Recommendations after HMA v McKie
37.1. The HMICS September 2000 report said: "Moving to a non-numeric standard will result in a range of approaches for an expert to reach a conclusion. Because these will not always be as straightforward as 'counting points', HMIC believes there is a need for experts to record their reasoning and findings in each case¿. While it is acknowledged that this may be time consuming, it is believed to be necessary in terms of accountability and transparency. In practice it is recording the processes which the expert already goes through."1
37.2. The Change Management Review Team set up by the ACPOS Presidential Review Group (October 2000), recommended that notes should be made. It was envisaged that these would be more extensive when the quality of marks under examination was poor.2
Current SPSA practice: documentation of fingerprint work
37.3. Mrs Tierney explained the documentation used in current fingerprint practice. There were indications that there remained some local variations as between the different bureaux but her evidence gives the common base.3
The case envelope
37.4. Lifts and photographs are received into the fingerprint bureau from the scene examination branch in an A5 envelope4 with a scene examination branch worksheet recording what the scene examiner found and an examination request. The case is logged in the office management system by an administration assistant who adds a diary page to the contents of the envelope.5
The diary page
37.5. In her Inquiry Witness Statement Mrs Tierney introduced the diary page with this explanation: "My understanding is that the diary page of a case file was introduced in order to deal with a recommendation by HMIC that notes should be made on identifications. If there is something about a comparison which the expert feels should be recorded about the mark or the comparison then this will be done on the diary page."6
37.6. Her oral evidence pointed to a more limited document.
37.7. The diary page7 does provide a record of which examiner has seen which print and what conclusion each has reached.8 It is understood that the diary page will also contain a record of any discussion between examiners at the verification stage where one of the verifiers, though not positively disputing the identification, has had any doubt about it.9 As recorded in chapter 36, Mrs Tierney was able to consult the records of the Edinburgh bureau and to advise the Inquiry of the number and outcome of such discussions.
37.8. The diary page does not necessarily record the examiner's reasoning nor the detail of the findings: "there was an understanding that you could record your reasoning and findings on the diary page but there was not, as far as I am aware, a formal requirement to record characteristics and what you find, in the sequence you find them in, covered in the standard operating procedures and there is not a requirement for that at the present time."10
37.9. Mr McGinnies confirmed that for qualified examiners, unlike trainees, it was optional to keep notes of the detail of a comparison.11
37.10. The absence of documentation of reasoning was justified by Mrs Tierney on the basis that analysis and comparison are essentially practical: "a mental process".12 She also cited impact on turnaround times, particularly given that only 6% of the work in the Edinburgh bureau resulted in a request for a court report and that, when a request was made for a court report, the examiners would often have to carry out fresh comparisons relative to fingerprint forms obtained when the suspect was charged.13
37.11. As at the time of the Inquiry hearings the diary page was not disclosed to the Crown.
Examination record
37.12. The results of the examinations are tabulated in a single document that also records the initials of the examiners involved.14
Stage 1 report or communication
37.13. A stage 1 report15 is submitted to the police, essentially to inform the police as part of the intelligence gathering exercise. In recent times, in order to improve turnaround of work, such a report could be based on a shortened verification procedure where multiple marks were involved. Normally a total of three verifiers would be required for an identification.16 Where multiple marks were found it may be that the whole number would be checked by a total of two examiners with the third examiner verifying only one of the marks. Alternatively, the bureau might agree with the police to identify only a selection.17
Current SPSA practice: court reports
Introduction
37.14. Before looking at the content of material prepared for court it is necessary to refer briefly to other changes that have occurred in the criminal justice system since 1997.
Case management at COPFS
37.15. One particular change at COPFS in the period since the cases of HMA v Asbury and HMA v McKie is that the way in which the Crown normally prepares for complicated cases has altered, with an emphasis on greater involvement by a nominated advocate depute from a very early stage through a system of early allocation.18 Whilst there was some early allocation back in the 1990s it is now more rigorous and more commonly found in complicated cases. A nominated advocate depute should be responsible from the start of the case for the progress of the investigation and the prosecution.19
37.16. A perjury case such as HMA v McKie would fall now into the early allocation system, as it was unusual and the individual was a serving police officer. After the initial decision by a Law Officer, the matter would then be allocated to a specific advocate depute who would work with the area High Court Unit to progress matters. There are regular meetings and instructions and in all strategic matters the advocate depute makes the decision. The same advocate depute remains with the case throughout.20
Changes to High Court practice
37.17. Since the events the Inquiry was considering, there have been various legal procedural changes following a review by Lord Bonomy.21 Mr Pattison thought that perhaps the most significant is the introduction of preliminary hearings which mean that a trial date is not fixed until the judge is satisfied that the Crown and the defence are prepared. Through judicial management of the preliminary hearing, a point should be reached where each side knows what the other side's position is so far as possible.22
Changes concerning fingerprint evidence
37.18. In the context of the move to the non-numeric approach and other developments such as changing disclosure requirements23 internal COPFS guidance was re-assessed in conjunction with SPSA to ensure that all materials were up-to-date and the relevant guidance is included in a Crown Office Circular 8/2009,24 the Book of Regulations, the Precognoscer's Handbook and the Practice Manual.25
Request for evidence from COPFS
37.19. On request from COPFS, SPSA fingerprint examiners provide a joint report, book of evidence and statements.26
37.20. Mrs Tierney said that when a request is received for a court report in relation to fingerprint evidence all identifications contained within the case will be re-examined against the charge set of prints and all will be subject to confirmation by three fingerprint experts prior to inclusion within the court report.27
The material made available to the Crown
37.21. The content of the joint report, book of evidence and statements is standardised, the priority having been considered to be consistency and not full disclosure of all relevant information.28 The understanding was that information about the detail of the analysis and any peculiarities in any particular case would be picked up at the separate stage of precognition by the procurator fiscal.29
The joint report
37.22. The court report continues to be a joint report prepared by examiners specifically under reference to section 280 of the Criminal Procedure (Scotland) Act 1995. The joint report follows a standard style, a copy of which is attached to the Crown Office Circular 8/2009.30
37.23. Its format was agreed in 2006 following discussions between COPFS and SPSA.31 Mrs Tierney had prepared a draft in 2004 that contained some detail concerning the comparison, including a section on any movement in the mark but not disclosure of the level 2 and any level 3 detail relied upon by the examiners.32 That received mainly negative feedback from examiners. Bureaux heads preferred a shorter report33 and its terms were discussed with Crown Office during 2006 and the final version agreed.34
37.24. The agreed style of joint report is a brief, formal document. It concentrates on marks that have been identified as having been made by the accused.35 The report records the photographic impression or lift and the fingerprint form against which the comparison was made and contains a table and statement as follows:
"We have independently carried out a fingerprint analysis, comparison and evaluation of the above items. Each result has been subject to a verification process and we have no doubt our conclusions are as stated.
RESULT OF COMPARISONS (ONLY INCLUDE INFORMATION RELATING TO THE MARKS IDENTIFIED TO THE PERSON(S) THE CASE IS AGAINST)
| Production number | Lift/Photograph details | Results |
|---|---|---|
| To be left blank | Lift/Photo | Identified as the XXX shown on the finger and palm print form in the name. |
(ends)"
37.25. The report contains no detail regarding the characteristics observed by the examiners nor the basis upon which they arrived at their conclusions.
37.26. In order to meet the Crown's disclosure obligation36 information about other marks in the case is provided in a separate appendix or schedule to which reference is made in a note at the end of the report:37 "Further items were received in relation to this case. Details of these items and the results of fingerprint examination are separately recorded. The items are retained by Forensic Services, Scottish Police Services Authority." The appendix contains a table listing the results of examinations of items received other than the marks listed in the report as identified to the accused, including lifts, photographs and elimination forms.38 The appendix is sent to the Crown, but does not form part of the report. It is for the Crown to disclose relevant information from it, the defence being alerted to the existence of other material by the note in the report.
37.27. One examiner prepares the joint report, a second reviews it and both sign it. They discuss its content to establish that they are in agreement as to its terms but in so doing they do not discuss their own thought processes during the examination, or the number of points or the characteristics on which they based their opinions.39 Where possible they are two of the original examiners.40
Book of evidence
37.28. The book of evidence comprises the lifts and/or photographs of the marks and ten-print form referred to in the report.
37.29. Case specific charted enlargements are no longer prepared and hence not produced in court. These were phased out in England and Wales on transfer to the non-numeric system in 2001, leaving only the Glasgow bureau preparing them and on the transfer to the non-numeric system in 2006 even that ceased.
Witness statement
37.30. The witness statement is also a standard, formal document. It is not used in practice to provide any substantial disclosure as to the detail on which the opinion of a fingerprint examiner is based.41 The format was discussed between bureaux and Crown Office in 2005 and the current version42 has a number of sections giving information such as name, age, date of statement, and dates of unavailability.
37.31. The template for one section43 is adjusted on a case by case basis to provide information about the examiner's work such as his or her bureau, qualifications and National Register of Fingerprint Experts' number and details of the productions.44
37.32. Mrs Tierney said that during discussions about the form of the statement with COPFS there was no suggestion that the statement should be used to make disclosure of information that might have to be disclosed by the Crown to the defence. Mrs Tierney was not familiar with use of a statement for such purposes.45 A section headed "any other confidential material" is not completed.46
Precognition
37.33. Having provided the documents, the examiners may be precognosced by the Crown. Precognition does not take place in summary cases.47
37.34. Precognition generally is about assessing and testing the evidence of a witness.48 Historically for fingerprint examiners the process of being precognosced by the Crown had been formal and consisted of the examiner and the precognoscing officer reading over the joint report. With the transfer to the non-numeric system the process was intended to go into more detail and be more of a two way discussion.49 The discussions Mrs Tierney had with Crown Office in November 2006 revealed a gap in perceptions. Crown Office's position was that fingerprint examiners should be encouraged to seek discussions if they had something particular about the evidence that they wanted to discuss. The fingerprint examiners' experience had tended to be that there was no discussion of the details of the evidence. The difference of experience and understanding having been identified, it was agreed that Crown Office would participate in CPD sessions for examiners to talk about how precognition should be carried out and the purpose of the precognition process.50 This had taken place on a regular basis since October 200751 and precognition of fingerprint examiners, as noted above, became the subject of internal Crown Office instruction in March 2009.
37.35. The Circular states: "as a qualitative rather than a quantitative approach is now to be adopted in relation to fingerprint evidence, and fingerprint experts are expected to be able to provide a much fuller explanation of the way in which they reached their conclusions, all fingerprint experts in High Court cases should be precognosced and there is a presumption that the same applies to sheriff and jury cases (unless it is clear at the time of precognition that the fingerprint evidence in a case is agreed)."52 The instruction is to precognosce unless the fingerprint evidence is agreed.53
37.36. Until shortly before she gave evidence in November 2009 Mrs Tierney was unaware of any change in practice but in the week before she gave evidence one of the examiners in the Edinburgh bureau was precognosced by telephone.54 Mr McGinnies observed that there had been a marked increase in the number of precognitions across all four bureaux55 and Mr Pattison explained that fingerprint examiners were not routinely precognosced before the issue of the circular in 200956 though the guidance in relation to expert witnesses generally was that there was a presumption in favour of precognoscing them.57 Mr Pattison's enquiries showed that since that date at least twelve fingerprint examiners had been precognosced.58
37.37. The detail of the policy was continuing to evolve at the time of the Inquiry hearings. Crown Office and SPSA were considering a draft aide-memoire for the precognition of fingerprint examiners,59 which has since been finalised.60 Mr Pattison said that the precognoscer will have the joint report and statements which can be used as a basis for the precognition. At precognition the fingerprint examiner should be asked how he arrived at his opinion with reference to what he saw in the mark and prints. The fingerprint examiner will be able to tell the Crown about the procedures followed where the full details of the process are not obvious from the statement or joint report.61
37.38. Mr Pattison said that the certainty would be tested by asking the examiner the type of questions set out in the draft aide-memoire in relation to, for example, differences of opinion between examiners, any weakness in the examiner's conclusion and possible other explanations.62 Such 'prompt lists' were being prepared for precognoscers across the range of experts' evidence.63
37.39. This has to be set against the fact that examiners currently think in terms of 100% certainty. Mrs Tierney explained that there should be consistent findings from all the examiners who have looked at that mark before it even gets to the Crown due to the verification process. By the time that they are being precognosced the fingerprint examiner will be confident that no other fingerprint examiner will come to a different view, even if there is a difficult area of the mark.64 That being so, as matters currently stand, it is difficult to understand what 'weaknesses' the examiner could be expected to be conscious of and draw to the attention of the Crown.
The extent of disclosure
37.40. Precognitions, unlike police witness statements, are not routinely disclosed to the defence but information disclosed at precognition that falls within the test established in the cases of McDonald and McLeod will be disclosed,65 and the defence can precognosce Crown witnesses.
37.41. As Mr Pattison said, there has been a long-standing duty on the part of law enforcement agencies in Scotland to bring to the attention of the prosecutor information which undermines the prosecution's theory of the case and material which pointed towards the innocence of the accused.66 A failure to fulfil this obligation might result in an injustice.67 He said that the Crown relies on receiving all relevant information from SPSA to assist the preparation of cases and inform precognoscers when interviewing experts. That was essential to enable the Crown to fulfil its obligations of disclosure to the defence.68
37.42. Mr Pattison said that procedures had been put in place to ensure that disclosure obligations are met.69 These procedures included the ACPOS Disclosure Manual,70 which deals with forensic examinations.71 Disclosure at SPSA is governed by procedures and SPSA personnel receive training about disclosure.72 However, the procedures and training have not led to a situation where full disclosure is taking place in respect of fingerprint evidence.
37.43. Currently the substantive reasons for the examiner's opinion are not disclosed in the joint report or any other material provided to the Crown. There is no way for either the prosecutor or the defence to know what points have been relied on.73 Images marked up to show the principal points on which the examiner relies are not prepared. The joint report and statement do not disclose whether the mark was complex and demanded examination with particular care. Mr Pattison recognised in his evidence to the Inquiry that an indication of the reasoning should probably be recorded at the joint report stage in such circumstances. Such information might prompt the defence to explore the matter.74
37.44. If other examiners within SPSA had disagreed about an identification, SPSA would not normally disclose this75 nor would SPSA disclose that a facilitated discussion had taken place.76 If, during a facilitated discussion, agreement was reached, the result would go out. If agreement was not reached, the default position would be to report that the mark was of too poor quality to come to a conclusion.77 Mr Pattison said that any dispute or difference of view should be disclosed.78 In his evidence to the Inquiry Mr McGinnies accepted that the Crown and defence should know about a difference of view, even if it is resolved.79
37.45. If there were questions over an examiner's competence, this would not be disclosed for example where an examiner had been found to have made a mistake.80
37.46. Both bodies appeared to accept that there was a need for COPFS and SPSA to reach a clear and transparent understanding as to the extent of the requirements of disclosure as a matter of urgency.
Criticism
37.47. At the time of the Inquiry hearings it was clear that SPSA and COPFS did not have sufficiently clear arrangements in place to deal fully with disclosure of fingerprint evidence. This is a cause for criticism of COPFS and SPSA.
Commentary
37.48. The documentation now prepared by SPSA does contain an audit trail of elementary detail but does not yet contain a full record of the reasoning of the examiners. Insofar as it is no longer practice to produce case specific charted enlargements it may even be considered that current practice affords less of an insight into the thinking of the examiners than was the case in 1997.
37.49. Mr Pattison commented that merely to produce contemporaneous notes may not advance matters81 and that has some force because it may need an expert to interpret the notes and indicate what bearing they may have on the evidence. That said, his statement that "experts are obliged to make the basis for their identifications clear in their reports and statements"82 is not reflected in the brief, standardised styles of report and statement.
37.50. The Crown's expectation is that 'all relevant information' will be disclosed83 but that presumes that fingerprint examiners know what might be 'relevant'. In putting forward an identification an examiner is not only personally 100% certain of his own conclusion but also believes that any other examiner would reach the same conclusion84 and that belief is reinforced by the verification process in which the conclusion is supported by a total of three examiners. An examiner with that training may have difficulty perceiving what background information may be 'relevant' to the Crown or the defence, for that matter, beyond the fact of the bare conclusion recorded in the joint report.
37.51. There is a catch-22 here. Examiners need to be told what is of potential relevance to the Crown and to the defence and they should frame their reports to provide all such information but, in order to do so, those who are requesting information from them need to know what might be material to the conclusion that has been reached. The answer begins with fingerprint examiners recognising that they are expressing an opinion and being more transparent and ultimately more descriptive of their methodology, work practices and the specific factors involved in any particular conclusion. This leads to discussion of the merits of note-taking by examiners.
Note-taking
Practice elsewhere
37.52. SPSA is not alone in not requiring fingerprint examiners to take notes of their thought processes. PSNI do not generally take notes at any stage of the process.85 Mr Chamberlain and Mr Grigg said that note-taking is uncommon.86 The Metropolitan Police does not generally produce notes.87 If there was complexity or some disagreement, the examiner would be asked to take more extensive notes.88
37.53. One bureau in the United Kingdom, the FSS, requires notes to be taken. Note-taking is something NPIA teaches as good practice and Mr Grigg emphasised the importance of it.89
37.54. The position is different in other jurisdictions. In the United States, note-taking on every case is mandatory in accredited laboratories. Mr Wertheim works in a laboratory that is accredited and part of the accreditation requires notes to be made of every examination, not simply to refresh the memory for court but notes sufficient for another qualified examiner to review them and understand exactly what has been done. It is not mandatory to take notes outside accredited laboratories but Mr Wertheim believed it was common practice.90 The 2006 OIG report included recommendations that contemporaneous notes be kept91 and the 2011 review records the implementation of that recommendation by the FBI.92
37.55. In the Netherlands examiners must take notes even with simple marks.93 Mr Zeelenberg told the Inquiry that the Scientific Working Group on Friction Ridge Analysis, Study and Technology (SWGFAST) is moving in that direction.94 Professor Champod also referred to a SWGFAST draft standard for the documentation of ACE-V.95
37.56. The Court of Appeal's concern about the impact of the absence of contemporaneous notes led it to draw the Inquiry's attention to its judgment in R v Peter Kenneth Smith.96
Arguments in favour of note-taking
37.57. One argument in favour of note-taking is as a counter against bias.97 It assists by making examiners more conscious of any reverse reasoning that is being applied.98 Another related argument is that it assists with the reasoning process. Mr Nelson said that it might make an examiner more aware that he or she was making too many value judgments or explaining away differences inappropriately. Mr Chamberlain said that it helps an examiner define exactly what he or she has seen.99 Mr Pugh was aware of the argument that documentation might be a good check for the individual practitioners in forcing them to see if they can reason through their own particular observations and he saw some merit in that approach as regards more complex cases.100
37.58. Mr McGinnies could see some benefit in marking up complex marks at the analysis stage. An examiner would be able to go back and tell what features, if any, had been added during the comparison.101
37.59. The absence of notes makes it more difficult to investigate differences of opinion.102 Professor Champod said that in the case of disputed conclusions there was no way to unfold the chain of evidence without proper documentation of the analysis phase; otherwise everything was based on post hoc justification of conclusions that had been already reached.103 Mr Pugh said also that notes assist in this regard.104 The OIG noted that the lack of contemporaneous notes impacted on its ability to determine the cause of the Mayfield error.105 This is also the experience of this Inquiry.
37.60. Mr Pattison said that a benefit of contemporaneous note-taking was that when giving evidence in court an examiner was able to point to what he did at the time. That showed transparency and a consistency of approach.106 Mr Chamberlain said that a key issue in forensic science is transparency, the ability to show to a court what has been done and how the result was achieved. Contemporaneous note-taking assists in this.107
Arguments against note-taking
37.61. The bulk of SPSA's fingerprint work is carried out at the intelligence stage. A requirement for note-taking at the intelligence stage would have a significant impact on turnaround times and the consequential delay might adversely affect the value of the information to the investigation of crimes.108
37.62. A number of witnesses expressed concern about the resources required for note-taking. Mr Nelson said that if SPSA was asked to take notes on every case, it could have a major impact on productivity and efficiency. He said that where there was a lower level of detail or a poorer quality mark more detailed note-taking might be appropriate.109 Mr McGinnies said that a requirement for note-taking would lead to a requirement for greater resources in the fingerprint service.110 Note-taking on a daily basis would be very time-consuming. He did not think it was practical.111
37.63. When asked whether note-taking was essential in the context of limited public funds and a limited number of disputed identifications Mr Chamberlain stated that it was. It would be practical to make more use of note-taking in fingerprint bureaux.112 He accepted that note-taking and blind verification would slow down the work of the bureau and might have resource implications.
What is involved in note-taking?
37.64. Along with several other witnesses, Mr Grigg emphasised the need for a proportionate approach to note-taking dependent on the nature of the examination or the context. He said that most examinations are relatively straightforward and very brief notes are all that would be required in order to record the findings. NPIA would recommend that notes be made if the examination is a little more challenging or the examiner may need to explain his or her findings in court. Mr Grigg would expect notes to be made if a comparison were going to be of clear evidential value later in the proceedings. If an examiner were instructed to re-compare a mark for court with a new arrest form Mr Grigg would expect examiners to make notes of the comparison in order to recall more clearly what had been done at that time and explain their findings more clearly to the court if necessary.113
37.65. Professor Champod gave similar evidence. He drew attention to the then draft SWGFAST standard for documentation.114 A pragmatic approach is required. The requirement for documentation should be adapted to the mark, marks of greater complexity need more documentation and clear marks need less.115 In a simple case, the key element to documentation was having a legible image of the mark. That constituted the primary documentation of the case. Some laboratories have developed pro forma sheets for analysis which invite the examiner to assess various questions such as substrate, identification of 'red flags' and issues with distortion. That sheet can be simple, with check boxes to identify if there are issues. The position is different as regards complex marks: Professor Champod advocated annotation of ridge flow and minutiae with an indication of degrees of reliability.116 Mr Wertheim also said that in some simple cases, notes may be very short because any other examiner can see instantly what was done. In complex cases Mr Wertheim might take many pages of notes so that another examiner could follow his thought processes exactly.117
37.66. Mrs Tierney said that there might be merit in a proposal that: (a) notes would not be taken in every case, as some cases are quite straightforward but (b) notes would be taken for complicated marks.118 A proposal where note-taking was left to the discretion of an examiner was attractive to Mr Pugh.119
Relationship to quality assurance processes
37.67. Mr Pugh said that the imposition on a bureau of a requirement to document the ACE-V process at every stage would be disproportionate.120 The Metropolitan Police required to prepare evidence for court in only a small minority of cases, the bulk of their work being to inform police intelligence at the early stage of an investigation.121 The Metropolitan Police could not undertake the current volume of work if it had to document the ACE-V process at every stage for every identification. The priority was to make sure that the Metropolitan Police provided robust and reliable evidence. Notes were supplementary to the decision and the Metropolitan Police needed to make sure that the decision was sound.122 There was a range of processes to achieve this objective, such as the management system, staff training and development.123
Note-taking and ISO accreditation
37.68. There was some discussion as to whether notes were required for ISO 17025.124 Mrs Tierney said that it had not been definitively established that there was a requirement for a particular level of detail within contemporaneous notes for fingerprint departments to achieve ISO 17025.125 On the other hand Mr Chamberlain stated that ISO 17025 required that all examinations be recorded through contemporaneous note-taking.126 Mr Chamberlain is an auditor for ISO 17025 and in his opinion the standard could not be met without contemporaneous notes.127
Technology
37.69. It may be that technology can assist in making note-taking less resource intensive. As an example, SPSA is looking at systems that would allow for easier recording of notes for example by speech-to-text, so that while looking at a mark the examiner records his or her thoughts.128
Commentary
37.70. The arguments in favour of note-taking are compelling at two levels. Firstly, the discipline of taking notes will focus the attention of the examiner on the proper conduct of each stage in the ACE-V protocol and will assist each examiner at the evaluation stage to be conscious of the variables in each comparison which require to be weighed before a decision is taken. In particular, note-taking at the analysis stage will enable an examiner readily to appreciate if any reverse reasoning has occurred at the comparison stage. Secondly, the availability of contemporaneous notes will render the process more transparent. The objections are essentially practical and an unnecessary reduction in the efficiency of fingerprint bureaux is to be avoided. A proportionate approach is appropriate, for reasons of current practicality and resources.
37.71. The evidence to the Inquiry indicates the benefits of note-taking, especially when examining a complex mark. Specific procedures for complex marks, including note-taking, are discussed more generally in chapter 39.
37.72. There would also seem to be no valid practical objection to detailed notes being taken in those cases where fingerprint examiners are carrying out further comparisons at the request of COPFS (perhaps using print forms obtained following arrest) specifically for the purposes of preparing a report for court.129
37.73. More generally, proportionality commends the more pragmatic approach that note-taking should be encouraged but not made mandatory. Briefer notes may be all that is required in more straightforward comparisons, and technological advances may make note-taking easier and less disruptive to the efficiency of the process.
Review by defence experts
37.74. The joint report and appendix or schedule relating to marks that have not been identified to the accused, the book of evidence and statements are disclosed to the defence and the defence may take them into account in deciding whether to challenge the evidence. The Crown Office Circular indicates that, since the provision of the schedule to the defence may result in it being lodged as a production, procurators fiscal should ensure that a witness who is able to give an overview of all the fingerprint evidence is precognosced and cited for trial.130 SPSA examiners may be precognosced by the defence.131
Recommendations regarding reports and disclosure
37.75. The disclosure requirements in sections 117-120 of the Criminal Justice and Licensing (Scotland) Act 2010 have been discussed in chapter 30. That Act makes provision for a statutory system of disclosure but neither the primary provisions of the Act nor the subordinate legislation in the Disclosure (Persons engaged in the Investigation and Reporting of Crime or Sudden Deaths) (Scotland) Regulations132 specify SPSA as an agency to which those provisions apply directly. Accordingly, SPSA continue to be covered by the pre-existing common law rules that the legislation was intended to modify. This matter requires to be reviewed because SPSA should be regarded as having the same duties as regards provision of information to the Crown as investigating agencies.
37.76. As to the form in which information is provided to COPFS, there is force in Mr Pattison's observation that for SPSA merely to produce contemporaneous notes is not a satisfactory way to discharge the duty to provide necessary information to the Crown.133 The notes may require interpretation. The availability of notes can provide transparency, as required, but is no substitute for a report that adequately sets out the basis on which the examiner has arrived at the conclusion. Similarly, if the opportunity to take a precognition from the expert is to be worthwhile to the Crown and the defence the precognoscer must be able to discuss the strengths and weaknesses of the examiner's opinion and that cannot occur unless the process of reasoning has been set out in the report itself. For example, if an examiner has been in doubt and has consulted another examiner or if there has been a facilitated discussion those occurrences ought to have been recorded in the notes but may be of such relevance to the weight to be applied to the examiner's conclusion that they merit being highlighted in the report and not left for chance discovery by someone who reads the notes.
37.77. The HMIC September 2000 report highlighted the fact that the then current joint report contained "scant detail" and was designed for efficiency. Observing that the transfer to a non-numeric system would mean that the basis for any conclusion will not always be as straightforward as counting points under the 16-point standard, the report concluded "HMIC believes there is a need for experts to record their reasoning and findings in each case."134
37.78. The Change Management Review Team set up by the ACPOS Presidential Review Group made a specific recommendation (October 2000) about disclosure. The recommendation was that all findings should be disclosed to the procurator fiscal135 and that if a dispute was resolved the matter should also be disclosed to the procurator fiscal.136
37.79. Given the terms of these reports it might be thought surprising that the joint report and associated materials that examiners provide in current practice provide even less detail than was provided in 1997 now that charted enlargements are no longer prepared. It might be thought equally surprising that there has been a lack of clear arrangements between Crown Office and SPSA about disclosure.
37.80. Mr McGinnies said that disclosure was under review at SPSA. Changes to the disclosure regime were (as at November 2009) under discussion which might result in new procedures, in which case training would be provided for all fingerprint officers.137 He had recently attended a one-week course on disclosure and SPSA was putting together a course on disclosure. SPSA would look at each business area and draw up plans for compliance with full disclosure.138
37.81. It appears that it was during the evidence to the Inquiry that COPFS and SPSA came to appreciate the full extent of the material that required to be disclosed and that this needed to be included in the review. It was in the course of the Inquiry that Crown Office appreciated that examiners might need to be asked about differences of opinion.139
37.82. Part of the complacency towards fingerprint evidence derives from the premise underlying sections 280 and 281 of the Criminal Procedure (Scotland) Act 1995 that joint reports can be prepared as a matter of routine in anticipation of the evidence being agreed. Without wishing to detract from the benefits of simplified arrangements where evidence proves to be routine, for example because on reflection neither the prosecution nor the defence proposes to take issue with the finding, that conclusion should be reached on an informed basis having had the opportunity for reflection on the merits of the evidence. That can only occur if examiners disclose their reasoning; and because their decisions may be based on inconsistent observations or interpretations, there is a need for each examiner to disclose his or her own reasoning in a personal (not a joint) opinion. Provided that individual, personal opinions are made available for the information of prosecution and defence there is no objection to the examiners collectively providing a report of the joint conclusion that can be used in the event that the prosecution and the defence decide to follow the simplified procedures in the statutory provisions or agree the evidence.
37.83. The individual opinions that accompany the joint report require to be detailed and to cover the variables that are material to the formation of the examiner's conclusion. For example, the examiner's opinion should disclose not just the location of any common points but a description of the specific type of feature (e.g. a bifurcation or a ridge ending); and matters such as any indication of movement, multiple touches or any other factor that may support tolerance being applied to any dissimilarity in the appearance of mark and print or any other explanation for any differences. Charted images should be produced to highlight the ridge details (second and third level details) on which the examiner relies, together with a legend that describes the type of ridge detail and the sequence of ridge counts.
37.84. The recommendations contain a fuller list of the matters that should be covered in the joint report and accompanying opinions and those recommendations should be read alongside those for the provision of information by SPSA to the Crown. The two may overlap. Thus, if the examiner has participated in a facilitated discussion or any other form of procedure to resolve a difference of opinion among those who have compared the mark, disclosure may be best achieved by that fact being narrated in the report itself because it may have relevance to the reliability of the conclusion.
Recommendations regarding materials and information made available to defence experts
37.85. The Inquiry has shown that the practical arrangements made for defence examiners may have a bearing on the evidence that they can provide. This relates to image selection, conditions for examination and the provision of background information. These factors require to be considered when productions are being compiled and disclosure is made.
37.86. The images made available to defence examiners and other external examiners was a significant factor in the Inquiry.
37.87. One of the lessons that Mr Logan derived from his involvement with the Inquiry was the need for examiners to work with original images146 and I accept that this is one of the general lessons to be learned. The conditions under which productions are examined are also important. Fingerprint examiners work generally by reference to photographic images of marks and with original fingerprint forms but they do occasionally study the original object. Mr Rokkjaer and Mr Rasmussen were shown the tin, but the lighting necessary to see the marks on it was not available in the procurator fiscal's office where they were viewing it. Other examiners were given access to productions (both objects and images) away from the offices of SCRO: Mr Graham147 examined the productions in the surroundings of the procurator fiscal's office; and Mr Swann examined them in a very small room in the court building.148 Mr Graham and Mr Swann considered the conditions to be adequate, but they were less than ideal. PSNI gave evidence that they are accustomed to visits from independent experts in order to view exhibits. Independent experts studying court productions should have the opportunity to study them in examination or laboratory conditions. Fingerprint comparison is a visual skill and should be conducted in optimum conditions.
37.88. The audit trail of other background information may be equally important.
37.89. Appropriate practical arrangements are, of course, not only of concern to external experts. Mr Logan stressed the importance of having a specialised fingerprint photographer. PSNI's fingerprint photographer was recruited as such and trained by its fingerprint trainer. The benefit of a close relationship between the examiners and the photographer is that the photographer is aware of examiners' needs156 and therefore better able to produce images that meet those needs. With the availability of digital photography there may still be justification for image production and adaptation (through, for example, adjustments of exposure or contrast) to be handled by a trained specialist particularly given the facts that (a) the quality of the original or adapted image can have a material impact on the comparison process and (b) an accurate record should be kept of any adaptations made.157 This is a matter which SPSA will require to review.
37.90. It is important to bear in mind that photographic images, irrespective of quality, are themselves 'impressions' of the mark on the original object and the Inquiry's experience with QI2 was that knowledge of the underlying substrate may be significant and that may require access to the original object and, for that matter, the mark in its natural state.158 The need to view the original object has to be considered.
Notification of defence challenge
37.91. If the defence decides to challenge an identification, SPSA would have to consider carefully the substance of the defence challenge. The challenge may result in SPSA examiners being cross-examined in court. As Mrs Tierney explained if a defence expert took a different view it would be very difficult to be examined about it without seeing the other expert's opinion in advance.159
37.92. Mrs Tierney also said that she hoped that there would be an opportunity to review such material in advance and to enter into some kind of dialogue about the material.160 Dialogue takes place in England and Wales between defence and prosecution experts. Mr Pugh said that in England and Wales when there are differences between examiners the judge generally holds a voir dire or directs the experts to meet and identify issues agreed and disagreed.161
37.93. In Scotland there is no corresponding practice of experts meeting. Procedures are in place to ensure that early notice of a challenge is received and the reforms to High Court procedure162 should help prevent late notice of a challenge to fingerprint evidence. There is provision for meetings between the Crown and defence lawyers and the High Court of Justiciary Practice Note No 1 of 2005 on Preliminary Hearings163 requires detailed constructive communication. Mr Pattison said that the process tends to draw out the work which the defence is doing and the material it is awaiting in terms of its preparedness for trial. The defence is required to intimate its lists of witnesses and productions to the Crown seven days before the preliminary hearing although there is a degree of judicial latitude and productions are frequently lodged at a later stage and sometimes just before the trial. When that happens it is expected that the advocate depute would explain to the court that the Crown requires time to consider matters and that the judge would allow 'equality of arms' in terms of preparation. If evidence was submitted close to the trial one would expect the advocate depute to ask for time to consider the defence expert report. COPFS would strongly encourage the procurator fiscal to precognosce the defence expert.164
37.94. Mr Pattison noted that what is now the Criminal Justice and Licensing (Scotland) Act 2010 would introduce new procedures regarding disclosure of the nature of the defence to the Crown. The thrust was for earlier disclosure to the Crown by the defence of the nature of the defence.165
Commentary
37.95. It is essential that expert witnesses are fully prepared to give evidence, and are placed in a position whereby they can discharge their duties to the court.
37.96. If an identification is challenged it is essential that the SPSA fingerprint examiners have sight of the defence examiner's report. Much depends on the form of the report. If the report is in a similar form to the current SPSA joint report it is difficult to see what assistance it would provide. It would not assist in understanding the basis on which the defence examiner contests the identification. Similarly without appropriate material from all experts, defence counsel and the advocate depute would also face significant difficulties in preparing for trial.
37.97. It is not possible to be prescriptive as to the steps that are required in each case, but in the event of a challenge to fingerprint evidence certain requirements appear necessary:
(i) Experts must provide a full explanation of the basis of their opinions in their respective reports.
(ii) Images should be provided by defence and prosecution experts showing the characteristics on which the expert relies or disputes.
(iii) Dialogue between the experts may be necessary in order to clarify points of dispute and experts should be prepared to answer points of clarification raised by other experts in the case.
(iv) The prosecution and defence should as far as is possible identify the true areas of dispute.
The leading of fingerprint evidence in court
Enlargements and visual aids
37.98. Charted enlargements and other images are not generally used in court for fingerprint evidence in the United Kingdom.166 The lack of visual aids and enlargements can cause difficulties. Mr McGinnies said that fingerprint examiners have returned from court saying they were asked how they could demonstrate matters to the jury and their response was that they had no means of doing so.167
37.99. In England and Wales generic visual aids are used from time to time,168 and part of the NPIA assessment involves the use of a visual aid to demonstrate how a conclusion was reached.169 Occasionally examiners are asked to prepare marked-up enlargements.170 In Scotland there was a decision that enlargements would no longer be routinely used.171 Mr McGinnies said that two experts had been asked to prepare an electronic presentation in a case but in the event it was not used.172 In another case examiners were asked to prepare a generic PowerPoint. To Mr McGinnies' knowledge there had been no requests for case specific materials.173 Mrs Tierney said that the Edinburgh bureau, at the request of COPFS, had prepared a computer-based presentation to assist the court.174
37.100. The way in which fingerprint evidence is presented in court is under active review. Mr Pattison said that COPFS was exploring how media and visual representations of the Crown case might be used to make the case come alive to a jury across the range of expert evidence. This was being discussed with SPSA. Consideration was being given to the use of a DVD presentation which would give the court a general overview of what fingerprint evidence is and of the techniques used.175
37.101. A generic enlargement or presentation may assist the judge or the jury to understand the methodology in general terms but it does have a weakness. If, as seems likely, it is based on a clear mark, a generic presentation may not reveal all of the difficulties associated with a complex mark. If a fingerprint examiner is required to explain his or her conclusion in court the demonstration must include discussion of the approach to the comparison between the specific mark and the specific print that is the subject of the evidence. It is for that reason that I have recommended that charted images be prepared by each examiner as part of the process of preparing their opinions.176
37.102. It is plain that the presentation of evidence of this nature is not an easy task and it is rendered all the more difficult if the examiners use inconsistent numbering for the same points. That was the experience of both this Inquiry and the Court of Appeal in R v Peter Kenneth Smith.177 Care should be taken in presenting evidence to reconcile any conflict in the numbering of the relevant details in comparison materials. This Inquiry has had to resort to standardised images (the comparative exercise materials) in order to facilitate analysis of the competing views of the examiners on a like for like basis. That enabled the Inquiry team to produce tables showing the assumed equivalence of numbers attaching to the same features referred to by the various witnesses. Even then, in some instances closer examination revealed that witnesses were actually referring to different ridge details and recognition of that fact went some way to explaining the differences of opinion among them. Clear examples are to be found in the discussion of QI2 Ross particularly relating to (1) SCRO 13 and associated points of difference178 and (2) the points at the top of the mark.179 It is difficult to see that issues such as the proper interpretation of ridge detail at the top of QI2 Ross could have been addressed had it not been for the ability to contrast the 'marked up' digital images captured by the specialised computer system available to the Inquiry. Similar care will have to be taken in presenting evidence in any court case: (1) to investigate the extent to which examiners are in agreement regarding the relevant ridge details that require to be considered; (2) to reconcile any conflict in the numbering of the ridge details in common; (3) to ascertain the extent to which the competing opinions are attributable to the selection of either (a) some specific image or (b) some specific ridge detail; and, subject to 3(a), (4) to ensure so far as possible that the competing views can be considered on a like for like basis.
Recommendations
Images
37.103. The training and use of specialist fingerprint photographers should be considered by SPSA.
37.104. Fingerprint photographers should provide an examiner with a selection of images of a mark.
37.105. In relation to digital images:
(i) the digital original should be stored separately;
(ii) any digital image processing should be carried out only on accurate replicas of the digital original;
(iii) any adjustments made to the digital image should be recorded as part of the audit trail.
37.106. Any adjustments made to a photographic print should be recorded as part of the audit trail.
Viewing of original object on which mark is found
37.107. Consideration requires to be given to the need for examiners to examine the object on which the mark was found.
Record-keeping and note-taking
Audit trail
37.108. The method used by scene of crime examiners to detect and record a mark should be recorded as part of the audit trail for that mark.
37.109. The selection of images provided to the examiner, the image chosen for comparison work and the photographic negatives, if any, should all be recorded as part of the audit trail.
37.110. Any image(s) studied by the examiner in making an identification should be provided to the Crown on request together with the remainder of the selection of images.
37.111. A record should be kept for each mark which:
(i) shows whether or not it has been regarded as suitable for comparison;
(ii) lists all prints with which it has been compared.
37.112. Any discussions between examiners (including any consultation with an examiner not directly involved in the comparison of the mark in question) at any stage of ACE-V should be recorded.
37.113. The audit trail for a mark should be available to the Crown if requested.
Note-taking
37.114. Examiners should always take notes when they are examining marks that they consider to be complex.
37.115. Notes should be taken in any case in which a fresh comparison is made in response to a request from the Crown for a report.
37.116. Where notes are required as a result of the preceding recommendations, the notes should be taken at each stage of ACE-V by every examiner involved in the process at that stage and should cover the following matters:
(i) the assessment of the quality of the mark at the analysis stage and any sign of distortion;
(ii) the characteristics identified at analysis including their type and the sequence of them;
(iii) the characteristics taken into account at the comparison stage including their types and sequence in mark and print;
(iv) any revision to the initial analysis made at the comparison stage;
(v) any differences observed at the comparison stage;
(vi) the explanation for any differences;
(vii) any third level detail relied upon in arriving at the conclusion;
(viii) the reasons for the conclusion at the evaluation stage; and
(iv) any consultation with any other examiner during the ACE-V process.
37.117. Subject to any requirement under ISO 17025 and paragraphs 114 and 115, note-taking as to the detail found on analysis and the process of comparison, though not mandatory, should become the general practice for all fingerprint comparison work.
Provision of information to the Crown by the SPSA
37.118. The omission of the SPSA from the statutory scheme of disclosure under sections 117 to 120 inclusive of the Criminal Justice and Licensing (Scotland) Act 2010 should be reviewed. The SPSA should be regarded as having the same duties as regards provision of information to COPFS as investigating agencies under those provisions.
37.119. SPSA and COPFS should agree and implement, as a matter of urgency, a process for the provision of information by SPSA to COPFS. COPFS should provide SPSA with information and advice as to the Crown's duty of disclosure with a view to informing SPSA's understanding of the nature and extent of the information that SPSA will require to provide to COPFS.
37.120. The following information should always be provided to the Crown:
(i) a list of names of all examiners who have examined the mark at SPSA and their opinions as to the mark and the comparison;
(ii) whether the complex marks process has been invoked;
(iii) any discussions between examiners relating to the formulation of conclusions about a mark;
(iv) any differences of opinion between examiners;
(v) whether the mark has been subject to facilitated discussion or panel review.
Reports under sections 280 and 281 of the Criminal Procedure (Scotland) Act 1995
37.121. Each examiner should provide a separate written opinion and prepare his or her own material before any attempt is made to produce a joint report.
37.122. The joint report prepared should be supported by the production of the individual opinions. It should be a matter for the Crown and defence to determine whether the joint report would suffice in a given case, or whether examiners should be called to give oral evidence.
37.123. Each examiner's separate opinion should cover:
(i) the images of the mark and also the specific print used in the comparison;
(ii) the examiner's opinion about the quality of the mark;
(iii) if the examiner considers the mark to be complex;
(iv) whether third level detail is relied upon and the fact that such detail still requires to be supported by further research that has been validated;
(v) identifying any differences between mark and print;
(vi) a summary of the reasons why any differences between mark and print have been discounted and whether the examiner relies on objective studies and evidence to account for such differences or on common sense and experience;
(vii) the characteristics relied on in making the identification, the number of such characteristics, and the classification of such characteristics, (e.g. ridge ending, bifurcation);
(viii) a marked up image of the mark and print with a legend specifying the type of the ridge detail (including any third level detail) relied upon and the associated ridge counts;
(ix) the opinion of the examiner;
(x) any consultation with another examiner during the ACE-V process, including any facilitated discussion or panel review; and
(xi) the fact that any novel method such as probabilistic analysis has been used or relied on.
Consideration of material by defence experts
37.124. Fingerprint examiners engaged by the defence should be afforded access to the same material as that used by SPSA, in appropriate examination or laboratory conditions.
37.125. Fingerprint examiners engaged by the defence should be afforded access to any other images of the mark or fingerprint forms as are available to SPSA and COPFS. If negatives are available, arrangements should be made on request to provide the defence examiner with any print reasonably required. If the image is in digital format the defence examiner should be given sight of the digital original and should be provided with a copy of the same.
37.126. As a matter of good practice, defence examiners should examine the unmarked mark and print and reach their own conclusions on that material before examining any marked images produced by the SPSA.
37.127. In the event of a challenge to an identification the defence should disclose the full reasons why it believes that the SPSA examiners' opinions are incorrect. This may require the disclosure of marked up images of mark and print with a legend specifying the type of characteristic and associated ridge counts. Such disclosure should take place at a reasonable time before the trial in question. It should take place where appropriate in the context of the provision of defence statements in accordance with section 124 of the Criminal Justice and Licensing (Scotland) Act 2010.
Presentation of fingerprint evidence in court
37.128. COPFS should pay particular attention to ensuring that fingerprint evidence is presented to the court in such manner as to be readily understood by the judge and jury.
37.129. The use of technology to assist fingerprint examiners in demonstrating to the court aspects of their evidence should be explored.
1. SG_0375 para 8.1.9 to 8.1.10
2. SG_0522 pdf page 122 at 13.4.13
3. Mrs Tierney 12 November page 120ff
4. MM_0116 is an example.
5. Mrs Tierney 12 November page 121
6. FI_0152 para 23 Inquiry Witness Statement of Mrs Tierney
7. MM_0117 is an example.
8. Mrs Tierney 12 November page 121ff
9. Mrs Tierney 12 November pages 30-31, 178, Mr McGinnies 4 November pages 50-58, 92-94 and Mr Geddes 26 June pages 46-49
10. Mrs Tierney 12 November page 111
11. FI_0193 paras 138-139 Inquiry Witness Statement of Mr McGinnies
12. Mrs Tierney 12 November pages 92-93
13. Mrs Tierney 12 November pages 95-97
14. Mrs Tierney 12 November pages 124-125; MM_0118 is an example.
15. MM_0119 is an example.
16. See chapter 36
17. Mrs Tierney 12 November page 125ff
18. Mr Pattison 13 November pages 137-139
19. Mr Pattison 17 November pages 3-4
20. Mr Pattison 17 November pages 4-6
21. The Hon Lord Bonomy. Improving Practice: 2002 Review of the Practices and Procedure of the High Court of Justiciary. The Scottish Government, 2002. Criminal Procedure (Amendment) (Scotland) Act 2004 asp 5
22. Mr Pattison 13 November pages 131-133
23. FI_0114 para 29 Inquiry Witness Statement of Mr Pattison
24. CO_4109
25. See chapter 33 paras 39-41
26. Mrs Tierney 12 November page 19
27. FI_0152 para 51 Mrs Tierney
28. Mrs Tierney 12 November page 16ff and FI_0114 paras 11-12 Inquiry Witness Statement of Mr Pattison
29. Mrs Tierney 12 November pages 26-27
30. CO_4109 pdf page 4ff
31. Mrs Tierney 12 November pages 19-20
32. MM_ 0145 and Mrs Tierney 12 November pages 6-11
33. Mrs Tierney 12 November pages 14-16
34. FI_0114 paras 7-8 Inquiry Witness Statement of Mr Pattison. The current form of the joint report is contained in the Crown Office Circular 8/2009.
35. Mrs Tierney 12 November page 20
36. FI_0114 para 39 Inquiry Witness Statement of Mr Pattison
37. FI_0114 para 8 Inquiry Witness Statement of Mr Pattison and Mrs Tierney 12 November page 24
38. CO_4109 pdf page 7
39. FI_0152 paras 100-102 Inquiry Witness Statement of Mrs Tierney
40. FI_0152 para 104 Inquiry Witness Statement of Mrs Tierney
41. Mrs Tierney 12 November pages 17-18
42. MM_0134
43. Section 3 of MM_0134
44. Mrs Tierney 12 November page 17
45. Mrs Tierney 12 November pages 17-18
46. Mrs Tierney 12 November page 21
47. Mr Pattison 13 November page 160
48. Mr Pattison 13 November page 187
49. Mrs Tierney 12 November pages 26-27
50. Mrs Tierney 12 November pages 26-29
51. FI_0114 paras 15-24 Inquiry Witness Statement of Mr Pattison
52. CO_4109 - Circular 8/2009
53. Mr Pattison 13 November pages 170-172
54. Mrs Tierney 12 November pages 29-30, 174
55. Mr McGinnies 4 November page 91
56. Mr Pattison 13 November pages 171-172
57. Mr Pattison 13 November page 170
58. FI_0195 para 10 Inquiry Witness Statement (Supp.) of Mr Pattison
59. CO_4437, Mr McGinnies 4 November page 90 and Mr Pattison 13 November page 160ff
60. CO_4522 - Crown Office Circular 5/2010
61. FI_0114 para 5 Inquiry Witness Statement of Mr Pattison
62. Mr Pattison 13 November pages 186-187
63. Mr Pattison 13 November page 181
64. Mrs Tierney 12 November pages 42-43
65. FI_0114 para 6 Inquiry Witness Statement of Mr Pattison. For McDonald and McLeod see chapter 30.
66. FI_0114 para 40 Inquiry Witness Statement of Mr Pattison. See chapter 30.
67. FI_0114 para 42 Inquiry Witness Statement of Mr Pattison
68. FI_0114 paras 36-42 Inquiry Witness Statement of Mr Pattison
69. FI_0114 paras 43-45 Inquiry Witness Statement of Mr Pattison
70. Association of Chief Police Officers in Scotland (2009) Disclosure in Criminal Proceedings: Manual of Guidance, URL: http://www.acpos.police.uk/Documents/Policies/CJ_ACPOSDisclosureManualNPMv1.pdf
71. FI_0195 para 17 Inquiry Witness Statement (Supp.) of Mr Pattison
72. FI_0193 paras 142-143 Inquiry Witness Statement of Mr McGinnies
73. Mr McGinnies 4 November page 89
74. Mr Pattison 13 November pages 162-163
75. FI_0193 para 141 Inquiry Witness Statement of Mr McGinnies
76. Mr McGinnies 4 November page 93
77. Mrs Tierney 12 November pages 31-32
78. Mr Pattison 13 November pages 176-179
79. Mr McGinnies 4 November page 93
80. Mr McGinnies 4 November page 96
81. CO_4428 pdf page 2
82. CO_4428 pdf page 2
83. CO_4428 pdf page 1
84. Discussed in chapter 38
85. Mr Logan 16 November page 39
86. Mr Chamberlain 18 November pages 56-57 and Mr Grigg 29 September page 18
87. Mr Pugh 24 November pages 82-83
88. Mr Pugh 24 November page 96
89. Mr Grigg 29 September page 17
90. Mr Wertheim 22 September page 58
91. US Department of Justice, Office of the Inspector General (2006) Review of the FBI's Handling of the Brandon Mayfield Case (Unclassified and Redacted) (US Department of Justice) URL: http://www.justice.gov/oig/special/s0601/final.pdf, pdf page 212ff
92. US Department of Justice, Office of the Inspector General (2011) A Review of the FBI's Progress in Responding to the Recommendations in the Office of the Inspector General Report on the Fingerprint Misidentification in the Brandon Mayfield Case, URL: http://www.latent-prints.com/images/FBI%20Mayfield%20Progress%20062011.pdf, pdf page 41ff
93. Mr Zeelenberg 8 September page 30
94. Mr Zeelenberg 8 October page 88
95. ED_0003 para 25; for an update see SWGFAST Standard for the documentation of analysis, comparison, evaluation, and verification (ACE-V) (Latent)
http://www.swgfast.org/documents/documentation/100310_Standard_Doumentation_ACE-V_1.0.pdf
96. [2011] EWCA Crim 1296, paras 61-62
97. Mr Zeelenberg 8 October page 88
98. See chapter 36 para 37
99. Mr Chamberlain 18 November page 18
100. Mr Pugh 24 November page 96
101. Mr McGinnies 4 November page 7
102. Mr Chamberlain 18 November page 25
103. Professor Champod 25 November page 99
104. Mr Pugh 24 November pages 82-83
105. OIG (2006) pdf page 206ff
106. Mr Pattison 17 November pages 46-48
107. Mr Chamberlain 18 November page 18
108. Mrs Tierney 12 November pages 96-97
109. Mr Nelson 13 November pages 31-32
110. FI_0193 paras 137-138 Inquiry Witness Statement of Mr McGinnies
111. Mr McGinnies 4 November page 183
112. Mr Chamberlain 18 November pages 85-86
113. Mr Grigg 29 September pages 18-21
114. See para 55 above
115. Professor Champod 25 November page 55; see also Ashbaugh 'Quantitative-Qualitative Friction Ridge Analysis', 1999, page 112ff
116. Professor Champod 25 November pages 138-140
117. Mr Wertheim 22 September page 55
118. Mrs Tierney 12 November page 95
119. Mr Pugh 24 November pages 141-142
120. Mr Pugh 24 November page 93
121. See chapter 34 para 12
122. Mr Pugh 24 November page 95
123. Mr Pugh 24 November page 94
124. See chapter 40 paras 11 and 14ff
125. FI_0152 para 67 Inquiry Witness Statement of Mrs Tierney
126. FI_0136 para 23 Inquiry Witness Statement of Mr Chamberlain
127. Mr Chamberlain 18 November pages 56-57
128. Mr Nelson 13 November pages 29-30
129. See para 20 above
130. CO_4109
131. See e.g. FI_0193 para 145 Inquiry Witness Statement of Mr McGinnies.
132. Scottish Statutory Instrument 2011 No 146. HMSO, 2011
133. CO_4428 pdf page 2
134. SG_0375 paras 6.10.2, 8.1.9, 8.1.10 and 8.16.3
135. SG_0522 para 13.7.38 and pdf page 124
136. SG_0522 para 13.12.17
137. FI_0193 para 145 Inquiry Witness Statement of Mr McGinnies
138. Mr McGinnies 4 November pages 157-158
139. Mr Pattison 13 November pages 176-180
140. See chapters 10 and 11
141. See chapter 27 para 17ff
142. See chapter 27 para 39ff
143. Mrs Redgewell 24 November pages 128-129
144. Professor Champod 25 November page 53
145. Mr Pugh 24 November pages 127-128
146. See chapter 19 para 48
147. Mr Graham 9 July pages 84-90
148. FI_0149 para 11 Inquiry Witness Statement of Mr Swann
149. See chapter 19
150. See chapter 27 para 26
151. See chapter 27
152. Mr Pugh 24 November pages 127-128
153. See chapter 19
154. Mr Pugh 24 November pages 127-128 See chapter 19
155. See chapter 19 and Mr Wertheim 24 September page 37ff
156. Mr Logan 16 November pages 90-93
157. See chapter 19 paras 40 and 41
158. See chapter 19 para 38ff
159. Mrs Tierney 12 November pages 199-200
160. Mrs Tierney 12 November pages 199-200
161. MP_0008 pdf page 30
162. See above
163. Lord Justice General (2005) High Court of Justiciary Practice Notes No 1 of 2005 Preliminary Hearings, URL:
http://www.scotcourts.gov.uk/justiciary/practicenotes/pn01_2005.pdf
164. Mr Pattison 13 November pages 131-136
165. Mr Pattison 17 November page 85
166. Mr Grigg 29 September page 11
167. Mr McGinnies 4 November pages 85-86
168. Mrs Redgewell 24 November page 131
169. Mr McGinnies 4 November page 87
170. Mrs Redgewell 24 November pages 131-132
171. Mr Pattison 17 November page 7 and Mr McGinnies 4 November pages 85-86
172. Mr McGinnies 4 November pages 86-87
173. Mr McGinnies 4 November page 88
174. FI_0152 paras 63-64 Inquiry Witness Statement of Mrs Tierney
175. Mr Pattison 17 November pages 7-9
176. See para 83 above
177. [2011] EWCA Crim 1296, paras 61-62
178. Chapter 26 para 52ff
179. Chapter 26 para 61ff