Introduction
16.1. This chapter considers issues concerning the meeting of experts at Tulliallan in August 2000.
16.2. The meeting was minuted1 and those minutes should be read together with Mr Mackenzie's comments on them in his report of 29 August 2000.2
The purpose of the meeting
16.3. It appears that in advance of the meeting there were different ideas as to its purpose.
16.4. One of ACPOS's aims in establishing its Presidential Review Group (APRG) had been to seek an explanation for the difference in opinions between the SCRO experts and those consulted by Mr Taylor3 (including Mr Zeelenberg from the Netherlands and Mr Rudrud from Norway) and the original remit of Mr Mackay had been "in particular" to investigate this.4 Notes of a meeting on Monday 10 July5 recorded that ACPOS was keen that there be an early meeting involving the Norwegian and Dutch experts and the SCRO officers "to see if matters could be resolved between them".6
16.5. Mr Mackenzie saw the Tulliallan meeting as part of the APRG process,7 as a facilitated meeting to examine the difference of opinion between the experts. He thought he was going along to give his opinion on Y78 and did not think that the purpose of the meeting was for others to try to persuade him to change his mind. Such an objective would have been unacceptable to him.
16.6. Another view was that the objective was to persuade the SCRO officers that they were wrong. Mr Zeelenberg said that at an earlier meeting with HMICS,9 he suggested that the best way forward would be if SCRO acknowledged their mistake and in order to achieve that he was prepared to have an informal session to discuss the prints. He envisaged a relaxed, expert to expert, "feet on table" atmosphere.10
16.7. At the time when the meeting was first envisaged there was no allegation of wrongdoing11 but by the time that it took place not only was there an active criminal investigation but also the four SCRO examiners who had signed the joint reports had been suspended. Mr Gilchrist, the procurator fiscal responsible for the criminal investigation, attended the meeting as an observer as did Mr Mackay and his deputy, Mr Robertson. The Crown Office intention was that Mr Mackay take statements from the foreign experts and Mr Mackenzie and Mr Dunbar and then interview the participants after the meeting "to ascertain if their views have in any way changed following upon the meeting".12 The attendees also included union legal representatives on behalf of the SCRO staff members.
16.8. Mr Dunbar said they had been invited to the meeting via Mr Bell to participate in a facilitated discussion to see if any common ground could be found. He described it however as a pressurised situation against a background of four officers having been suspended. When he and Mr Mackenzie arrived at Tulliallan they were put into separate rooms about ten minutes before the presentation and statements were taken from them by police officers.13
16.9. For his part, Mr Zeelenberg said that, when he arrived at Tulliallan, he was surprised to find the procurator fiscal and lawyers from the trade union in attendance and to be told that there were going to be presentations rather than an informal discussion. This was not what he had expected. Looking back on it he thought that he was not well informed and fully aware of the gravity of the situation. He became aware that official investigations had been started looking into potential misconduct by the SCRO staff and that staff had been suspended. He was not aware of the full background. He appreciated in hindsight that the point of no return had already been reached.14
16.10. The opening comments of the facilitator, Dr Bramley,15 are to be seen in that context. He is recorded as indicating that he understood that the purpose was to reach a consensus in the wider interests of fingerprinting because as long as there was a difference in the interpretation of the fingerprint identification the robustness and reliability of fingerprint evidence would be brought into question. That said, he acknowledged that it would not be easy to reach a consensus and that it would be understandable that SCRO might feel somewhat defensive under the circumstances and might also feel a need to be loyal to their colleagues. He asked those attending to keep an open mind and consider the strengths and weaknesses of the arguments put forward professionally and objectively.16
16.11. Mr Gilchrist said that the hope was for reconciliation and an understanding of how the differences had arisen but that the facilitated discussion failed to resolve the conflicts between the two camps.17
The non-attendance of the suspended officers
16.12. Mr Mackenzie was critical of the fact that the officers under suspension were not allowed to attend the meeting.18
16.13. The decision that they should not attend was taken before they were suspended and was a direct consequence of Mr Gilchrist's commission to investigate allegations of criminality involving these four officers.19 Mr Crowe explained that Mr MacPherson, Mr Stewart, Mr McKenna and Ms McBride were regarded as suspects and it was inappropriate for them to come to the meeting and either "be lulled into a false sense of security" or incriminate themselves.20
The presentations at the meeting
16.14. The Inquiry was provided with an ACPOS folder of documents from the meeting.21 The agenda indicated presentations in the morning and a facilitated discussion in the afternoon.
16.15. Mr Mackenzie and Mr Dunbar's joint presentation on Y7 was essentially the work of Mr Mackenzie22 in the booklet entitled 'The McKie case revisited',23 supplemented by photographic enlargements and a PowerPoint presentation.24
16.16. Mr Gilchrist noted in his report that to the laymen present the SCRO presentation was persuasive but became less convincing when challenged by Mr Rudrud and Mr Zeelenberg.25
16.17. Mr Rudrud and Mr Zeelenberg also made a joint presentation that was spoken to by Mr Zeelenberg.
16.18. The minutes record that there was a facilitated discussion. The discussion was not concluded because there had been an exchange of new material (including an image of Y7 taken by Mr Kent26 ) and there was to be an opportunity to study that material and submit comments within the following two weeks.27
16.19. Mr Gilchrist said the meeting terminated prematurely because no progress was being made.28 The issue is whether there was more to it than that.
Allegations of threats
16.20. Mr Dunbar and Mr Mackenzie alleged that Mr Zeelenberg made threats against them. There is no suggestion that Mr Rudrud engaged in any of the relevant conversations.29
16.21. Mr Mackenzie alleged that, during a break at Tulliallan, Mr Zeelenberg attempted to coerce him to change his opinion with veiled threats, which effectively brought the meeting to a close. The suggestion was that Mr Zeelenberg said "I know I should not be saying this to you Robert, you have to accept that this print was not made by Ms McKie. I implore you, do it now, I assure you that you will be applauded and highly respected in the fingerprint community if you accept that you were wrong.... Do you realise what is about to happen? ...Think about your future over the next twenty years, think about your families, but you have only got fourteen days to do something about it."30 Following this Mr Mackenzie spoke to Dr Bramley and told him there was not going to be any further purpose in continuing the meeting and it terminated shortly thereafter. The reason for seeking a termination was not given to Dr Bramley.31
16.22. During the Inquiry hearings Mr Mackenzie's recollection of the conversation with Mr Zeelenberg was on these lines: Mr Zeelenberg said: "Think of your families. Think of the next [I think it was] ten years. Do you know what is about to happen to you?" Of course the answer was, "What are you saying?" And he said: "I know", this is when his tone changed and he said: "You have two weeks to change your mind." Mr Mackenzie added he still did not understand this reference to two weeks32 but it may be that this referred to the two week period allowed following the meeting to study new material and to submit further comment.
16.23. Mr Dunbar was present during the conversation at Tulliallan. He could not remember his exact words but stated that Mr Zeelenberg asked them to think about their futures professionally and personally and consider changing their minds.33 He thought that Mr Zeelenberg was making a threat and that they were being pressurised to change their opinions.34
16.24. Within a couple of days of the meeting at Tulliallan, Mr Dunbar took a call from Mr Zeelenberg in Mr Mackenzie's absence. According to Mr Dunbar, Mr Zeelenberg said that he was not particularly pleased with the presentation that SCRO had given and accused them of trying to deceive the fingerprint community and said that he would call foul if SCRO continued with its stance.35 This was repeated at Mr Dunbar's request so that he could note it and he passed it on to Mr Mackenzie and Mr Bell. Mr Scott Robertson of the Mackay enquiry was on the telephone with Mr Bell when the conversation with Mr Zeelenberg was reported and he apologised to Mr Bell on Mr Zeelenberg's behalf because what he had said was inappropriate.36
16.25. Mr Zeelenberg's position is that the allegation that he threatened Mr Mackenzie or Mr Dunbar is wrong. He considered himself on friendly terms with them.37 However, he accepted that he made comments to Mr Dunbar and Mr Mackenzie consistent with their accounts. He indicated that he said to Mr Mackenzie, "Please, Robert, reverse yourself. You know what is going to happen. Everything is at stake, maybe your health, your family, everything¿everything is at stake", and "Robert" replied to the effect something like, "Do you not think that this has gone through my head the last month."38 He indicated that when he spoke to Mr Dunbar he said that if the presentation used by SCRO at the facilitated meeting was to be used to convince people of authority that the SCRO opinion was correct it would be the closest to malpractice he had seen.39 On any view this was a stark explanation of Mr Zeelenberg's position.
Follow-up to the meeting
16.26. Mr Rudrud and Mr Zeelenberg made a further submission on 23 August40 and Mr Mackenzie also availed himself of the opportunity to submit further comment in a report dated 29 August.41 These submissions are summarised in paragraphs 76 and 77 of Chapter 13. If anything, opinions on both sides became further entrenched.
The transfer of two officers to non-operational duties
16.27. In September 2000 Mr Mackenzie and Mr Dunbar were transferred from operational fingerprint work to non-operational duties at SCRO.42
16.28. This followed communications between Mr Mackay and Sir William Rae. By letter dated 15 September 2000,43 Mr Mackay explained that they had had every opportunity to reconsider their position. The letter noted that Mr Mackay had provided Mr Mackenzie and Mr Dunbar with copies of Mr Kent's images of Y7. These "in the opinion of all, were clearer and sharper" and provided "a window of opportunity" for Mr Mackenzie and Mr Dunbar to depart from what Mr Mackay regarded as the clearly wrong identification of Y7. The fact that they did not do so and stated that they could find forty five points of similarity, along with a report from Mr Zeelenberg, led Mr Mackay to conclude that their positions at the highest level in SCRO were untenable at this material time.
16.29. Sir William has commented in his Inquiry statement that he agreed with Mr Mackay who in this letter said that the fact that Mr Mackenzie and Mr Dunbar continued to be unshaken in their belief in face of contrary opinion raised questions about their competence and capability and was likely to undermine the efforts to restore the reputation of SCRO.44
16.30. Sir William responded by letter dated 18 September 2000 stating that he had accepted Mr Mackay's conclusions but would consult with the other members of the APRG. He wrote "the emerging findings from your investigation give us cause to doubt the capability of these officers and until such time as this is resolved they should be re-deployed on other non-operational duties within SCRO." 45
16.31. Sir William discussed matters with the APRG and Mr Duncan46 and all agreed that the two officers should be re-deployed. He spoke to Mr Bell who agreed.47 Mr Bell then got in touch with Unison and with the Strathclyde Police personnel department. As with the four officers who had been suspended, the decision was not his, but he was the one who implemented it.48 Following this the officers were put on non-operational duties.49 This meant that they would not be involved in fingerprint examinations, comparisons or identifications, and would not go to court, other than in "historical" cases.
16.32. Mr Mackenzie retired on 31 March 2007.50 Mr Dunbar retired on 30 March 2007.51
Commentary
16.33. However well-intended in prospect, the meeting suffered because of developments in the circumstances surrounding it, namely the criminal investigation and the consequent suspension of the four principal SCRO examiners, Ms McBride, Mr MacPherson, Mr Stewart and Mr McKenna. The reasoning behind their exclusion from the meeting was correct. It would have been most unfair to the SCRO examiners to have them attend when they were suspects in a criminal investigation. No criticism arises here.
16.34. It is quite clear that attendees came to the meeting with different understandings of what it was intended to achieve. So far as Mr Mackenzie and Mr Dunbar were concerned, colleagues that they had worked with for many years were now suspended and under criminal investigation. The meeting began with them being interviewed by police officers and their presentation proceeded in the presence of not only the investigating officers but also the procurator fiscal who was responsible for that investigation. This must have been disconcerting in the extreme. Given the pressure that they must have been under, it is only natural that they would have perceived the statements made by Mr Zeelenberg, both at Tulliallan and in the subsequent telephone call, as personally threatening.
16.35. Mr Zeelenberg had not been briefed on developments. He now appreciates with the wisdom of hindsight that the point of no return had already been reached52 but I accept that that was not how he viewed the situation at the time. Like Mr Mackay, he must have considered that there was an opportunity, remote though it may have been, for Mr Mackenzie and Mr Dunbar to change their opinions, perhaps assisted by the availability of the new Kent image which some considered to be clearer than any available to date and which did not have the complication of distortion by the striation. It is probable that the subsequent telephone call occurred in the two week period for reflection after the meeting at Tulliallan and his study of Mr Mackenzie's presentation doubtless added weight to Mr Zeelenberg's concerns. I accept that Mr Zeelenberg was motivated by an intention to assist colleagues, even if the language that he used was more confrontational than one might have hoped. The warning that he conveyed was, of course, prescient because the fact that Mr Mackenzie and Mr Dunbar adhered to their conclusion in knowledge of the contrary opinion and declined the face-saving opportunity to rely on the emergence of the Kent image led to the effective end of their careers.
16.36. In the circumstances I make no criticism of Mr Zeelenberg.
16.37. As for Mr Mackenzie and Mr Dunbar, the fact that they adhered to their conclusion in face of what they perceived to be threats to their careers is testament to the depth of their conviction that they were right. I would apply Mr Gilchrist's assessment of Mr Mackenzie likewise to Mr Dunbar:
"I was left with the impression that this was a man who genuinely believes that the fingerprint is that of Shirley McKie."53
16.38. My conclusion is that they were wrong in that belief but the belief was no less genuine for that.
1. CO_0050
2. CO_0063
3. CO_1633
4. See Chapter 13 para 53
5. A meeting between Mr Crowe, Mr Gilchrist, Mr Mackay and Mr Scott Robertson, (a Deputy Chief Superintendent from Tayside Police who was assisting Mr Mackay) to discuss the way forward: CO_1451 (which Mr Gilchrist stated appeared to be his note of the 10 July meeting), CO_1509 (a police note) and FI_0048 para 15 Inquiry Witness Statement of Sheriff Crowe.
6. CO_1451
7. FI_0046 para 199 Inquiry Witness Statement of Mr Mackenzie
8. Mr Mackenzie 2 October page 75
9. Which it is assumed is the meeting on 16 June 2000 mentioned in Chapter 13 para 42.
10. Mr Zeelenberg 8 October pages 71-73 and FI_0115 paras 33, 36 and 37 Inquiry Witness Statement of Mr Zeelenberg
11. FI_0050 para 71 Inquiry Witness Statement of Sir William Rae
12. CO_0018
13. FI_0053 paras 191, 195 Inquiry Witness Statement of Mr Dunbar
14. Mr Zeelenberg 8 October pages 72-75 and FI_0115 paras 35, 38 and 39 Inquiry Witness Statement of Mr Zeelenberg
15. Chief Scientist, Forensic Science Service
16. CO_0050
17. Mr Gilchrist 24 June page 137
18. FI_0046 paras 200-203 Inquiry Witness Statement of Mr Mackenzie
19. CO_0018
20. FI_0048 para 13 Inquiry Witness Statement of Sheriff Crowe
21. CO_0046-CO_0065
22. FI_0053 para 192 Inquiry Witness Statement of Mr Dunbar
23. CO_0059 (also referred to as SG_0282 e.g. in Mr Mackenzie's Inquiry Witness Statement)
24. FI_0046 para 205 Inquiry Witness Statement of Mr Mackenzie
25. CO_0003 page 25
26. CO_0061
27. CO_0381
28. Mr Gilchrist 24 June pages 53-54
29. FI_0046 para 229 Inquiry Witness Statement of Mr Mackenzie
30. FI_0046 paras 222-223 Inquiry Witness Statement of Mr Mackenzie
31. FI_0046 para 225 Inquiry Witness Statement of Mr Mackenzie
32. Mr Mackenzie 2 October pages 72-76
33. FI_0053 paras 204-205 Inquiry Witness Statement of Mr Dunbar
34. Mr Dunbar 6 October page 165
35. Mr Dunbar 6 October pages 166-167 and FI_0053 paras 212-213 Inquiry Witness Statement of Mr Dunbar
36. Mr Dunbar 6 October pages 166-167
37. FI_0115 para 54 Inquiry Witness Statement of Mr Zeelenberg
38. Mr Zeelenberg 8 October page 76
39. Mr Zeelenberg 8 October page 77 and FI_0115 para 52 Inquiry Witness Statement of Mr Zeelenberg
40. AZ_0007
41. CO_0063
42. FI_0053 para 10 Inquiry Witness Statement of Mr Dunbar
43. CO_0381
44. FI_0050 paras 75-77 Inquiry Witness Statement of Sir William Rae
45. CO_0370
46. Deputy Chief Constable Strathclyde
47. FI_0050 para 78 Inquiry Witness Statement of Sir William Rae
48. Mr Bell 3 July page 93
49. FI_0050 para 78 Inquiry Witness Statement of Sir William Rae
50. FI_0046 para 2 Inquiry Witness Statement of Mr Mackenzie
51. FI_0053 para 12 Inquiry Witness Statement of Mr Dunbar
52. Mr Zeelenberg 8 October pages 72-75 and FI_0115 paras 35, 38 and 39 Inquiry Witness Statement of Mr Zeelenberg
53. CO_0006 - letter dated 19 July 2001 to Mr Crowe