to take a look at a mark. It was a frequent practice at the time to get other opinions on marks. This was during the course of a normal working day and there would have been a full complement of staff in the office. The mark and print were on a comparator in the main hall. He did not know if anyone else had seen the mark before him. At the time he was not aware of any importance attached to it. It was not an official second check, just to get another expert's views on it. He was not otherwise involved in looking at marks in this case.253
Examiners' observations - 18 February
7.167. Mr Mackenzie found the second image of Y7 perfect for comparison and of the same quality as the first one. The second set of prints was better than the first. In both comparisons he used the plain impressions as the rolled impressions available to him on 17 and on 18 February were inferior and smudged.254 He considered that an enlargement made later from this plain impression from 18 February was crisp in detail and very sharp. It was a well-taken plain impression.255
7.168. He used magnifying glasses and the comparator, as he had done the previous day. Again he concentrated on the lower part below the fault line from the core out to the right-hand side.256 The improved detail on the second impressions enabled him to form an opinion based on twelve or thirteen characteristics.257 He discounted the upper half due to his perception at the time that it was affected by distortion.258
7.169. In 1999 when he revisited the matter, he found points in the upper part that were in sequence and agreement. He indicated that that area was not available to him in 1997 but his principal position was that, although there was a fault-line above which there was major disruption, the lower half allowed him to give a firm confirmation. Within the narrow window of opportunity, from the materials he had available, he was totally satisfied as to his conclusion.259
7.170. On the basis of both his first comparison on 17 February and his second, on 18 February, he satisfied himself that the mark was made by Ms McKie.260 Based on his experience the mark was unnatural in its overall form, and the area above the fault-line to him stood out "like a beacon" as being separate from the lower area. He was totally satisfied the fault-line was the key feature of the mark. If the mark was in fact one piece it was not Ms McKie's.261
7.171. Mr Dunbar did not recall any improvement with the comparison of the new form and photographs of Y7. He was still satisfied with the area below the fault-line, those characteristics that he could not account for above the fault-line being as a result of movement or double touch.262 He examined the material to see if he could provide a more positive explanation for this area but he was unable to do so from the material he had.263
7.172. In 2006, when shown enlargements by the Scottish Executive lawyers, he was able to "track down" characteristics above the fault-line. One unusual characteristic that he had not seen in 1997 but he saw in 2006 was what he described as a "hawk-eye". The area in which it appeared supported the conclusion that there was movement or distortion in the mark.264 This was the feature that became known as the "Rosetta".265
7.173. Mr Halliday removed the mark and print from the comparator, whose screens were unmarked, and examined them using magnifying glasses. He also used the comparator.266 His initial impression was that the crime scene mark was a right thumb but on closer examination he concluded that it was a left thumb with a lot of distortion giving the impression of a right thumb. He saw this from near the top of the thumb.267 The mark which was "pretty ropey and tricky"; scored at 2 out of 10 on the range of identification.268
7.174. Mr Halliday was in no doubt. On the comparator he marked up 16 characteristics in sequence and agreement. He found no points in disagreement, "although there were some tolerances for movement, given the elasticity of the skin".269 There was twisting clockwise to the right to about half past one or two o'clock. He signed the screen and told Mr Dunbar that he was satisfied as to the identity of the mark.270
7.175. Mr Stewart carried out a comparison and reached the same conclusion as before. He observed "The visit of Shirley McKie to the locus, the retaking of the photograph and prints and the subsequent re-comparison at SCRO were all non-standard procedures."271
The police are informed
7.176. The results of the re-examination were relayed by telephone to Mr Ferry who by this time was at Peebles.272
7.177. In his Mackay enquiry statement Mr Ferry said that he was informed that other experts had examined the mark and confirmed the identification. He relayed that back to Mr Welsh. He was made aware that a new photograph and new prints had been taken and examined by Mr Mackenzie and Mr Dunbar and the identification stood. The statement concluded "Even if the initial persons identifying the marks had made a mistake I have every confidence that Robert Mackenzie and Alan Dunbar would not have allowed it to proceed if they were not confident in themselves." At the Parliament he said that, having been asked by the ACC [Mr Welsh] to get another three experts to check it, he did that and got the same result." They said that there was definitely no mistake and that it was her fingerprint."273 It would appear that the three examiners, at this point, must be Mr Mackenzie, Mr Dunbar and Mr Halliday, or perhaps Mr Stewart. However of these only Mr Halliday was an additional examiner. The arithmetic that Mr Ferry mentions only works if the participants in the 'blind test' are taken into account.
7.178. Mr Thomson told the Mackay enquiry that in the afternoon he had a telephone call from Mr Ferry to say that three of his top experts had examined the mark and were adamant that it was Ms McKie's print. There was no doubt whatsoever.274
7.179. When Mr Mackenzie arrived at the Peebles event "later in the day" Mr O'Neill learned from him that the result of the check was that Y7 had been identified as having been made by Ms McKie.275
7.180. Mr McAllister understood that a full identification exercise was carried out afresh and that afternoon Mr Thomson told him the mark had again been identified as that of Ms McKie.276
Ms McKie is informed
7.181. Ms McKie took a call from Mr McAllister about 14:30 to say that SCRO were adamant the mark was hers.277
Commentary - the events of 18 February
7.182. SCRO were right to take issue with the proposal that they undertake their work in the presence of a police officer, especially one they considered to be the maker of the mark in question. Fingerprint examiners have obligations to the court and may be required to demonstrate their work to the court. They cannot be expected to undertake their live work under the gaze of a police officer, especially in the circumstances that pertained here.
7.183. The outcome of the activity on 18 February was that the identification had been confirmed again. It may or may not have been thought to have been helpful to engage Mr Halliday because he was a police officer in management and slightly removed physically from the general office. Still, the drawback to the comparison on 18 February was that only one fresh pair of eyes was involved.
Commentary - Overview of checks from 11-18 February
7.184. As soon as Ms McKie denied strenuously that she had been in the house where her mark was said to have been found, the relevant individuals were operating in uncharted territory. The police challenged SCRO and they had to respond. Neither had procedures to address this unusual situation.
7.185. At the outset, it was undoubtedly important that practical points were checked. There might have been a mix-up over the photographs and print forms. Ms McKie thought this might have happened. So when Mr McAllister contacted SCRO he was assured that Y7 had indeed been compared with elimination prints from Ms McKie. The work on 12 February involving both the Identification Bureau and SCRO also served to address this point. The police may have expected more to have been done by 13 February, perhaps expecting fresh comparisons, but nothing turns on that because fresh comparisons were carried out on 17 and 18 February.
7.186. When Ms McKie was found to be adhering to her position on her return to work on 14 February, the police had little option. Given the possible prejudice to the murder investigation, they had to be as sure as they could that SCRO were right. Mr Heath escalated matters and it was only when Mr Thomson contacted Mr O'Neill that the kind of confirmation needed became evident to SCRO. Not only was a new comparison needed, it was needed within hours; tomorrow would not do.
7.187. This put SCRO under pressure and, as Mr Mackenzie mentioned, his examination was under a time constraint. The checks that were undertaken provided reassurance at SCRO. They show that SCRO went out of their way to see if there was any doubt about the identification, even unofficially getting it checked in an unorthodox way, which is inconsistent with any suggestion that there was a conspiracy against Ms McKie.
7.188. Throughout this confirmation process there is no evidence of there being a pressure to get to sixteen characteristics. Witnesses such as Mr Mackenzie and Mr Dunbar would deny that getting to sixteen influenced their assignment of ownership. Indeed they were candid that they did not see sixteen points during these comparisons.
7.189. It is not surprising that senior police officers (both those in senior management positions at SCRO and those involved directly and indirectly in the murder investigation) took reassurance from the confirmation of the position provided by Mr Mackenzie and Mr Dunbar. As far as the police were concerned, they tested SCRO as far as they could go. They kept on checking. This does not support a contention that they were out to "get" Ms McKie. They are to be commended for their insistence on the position being checked and re-checked.
7.190. There was no procedure set down for either the police or SCRO. The procedures were improvised to address an extraordinary situation, and it would not be surprising for them to be found wanting in some respects.
7.191. Within SCRO there was no audit trail. Mr Dunbar volunteered that on reflection it would have been better if he had noted the initials of people in his diary, but that was only one part of an almost entirely undocumented process.278
7.192. The Inquiry's investigations have disclosed that there was a spread among the SCRO examiners regarding the number of matching characteristics:
(i) the four who signed the court reports (Mr MacPherson, Mr Stewart, Mr McKenna and Ms McBride) and Mr Halliday found at least 16 points in sequence and agreement;
(ii) the first verifier Mr Geddes observed only ten points in sequence and agreement and did not agree Mr MacPherson's fuller 16 points even when they were shown on a comparator machine;279
(iii) Mr Mackenzie observed 10-11 points on 17 February and 12 or 13 on 18 February;
(iv) Mr Dunbar saw less than 16 points in his two examinations (perhaps at least ten points, though he could not be specific as to the number);
(v) during the 'blind test' Mr Bruce found eight and Mr Foley found ten.
7.193. If Mr Bruce is included among those who were in agreement that the mark was made by Ms McKie, as Mr Dunbar believed him to be at the time, that would give a total of ten. The Inquiry was unable to identify another two to reach the total of twelve mentioned by Mr Dunbar. One possibility is that his list included the two examiners who wanted to continue their examination the following day. That could be consistent with the proposition that twelve examiners were consulted and no-one had expressed a doubt about the identification.
7.194. No one individual at the time was aware of the level of detail that has since come to light. For example, Mr Dunbar (who conducted the blind test in which Mr Bruce and Mr Foley participated) said that the question asked was "Do you eliminate this person, yes or no";280 and, therefore, there was no contemporaneous discussion or recording of the number of points found. The SCRO 'end of case' letter281 which summarised the findings of the fingerprint comparison work undertaken by SCRO (issued in name of Mr Ferry but actually prepared by Mr MacPherson282 and lodged as Production 174 in HMA v McKie) simply recorded the result: "Eliminated as SHIRLEY CARDELL [sic]283 (DC)." It gives no background detail regarding the sequence of events covered in this chapter. More significantly, the verb "eliminated" is ambiguous because an 'elimination' can be made either to the 16-point standard or to a lesser standard284 and to say that the mark has been eliminated does not disclose the standard that has been applied.
7.195. From the point of view of these examiners, the number of characteristics was not relevant. Examiners themselves can be 100% certain of their conclusion without finding as many as 16 points, so the fact that as many as five of those examiners (Mr Geddes, Mr Mackenzie, Mr Dunbar, Mr Foley and possibly Mr Bruce) made only an 'elimination' may not in itself have been of significance to the examiners at that time.
7.196. However, that fact was significant for two reasons given that the legal standard of the day was 16 points.
7.197. First, had the individual findings of the examiners been collated, the fact that as many as five of them could not find 16 points could have afforded an opportunity internally to reflect on the question whether the examiners who, in due course, prepared the joint reports for court had applied an appropriate degree of tolerance in arriving at their conclusion. It has to be recalled that the five who did not find 16 points were all SCRO examiners, and included the two most senior examiners in the bureau, so their observations were worthy of respect.
7.198. Second, the final judgment was not for SCRO. The ultimate question was one for Crown Office and was whether or not the prosecution could reliably include the fingerprint evidence in the case against Mr Asbury and, in due course, against Ms McKie. At the very least the fact that five SCRO examiners could not agree an 'identification' to the full legal standard was of relevance to Crown Office.
7.199. These two matters are considered further in Chapter 28.
1. Mr Ferguson 10 June page 88; see also SG_0383 and SG_0411
2. CO_1716
3. CO_1717
4. CO_0345 - This includes a number of statements. It does not have statements from some of the officers mentioned in this chapter such as Mr Ferry, Mr O'Neill or Mr Welsh.
5. PS_0002h
6. CO_2219 as referred to in FI_0071 Inquiry Witness Statement of Ms McKie
7. AG_0001, FI_0068 paras 97-98 Inquiry Witness Statement of Mr McAllister and Mr McAllister 16 June pages 25-26, 55-57
8. CO_0345 pdf page 65
9. FI_0055 para 156 Inquiry Witness Statement of Mr MacPherson
10. FI_0056 para 45 Inquiry Witness Statement (Supp.) of Mr MacPherson
11. FI_0056 para. 45 Inquiry Witness Statement (Supp.) of Mr MacPherson and CO_0345 pdf page 90
12. Mr McAllister 16 June pages 26-27, 57
13. Mr Heath 9 June pages 57-58
14. Mr Heath 9 June pages 57-59 and CO_0345 pdf page 58
15. CO_2219 Mackay enquiry statement of Ms McKie
16. CO_1716 para 13
17. CO_2219 Mackay enquiry statement of Ms McKie
18. Mr Heath 9 June pages 119-121, FI_0013 para 249 Inquiry Witness Statement of Mr Heath and CO_0345 pdf page 58
19. Mr Heath 9 June pages 59-60
20. In CO_0345
21. CO_1716 para 13
22. FI_0013 paras 252-253 Inquiry Witness Statement of Mr Heath
23. Mr Heath 9 June pages 62-63
24. Mr McAllister 16 June pages 28-31 and CO_0345 pdf page 65
25. FI_0034 para 38 Inquiry Witness Statement of Mr Hogg
26. FI_0085 para 2ff Inquiry Witness Statement of Mr Fraser
27. CO_0345 pdf page 98
28. FI_0085 para 6 Inquiry Witness Statement of Mr Fraser
29. FI_0019 para 4 Inquiry Witness Statement of Mr Wilson (Stuart)
30. FI_0019 para 26ff Inquiry Witness Statement of Mr Wilson (Stuart)
31. FI_0019 para 44ff Inquiry Witness Statement of Mr Wilson (Stuart)
32. Mr Wilson 17 June pages 109-110, FI_0019 paras 44-55 Inquiry Witness Statement of Mr Wilson (Stuart) and CO_2039 Mackay enquiry statement of Mr Fraser
33. CO_0345 pdf page 98
34. Mr Wilson 17 June pages 110-111
35. CO_0345 pdf page 98
36. CO_0345 pdf pages 89-91
37. Mr MacPherson 27 October page 97-98 and FI_0055 paras 156-157 Inquiry Witness Statement of Mr MacPherson
38. FI_0039 para 91 Inquiry Witness Statement of Ms McBride, FI_0054 paras 40-42 Inquiry Witness Statement of Mr McKenna and Mr Stewart 5 November pages 101-103
39. Mr Fraser CO_0345 pdf page 99, Mr Wilson 17 June page 110 and FI_0019 para 55 Inquiry Witness Statement of Mr Wilson (Stuart)
40. FI_0013 para 252 Inquiry Witness Statement of Mr Heath
41. CO_1096 Mackay enquiry statement of Mr Heath
42. CO_0345 pdf pages 90-91
43. CO_0345 pdf page 99
44. The 'photography assignment details' that accompanied the negatives ST_0066, suggested that the negatives were first developed on 13 February 1997. In oral evidence Mr Wilson thought that this might be a clerical error as he was certain that they were developed and taken to SCRO on the same day as he took the photographs, 12 February (17 June, page 112). Mr Fraser explained that it could simply be that they were filed next day. FI_0085 para 16-17 Inquiry Witness Statement of Mr Fraser
45. FI_0034 paras 70-71 Inquiry Witness Statement of Mr Hogg
46. ST_0065 - copy statement from Mr Hogg attached to report to Deputy Crown Agent dated 14 June 2006
47. The envelope was accompanied by ST_0064, a report from Mr Malcolm addressed to the Deputy Crown Agent, ST_0065, statements from Mr Hogg and Mr Thurley, and ST_0066, a cover sheet 'Photography Assignment Details'.
48. CO_0345 pdf page 59
49. FI_0013 para 248 Inquiry Witness Statement of Mr Heath
50. AC_0004 pdf page 26
51. FI_0013 paras 254-255 Inquiry Witness Statement of Mr Heath
52. Mr Heath 9 June pages 60-63
53. FI_0013 para 257 Inquiry Witness Statement of Mr Heath
54. FI_0013 para 258 Inquiry Witness Statement of Mr Heath
55. CO_1716 para 14
56. CO_1156 Mackay enquiry statement of Mr O'Neill
57. FI_0120 paras 12-14 Inquiry Witness Statement of Mr O'Neill
58. CO_1159 Mackay enquiry statement of Mr Ferry. His account refers to February 1997 but not specific dates.
59. Scottish Parliament Justice 1 Committee Official Report 23 May 2006 Col 3123ff
60. In his evidence to the Justice 1 Committee Inquiry he explained that he was responsible to Mr Welsh on a day-to-day basis, referring to one of the SCRO committees. Scottish Parliament Justice 1 Committee Official Report 23 May 2006 Col 3139
61. Scottish Parliament Justice 1 Committee Official Report, 23 May 2006, Col 3139
62. FI_0120 para 28 Inquiry Witness Statement of Mr O'Neill
63. On 18 February there was a SCRO corporate event for senior managers at Peebles Hydro. It started at noon and continued for a full 24 hours - SG_0088 pdf page 5.
Prior to taking up post as Detective Superintendent in SCRO on 3 March 1997 Mr Gorman attended the Peebles event and was reported in his statement to the Mackay enquiry as saying that he could recall Mr Ferry arriving late at the event because he had been dealing with the McKie case. His post included deputising for the Chief Superintendent (Mr Ferry). He said he himself had no involvement in the case nor was aware of any difficulty surrounding it until Ms McKie's trial in 1999. CO_2038 Mackay enquiry statement of Mr Gorman.
64. Mr Heath 9 June page 64, FI_0071 para 69 Inquiry Witness Statement of Ms McKie, FI_0013 para 260 Inquiry Witness Statement of Mr Heath and CO_1716
65. Mr Heath 9 June page 64
66. CO_2219 Mackay enquiry statement of Ms McKie
67. FI_0071 para 70 Inquiry Witness Statement of Ms McKie
68. Mr Heath 9 June page 65
69. FI_0068 para 99 Inquiry Witness Statement of Mr McAllister
70. CO_1698
71. Mr Heath 9 June pages 65-68. Ms McKie's statement provided that day is CO_0286.
72. CO_1716
7.. Mr Heath 9 June pages 67-68
74. FI_0013 para 270 Inquiry Witness Statement of Mr Heath
75. CO_2372 Mackay enquiry statement of Mr Thomson
76. FI_0013 para 274 Inquiry Witness Statement of Mr Heath
77. CO_2219 Mackay enquiry statement of Ms McKie
78. Ms McKie referred to her statement CO_2219 in relation to this interview.
79. CO_2372 Mackay enquiry statement of Mr Thomson
80. FI_0071 para 72 Inquiry Witness Statement of Ms McKie
81. CO_2372 Mackay enquiry statement of Mr Thomson
82. CO_1156 Mackay enquiry statement of Mr O'Neill
83. FI_0120 paras 15-22 Inquiry Witness Statement of Mr O'Neill
84. FI_0120 paras 23-34 Inquiry Witness Statement of Mr O'Neill
85. Mr Mackenzie 1 October page 100
86. FI_0120 para 23 Inquiry Witness Statement of Mr O'Neill and FI_0053 para 14 Inquiry Witness Statement of Mr Dunbar
87. FI_0046 paras 96-97 Inquiry Witness Statement of Mr Mackenzie
88. Mr Mackenzie 1 October page 108
89. Mr Mackenzie 30 September page 38
90. Mr Foley 23 June page 174
91. FI_0053 para 123 Inquiry Witness Statement of Mr Dunbar
92. See Chapter 32 para 30ff
93. FI_0053 paras 102-103 Inquiry Witness Statement of Mr Dunbar
94. FI_0053 paras 105-106 Inquiry Witness Statement of Mr Dunbar
95. FI_0046 paras 118-121 Inquiry Witness Statement of Mr Mackenzie
96. FI_0046 para 124 Inquiry Witness Statement of Mr Mackenzie
97. Mr Mackenzie 1 October page 80
98. Mr Mackenzie 30 September page 46
99. FI_0053 paras 117,122 Inquiry Witness Statement of Mr Dunbar
100. Scottish Parliament Justice 1 Committee Official Report 23 May 2006 Col 3139
101. Mr Mackenzie 2 October page 125
102. FI_0053 para 121 Inquiry Witness Statement of Mr Dunbar and TC_0023
103. FI_0120 para 35 Inquiry Witness Statement of Mr O'Neill
104. CO_2372 Mackay enquiry statement of Mr Thomson
105. Mr Mackenzie 1 October pages 93-94
106. FI_0053 para 107 Inquiry Witness Statement of Mr Dunbar
107. Mr Dunbar 6 October page 64
108. FI_0053 paras 113-114, 118, 122 Inquiry Witness Statement of Mr Dunbar
109. FI_0053 paras 119-120 Inquiry Witness Statement of Mr Dunbar
110. FI_0053 paras 112, 117 Inquiry Witness Statement of Mr Dunbar
111. Mr Dunbar 6 October page 63
112. Mr Mackenzie 30 September pages 39-40
113. PS_0002h
114. FI_0046 para 293 Inquiry Witness Statement of Mr Mackenzie
115. Mr Mackenzie 30 September pages 42-43
116. Mr Mackenzie 30 September page 41
117. Mr Mackenzie 30 September page 42 and Mr Mackenzie 1 October pages 91, 97-98
118. Mr Mackenzie 1 October page 91
119. Mr Mackenzie 30 September page 43
120. Mr Mackenzie 1 October page 116 (the other being the McNamee mark which he examined for the Metropolitan Police)
121. FI_0046 paras 125-126 Inquiry Witness Statement of Mr Mackenzie
122. Mr Mackenzie 2 October page 79
123. Mr Mackenzie 2 October page 96
124. Mr Mackenzie 30 September page 122ff and FI_0046 para 126 Inquiry Witness Statement of Mr Mackenzie
125. Mr Mackenzie 1 October page 92
126. For evidence on the Rosetta see Chapter 25
127. Mr Mackenzie 2 October page 97
128. Mr Mackenzie 2 October pages 99-101
129. Mr Mackenzie 30 September page 45
130. Mr Mackenzie 1 October page 80ff and FI_0046 para 124 Inquiry Witness Statement of Mr Mackenzie
131. Mr Mackenzie 1 October pages 81-86
132. Mr Dunbar 6 October pages 75-80
133. Mr Mackenzie 1 October pages 89, 93
134. FI_0046 paras 136 Inquiry Witness Statement of Mr Mackenzie
135. Mr Mackenzie 1 October page 87ff and FI_0046 paras 136-137 Inquiry Witness Statement of Mr Mackenzie
136. Mr Mackenzie 1 October pages 93, 95
137. Mr Mackenzie 6 October page 47ff
138. Mr Mackenzie 1 October pages 90-96
139. Mr Mackenzie 1 October page 94-96
140. Mr Mackenzie 1 October page 95
141. Mr Mackenzie 6 October page 3
142. Mr Mackenzie 6 October pages 3-4
143. Mr Mackenzie 1 October pages 91-94
144. Mr Dunbar 6 October page 75ff and FI_0053 Inquiry Witness Statement of Mr Dunbar
145. FI_0053 para 123 Inquiry Witness Statement of Mr Dunbar
146. Mr Mackenzie 1 October pages 91-94
147. Mr Dunbar 6 October page 76
148. FI_0053 paras 125-127 and 132 Inquiry Witness Statement of Mr Dunbar
149. Mr Dunbar 6 October page 77
150. Mr Dunbar 6 October page 77 and FI_0053 para 127 Inquiry Witness Statement of Mr Dunbar
151. Mr Dunbar 6 October pages 77-78
152. FI_0053 para 124 Inquiry Witness Statement of Mr Dunbar
153. FI_0120 paras 27-34 Inquiry Witness Statement of Mr O'Neill
154. CO_1156 Mackay enquiry statement of Mr O'Neill
155. Scottish Parliament Justice 1 Committee Official Report 23 May 2006 Col 3148
156. Mr Mackenzie 1 October page 90ff and FI_0046 para 138 Inquiry Witness Statement of Mr Mackenzie
157. Mr Mackenzie 6 October page 47ff
158. Mr Dunbar 6 October pages 78-79 and FI_0053 para 128 Inquiry Witness Statement of Mr Dunbar
159. FI_0053 para 129, 133 Inquiry Witness Statement of Mr Dunbar
160. Mr Mackenzie 1 October page 94
161. Mr Dunbar 6 October page 77
162. FI_0053 para 130 Inquiry Witness Statement of Mr Dunbar
163. Mr Dunbar 6 October page 80
164. Mr Dunbar 6 October page 77
165. FI_0053 paras 121, 134 Inquiry Witness Statement of Mr Dunbar and TC_0023
166. FI_0046 para 141 Inquiry Witness Statement of Mr Mackenzie
167. FI_0046 paras 139-140 Inquiry Witness Statement of Mr Mackenzie
168. Scottish Parliament Justice 1 Committee Official Report 23 May 2006 Col 3148
169. CO_1156 Mackay enquiry statement of Mr O'Neill
170. FI_0053 paras 134-139 Inquiry Witness Statement of Mr Dunbar
171. FI_0046 para 141 Inquiry Witness Statement of Mr Mackenzie
172. FI_0053 para 136 Inquiry Witness Statement of Mr Dunbar
173. FI_0053 para 135 Inquiry Witness Statement of Mr Dunbar
174. FI_0016 Inquiry Witness Statement of Ms McClure
175. Mr Foley 23 and 24 June and FI_0051 Inquiry Witness Statement of Mr Foley
176. Mr Padden 19 June, Mr Padden 23 June and FI_0008 Inquiry Witness Statement of Mr Padden
177. Mr Bruce 9 July, Mr Bruce 10 July and FI_0015 Inquiry Witness Statement of Mr Bruce
178. FI_0098 Inquiry Witness Statement of Mr Brown
179. FI_0119 Inquiry Witness Statement of Mr Macleod
180. FI_0097 Inquiry Witness Statement of Ms McQueen
181. FI_0096 Inquiry Witness Statement of Ms Noble
182. Mr Foley 23 June pages 174 and FI_0051 paras 22-25 Inquiry Witness Statement of Mr Foley
183. Mr Foley 23 June pages 174-182 and FI_0051 paras 22-29 Inquiry Witness Statement of Mr Foley
184. SG_0716
185. FI_0051 paras 31-32 Inquiry Witness Statement of Mr Foley
186. Mr Foley 24 June pages 12-14, 39-40
187. Mr Bruce 9 July page 149ff and FI_0015 para 5 Inquiry Witness Statement of Mr Bruce
188. Mr Bruce 9 July page 150
189. Mr Bruce 9 July page 153 and Mr Bruce 10 July page 44
190. Mr Bruce 10 July page 44
191. FI_0015 paras 5-6 Inquiry Witness Statement of Mr Bruce
192. FI_0015 para 7 Inquiry Witness Statement of Mr Bruce
193. FI_0015 para 6 Inquiry Witness Statement of Mr Bruce
194. Mr Bruce 9 July pages 150-152
195. FI_0015 para 7 Inquiry Witness Statement of Mr Bruce
196. Mr Bruce 9 July page 153 and FI_0015 para 7 Inquiry Witness Statement of Mr Bruce
197. FI_0015 para 8 Inquiry Witness Statement of Mr Bruce
198. Mr Bruce 9 July pages 150, 152
199. Mr Bruce 9 July page 153
200. Mr Bruce 10 July page 32
201. Mr Bruce 10 July pages 23-35, 42-56
202. Mr Bruce 10 July pages 68-77
203. Mr Bruce 10 July pages 43-44
204. SG_0557
205. Mr Bruce 10 July pages 25-30, 48-52
206. Mr Dunbar 6 October page 91
207. FI_0016 paras 6-11 Inquiry Witness Statement of Ms McClure
208. Mr Padden 19 June pages 152-153 and Mr Padden 23 June page 100ff
209. FI_0008 paras 4, 5, 13 Inquiry Witness Statement of Mr Padden
210. Mr Padden 19 June page 153
211. Mr Padden 19 June page 154 and Mr Padden 23 June pages 135-136
212. Mr Padden 23 June pages 101-102
213. FI_0008 para 10 Inquiry Witness Statement of Mr Padden
214. Mr Padden 23 June page 136
215. Mr Padden 23 June pages 136-137 and FI_0008 para 10 Inquiry Witness Statement of Mr Padden
216. FI_0008 paras 10-11 Inquiry Witness Statement of Mr Padden
217. FI_0008 para 4 Inquiry Witness Statement of Mr Padden
218. Mr Bruce 9 July page 149
219. Mr Dunbar 6 October pages 81-82
220. FI_0055 para 159 Inquiry Witness Statement of Mr MacPherson
221. Mr MacPherson 3 November pages 149-150
222. Mr Dunbar 6 October page 82
223. Mr Dunbar 6 October page 82
224. Mr Geddes 26 June pages 137-139
225. FI_0039 paras 94ff Inquiry Witness Statement of Ms McBride
226. FI_0036 para 155 Inquiry Witness Statement of Mr Stewart
227. Mr Mackenzie 1 October page 108
228. FI_0046 paras 140-141 Inquiry Witness Statement of Mr Mackenzie and Mr Mackenzie 1 October pages 110-111
229. FI_0120 para 37ff Inquiry Witness Statement of Mr O'Neill
230. CO_2372 Mackay enquiry statement of Mr Thomson
231. FI_0120 para 39 Inquiry Witness Statement of Mr O'Neill
232. FI_0046 paras 142-144 Inquiry Witness Statement of Mr Mackenzie
233. Mr Mackenzie 2 October page 135
234. FI_0046 para 143 Inquiry Witness Statement of Mr Mackenzie. Mr Mackenzie could not remember the Head of CID's name.
235. FI_0046 para 150 Inquiry Witness Statement of Mr Mackenzie
236. FI_0046 para 147 Inquiry Witness Statement of Mr Mackenzie
237. Mr Mackenzie 2 October page 135
238. FI_0053 paras 141-143 Inquiry Witness Statement of Mr Dunbar
239. FI_0120 para 39 Inquiry Witness Statement of Mr O'Neill
240. CO_1159 Mackay enquiry statement of Mr Ferry
241. Scottish Parliament Justice 1 Committee Official Report 23 May 2006 Col 3139
242. CO_1159 Mackay enquiry statement of Mr Ferry
243. CO_0345 pdf page 66. The Inquiry received the original of this form - DB_0008h. These prints became Production 179 in the trial in HMA v McKie.
244. CO_2219 Mackay enquiry statement of Ms McKie
245. FI_0035 para 9 Inquiry Witness Statement of Mr McKinlay and CO_2219 Mackay enquiry statement of Ms McKie
246. DB_0012h. A photograph taken that day is also the right-hand photograph on page 1 (pdf page 6) of Production 152 (ST_0006h) - see Chapter 11 para 3. Mr McKinlay also took general photographs of the vicinity and the photocopies in Mr Wilson's disciplinary report, CO_0345, pages 188-189, were photographs he took. FI_0035 paras 9-10 and 14 Inquiry Witness Statement of Mr McKinlay
247. FI_0046 para 145 Inquiry Witness Statement of Mr Mackenzie
248. Mr MacPherson was aware a re-photograph had been taken in February and both photographs were enclosed when he was preparing one of the court production books but he had no recollection of comparing a new image with the prints. What he remembered was comparing the further set of elimination prints with the original set: "This was just to make sure they had been accurately taken." FI_0055 para 156-158 Inquiry Witness Statement of Mr MacPherson
249. Mr Mackenzie 1 October page 109 and FI_0046 para 145 Inquiry Witness Statement of Mr Mackenzie
250. FI_0036 paras 157-158 Inquiry Witness Statement of Mr Stewart
251. Mr Stewart 5 November page 102
252. FI_0036 para 157 Inquiry Witness Statement of Mr Stewart
253. FI_0011 paras 1-3, 15ff Inquiry Witness Statement of Mr Halliday. Although by the time of the Inquiry he was not clear as to the date the statement noted from him by the Mackay enquiry on 23 August 2000 (CO_1111) was consistent with him having carried out a comparison on 18 February because the narrative points to him having examined the mark the day after the 'blind test'.
254. Mr Mackenzie 30 September page 48 and FI_0046 paras 151-152 Inquiry Witness Statement of Mr Mackenzie
255. Mr Mackenzie 30 September pages 48-49
256. FI_0046 para 153 Inquiry Witness Statement of Mr Mackenzie
257. Mr Mackenzie 30 September pages 49, 96ff and FI_0046 para 152 Inquiry Witness Statement of Mr Mackenzie
258. Mr Mackenzie 30 September page 122
259. Mr Mackenzie 30 September pages 122-129
260. Mr Mackenzie 2 October page 130
261. Mr Mackenzie 30 September pages 129-130
262. FI_0053 para 139 Inquiry Witness Statement of Mr Dunbar
263. Mr Dunbar 6 October pages 74-75
264. FI_0053 paras 114-116 Inquiry Witness Statement of Mr Dunbar
265. See Chapter 25
266. FI_0011 paras 20-21, 24 Inquiry Witness Statement of Mr Halliday
267. FI_0011 paras 21-22 Inquiry Witness Statement of Mr Halliday
268. FI_0011 para 22 Inquiry Witness Statement of Mr Halliday
269. FI_0011 para 24 Inquiry Witness Statement of Mr Halliday
270. FI_0011 paras 25-26 Inquiry Witness Statement of Mr Halliday
271. FI_0036 paras 157-158 Inquiry Witness Statement of Mr Stewart
272. FI_0046 para 146 Inquiry Witness Statement of Mr Mackenzie
273. CO_1159 and Scottish Parliament Justice 1 Committee Official Report 23 May 2006 Col 3139
274. CO_2372 Mackay enquiry statement of Mr Thomson
275. FI_0120 para 44 Inquiry Witness Statement of Mr O'Neill
276. FI_0068 paras 101-102 Inquiry Witness Statement of Mr McAllister
277. CO_2219 Mackay enquiry statement of Ms McKie
278. FI_0053 para 137 Inquiry Witness Statement of Mr Dunbar
279. FI_0031 paras 103, 106 Inquiry Witness Statement of Mr Geddes
280. Mr Dunbar 6 October page 89
281. SG_0383; see Chapter 22 paras 54-55
282. FI_0056 para 31 Inquiry Witness Statement (Supp.) of Mr MacPherson
283. Ms McKie's name at the time
284. See Chapter 5 para 2