Back to the Scottish Parliament Justice 1 Committee Report - Inquiry into the Scottish Criminal Record Office and Scottish Fingerprint Service
Archive Home

Business Bulletin 1999-2011

Minutes of Proceedings 1999-2011

Journal of Parliamentary Proceedings Sessions 1 & 2

Committees Sessions 1, 2 & 3

Annual reports

   
Volume 1 Volume 2 Volume 3 Contents Previous Next

Guide to the FINGERPRINT identification and verification process

Inquiry into the Scottish Criminal Record Office and Scottish Fingerprint Service

Fig. Fingerprint characteristics

Fingerprint characteristics are features on the friction ridges of the skin.  These ridges are formed during development in the womb and remain the same throughout a person's life and for a time after death.  Only damage to the skin which penetrates through the outer skin layer, the epidermis, to the inner layer, the dermis, will cause scarring which will permanently alter the ridge alignment.

Friction ridges form patterns in distinct main types, e.g. whorl, loop or arch, which allows for classification under these types. The ridges are not continuous lines but may, for example:

  • end (ridge ending);
  • split into two ridges or two ridges combine to form one (bifurcations);
  • be a very short ridge (island); or
  • split into two and a short distance thereafter re-form into one ridge (lake). 

In addition the ridges themselves may be a particular shape, thickness or hold distinctive pores. 

Every fingerprint will contain some of these ridge characteristics.  However, it is the sequence in which these characteristics appear which makes each fingerprint unique.

Identification process

When a fingerprint is found at a scene of crime, the impression left by the owner is referred to as a ‘mark'.  A ‘print' is taken by the police from a person they suspect of committing a crime.  Such prints are normally referred to as ‘tenprints'. 

A fingerprint examiner will compare and evaluate the crime scene ‘mark' against the ‘print' to determine if they come from the same person.

The identification of a fingerprint is based upon the unique agreement of details between the unknown crime scene mark and the known print on a fingerprint form.  The information held within both the unknown mark and the known print is subjected to a process known as Analysis, Comparison, Evaluation and Verification (ACE-V).  

Analysis

The process of comparing fingerprints begins with the expert assessing the mark in question to determine whether it contains sufficient detail to make identification possible.  This includes an assessment of factors such as: the surface on which the mark was discovered; the substance it was made by (e.g. sweat from the person who left the mark, blood or oil); the method by which the scene of crime officer or laboratory technician recovered the mark to make it visible for identification; and any areas of distortion or movement caused by the way the mark was deposited as this can affect the appearance of the ridges.  

The fingerprint expert will then analyse the mark in more detail looking at the actual flow of the ridges to determine if there is any discernable pattern type.  The expert then considers any clues in the mark that may indicate which finger, thumb or area of palm could have left the impression.  Pattern and digit determination allow the expert to prioritise those fingerprints to be compared with the mark.  The expert will also look at the quality and clarity of the unique features and characteristics that are revealed in the print.  At the conclusion of the analysis stage the expert will have made a decision as to the suitability of the print for further examination.

Comparison

The second stage of the process is comparison.  Once the fingerprint expert has analysed the unknown mark and accumulated all the information possible it is then compared to a print on a fingerprint form.

Firstly the patterns are compared.  The overall fingerprint pattern does not have sufficient uniqueness to determine an identification.  The pattern only functions to narrow the number of possible donors.

If the patterns are found to be in agreement the comparison moves to the next level - the comparison of ridge characteristics.  The ridge features are examined to ascertain whether they are in the same position, in the same order and have the same relationship to each other (with none in disagreement) in both the mark and the print.  This is known as the coincident sequence.

If any unaccountable disagreement is found the identity cannot be established and the known print will be discounted from the comparison process.

However, if the initial sequences agree in both the mark and the print, the expert will proceed to compare the relative position and location of further characteristics in both, all the time looking for any disagreement in the sequence of characteristics.

The fingerprint expert will also be taking into account the unique features of the ridges themselves looking for agreement between any visible distinctive ridge edge shapes and minute detail.

This process will continue until the expert is satisfied that the comparison process is complete.

Evaluation

After comparing the unknown mark and the known print, the fingerprint expert will make his or her evaluation.  The expert will weigh up all of the information available as a result of the comparison process and determine whether there is unique agreement between the two to confirm identity beyond all reasonable doubt.

There are three possible conclusions of the identification process, namely—

  • Identity is established – the mark could only have been made by the person whose tenprint has been matched with it.
  • Not identified - the mark could not have been made by that person.
  • Unsuitable quality – the clarity of information visible in either the mark or tenprint is of too poor a quality to allow a conclusion to be made.

Prior to introduction of the non-numeric standard, one other conclusion could also be reached—

  • Partial or Insufficient Identification - the identification did not meet the sixteen point standard.

Verification

The next aspect of the identification process is the verification element.  This is an independent and complete analysis, comparison and evaluation of both mark and the print which is carried out by a minimum of a further two fingerprint experts.17 

The verification process is considered by fingerprint experts to be the key to the reliability of fingerprint evidence.  It demonstrates that the original conclusions are valid through consistent results from the different experts who have independently analysed, compared and evaluated the information available in both mark and print.

16 point standard

In 1953 the Home Office issued guidance on the standard for presentation of fingerprint evidence in court.  This guidance was commonly referred to as the ‘16 point standard’ as it required that in any fingerprint identification of a single mark there should exist 16 characteristics in sequence and agreement between the mark and the fingerprint impression against which it is matched. 

This ‘numeric’ standard applied to the presentation of evidence in courts across the United Kingdom until June 2001 when England & Wales adopted a ‘non-numeric’ standard.

Non-numeric standard

A non-numeric standard for fingerprint identification does not require a specific number of characteristics to be found before an identification can be presented as evidence in court.  Fingerprint experts continue to come to their conclusions of identity through a process of analysis, comparison, evaluation and verification of unique features visible in an unknown mark and a known print.  The key difference between a numeric and a non-numeric standard, in terms of court presentation of fingerprint evidence, is that an expert will be required to provide more detailed explanation of his or her conclusion on identity and the basis on which this conclusion has been made.

The non-numeric standard has been operated in several jurisdictions worldwide for a number of years.  In addition to England & Wales, these include: Canada; USA; parts of Australia; Norway; Latvia; Luxembourg; Switzerland; and Slovakia.

The Scottish Fingerprint Service introduced the non-numeric standard for fingerprint identifications on 4 September 2006.

At the time of its launch in Scotland, the Scottish Fingerprint Service set out what it considered to be the key benefits of the non numeric standard:

  • Fingerprint evidence will now be presented in court on every occasion where identity is established
  • The fingerprint expert will be able to offer a fuller explanation of how they arrived at their conclusion by discussing all the features revealed rather than simply focusing only on the number of points.  This will be more easily understood by the court and, where appropriate, the jury
  • The court will be able to consider all the information presented to it and make an informed decision on the identification
  • All fingerprint evidence will be presented across Scotland in a clear and consistent style of reporting agreed with the Crown Office and Procurator Fiscal Service.

Elimination

As part of the process of seeking to identify marks found during a criminal investigation, fingerprints are taken from people who have had legitimate access to the scene, or who may have legitimately handled evidence.  These are commonly referred to as elimination prints. 

The purpose of obtaining such prints is to eliminate as many crime scene marks as possible in order that the marks that are not eliminated assume a greater significance due to an increased likelihood that they might have been made by the perpetrator of the crime.

Section 2: Mark Y7

Introduction

62. This section of the report deals with the issues that have arisen around mark Y7 (the mark which was alleged to have been made by Shirley McKie).

63. The first element of this section of the report provides an account of how mark Y7 was identified as belonging to Ms McKie by the SCRO Fingerprint Bureau.

64. The second element of this section of the report discusses a number of the areas of dispute which exist between those individuals who contend that mark Y7 was correctly identified and those individuals who contend that it was misidentified. 

65. The third element of this section of the report provides an account of the civil action raised by Ms McKie and the out-of-court settlement which was reached with the Scottish Ministers.

66. In the final element of this section of the report, the Committee gives its views on what conclusions can be drawn from the controversy that has surrounded the status of mark Y7.

SCRO consideration of mark Y7

67. Discussed below is the process by which mark Y7 was identified and then verified by fingerprint experts at the SCRO Fingerprint Bureau.

Identification and verification as part of the Marion Ross case

68. The SCRO Fingerprint Bureau received 428 lifted and photographed marks in relation to the Marion Ross case.  Two of the Bureau’s fingerprint officers, Hugh Macpherson and Alister Geddes, visited the crime scene to view the marks in their original location.  They also visited Kilmarnock Police Station in order to obtain the list of police officers with legitimate access to the locus of the crime scene. Shirley McKie’s name was on that list.18 The Committee understands that the SCRO fingerprint officers had to request a further set of elimination prints for Shirley McKie as they did not have her prints filed in the database of police officers’ prints held at SCRO.

69. Hugh Macpherson eliminated mark Y7 when he identified it as the left thumbprint of Shirley McKie. In so doing, he took the decision to apply the 16 point standard to the identification. Alister Geddes was next to consider the mark.  In the course of his written submission, Alister Geddes explained to the Committee the process by which he eliminated mark Y7 to the left thumbprint of Shirley McKie—

“At some point Hugh Macpherson requested that I carry out a verification of a scene of crime mark that he had eliminated.  The eliminated mark was Y7 and the suspected donor was a police officer.  I received a photograph of the mark Y7 actual size and the elimination form of Detective Constable Shirley Cardwell or McKie. I carried out my comparison and I was happy to eliminate Y7 as that of the left thumb of Miss McKie.  I returned the articles to Mr Macpherson and informed him of my verification.”19

70. In the course of Arie Zeelenberg’s report of January 2006, he suggested that Alister Geddes had doubts about the identification of mark Y7.20  In his written submission Alister Geddes confirmed that he eliminated mark Y7 to Shirley McKie, finding 10 points in sequence and agreement.  He refuted Arie Zeelenberg’s allegation that he was unconvinced—

“I was categorically stating that Y7 was identical to the left thumb of Shirley McKie. I was eliminating Y7 from the enquiry as I had confirmed ownership of said mark.  At no point in the procedure was any doubt ever expressed by myself on the identification of Y7 as the left thumb of Miss McKie.”21

71. While Alister Geddes concurred with Hugh Macpherson that mark Y7 matched the left thumbprint of Shirley McKie and was able to ‘eliminate it’, he could not find 16 points in sequence and agreement.

72. Alister Geddes explained that he focussed his consideration of mark Y7 on the bottom part of the mark.  He informed the Committee that he was of the view that there was “severe movement” in the mark, and that, as a consequence, he was unable to work from the bottom to the top of the mark.22  He explained to the Committee that although there was detail in the top part of the mark it was out of sequence with what he had achieved in the bottom part of the mark.23

73. Alister Geddes also explained that the tenprint of Shirley McKie’s left thumb from which he was working did not have sufficient detail at the top to allow him to carry out a full comparison with the top part of mark Y7.24  

74. Alister Geddes explained to the Committee that Hugh Macpherson had sought to demonstrate to him where he could find the additional characteristics, but that he could not see them.25

75. However, Alister Geddes indicated that no pressure was placed on him to find 16 points and that as he was unable to find 16 points Hugh Macpherson sought to find others who could meet the 16 point standard.26

76. Charles Stewart, Fiona McBride and Anthony McKenna were then, in turn, invited by Hugh Macpherson to consider the mark.27

77. According to Hugh Macpherson’s written submission, all three found 16 points of similarity between the mark and the left thumbprint of Shirley McKie.28

78. It would appear that, like Alister Geddes, the focus of these three experts’ consideration was also on the lower part of the mark.  Charles Stewart suggested to the Committee that it was not uncommon to have insufficient detail to enable consideration of the top part of a mark—

“…I have never had a fingerprint form that has been taken high enough to the top of thumb to allow me to fully compare the top of the thumb to see whether it is continuous with the lower part.  It could be continuous; it could be that there is slight pressure distortion because the thumb has been put down twice.”29

79. On 11 February 1997, after Charles Stewart, Fiona McBride and Anthony McKenna verified his identification of the mark, Hugh Macpherson contacted the Senior Investigating Officer and informed him that mark Y7 had been identified as matching the left thumbprint of Shirley McKie.30

80. According to Chief Inspector William O’Neill, Head of the Fingerprint Bureau in 1997, on 17 February 1997 he was called by the Deputy Divisional Commander at Kilmarnock.  In his written submission William O’Neill stated that the Deputy Divisional Commander called to request that the mark be re-checked and that this should be done in the presence of Shirley McKie.  William O’Neill intimated that Iain McKie (father of Shirley McKie) was with the Deputy Divisional Commander at the time of the call.  He stated that he was pressured by the Deputy Divisional Commander into accepting the request to re-examine the mark in the presence of Shirley McKie—

“I was told by him that the request had come from the highest authority. As the Deputy Divisional Commander in Kilmarnock was of a higher rank than me, and insisted, I reluctantly agreed.”31

81. On 17 February 1997, Robert Mackenzie, the Deputy Head of the Bureau, and Alan Dunbar, the Quality Assurance and Training Manager, re-examined mark Y7 at the request of William O’Neill.  They eliminated mark Y7 as the left thumbprint of Shirley McKie. 32

82. Again on 17 February 1997, as a further check, William O’Neill instructed Alan Dunbar to facilitate what has become known as the ‘blind test’.  Some of the officers working the late shift that day were enlisted by Alan Dunbar to undertake a ‘blind test’.  In the averments provided by Shirley McKie’s solicitors informing her action against Scottish Ministers, it was suggested that Greg Padden, Jean McClure, Terry Foley and Edward Bruce took part in the blind test.33  Other evidence presented to the Committee made reference only to Terry Foley and Edward Bruce.  However, It should be noted that when, years later, John MacLeod examined this matter, the Scottish Executive provided him with precognition statements from Jean McClure and Greg Padden to inform his consideration of the mark.34   The Committee obtained written responses from Greg Padden and Jean McClure confirming their involvement in the blind test (see paragraphs 251 – 254).

83. In his written submission to the Committee Terry Foley stated that he was asked by Alan Dunbar to eliminate the print as having been made by the left thumbprint.35

84. Terry Foley stated that he eliminated the mark finding 10 points in agreement between mark Y7 and the left thumbprint. Edward Bruce also eliminated the mark. It should be noted that Terry Foley does not suggest at this juncture, that he or his colleagues were aware that the left thumbprint belonged to Shirley McKie.36

85. However, according to the averments provided by Shirley McKie’s solicitors, neither Jean McClure nor Greg Padden were able to reach a conclusion and could not confirm whether or not the mark was a match for the left thumbprint. This was confirmed by both Jean McClure and Greg Padden in correspondence to the Committee.37

86. On 18 February 1997 Hugh Ferry, the Head of the SCRO, contacted the Deputy Divisional Commander at Kilmarnock and advised him that, further to his conversation with William O’Neill, the mark would be re-examined, but that Shirley McKie was not to be in attendance during this process.38

87. According to Robert Mackenzie he was called into Hugh Ferry’s office and advised that an officer’s ‘career was at stake’ and that he had ‘better be correct’ in his identification. 39

88. Following the decision to re-examine the mark, a new set of tenprints were taken from Shirley McKie and the mark was re-photographed. Again according to Robert Mackenzie’s precognition, on the morning of 18 February 1997 a further six fingerprint officers, including Robert Mackenzie, Alan Dunbar and David Halliday, re-examined mark Y7. They all eliminated the mark, but not to the 16 point standard. Robert Mackenzie informed Hugh Ferry of these findings.40

89. The next SCRO involvement with mark Y7 was in the preparation of the material for David Asbury’s trial for the murder of Marion Ross. Charles Stewart and Hugh Macpherson gave evidence at David Asbury’s trial. In his written submission, Charles Stewart informed the Committee of what he had been asked to prepare—

“The evidence preparation was unusual in that we had to produce reports and evidence books for everything in the case. This included producing all the insufficient, unidentified and identified marks, which was not something the Procurator Fiscal normally requested. Again, unusually, we also had to produce illustrations for all those persons we had identified marks for against their elimination fingerprint forms.”41

Identification and verification following the David Asbury trial

90. Following the conclusion of David Asbury’s trial and the subsequent decision to charge Shirley McKie with perjury, SCRO fingerprint officers were invited by the Procurator Fiscal to prepare material for the trial.42  Hugh Macpherson, Charles Stewart and Fiona McBride subsequently gave evidence at the perjury trial.

91. In his precognition to the Mackay inquiry (given to Tayside police officers on 13 July 2000), Robert Mackenzie noted that his next involvement and the next involvement of any of the SCRO officers was in August 1999 when he examined the enlargements which had been used by the SCRO officers at the perjury trial after they had been returned to the Bureau by the Procurator Fiscal. He suggested that the enlargements produced were of a poor quality due to the limitations of the SAGEM Charting Personal Computer. He suggested that the poor quality of the enlargements undermined the evidence given by the SCRO fingerprint officers in their court presentation at Shirley McKie’s perjury trial. 43

92. Robert Mackenzie also indicated that at this juncture he undertook a further comparison of the mark. Re-examining the mark, he now found 21 characteristics in sequence and agreement. On 7 February 2000, he presented this information to the SCRO Executive Committee.44

93. In his precognition statement, Robert Mackenzie stated that, in his opinion, the upper part of the mark was made up of several touches of the left thumb of Shirley Cardwell (McKie).45

94. On 15 August 2000, Robert Mackenzie and Alan Dunbar, made a presentation at the Scottish Police College, Tulliallan, on mark Y7 at a meeting facilitated by ACPOS.46 To undertake these presentations, Robert Mackenzie and Alan Dunbar gave further consideration to the mark. In his oral evidence to the Committee, Robert Mackenzie indicated that in the course of his presentation he focussed on the lower part of the mark and demonstrated to those in attendance that he could find 21 characteristics in sequence and agreement.47

95. The next and most recent consideration of the mark undertaken by the SCRO fingerprint officers was as part of the Executive’s defence in the civil case brought against it by Shirley McKie. Terry Foley was among those fingerprint officers invited to re-consider the mark. Terry Foley notes that he had never had any doubts about the elimination of mark Y7. He previously found 10 points in sequence and agreement but was now able to find 16 points—

“After examining the enlargements, the only change to my original conclusion, with a further 9 years experience to my credit, is that I now found 16 points characteristics in sequence and agreement.”48

What others have said about mark Y7

96. In an effort to understand the dispute which has arisen over the identification of mark Y7 the Committee sought evidence from fingerprint experts who supported the identification made by the SCRO officers and others who considered it to be a misidentification. 

97. Like the SCRO fingerprint officers, Peter Swann, John Berry and Malcolm Graham contended that mark Y7 was a match for the left thumbprint of Shirley McKie.  

98. In contrast, Pat Wertheim, Arie Zeelenberg, John MacLeod, Allan Bayle, Jim Aitken, Mike Thompson and John McGregor all contended that it was a misidentification.  The Committee was told by Arie Zeelenberg that this position is one that is held by a significant number of other fingerprint experts worldwide.49 However, these were the experts who presented evidence to the Committee and as such it is their opinions that have informed the Committee’s consideration of this matter.

99. The Committee also notes that a number of senior figures within the Scottish Criminal Justice system and Scottish Ministers are of the view that it was a misidentification.

100. On 21 June 2000, William Taylor, HM Chief Inspector of Constabulary, held a meeting with Office Bearers from ACPOS and outlined the preliminary findings of his Inspection of the SCRO Fingerprint Bureau.  In particular, he advised that the disputed fingerprint in the Shirley McKie case had been examined, at his request, by Arie Zeelenberg and Torger Rudrud, two senior police fingerprint experts from the Netherlands and Norway respectively.  These experts had independently concluded that mark Y7 had definitely not been made by Shirley McKie.50

101. In advance of the publication in September 2000 of the formal report by HMIC, Sir William Rae, then incoming President of ACPOS, met with the McKie family and personally apologised for the trauma and distress suffered as a consequence of the misidentification of the fingerprint mark.51

102. The Minister for Justice, Cathy Jamieson MSP, advised the Committee that the Scottish Executive’s position is that it was a misidentification. She confirmed to the Committee that it was on this basis that the Scottish Executive moved to settle with Shirley McKie.52 Scottish Ministers did not, however, make a public statement about the misidentification until after the settlement of the civil case in February 2006.

103. After the settlement had been reached with Shirley McKie, the First Minister Jack McConnell MSP made a statement to the Parliament about the misidentification—

“In this case, it is quite clear—and this was accepted in the settlement that was announced on Tuesday—that an honest mistake was made by individuals.”53

104. Lastly, David Mulhern, Chief Executive of the Scottish Police Services Authority, in the introduction to his Action Plan for the Scottish Fingerprint Service refers to mark Y7 as a misidentification.

Mark y7: areas of dispute

105. The second element of this section of the report discusses a number of the areas of dispute which exist between those individuals who contend that mark Y7 was correctly identified and those individuals who contend that it was misidentified.  The Committee gives consideration to the following areas of dispute—

  • the debate about the characteristics of mark Y7;
  • the analysis of mark Y7;
  • procedures used by SCRO fingerprint officers in the identification and verification of mark Y7; and
  • the professional competence of the SCRO fingerprint officers in relation to mark Y7. 

106. The Committee was aware that there was a great deal of disagreement on these issues between the SCRO fingerprint officers and other fingerprint experts from whom the Committee has taken evidence. Set out below are the various arguments put to the Committee on these issues and the conclusions the Committee has been able to draw.

The debate about the characteristics of mark Y7

107. In the course of the inquiry, the Committee quickly became aware that there was a considerable degree of dispute amongst fingerprint experts around the characteristics of mark Y7. This included issues such as whether it was a complex mark, how it was made and whether it was a right or left thumb that made mark Y7.

Is it a complex mark?

108. In the course of evidence taking the Committee heard contrasting views as to whether or not mark Y7 is complex.

109. In stating that a mark is complex, as opposed to simple, fingerprint experts are establishing that the mark in question is difficult to consider and to draw conclusions upon.

110. Alister Geddes stated in evidence to the Committee that it is a complex mark.54  Other SCRO fingerprint officers shared this view.55

111. Peter Swann and John Berry were also of the view that it is a complex mark.  John Berry told the Committee that he had had to devote considerable time to the mark due to its complexity.56

112. John MacLeod also told the Committee that it was ‘very complex’. 57

113. However, this opinion was not shared by all of the fingerprint experts who have considered the mark.  In response to Members questioning, Pat Wertheim confirmed that he had been able to establish within 60 to 90 seconds that there were dissimilarities between mark Y7 and the left thumbprint of Shirley McKie.  As such he did not consider it a complex mark—

“It is one touch, down and off. It does not involve the slipping, twisting, smearing and multiple touches that have been represented by some. There are obvious, glaring dissimilarities.”58

Committee’s comments on the complexity of the mark

114. The Committee notes the level of disagreement between the various fingerprint experts on this matter.  It is particularly noteworthy that the dividing lines are not drawn neatly between those individuals who consider that a correct identification was made and those who do not. The Committee considers it worrying that such variation in interpretation should exist.

115. The Committee considers that opinions on the relative complexity of the mark to a large extent turn on the experts’ view of how the mark was made. The Committee next explores how the mark was made.

How was the mark made

116. A variety of different theories have been proposed to the Committee to explain how the mark was made.

117. Arie Zeelenberg suggested that the mark was made by one finger with the top placed first with high pressure and the rest of the finger placed next with less pressure. He explained this theory to the Committee—

“We must keep in mind that the fingerprint was found in isolation, in an uncommon location—not in a shop or on a door handle. There are a limited number of users or donors, and the chance of an indiscernible double placing is remote. The properties do not indicate that there is a double setting, because the lines never cross. If we look at the properties and phenomena, we see that there is a high tip, with pressure—the broader lines tell you that—and the collar is darker. Everything indicates that there is pressure. The downward bend of the ridges also shows that there is pressure from the tip downwards.”59

118. Pat Wertheim was similarly minded. However, he discerned a degree of twisting—

“I determined that it was made by the area of the finger above the core or centre of the pattern—in other words, the top part of the finger tip—and that it was twisted slightly to the right.”60

119. John MacLeod also discerned a degree of twisting in the mark—

‘Almost certainly the same thumb made a mark in two parts, by twisting. The tip of the thumb might have touched the wooden frame first and then slid round this way, or it might have happened the other way round—the thumb might have touched the wood and slid that way.’61

120. Hugh Macpherson noted there was twisting in the top part of the mark—

“As I think I have explained, in my view there is a definite twisting of the print. For me, above the area of subtle movement there are characteristics that I believe validate the impression. It looks as though the finger was put down and twisted and turned.”62

121. Alister Geddes also discerned twisting in the mark—

“The assessment that I made at the time was that the mark had been placed on the doorframe tip first, that it had been twisted and that the bottom part of the finger had then been placed on the doorframe. Both parts of the mark were made by a single touch, albeit that they were made at different times.”63

122. According to Robert Mackenzie’s precognition statement the top part of the mark represented several touches.64 Robert Mackenzie along with Alan Dunbar presented his views on the mark at Tulliallan.

123. Arie Zeelenberg questioned the credibility of the theory proposed by Robert Mackenzie. He suggested in his report of January 2006 that if the theory proposed by the SCRO fingerprint officers at Tulliallan was correct, then Shirley McKie would have had to place her fingerprint five times in exactly the same place.65

124. In terms of evidence from other SCRO fingerprint officers, Charles Stewart gave his view on  how the mark was made—

“During the comparison process I was very wary because I could see a lot of pressure where the bone is at the top of the finger.  That amount of pressure usually means that there is a possibility that the finger came off the surface and was put down again at some point.  I cannot say definitely whether that happened, because I was unable to compare the top of the impression against the fingerprint form, which is the only way of saying whether the fingerprint was continuous.”66

125. iona McBride was unable to provide an explanation of how the mark was made—

‘Without being present when the mark was laid down, I cannot say whether the thumb was put down and moved one way, put down and moved another way or put down twice. I just know that it is Shirley McKie's print.’67

126. I n the course of John Berry’s consideration of mark Y7, he developed a particular theory on how the mark had been made. He explained to the Committee how, in comparing the mark with a rolled impression of Shirley McKie’s left thumbprint reproduced in the Daily Mail on 24 October 2004, he had discerned a 66 degree anticlockwise movement in the mark—

“The impression was magnificent, crisp and clean.  On the right-hand side, in all its glory, was my Rosetta characteristic.  I drew a line from the Rosetta characteristic on the scene mark to the top of the core and found that there was a 66° distortion, which I have rarely come across.  At that point, I had to transfer through 66° the Daily Mail image of Shirley McKie's thumb print until the Rosetta characteristic was vertically and horizontally in the same place. It was difficult to do that but, once I had done it, I was able to state unequivocally that it was made by Shirley McKie.’68

127. John Berry explained to the Committee what he meant by the ‘Rosetta characteristic’—

“I discovered a characteristic that I thought was very important. It was a bifurcation, which is rather like a set of points on a railway line. Normally, the bifurcation is about 170°—in other words, it is a little less than horizontal. The characteristic that I discovered—which I termed the Rosetta characteristic—was 130°, with a dot next to it.”69

128. Peter Swann concurred with this theory. He explained to the Committee that by rotating the impression of Shirley McKie’s left thumbprint taken from the Daily Mail by approximately 66 degrees anticlockwise he was able to discern characteristics in sequence and agreement with mark Y7.70

129. Arie Zeelenberg was not convinced by John Berry’s theory—

“What happens if we rotate a print by 66°? We might find some similarities—I do not know either way—but other similarities will be off, as in the slides. Mr Kasey Wertheim, a forensic scientist, carried out a study in 2004. He made a map of the whole thumb of Shirley McKie. He drew all the points, and tried to rotate the map as much as he could. However, the cluster of minutiae in the latent, as shown in the map on the slide before you, are not there—not at 66° and not at 90°.”71

130. Pat Wertheim was similarly unconvinced by this theory. He suggested to the Committee that if there had been this degree of movement then there would have to be some degree of smudging. He could not find any such smudging in the mark and as such could not believe that such movement had occurred.72

131. Both Arie Zeelenberg and Mike Thompson also highlighted the lack of smudging or distortion as reason to doubt the probability of John Berry and Peter Swann’s theory. Mike Thompson told the Committee—

“If your finger is in contact with a surface and you rotate it by 66°, it would not take too much understanding to appreciate that the print would be smudged.”73

Committee’s comments on how the mark was made

132. The Committee heard a number of theories as to how mark Y7 was made.  The Committee notes the extent of disagreement between the various fingerprint experts on this matter.

133. The Committee also notes the widely differing styles adopted in the various explanations and presentations given as to how the mark was made.

134. The Committee’s view is that Arie Zeelenberg’s explanation (that the mark was a single touch, placed tip first with pressure downwards) was comprehensive and detailed.  The Committee notes that Alister Geddes and Hugh Macpherson also indicated that it was a single touch.  However, the Committee notes that both Mr Geddes and Mr Macpherson reached a different conclusion to Mr Zeelenberg on mark Y7.

135. The Committee’s view is that Robert Mackenzie’s theory, (that the mark represented several touches) as expressed in his precognition to James Mackay, lacks detail.  However, the Committee recognises that it did not press him further on this theory when he appeared before the Committee.

136. Most of the experts discerned an element of twisting in the mark.  John Berry and Peter Swann, however, put forward a distinct theory about the level of twisting, suggesting that the mark had undergone a 66 degree anticlockwise movement.  The Committee notes that Pat Wertheim was sceptical about this theory, particularly in relation to the lack of smudging of the mark which he said he would have expected to find in a mark with this degree of movement.  The Committee also noted that both Arie Zeelenberg and Mike Thompson did not accept the theory in light of the lack of smudging in the mark.

137. While the Committee recognises the clarity of the evidence given by Mr Berry and Mr Swann, the Committee considers that they did not fully substantiate their theory.  In particular, they did not offer an explanation as to how this degree of movement could occur without any evidence of smudging or discontinuity.  It would have assisted the Committee’s understanding of their theory if they had offered further explanation.

Left or right thumbprint

138. The Committee has been presented with differing views on whether mark Y7 was made by a left or right thumb.

139. By matching mark Y7 to Shirley McKie’s left thumbprint, the SCRO fingerprint officers, Peter Swann and John Berry clearly consider it can only have been made by Ms McKie’s left thumb.  

140. However, in the course of the minute of the Tulliallan meeting it was noted that Robert Mackenzie and Alan Dunbar, who were of the view that mark Y7 was made by a left thumb, accepted that if the mark was made by a single finger impression then it was “more likely to be that of a right thumb and not that of Shirley McKie.”74

141. Malcolm Graham, in his first report to Mackintosh & Wylie, David Asbury’s solicitors, for whom he was acting, stated that it was a right thumbprint.  However, it should be noted that Malcolm Graham wrote to the Committee in order to advise them that this was merely a clerical error and that he provided an additional report to Mackintosh & Wylie in which he made it clear it was, in his opinion, a left thumbprint.75

142. Looking at the top part of mark Y7, Arie Zeelenberg discerned qualities, which suggested to him, that it was made by a right thumbprint—

“Although the top is of bad quality it is noticeable that some lines coming from the left side stop (D2/3, E3. F5ab).  This is an indication that the lines ‘fan out’ on the tip at the left side.  The dominant direction of the lines in the tip (CDE2) is slanted to the right.  Those are properties that very strongly indicate a mark coming from a right thumb.”76

143. In Pat Wertheim’s report on the mark, dated 26 May 2000, he too suggested that it was a mark made by a right thumb—

“In considering pattern variances between the right and left hands, and variances between thumbs and other fingers, an analysis of UC01050197 Y7 leads to the conclusion that the mark was most likely made by a right thumb.”77

144. In John MacLeod’s opinion, mark Y7 was made by a right thumb, however, he did not discount that it could possibly have been made by a left thumb. If it had been made by Shirley McKie, John MacLeod was clear that it could only have been made by her left thumb.78

Committee’s comments on whether it was a left or right thumbprint

145. On the basis of the evidence given to the Committee, it is clear that there is a split among the experts about whether mark Y7 was made by a left thumb or a right thumb.  Those experts who believe the mark was made by Ms McKie clearly consider it to be a left thumbprint. Some experts who consider that mark Y7 was made by multiple touches of Ms McKie’s left thumb have recognised that if the mark was made by a single touch then it was more likely to have been made by a right thumb. However, those experts who do not believe mark Y7 was made by Shirley McKie consider that it is more likely that the mark was made by a right thumb.

146. The Committee considers that the issue as to whether the impression was made by a left or right thumb is fundamental to the analysis of mark Y7.

147. The Committee finds it disturbing that a considerable dispute should exist between fingerprint experts on an issue that might, to outsiders, appear to be relatively straightforward.

The analysis of mark Y7

148. The Committee considers below the basis on which both the SCRO fingerprint officers and the other fingerprint experts drew their conclusions on mark Y7

The analysis of the lower part of mark Y7

149. From the evidence received, the focus of all of the SCRO fingerprint officers’ consideration of mark Y7 was the lower part of the mark. On the basis of the information contained within this part of the mark, all of the SCRO fingerprint officers involved in the original identification were able to find sufficient characteristics in sequence and agreement to eliminate the mark to Shirley McKie.

150. Like the SCRO fingerprint officers, Peter Swann based his identification of mark Y7 on the lower part of the mark. In his written submission to the Committee he explained that his first consideration was undertaken at the request of Shirley McKie’s solicitors. A further description of this process is incorporated in the timeline. In his report on the mark to Shirley McKie’s solicitors, dated 16 March 1999, Peter Swann identified 16 points in sequence and agreement in the lower part of the mark. 79

151. Following Shirley’s McKie’s acquittal Peter Swann re-examined mark Y7—

“I was able to obtain a photograph of Exhibit Y7 and to check it again. However, my view remained unchanged: Exhibit Y7 was the left thumbprint of Shirley McKie. I obtained some excellent copies of the Fingerprint Evidence and spent some very considerable time undertaking re-examination and preparing a Comparison Chart. At that stage, I prepared a Comparison Chart on Exhibit Y7 evidencing 21 ridge characteristics in sequence and agreement with the left thumbprint of Shirley McKie.” 80

He continued—

“there were in excess of 20 ridge characteristics in sequence and agreement in the area below, so as to fully satisfy me as to the identification.”81

152. Pat Wertheim told the Committee that at Shirley McKie’s perjury trial he conceded that 5 points in the lower part of the mark could be similar. However, he explained to the Committee that, on further inspection, it was apparent that these points were not in agreement—

“At Shirley McKie's trial, I conceded for point of argument to five points in the middle that could conceivably be considered to match. I do not remember the numbers that they were given on production 189. However, under close inspection, even those five do not match. It does not take an expert long to see that the ridge counts are off. There are two ridges between the points, but on the other prints there are three ridges between them. There is a ridge ending on the left-hand side of a ridge in the latent print and it falls on the right-hand side of the ridge in the ink print. Those are glaring dissimilarities.”82

153. Arie Zeelenberg also discerned differences in the lower part of the mark. In his and Torger Rudrud’s report to HMIC William Taylor in 2000, they assessed the lower part of the mark. They suggested that in the lower part of the mark there was a significant difference between mark Y7 and Shirley McKie’s left thumbprint—

“The opposing directions of the lines next to the core and the diversion of them are strong indications of a high delta and also that this could very well be a (supposedly small) whorl pattern.

The comparison print from McKie is a high left loop.

If our assumptions and conclusions are right then this would disqualify the left thumb print from McKie as a comparison print for the lower part of the latent too.”83

154. In the report Zeelenberg and Rudrud went on to find at least 9 points in the lower part of the mark that were present in one print and absent in the other. They stressed any one of these differences would be enough to rule out the possibility of the latent matching the comparison print.84

Committee’s comments on the analysis of the lower part of mark Y7

155. It is worth noting the polarized nature of the views held on the lower part of the mark.  It appears extraordinary to the Committee that one expert could find 21 characteristics in agreement and none in disagreement in the lower part of the mark while another expert could find not one in agreement and nine in disagreement in the same part of the mark.

The analysis of the top part of mark Y7

156. The SCRO fingerprint officers’ elimination of the mark was based entirely on the lower part of the mark. Both Alister Geddes and Charles Stewart explained to the Committee that the print of Shirley McKie’s left thumb had not been taken sufficiently high enough to enable them to compare it against the top part of mark Y7. Charles Stewart explained to the Committee it was not an uncommon phenomenon to have an incomplete fingerprint form—

“Again, I have never had a fingerprint form that has been taken high enough to the top of thumb to allow me to fully compare the top of the thumb to see whether it is continuous with the lower part. It could be continuous; it could be that there is slight pressure distortion because the thumb has been put down twice.”85

157. Charles Stewart provided further explanation to the Committee on this issue—

“It depends on the quality of the fingerprint form that we are comparing the mark against. If the fingerprint form is not well taken, there may be certain areas on the scene-of-crime impression that we cannot compare against the fingerprint form because that area does not physically appear on the fingerprint form. We can compare only what we have against the form that we have. Quite often, we say, "Well, that appears to be him, but we would need another form to allow us to make a fuller decision," or "We cannot give you an answer just now because of the quality of that form—we need a good quality form to allow us to offer any opinion to you." We can compare only what we have against the forms that we have, and I seem to remember that I could not compare the top of fingerprint Y7 against the fingerprint form that we had because the form was not taken well enough in that area. I do not know whether that helps the committee, but it could explain why other people think that there is dissimilarity. To my mind, I could not fully compare that fingerprint against the form because all the areas that I required were not showing on the fingerprint form.”86

158. Charles Stewart suggested that when there are a certain number of characteristics in sequence, as he considered there to be in his comparison of mark Y7 and Shirley McKie’s left thumbprint, it is likely the rest will be in sequence.87

159. Peter Swann was similarly minded. In his written submission to the Committee he noted that before John Berry informed him of the 66 degree anticlockwise movement in the mark he found differences in the top of the mark that he was unable to explain. Regardless of this he was sure that it was Shirley McKie’s left thumbprint—

“I had 21 in agreement on the chart that I prepared. I accept that five or six at the top were in disagreement. I knew that it was an identification irrespective of what I saw at the top because of what I saw lower down. I knew that there would be a reason for what I saw at the top, but I did not know what it was at the time.”88

160. Peter Swann told the Committee that finding a characteristic in disagreement did not necessarily preclude an identification—

“I know what the guideline says: 16 characteristics in agreement with none in disagreement. That has been in place since 1953. In practice, however, experts find characteristics that appear to be in disagreement for which there is some explanation. That often happens. The first chart that I prepared for mark Y7 contained 21 characteristics in agreement. There were some at the top that, at that time, I could not explain, although I explained them later when I got a proper rolled impression of Shirley McKie's print. At that time, I knew that, because there were so many characteristics in agreement—21—it was an identification, irrespective of what we saw at the top, which was difficult to assess until we got the right rolled impression.”89

161. In evidence to the Committee on 26 April Arie Zeelenberg explained his approach to the process of identification and how discrepancies should be treated—

“Identification is the establishment by an expert of sufficient coinciding coherent characteristics in sequence—the sequence is what is important—in combination with the detail of the ridges and the absence of even one single discrepancy.  One single discrepancy stops the identification process.” 90

162. In written evidence, Arie Zeelenberg provided further detail on his approach—

“Any difference in location and in presence or absence of points means a red flag.  A difference in location may be explainable but an expert will now be alerted and start looking for more differences and check the supposed similarities even more vigorously.”91

Committee’s comments on the analysis of the top part of mark Y7

163. The Committee notes that it was common for SCRO to receive tenprints with limited detail in the tip of fingerprints and appreciates the difficulty in attaining this detail.  In the case of mark Y7, the Committee acknowledges that the SCRO fingerprint officers felt able to undertake consideration of the mark without having an impression which showed the full detail of the top part of the left thumbprint of Shirley McKie.

164. The Committee notes that both Peter Swann and Charles Stewart stated that although there were ‘unexplained’ differences in the top part of the mark, these differences could be disregarded due to the fact that there were sufficient characteristics in sequence and agreement in the lower part of the mark.

165. The Committee contrasts this approach with that taken by Arie Zeelenberg who was of the clear view that one single unexplained discrepancy would stop the identification process.

Committee’s assessment of the experts’ analysis

166. On 7 June 2006 both Arie Zeelenberg and Peter Swann were invited to give presentations to the Committee setting out their respective assessments of mark Y7 and the comparison of the mark with Shirley McKie’s left thumbprint.

167. In the course of this presentation Arie Zeelenberg identified to the Committee at least 20 discrepancies between mark Y7 and Shirley McKie’s print.  He told the Committee that there were numerous differences in ridge detail and that in his opinion there were invented points marked up by the SCRO.92

168. At the same meeting, Peter Swann presented a diametrically opposing assessment of mark Y7. He suggested that having taken account of the 66 degree anticlockwise movement, between himself and John Berry they were able to identify 32 ridge characteristics in agreement. 93

169. John MacLeod was commissioned to provide two reports to the Scottish Executive on his findings on mark Y7. These were intended to inform the Executive’s defence of Ms McKie’s damages action. In the first report he noted four differences between mark Y7 and Shirley McKie’s left thumbprint. Having been asked to consider the findings of the SCRO in more detail in order to give his opinion on the degree of error made in identification, in the second report he discerned 15 differences and he concluded that they did not match.

170. Assessing the overall positions taken by the fingerprint experts on mark Y7, the Committee is incredulous that Arie Zeelenberg could find no ridge characteristics in agreement and 20 in disagreement and John MacLeod could find one in agreement and 15 in disagreement and yet John Berry and Peter Swann could find between them 32 in agreement and disagreement.

Factors cited to explain disagreement between experts

171. During the course of the inquiry, three factors were regularly cited as being a cause of the divergence in findings.  These factors all relate to the material used by different fingerprint experts to make a comparison.  

172. The factors cited as being a possible cause of the divergence in conclusions are—

  • use of a plain impression versus a rolled impression;
  • use of images obtained from the internet; and
  • use of a print published in the Daily Mail.

173. Peter Swann indicated that, in his opinion, the material used in the consideration of mark Y7 was critical—

“I know that the other people have got it wrong.  That might sound like rather a bold statement, but my reason for making it is simply that, in my opinion, people have not been using the correct material.”94

174. Set out below are the arguments presented by the fingerprint experts as to the importance of these factors, and why the Committee does not deem them to be of critical importance.

Use of a plain impression versus a rolled impression

175. Peter Swann explained to the Committee the importance, in his opinion, of using a rolled impression in order to capture the full area of ridge detail from a finger.95  He indicated that the best comparison for mark Y7 was with a rolled impression and that looking at the rolled impression he was able to see characteristics which were not present on plain impressions of Ms McKie’s left thumbprint.96

176. Charles Stewart supported the views of Peter Swann. He explained to the Committee what he considered to be the benefits of rolled impressions—

“A rolled impression shows perhaps 80 to 90 per cent of the surface area of the finger whereas a plain impression might show only 45 to 50 per cent. In some cases, a plain impression will give sufficient information to allow one to carry out a comparison and reach a conclusion, but on the whole one really requires the rolled impression because that shows much more of the finger. It shows the full picture.”97

177. John Berry also advocated the use of rolled impressions but described to the Committee the process by which he had been able to make an identification using a plain impression of Shirley McKie’s thumbprint obtained from the internet98

“I attempted to find the characteristic on the plain impression of Shirley McKie's thumbprint.  I spent a considerable amount of time working through the minefield of ridge detail.  After a long period, I found the Rosetta characteristic.  Unfortunately, instead of being like the side view of a 125 train, it was a sort of blob with a dot in it.  I knew that it was the Rosetta characteristic and that, without any doubt, the mark had been made by Shirley McKie.”99

178. Pat Wertheim explained that for comparison with mark Y7 there was no need to take rolled impressions. He explained to the Committee why he thought this was the case—

“Much has been made of the fact that I used plain impressions, not rolled impressions. The shape of a thumb tip is a complex surface. It is a curved surface, and a rolled impression reduces that complex curved surface to a square or rectangular flat image, which includes gross areas of distortion. Normally, rolled impressions are used for comparing with latent prints because the inked prints are taken before seeing the latent print. In this case, however, I had the advantage of having first seen the crime scene mark—the latent print—on the door frame. I could see that, if the print was of a left thumb, it must have been placed not flat against the door frame but slanted at a slight angle upward and canted just slightly to the right or clockwise, so the best inked impression to compare to that latent print was one that was taken in the same manner.”100

179. Pat Wertheim took between 80 and 100 plain impressions of the left thumbprint of Shirley McKie. He explained to the Committee the rationale for taking so many impressions—

“I took from Shirley McKie between 80 and 100 inked impressions of her left thumb to try to duplicate as closely as possible the direction and angle of touch in order to minimise the difference in distortion.”101

Committee’s comments on use of a plain versus a rolled impression

180. The Committee recognises that a rolled impression in most instances is preferable as it provides the expert with more ridge detail on which to make his or her comparison.

181. The Committee notes the points raised about the additional information captured from a print in a rolled impression.  However, this has to be balanced against the fact that SCRO fingerprint officers were apparently able to identify the mark without having an impression of the left thumbprint of Shirley McKie which showed the tip of the thumb.

182. The Committee notes that John Berry reached his initial identification of mark Y7 on the basis of comparison with a plain impression.  Pat Wertheim also relied upon plain impressions in reaching his conclusion that mark Y7 had not been made by Shirley McKie.

183. The Committee is of the opinion that the use of a rolled impression versus a plain impression cannot account for the divergence of expert findings on mark Y7.

Use of images obtained from the internet

184. Concerns were also raised about the use by some fingerprint experts of internet images of mark Y7 to reach a conclusion on whether or not it matched the left thumbprint of Shirley McKie.

185. Amongst others, Arie Zeelenberg made use of images of the mark and comparison prints taken from the website of Ed German.102 Arie Zeelenberg and Torger Rudrud had also examined two original one-to-one size photographs of mark Y7 and original inked fingerprint sheets from Shirley McKie at Fife Constabulary Headquarters in Glenrothes on Wednesday 14 June 2000.103  In the report prepared by Torger Rudrud and Arie Zeelenberg for HMIC they stated that there were “no principal differences between the photographic exposures from SCRO and the latent from Pat Wertheim as presented at the SCAFO site.” Rudrud and Zeelenberg concluded that there was “virtually no difference in the quality of the latent prints”.  However, they noted that in the images on the internet there were white lines running diagonally from the bottom right to the left middle of the mark which appeared to have been made after the original photographs had been taken but concluded that there was “no sign of substantial change of ridge information.”104

186. SCRO fingerprint officers did, however, raise concerns about the use of images of mark Y7 from the internet.  Robert Mackenzie suggested that when looking at the original photograph of the mark on 17 and 18 February 1997 he saw a fault line running through it, which was caused by pressure as the print was laid on the surface.  He suggested that there was a ‘brush mark’ through the image available on Ed German’s website, which obscured this fault line.  He considered that examining this image without the benefit of seeing the original material105 could lead to confusion.106

187. Peter Swann was similarly critical of the use of the image of mark Y7 from the internet.  He also drew attention to what he perceived to be damage to the mark—

“The internet photograph has striations on it that run diagonally from the bottom left to halfway up the right-hand side.”107

188. All four of the SCRO fingerprint officers who gave evidence to the Committee on 30 May 2006 were critical of the use of internet images.  Anthony McKenna indicated that the SCRO Fingerprint Bureau always advocated looking at the original material.  Charles Stewart explained to the Committee his concerns about the use of internet images in this instance—

“I have seen images on the internet that are purportedly mark Y7 but they do not bear much relation to what I looked at because there is a brush mark that damages the lower half of the mark.  I was always taught to base my comparison and identification on original material.”108

189. Arie Zeelenberg highlighted, however, that in spite of their criticism, Robert Mackenzie and Alan Dunbar had used the images of mark Y7 and Shirley McKie’s left thumbprint taken from the internet.  He referred to the minute of the Tulliallan meeting—

“I will not read it all out, but the internet image is discussed and there is mention all over that the SCRO used the internet images of the comparison prints.  My conclusion is that the SCRO used the internet image of the comparison prints and so was able to mark up points in the brush mark.”109

190. Pat Wertheim argued that the images on the internet were not of poor quality and that the ‘brush mark’ would not alter an experts conclusions about the mark.

“References have been made to the scuff or brush marks through the image. They are neither added nor subtracted detail.  I return to the analogy of the rubber stamp.  You can use a rubber stamp to stamp your name and address on to a piece of paper. If you then take your finger and smear it through the rubber stamp, you might smudge or lighten the ink, but you will not change the name Marlyn Glen to the name Mary Mulligan.  The smearing will not change the detail in the fingerprint.  It might smudge it slightly or even completely remove it, although in this case it did not.”110

Committee’s comments on the use of images obtained from the internet

191. The Committee notes the preference of the SCRO fingerprint officers for the use of original material.  However, the Committee also notes that Robert Mackenzie and Alan Dunbar made use of material from the internet for the purposes of their presentation at Tulliallan.

192. The Committee also notes the concerns about the so-called brush mark on the internet image of mark Y7.  On the basis of the evidence given to the Committee, the Committee is not, however, convinced that this brush mark altered the image in such a way that it would necessarily change an expert’s conclusion on the identification of the mark.

Storage of Crown evidence

193. While the Committee is not concerned that the brush mark would change an expert’s view, the Committee is concerned that an important piece of evidence held by the Crown Office and Procurator Fiscal Service should have become damaged. 

194. The Committee recommends that COPFS review its procedures for storage of trial evidence, including, but not limited to, fingerprint evidence.

Use of a print published in  the Daily Mail

195. John Berry drew his final conclusions on mark Y7 on the basis of comparison with an impression of Shirley McKie’s thumbprint published in the Daily Mail of 24 October 2004.  John Berry told the Committee that the rolled impression was “magnificent, crisp and clean.”111

196. Malcolm Graham was similarly impressed with the Daily Mail impression suggesting it was better than any of the impressions taken by Pat Wertheim.112

197. Peter Swann, who had made his initial identification of mark Y7 in 1997 using a rolled impression of Shirley McKie’s left thumbprint provided to him by Ms McKie’s solicitors, was also impressed with the quality of the rolled impression published by the Daily Mail—

“There are various places where one could get the left thumb impression of Shirley McKie.  This one is from the Daily Mail.  It is a beautiful reproduction.  I do not know how the Daily Mail got it—it did not get it from me.  It was published by the Daily Mail in 2000 and reproduced in 2002 and 2004, I believe.  It is extremely clear and shows good marks. ”113

198. Arie Zeelenberg highlighted serious concerns about the use of an impression taken from a newspaper—

“There are two issues.  One is authentification, which relates to who is providing the print and whether we are confident that it is from the stated source. The other is the point that, if we put a glass on a newspaper, we will see all the small dots with which it is printed; there is no way that it can reflect the detail that is in a latent.”114

199. The Committee notes the opposing arguments presented by fingerprint experts about whether the impression from the Daily Mail was of sufficient quality for comparison purposes.  It would appear to Members that the printing process could impair the detail of the print.

Committee’s comments on factors cited to explain disagreement

200. The Committee considers that the debate among experts about the effect of these factors in the comparison of mark Y7 and Shirley McKie’s thumbprint has created additional confusion in an already complex case.  However, the Committee is not persuaded, in this case, that these factors were of critical importance to the conclusions drawn by the various fingerprint experts.  

201. The Committee believes that the interests of justice would be better served if in all cases fingerprint experts adopted a standard approach for their comparison of crime scene marks and fingerprints from a known donor. 

202. While recognising that it will not be possible in all cases to achieve an absolute consistency in the methodology used by all fingerprint experts, the Committee nonetheless, considers the following factors are important to achieving a consistency of methodology:

  • examination of images which are as close to the original material as possible;
  • examination of the mark and print in controlled conditions; and
  • transparency in the audit trail for images of both the mark and fingerprint being compared to ensure authenticity.

Procedures used by SCRO fingerprint officers in the identification and verification of mark Y7

203. The consideration of mark Y7 highlighted a number of concerns about the consistency of procedures within the SCRO Fingerprint Bureau.

204. Discussed below are the inconsistencies highlighted to the Committee in the consideration of elimination prints, the initialling of the back of mark Y7 and the implementation of the ‘blind test’.

The procedure used to eliminate mark Y7

205. The Committee’s understanding is that Hugh Macpherson – the first SCRO fingerprint officer to examine mark Y7 – made the decision to establish the identification of mark Y7 to a 16 point standard.  At that time, the 16 point standard meant that in any fingerprint identification there needed to exist 16 characteristics in sequence and agreement between the mark and the fingerprint impression against which it was compared.  It is important to note that mark Y7 was subject to the elimination procedure – not the full identification procedure. As such, the elimination of mark Y7 did not need to have been made to this standard. For an elimination, the Committee understands that there was no standard in place for the number of points that had to be found in sequence and agreement.

206. Hugh Macpherson explained to the Committee why he chose to apply the 16 point standard to the identification of mark Y7—

“Firstly, because that is what I personally attained in the comparison of mark Y7 against Ms. McKie’s left thumbprint. Secondly because of where the mark was developed with its close proximity to the victim’s body position, I felt that there may be repercussions, needless to say there was no way that I could second guess that I would still be discussing the identification of mark Y7 some nine years later.  Thirdly, the volume of elimination fingerprints received for comparison was far greater (162), as against the number of persons quoted for suspect comparison (12), so as a result there was no demarcation between elimination and suspect comparison/identification, in this case.  This point is highlighted and evidenced previously re the identifications of marks XF, QI2 and Y7, all emanating from elimination fingerprint form comparison.  I have always been of the view that any identification, no matter what its source, should be given due consideration whether that be from a suspect quote, an elimination form or from a manual or computerised search. All persons identified in the Ms Marion Ross case emanated from crime scene marks being compared against elimination fingerprint forms received, there were no suspect identifications and no AFR identifications.  An elimination fingerprint form identification being fully signed off by four experts (nowadays three) to the 16 point standard, particularly in a ‘special case’ such as the Ms. Marion Ross murder enquiry is not uncommon either re this case nor in other cases I have worked on.”115

207. Hugh Macpherson provided further explanation as to why he decided to apply the 16 point standard. He appeared to suggest that doing so was not normal practice and that elimination prints do not normally receive this level of scrutiny—

“There is nothing to stop me doing that. Normally in a case, only the marks of the deceased and the accused go to court and those are marked up to the 16-point standard. All I did was to apply to the mark the same criteria that I applied to the marks that were identified previously in the case. I could find 16 points—that was my main reason.”116

208. However, Hugh Macpherson, later in the same evidence session, appeared to contradict this position. He recounted to the Committee HMIC’s statement on elimination prints—

“The aim of fingerprint comparison in Scotland, at present, is to find 16 points or characteristics of friction ridge skin detail on a crime scene mark that are identical in sequence and agreement with a fingerprint given by a donor. This applies to donors who are suspects and those who have given their fingerprints for elimination purposes.”117

He continued—

“They are one and the same thing. We have always maintained that, no matter what the comparison, it could end up in court, even if it is a negative comparison. Where two persons are accused in a case, a fingerprint expert might find that one of the comparisons is negative. I have had to go to the High Court in Ayr to testify that I had compared someone negatively. Any comparison has to be given due diligence, whether it is an elimination print, a suspect print, an automatic fingerprint recognition ident or a manual ident.”118

209. Other SCRO fingerprint officers were asked to eliminate the mark to the 16 point standard. Although Alister Geddes eliminated the mark, he was not able to find 16 points. Charles Stewart, Fiona McBride and Anthony McKenna were able to find 16 points.

210. In subsequent examinations of the mark – namely by Robert Mackenzie and Alan Dunbar; by the four fingerprint officers who participated in the ‘blind test’ and also the consideration undertaken by six fingerprint officers after the mark had been re-photographed and new tenprints taken – the SCRO fingerprint officers were asked to eliminate the mark, but not to the 16 point standard.119

211. Mike Thompson, Durham NTC, indicated that the fact that it was an elimination print should not have made a difference to the examination process undertaken by the SCRO fingerprint officers.120

212. In contrast, John MacLeod suggested that elimination marks tended to be treated differently—

“Well, with elimination prints there is always a tendency to be not as thorough as you might be.  However, I am perhaps speaking out of turn here.”121

213. The synopsis of the Mackay report would seem to support Mr MacLeod’s position that elimination prints were not normally given such thorough scrutiny. The synopsis of the report includes a conclusion that there was a need for higher standards for elimination prints.122

214. It should be noted that the procedure for identification of elimination prints was considered by HMIC as part of its 2000 inspection of the SCRO Fingerprint Bureau. HMIC’s consideration of this issue is explored in greater length in the next section of the report.

215. The Committee notes the reasons given by Hugh Macpherson as to why he chose to adopt a 16 point standard to the identification of mark Y7. The Committee also notes that some experts from outside the Bureau have suggested that to apply this standard to a mark being compared for elimination purposes would be uncommon.

216. The Committee finds it disturbing that in 1997 there would appear to have been no agreed procedure or standard for the comparison of a mark with an elimination print in the SCRO Fingerprint Bureau.   In the apparent absence of such documentation, it is not possible for the Committee to give a definitive view on whether Mr Macpherson’s approach was appropriate or not.

217. However once the decision was taken to adopt a 16 point standard for identification of mark Y7, the Committee considers that it is reasonable and logical to expect that this standard would have then been used by every SCRO fingerprint officer who subsequently examined mark Y7.  The Committee considers that the fact that this did not happen highlights a serious flaw in SCRO’s identification and verification procedures at that time.

16 point standard

218. In written evidence, Charles Stewart informed the Committee of the process by which he makes an identification. He suggested that when there are a certain number of characteristics in sequence and agreement, as he considered there to be in his comparison of mark Y7 and Shirley McKie’s left thumbprint, it is likely the rest will be in sequence.123

219. Peter Swann explained to the Committee how he reaches an identification—

“…when you get X number of characteristics in agreement, you know that the mark is identical”124

220. He expanded on this in the course of his second appearance before the Committee—

“Generally speaking, if I find five or six points of agreement, I know from experience that I will find more and more points of agreement.”125

221. Some witnesses suggested that when applying the 16 point standard there may be a tendency that once an expert believes a mark matches a donor print he or she then strives to find the 16 points to prove it. Pat Wertheim raised concerns about this approach in relation to the evidence he heard from Peter Swann—

“From listening to Mr Swann's presentation, it seemed that he was saying that when he could not find the point in Shirley McKie's thumbprint where it existed in the mark, he went looking in other places until he happened to find a point that looked the same. The only way that he could do that was if he moved 66° around the fingerprint. I reject that approach, which is not valid. One starts with the analysis of the crime scene mark. One does not go looking willy-nilly in the ink print to try to find points that look like it somewhere else in the print.”126

222. At the meeting on 7 June Arie Zeelenberg drew the Committee’s attention to a quotation from the Evett and Williams report.  The Evett and Williams report was carried out into fingerprint identification under the auspices of the Home Office and was published in 1996.127  The report notes particular traits in working to the 16 point standard which might affect an expert’s approach to identification—

“Probably because of the sixteen points standard, a practice has grown in the U.K. service which the team did not find in the other countries visited. A fingerprint expert will generally reach an inner conviction about the correctness of an identification long before he has found 16 points. His or her subsequent activity will centre on establishing that features which are clearly visible in the print can also be seen in the poorer quality mark. The print is used as a guide for scrutinizing the mark. This is called, in some quarters, 'teasing the points out'.”128

223. The Committee notes the evidence from Charles Stewart and Peter Swann that when they find a certain number of characteristics in sequence and agreement their experience leads them to believe the rest will be in sequence and agreement.

224. The Committee also notes the findings of Evett and Williams that ‘A fingerprint expert will generally reach an inner conviction about the correctness of an identification long before he has found 16 points.’129

225.  On 4 September 2006, use of the 16 point standard was ended in Scotland and the non-numeric standard was adopted. Section 4 of this report explores the change to the non-numeric standard.

Hierarchical nature of the identification process

226. The synopsis of the Mackay report highlighted James Mackay’s concerns about the hierarchical nature of the identification process within the SCRO Fingerprint Bureau.

227. James Mackay suggested in the SCRO fingerprint Bureau there was pressure on junior fingerprint officers to agree with senior fingerprint officers and there was also deference toward senior officers by more junior officers. In support of this theory he drew on evidence from Alister Geddes as regards his professional relationship with Hugh Macpherson.

228. In the synopsis of the Mackay report, it is noted that Alister Geddes suggested that while there was a checking process in place within the Bureau he would normally accept the findings of Hugh Macpherson—

“I did not have near the level of expertise as Hugh at this time and would normally accept his findings had been correct, all work was at all times double checked.”130

229. The synopsis also noted that Alister Geddes was sometimes unable to see characteristics that Hugh Macpherson could and that in these instances Hugh Macpherson would demonstrate to him where he had gone wrong and where the points could be found. 131

230. Alister Geddes explained to the Committee that in the case of mark Y7, Hugh Macpherson had sought to demonstrate to him where he could find the characteristics, but in this instance Alister Geddes could not see them. 132

Initialling of photographs of marks

231. Fiona McBride informed the Committee that as a means of listing the sequence in which  mark Y7 had been checked and its identification verified, she initialled the back of the photograph of mark Y7 and also placed the initials of Hugh Macpherson and Charles Stewart who had already checked and verified the mark on the back.133  It should be noted that this was not agreed procedure within the Bureau.

232. Fiona McBride explained to the Committee why she instigated this practice—

“To put it in context, back in 1997 the processes were still evolving, and I was aware of a practice that Kenneth Graham, a fingerprint expert, had started. What used to happen is that someone would check a case, come to their decision and pass it on to the next person.  At the end, when they had checked all the marks, they would sign to say that they had done so.  I wanted to keep track of what I had looked at.  I noticed that Kenneth Graham had started to put his initials on cases along with the date.  It was not the main signature; it was just so that he could keep track of what he had seen, what he had not seen and what he had yet to check.  I thought that that was a pretty good idea, and I put my initials on the back of the photograph for that reason. I asked Hugh Macpherson whether he minded my putting his initials on it, too, as I thought that it was a good idea. He said, "Well, okay then."”134

233. In response to questioning from the Committee on this procedure, Hugh Macpherson stated—

“There is nothing sinister about it.  The initials were already on the screen, as it was.  You talked about putting initials on a piece of evidence.  We have many photographs of Y7 and we use a clean copy for our production book.”135

234. Furthermore, Hugh Macpherson sought to stress that the purpose of this exercise was merely to ensure that there was a record of who had considered and verified the identification.136

235. Initialling the mark on behalf of other experts was questioned by a number of witnesses including John McGregor of the Aberdeen Fingerprint Bureau—

“First, we would never initial a photograph or a document for anybody else.  However, so that a document can be tracked, you have to initial and date it, so a person looking at it would know when you made your comparison. That is what happens in Aberdeen, but we would certainly never, on behalf of someone else, sign anything that we had not checked ourselves.”137

236. This view was echoed by Jim Aitken of the Edinburgh Bureau and Ken Clacher of the Dundee Bureau.

237. It should also be noted that in evidence to the Committee Alan Dunbar stressed this practice no longer existed.138

238. The Committee notes that in initialling the back of the photograph of mark Y7 with her own initials and those of Hugh Macpherson and Charles Stewart, Fiona McBride was using a method for tracking which was not an agreed and documented procedure.

239. However, having done so, the Committee questions why Alister Geddes’s initials were not also added to the back of the mark given the fact he too had verified the identification although not to the 16 point standard.

240. The Committee is concerned that senior fingerprint officers were content to allow such an ad hoc procedure to be implemented without further consideration or comment.

Blind test of mark Y7

241. Further concern was raised about the procedures in place within the SCRO Fingerprint Bureau in relation to the implementation of what has been termed a ‘blind test’.

242. According to Chief Inspector William O’Neill, Head of the Fingerprint Bureau in 1997, on 17 February 1997 he was called by the Deputy Divisional Commander at Kilmarnock. In his written submission William O’Neill stated that the Deputy Divisional Commander called to request that the identification of mark Y7 be re-checked and that this should be done in the presence of Shirley McKie.  William O’Neill intimated that Iain McKie was with the Deputy Divisional Commander at the time of the call.  He stated that he was pressured by the Deputy Divisional Commander into accepting the request to re-examine the mark in the presence of Shirley McKie—

“I was told by him that the request had come from the highest authority. As the Deputy Divisional Commander in Kilmarnock was of a higher rank than me, and insisted, I reluctantly agreed.”139

243. William O’Neill subsequently instructed Alan Dunbar to facilitate a ‘blind test.’

244. It should be highlighted that the Committee understands this was not a blind test in a scientific sense and was not seen as one by those who initiated it. The term was first used retrospectively by people outwith the Bureau.140

245. For ease of reference, however, it will be referred to as the blind test in the course of this section of the report.

246. When asked about his interpretation of blind testing, Hugh Ferry, suggested that this constituted something different—

“A blind test is where a mark has been identified by an expert or a number of experts and is then fed into the workload of another expert to test whether he or she can identify it as being from the same individual.”141

247. The Committee questioned Alan Dunbar on the nature of blind testing and he agreed that what took place in relation to mark Y7 was not a true blind test.142

248. Arie Zeelenberg explained his understanding of blind testing and associated difficulties with the process—

“There are several notions of what constitutes a blind test. If you present a print to an expert, it is hard to avoid a situation in which the expert does not instantly know, from looking at it, that it is either a possible identification or an exclusion. Exclusions come before identifications. When the expert looks at a print for one minute, they might say, "Well, somebody might have identified it already, so I am being asked to verify it." It is hard to avoid that sort of situation.

Another way to do a blind test is to give the expert an actual case that nobody knows about; the expert does not know whether it is to be an identification or not. Then, at the end, you can look at how the expert went about analysing the print. That is really blind testing. There are several other ways of doing it, but it is always difficult. And it is always difficult to avoid the mindset.”143

249. From the evidence presented to the Committee, there appeared to be some doubt as to who conducted the blind test. Most of the evidence makes reference only to Terry Foley and Edward Bruce. However, the averments produced by Shirley McKie’s solicitors as part of her civil action also referred to Jean McClure and Greg Padden.  The averments also suggested that neither Jean McClure nor Greg Padden were able to come to a conclusion on mark Y7.

250. It should be noted, however, that in evidence to the Committee Alan Dunbar did not indicate that any of the fingerprint officers participating in the blind test failed to reach a conclusion on the mark.  Alan Dunbar told the Committee that—

“No officer came back with a different finding.”144

251. The Committee was concerned about the uncertainty as to who conducted the test and what their conclusions had been.  As such, the Committee wrote to David Mulhern, asking him to arrange responses from Greg Padden and Jean McClure to confirm whether or not they were involved.

252. Responses were received from Greg Padden and Jean McClure.  Jean McClure confirmed that she had participated in the blind test but that she had not reached a conclusion on the mark.  She explained that when she was asked to consider the mark, it was late and she was tired.  She indicated that she had requested a further opportunity to consider the mark in the morning, but that she had not been afforded this opportunity.145

253. Greg Padden also confirmed his involvement and that he too had not reached a conclusion on the mark.  In his response, Greg Padden indicated that he had not been afforded an opportunity for a ‘proper examination’ of the mark. However, his impression was that there was insufficient detail in the mark for comparison.  Like Jean McClure, he asked for further time the following day to consider the mark.  He made this request to Alan Dunbar who informed him that he could not have any more time and that a conclusion was required there and then.  As such, he informed Alan Dunbar that he could not reach a conclusion on the mark.146

254. Greg Padden also indicated that he was not aware of the blind test being used before or after its application in the case of mark Y7.147

255. Alan Dunbar informed the Committee that he was instructed to facilitate the blind test by William O’Neill, but that he felt the procedure was driven by Hugh Ferry.  He suggested that he did not see the need for the process—

“Senior management instructed me what to do, and I tried to work in the best possible fashion, so that what I did could be looked back on.  I did not necessarily agree with what I had to do, but I did it to the best of my ability.”148

256. The Committee asked Hugh Ferry what his involvement was in the blind test.  Hugh Ferry initially confirmed that he had given authority for a blind test.  However, later in the same session, he stated that he did not know whether he had authorised the blind test.149

257. In the course of the same session, Hugh Ferry indicated that he did not receive the results of the blind test.150  However, both Robert Mackenzie151 and William O’Neill152 suggested that Hugh Ferry was made aware of the results.

258. The Lord Advocate told the Committee that the Crown Office had never been made aware of the conclusions of the blind test.153 Sir William Rae also told the Committee that he was not aware of the blind test.154

259. The Committee is concerned about the implementation of what has been termed a blind test.  The Committee is clear that it was an ad hoc procedure instigated by senior management in the SCRO Bureau in response to pressure from senior Strathclyde Police officers to have mark Y7 re-examined.  The Committee considers the blind test to have been an ill-considered and inappropriate reaction to this pressure by SCRO management.

260. The Committee found the evidence presented to the Committee by Hugh Ferry to be unclear and confusing.  He was unable to confirm whether or not he had authorised the blind test and, in spite of evidence to the contrary, he indicated that he had not been informed of the findings of the test.

261. The Committee considers that the instigation of the blind test was without precedent and without any reference to agreed procedures or standards.  Furthermore, it does not appear to the Committee to have been carried out under appropriate conditions.  However, once it had been undertaken, the Committee considers that the full process and conclusions of all the SCRO fingerprint officers should have been disclosed to Strathclyde Police and to the Crown Office and Procurator Fiscal Service.

The professional competence of SCRO fingerprint officers in relation to mark Y7

262. In the course of the inquiry a number of questions have been raised about the professional competence of the SCRO fingerprint officers in relation to mark Y7.

263. The Committee has considered the conduct and capability of the fingerprint officers including their court presentation skills, an issue which was specifically highlighted in the course of the inquiry.

264. As previously set out, it is not the Committee’s intention for this inquiry to be a disciplinary tribunal for the SCRO fingerprint officers. Questions have, however, been raised in evidence about their conduct and capability. The Committee considers it is legitimate for it to explore such matters.

265. On 6 July 2000 Colin Boyd, the Lord Advocate, instructed Mr William Gilchrist, then Regional Procurator Fiscal for North Strathclyde, to inquire into allegations of criminal conduct against the SCRO fingerprint officers made by Shirley McKie’s father to the Minister for Justice.155

266. In order to support William Gilchrist’s inquiries, Deputy Chief Constable James Mackay of Tayside Police (who had been asked initially by ACPOS to investigate the identification of mark Y7) was directed by the Crown Office to make his report to William Gilchrist. As such, his work now became a criminal investigation and came under the auspices of the Crown Office as opposed to ACPOS.156

267. On 3 August 2000 the SCRO Executive Committee suspended Fiona McBride, Charles Stewart, Hugh Macpherson and Anthony McKenna on a precautionary basis and in September 2000 Robert Mackenzie and Alan Dunbar were placed on non-operational duties.157

268. On 7 September 2001, following the conclusion of the investigation, the Lord Advocate announced that no criminal proceedings would be brought against the SCRO fingerprint officers.158

Disciplinary inquiry: ‘The Black Report’

269. In May 2001, Harry Bell, the Director of SCRO advised the six fingerprint officers concerned that, at the conclusion of the Crown assessment of the criminal case, an evaluation of any discipline issues would be required.159  Strathclyde Joint Police Board (employers of the fingerprint officers) set up a Scrutiny Committee, with an independent chairperson to conduct an internal disciplinary inquiry.  James Black, an independent management consultant, was engaged to conduct an investigation.  Mr Black was not a fingerprint expert.  He conducted interviews with the six fingerprint officers in December 2001 and again in February 2002.  Mr Black’s findings were reported to the Scrutiny Committee in February 2002.  In turn, the Scrutiny Committee reported its conclusions to Strathclyde Joint Police Board.160

The objective of the investigation

270. The investigation sought to establish whether, on the balance of probabilities, there were grounds on the basis of conduct or capability for disciplinary action against any of the officers within the ad hoc investigation and disciplinary procedure that had been agreed by all parties.161

Terms of reference

271. The terms of reference for the investigation set out definitions of conduct and capability—

“Conduct - an employee is generally required to conduct him or herself in a manner which is not likely to destroy the duty of trust and confidence that an employee owes to an employer. Certain areas of conduct which result in the breakdown of this relationship of trust and confidence may properly be termed gross misconduct. However there are also other types of conduct of an employee that, while not amounting to gross misconduct, may constitute conduct in respect of which an employer believes that disciplinary action may be appropriate. Examples of gross misconduct may be lying or falsifying records, deliberately covering up errors or acting recklessly in the manner in which work was carried out, while a general example of minor misconduct may be bad timekeeping.

Capability - an employee should be qualified and capable of carrying out the duties associated with the post in which they are employed. If it appears that an employee is no longer qualified to carry out their duties, for instance as a result of advances in technology with which the employee has failed to keep apace, or an employee does not appear to be capable of carrying out their duties as their level of competence is no longer that which is expected of them, or where the work completed can be shown to have fallen below the standard expected and procedures laid down, then an employer may also consider taking disciplinary action.”162

272. The inquiry focussed on the actions of the officers in relation to the identification of marks in the Asbury case, including mark Y7.  James Black sought to make his judgement on the basis of their capability to do their job and their conduct in doing so in order to determine whether or not there should be any disciplinary action against the six officers.163

273. James Black told the Committee he based his conclusions on whether or not the fingerprint officers operated to the procedures in place in 1997.164

274. In order to inform his consideration, James Black interviewed the six officers in question.  Furthermore, in addition to visiting the SCRO to obtain an impression of their working practices, he also visited the fingerprint units of both New Scotland Yard and Greater Manchester Police in order to compare the manner in which they operated.165

275. In terms of conduct, Mr Black found no evidence of misconduct by the four suspended fingerprint officers or by the two senior managers.  The report stated—

“In the case of the four suspended experts the procedures followed and the relationships maintained throughout the initial work, the preparation for the court cases and in the years following remained professional and correct. In the case of the two managers placed on non operational duties these two people carried out tasks as instructed by senior managers in a professional manner.”166

276. As regards issues of capability, the report concluded that no evidence had been found of “low standards of performance or disregard for the procedures of the organisation.”167  In relation to the four fingerprint officers who had originally identified mark Y7, the report went on to conclude that “all four people who worked on Y7 did so with all appropriate diligence and professionalism.”168  In relation to the two managers, Robert Mackenzie and Alan Dunbar, the report concluded that their work on Y7 “was again in line with the procedures and standards at that time.”169

277. In light of these findings, Mr Black recommended that the four officers be returned to their normal duties with no disciplinary measures taken against them and the two senior fingerprint officers returned to operational duty.170

278. The scrutiny committee, set up by Strathclyde Joint Police Board, considered the report.  The chair of the Scrutiny Committee, Doris Littlejohn, informed the Justice 1 Committee of the Scrutiny Committee’s response to the report—

“We concluded unanimously that a thorough investigation had been carried out and that, based on the facts stated as having been found in the report, the recommendation that no disciplinary proceedings should follow was justified.”171

279. The Committee notes that the Black investigation, based upon an assessment of whether the fingerprint officers had followed the procedures in place in 1997, concluded that no matters of misconduct or lack of capability had taken place in the work surrounding mark Y7.  

Evidence from other witnesses

280. The Committee received evidence from a number of other witnesses who raised questions about the capability and conduct of the SCRO fingerprint officers in relation to mark Y7.  Arie Zeelenberg, in his report on the mark of January 2006, cast doubt on the professionalism of the fingerprint officers—

“No indication is given about the differences in the top part, differences in the bottom part are not mentioned, neither are explanations given for possible differences. In the charting, ridge characteristics that are present in the comparison print but absent in the latent (and vice versa) are marked up as points of similarity.

There is no way for an expert to look at this print with an open mind and a critical professional attitude to make an identification with the comparison print of McKie.”172

281. Separately, Pat Wertheim questioned the conduct and competence of the SCRO fingerprint officers—

“Any competent person trained in fingerprint comparison, even at the most elementary level of training and experience, conducting an analysis of scene of crime mark UC01050197Y7 and comparing that mark to the inked left thumbprint of Shirley Jane McKie, should have no trouble reaching the conclusion that the mark was not made by Shirley Jane McKie, but had to have been left by some other person.”173

282. John MacLeod, in his report to the Scottish Executive, was asked to determine whether reasonable care had been taken in the identification mark Y7 by the SCRO fingerprint officers. It was his opinion that reasonable care could not have been taken by the officers—

“It is my opinion that the differences between the characteristics in the mark Y7 and those in Shirley McKie’s left thumb can be clearly seen and that reasonable care could not have been taken during the comparisons that wrongly made this identification.”174

283. The Committee notes the very serious nature of the conclusions reached by John MacLeod, Arie Zeelenberg and Pat Wertheim about the conduct of the SCRO fingerprint officers. However, the Committee considers it important to set these comments about the capability of the SCRO fingerprint officers in context. 

284. SCRO management instigated a retrospective verification of all serious cases involving any or all of the four fingerprint officers for the period of one year before the McKie case and one year after.  This verification found all work by the four fingerprint officers to be 100 per cent accurate.175

285. More generally, on 22 June 2000, following the announcement of the emerging findings of HMIC (considered in detail in the next section of this report), the Lord Advocate instructed that for all current and future cases where fingerprint evidence provided by SCRO was submitted to Procurators Fiscal, an independent and external check of this evidence should be carried out either by another police fingerprint bureau or independent expert, prior to the commencement of proceedings.  These additional checks were initially carried out by experts from Central Scotland Police and Fife Constabulary.  From July 2000, the independent verification role was carried out by two fingerprint experts from the Royal Ulster Constabulary.176

286. On 6 July 2001, in response to a Parliamentary question the Lord Advocate announced that independent verification of SCRO fingerprint identifications was no longer required in light of changes and improvements made to SCRO procedures.  In his answer the Lord Advocate noted—

“Since independent verification was introduced last year, over 1,700 cases have been examined and in each instance, the quality and accuracy of the work of SCRO officers has been confirmed.” 177

Court presentation by SCRO fingerprint officers

287. General concerns about court presentation skills of SCRO fingerprint officers are explored at greater length in the next section of the report, but the Committee considers it is important to explore at this point the evidence it has received regarding the court presentation made at the perjury trial of Shirley McKie.

288. In a letter of 2 June 1999, Harry Bell, then Director of the SCRO, advised Chief Constables in Scotland of the outcome of a meeting he had held with the prosecuting advocate, Sean Murphy QC, who had represented the Crown in Shirley McKie’s perjury trial, and the Deputy Crown Agent, Frank Crowe, on the fingerprint evidence given at the perjury trial.  Harry Bell advised the Chief Constables that both had made it clear they were satisfied with the presentation of the SCRO fingerprint officers.  He expressed the view that this case was unique and was unlikely to affect future consideration of fingerprint evidence.  However, Harry Bell did accept the need for some re-evaluation of court presentation and suggested that consideration should be given to the methods of presentation and equipment used.178

289. James Mackay also met with advocates who had appeared in Shirley McKie’s perjury trial.  One of the advocates attributed blame to the equipment used by the SCRO fingerprint officers.  However, Mr Mackay also noted that one advocate considered that the SCRO fingerprint officers had difficulty in explaining their conclusions and another considered that the SCRO fingerprint officers were arrogant in the way they gave their evidence.179

290. The Committee also thinks it is informative to note the comments made by Lord Johnston when he made his charge to the jury at the perjury trial—

“You are bound I suggest, though it's entirely a matter for you, to recollect and take into account the Crown witnesses, particularly Mr Stewart and Ms McBride, pressed by Mr Findlay in cross-examination offered no reasons for why they were dismissing the top part of the print other than it's my opinion, it's my judgment. On the other hand, what do the Americans do or particularly Mr Wertheim? He says you look at the print,…..and you find immediately without more than a casual….glance that there are mismatches between the top half of both prints……He says well, that places me immediately in a doubt and what should I do next he says? He says well, distortion or slippage…….. is something that can happen for a variety of reasons, pressure, application, movement and so on and so forth, but he doesn't say it is my judgment.  He goes on to say I look for…..warning signs, signs of blurring, signs of movement…….he would expect to find if he was looking for distortion. He finds none. So what does he do? He goes back to his first base and says therefore this is a mismatch and he bases that on reasons, not just judgement.”180

291. This issue of court presentation is explored in greater detail in section three of the report.

Cropping of images of mark Y7

292. Cropping concerns the presentation of photographic enlargements of fingerprint evidence for court productions. In some bureaux, including the SCRO, in order to highlight a specific part of a mark or print, the photograph was cut or cropped to focus on that section.

293. In the course of his presentation to the Committee, Arie Zeelenberg expounded on the issue of cropping—

“Let us turn to cropping. There are no written rules for cropping. If I have a big palm print, I might be forced to take out a piece for demonstration purposes, but I would say that I had done that. If there are no written rules, you have to go by general rules of transparency, fairness and logic. Of course, you have to bear in mind that you must be able to demonstrate what you say you see and to tell people if there is something wrong. You have to explain that.”181

294. Arie Zeelenberg then pointed out that about half of the tip of mark Y7 had been cut off in the court productions produced by the SCRO. In particular, he noted that points 19 and 20, which he had identified as being discrepancies, had been cut off and asked why no explanation was given for doing this.182

295. He went on to severely criticise the way in which images had been prepared—

“I conclude that the presentation of the productions was not professional, transparent or honest. It was misleading and wrong. There are a large number of discrepancies.”183

296. Charles Stewart stated that as a consequence of the charting pc they used to produce court enlargements they were only able to focus on a small area of the mark—

“The machine was bought for us and we were told that we could use it—that was it. We did not like the machine: it was of very poor quality and had many operational problems. To produce a reasonably sized illustration, it was necessary for us to focus on a very small area of the mark. If I had picked a big area of the mark, my enlargement would not be any bigger than the actual size. I had to narrow in on the area of the mark on which I was working, so that the illustration showed as much as possible of that area.”184

297. It was recognised by James Mackay in his report that the cropping of marks was not unique to mark Y7. In his report he indicated that it was also not unique to the SCRO Fingerprint Bureau and that cropping was evident in the work of other bureaux. He did, however, conclude that a professional review should be undertaken of procedures as they related to cropping.185

298. In a subsequent review of SCRO practices the ACPOS Change Management Review Team (CMRT) was also made aware of the practice of cropping court enlargements.  While it acknowledged that this might reveal the necessary level of detail, the CMRT considered that to do so without showing the whole image “was contrary to principles of disclosure and transparency and may lead to criticism.”  By the time of the CMRT review in autumn 2000, the practice had been discontinued by SCRO, a move which the CMRT supported.186

299. The Committee recognises the concerns expressed by several experts about the cropping of images of mark Y7 for court presentation.  However, in this context, the Committee also notes that the practice of cropping was common place.

300. However, the Committee considers that the practice of cropping images for court presentation purposes was contrary to principles of disclosure and transparency.  The Committee welcomes the action taken by SCRO to discontinue the practice.

Committee’s comments on the professional competence of the SCRO fingerprint officers in relation to mark Y7

301. While it has been useful and legitimate to explore issues pertaining to the professional competence of the SCRO fingerprint officers in relation to mark Y7 it has not been the Committee’s intention to undertake a disciplinary inquiry and accordingly the Committee offers no view on the professional competence of the officers.

Settlement of the Civil action raised by shirley mckie

History of the civil action

302. Having been cleared of perjury, Shirley McKie raised an action for damages against Strathclyde Police’s Chief Constable for £100,000 in respect of the events surrounding her arrest on a charge of perjury in March 1998.  This action was unsuccessful.  Lord Emslie said the action was "fundamentally irrelevant" because she was unable to show that the officers involved in her arrest had acted with malice.187

303. In October 2001, Ms McKie raised an action against Strathclyde Joint Police Board, the Scottish Ministers and the four SCRO officers who signed the report of 10 April 1997 (Hugh Macpherson, Charles Stewart, Fiona McBride and Anthony McKenna).

304. As originally pleaded, the ground of action was that she had suffered loss “through the fault and negligence or deliberate acts” of the four SCRO fingerprint officers.

305. There was doubt as to who was vicariously responsible for the SCRO fingerprint officers due to the complexity of the arrangements through which SCRO was funded and managed.  However, in December 2002, Scottish Ministers took what Lord Hodge later described as “the pragmatic approach”188 of accepting that the responsibility was theirs.  As a result, the action against the Police Board and the four fingerprint officers was dismissed.  From that point, the action proceeded against Scottish Ministers alone.

306. In October 2003 there was a legal debate before Lord Wheatley in relation to Ms McKie’s action. 

307. Ms McKie’s Senior Counsel explained that the case Ms McKie sought to prove was that the SCRO fingerprint officers had initially made a mistake in identifying mark Y7, that they had acted in concert to cover up their mistake and the doubts of other colleagues in order to protect SCRO and not to compromise the prosecution of Mr Asbury.  Senior Counsel’s contention was that but for the misidentification of the fingerprint, there would have been no prosecution against Ms McKie for perjury.  The failure to disclose the doubts of some of their colleagues within the SCRO about the identification of mark Y7 to Ms McKie or her advisers or the Crown or to the jury at her trial, was indicative of malice in the preparation for and the giving of evidence by the SCRO fingerprint officers.189

308. In his judgement of 24 December 2003, Lord Wheatley analysed arguments that the SCRO fingerprint officers enjoyed an absolute immunity from any kind of prosecution for compensation and the alternative view that any immunity that might exist was not available to cover acts done maliciously. He rejected Scottish Ministers’ contention that the SCRO officers were immune from suit.  In his judgement, he said “this immunity …. does not cover what is done maliciously …”190

309. Lord Wheatley identified various difficulties with Ms McKie’s pleadings particularly in relation to the inferences that would require to be drawn to prove malice and in relation to proving concert by the SCRO officers.  However, overall, he was satisfied that Ms McKie should be entitled to an enquiry on her claim that she suffered a malicious prosecution without reasonable and probable grounds and allowed the case to proceed.

310. Lord Wheatley’s judgement was appealed by Scottish Ministers.  Ms McKie’s case was then amended in July 2004.  The original plea that her loss was based on “the fault and negligence or deliberate acts” of the four SCRO fingerprint officers was changed to one that SCRO fingerprint officers “acted in a malicious manner leading to [her] prosecution ….”.  Changes were also made to aver a case of concert against the SCRO fingerprint officers.191

311. Shortly after these changes, the court, with consent, agreed that Scottish Ministers’ alternative defences of absolute and qualified privilege be restored and the appeal was allowed to that agreed extent.192

312. The case was to go to proof on that basis.  Ms McKie contended that the original identification had been an error and thereafter the SCRO fingerprint officers had acted in a malicious manner leading to her prosecution.  Scottish Ministers’ position was that if mark Y7 was not Ms McKie’s print (and she would have to prove that) any mistake was one made in good faith.

313. However, after receiving the second MacLeod Report in October 2005, Scottish Ministers announced that they would admit that the SCRO fingerprint officers had made a mistake in the identification of mark Y7 and that they would enter into negotiations to settle the action.  Scottish Ministers’ pleadings were subsequently changed to reflect that admission. 193

314. Once Scottish Ministers accepted that mark Y7 was not made by the pursuer, their defence rested on the assertion that the mistake was made by SCRO fingerprint officers in good faith.

315. There followed a joint consultation on 21 September 2005 when Ms McKie’s legal team produced a detailed quantification of her claim which they valued at approximately £1.2m.  Scottish Ministers’ advisers valued the claim at £328,000.  No settlement was reached at that stage.

316. On 3 November, negotiations proceeded further.  On 21 December, Scottish Ministers lodged a formal offer in court of £500,000.  It was not accepted although Ms McKie’s advisers offered to settle at £1.1m.  A further tender was lodged on behalf of Scottish Ministers on 3 February 2006 for £600,000.  In response, Ms McKie’s advisers indicated that they would accept £750,000.  In negotiations on the morning of the proof of 7 February, Scottish Ministers offered £750,000 without admitting liability and the case settled.194

317. In his opinion in relation to the expenses of the action, Lord Hodge commented on the basis for the settlement figure—

“The settlement figure, if based on an assessment of the prospects of success in the legal action, might suggest that the Scottish Ministers considered that there was a material risk that they would lose the action.  For, while it would not be correct to call the sum of £750,000 a full liability settlement unless one were aware of the assumptions made as to the pursuer's career prospects, the sum of money was on any view not a nuisance settlement.  On the other hand, for all I know, the settlement figure may have been the product of a decision to compensate the pursuer taken in the summer of 2005, when the Scottish Ministers announced that they would seek to settle the action, followed by tough negotiating on the part of the pursuer's advisers.”195

Evidence from the  Minister for Justice on the civil action

318. In oral evidence to the Committee the Minister for Justice explained that in order to inform its defence the Scottish Executive sought to obtain an expert opinion on the consideration of the mark.  The Minister indicated that John MacLeod was initially proposed in August 2002 and was subsequently appointed and invited to undertake consideration of the mark.196

319. The Minister for Justice explained to the Committee that John MacLeod was asked to consider mark Y7 and also to determine whether reasonable care had been taken by the SCRO fingerprint officers in their identification.197

320. John MacLeod produced two reports for the Scottish Executive. In his first report, dated July 2004, he answered the questions raised by the Scottish Executive—

“It is my opinion that the differences between the characteristics in the mark Y7 and those in Shirley McKie’s left thumb can be clearly seen and that reasonable care could not have been taken during the comparisons that wrongly made this identification.”198

321. In October 2005 he produced a further report in which he was asked to comment further on the ridge characteristics used by the SCRO fingerprint officers as the basis for their findings.  In his first report, John MacLeod had identified three or four dissimilarities between mark Y7 and the left thumbprint of Shirley McKie. However, in his second report he identified 15 dissimilarities.

322. The Minister for Justice explained to the Committee why she had taken the decision to settle—

“In reaching the decision to settle, on the basis that there was no evidence of malice, we clearly accepted that there was no lack of integrity on the part of the officers, as there was no malicious intent.  However, I point out that Mr MacLeod's report raised the issue of whether appropriate care had been taken.  People may or may not disagree with that.  There may be questions around the subtleties of what the MacLeod report said.  Does it mean that people did not pay proper attention, does it mean that they were not trained properly or does it mean a range of other things?  However, that was Mr MacLeod's opinion in his report.”199

323. The Committee considered that it was extremely important to understand clearly why the Scottish Executive decided to settle the action out-of-court.  The Minister for Justice was closely questioned on the basis for the settlement.  She responded—

“Like everyone, I, as the Minister, was aware that the case was a very high-profile case with strongly held views on all sides.  I have mentioned that in previous parliamentary statements and debates.  I felt that it was my responsibility to consider all the evidence and advice that could be presented to me and to make a decision on the best way forward.  On the basis of the advice that was provided to me, including the expert report and the range of other issues that I had to consider, I took the decision that the best thing was to try to make the settlement, especially given the length of time that had elapsed, and to move on.

324. I did that for a number of reasons—partly because I was concerned about all the individuals involved in the situation and partly because I was concerned about the future of the Scottish fingerprint service and how we should move on.  I did not think that it was in anyone's interests for the process to continue and for no one in the situation to be able to move on.  When I took the decision, I recognised that it would not necessarily be popular.”200

325. In written evidence the Minister for Justice’s explained to the Committee the basis on which the civil action had proceeded—

“Initially, in 2001, Ms McKie simply submitted that four named officers had negligently, recklessly or deliberately committed a civil wrong against her in maintaining that Y7 was her print.  By October 2003 and the debate before Lord Wheatley, Ms McKie's amended case was that following the original identification of Y7, which it was claimed was wrong and at least negligent, the continued maintenance of the veracity of the identification was done to protect the reputation of SCRO and was done so knowing that it was false.  It was specifically averred that the failure to disclose doubts on the part of SCRO officers was indicative of malice.  Lord Wheatley was critical of the averments in Ms McKie's case in relation to malice, noting that the case supportive of malice was based on inferences and that these inferences could be drawn only with "some difficulty".  He also noted that there was a lack of averments explaining how negligence came to be converted into malice.  While he did not strike out the averments relating to negligence as irrelevant, Lord Wheatley did state that Ms McKie would have to prove malice in order to succeed.  Therefore, the case from that point proceeded on the grounds of malice only and it was this which would have required to be proved by Ms McKie had the case proceeded to court.”201

326. The Committee also raised concerns about the considerable delay between the inception of the action and the settlement.  In response to questioning from Members, the Minister for Justice sought to explain why there had been a delay in reaching a settlement—

“It is important to recognise that even at the points when it might have looked to the outside world as if nothing was proceeding, there were still a number of complexities around some of the legal arguments and other pieces of litigation with which Ms McKie was involved at various stages.  I do not wish anyone to get the impression that I wanted to get the matter out of the way because it was an inconvenience.  I was acutely conscious of the fact that we were talking about people's lives—not only the lives of Ms McKie, her family and immediate circle, but those of the SCRO officers and people in the wider fingerprint service.  I was firmly of the view that although we had to arrive at a resolution, it would not please everybody and it had to allow the SCRO and the wider Scottish fingerprint service to move on.  I wanted to try, if at all possible, to come to a position whereby all those things could be addressed. That is why it took longer than others might have liked.  Many MSPs wrote to me about, and raised with me constantly, the fact that they felt there was an undue delay.”202

Conclusion on the civil action

326. The Committee notes that HMIC, ACPOS, the chief executive of the Scottish Police Services Authority and Scottish Ministers have all accepted that mark Y7 was misidentified as having been made by Shirley McKie.  The Committee also recognises that John MacLeod, in his first report to the Scottish Executive, concluded that the SCRO fingerprint officers, in reaching their findings on mark Y7, had demonstrated a lack of reasonable care.

327. The Committee did not specifically seek to determine whether the SCRO fingerprint officers acted with malice, however, on the basis of the evidence that it has taken, there is no basis to say that the SCRO fingerprint officers had acted maliciously in their identification and verification of mark Y7.  It would appear to the Committee that proving malice may have been challenging for Ms McKie’s lawyers had the action proceeded to proof. 

328. However, the Committee recognises that the Minister for Justice took account of a range of issues in coming to her decision to settle out-of-court.  There was a judgement call to be made as to what the result of any court action would have been, including the amount of damages which may have been awarded had Ms McKie been successful in her action. 

329. At a more basic, human level, the Committee notes that the Minister for Justice was trying to do the right thing for Ms McKie to ensure that she received fair recompense for the loss of her career and the anguish that she had had to endure over the preceding nine years.  The Minister was also concerned about the other individuals involved in the case and about the future of the Scottish Fingerprint Service.  The Committee notes that by settling with Ms McKie the Minister wanted all concerned to move on.

330. The Committee recognises that with such significant amounts of public money at stake, detailed consideration had to be devoted to whether the action should be defended or settled. Having decided to settle the action, there needed to be detailed negotiation of a fair and appropriate figure.  Some people may consider that the action should have been defended to the end or that the settlement figure was too high a price to pay in the circumstances. 

331. The Committee considers it very important to note that the settlement was made with no admission of liability on the part of Scottish Ministers.

332. Since one of the stated objectives of the Executive was to draw a line under the issue, the Committee is clear in its view that the absence of an agreement for there to be no further comment on mark Y7 following the settlement was a serious omission.  In the absence of such an agreement, it is arguable whether a final settlement should have been reached. The Committee considers that the Executive should have insisted on the inclusion of an agreement for no further comment to be made. The Committee considers that such an agreement should have been achievable.

committee Conclusions on Mark Y7

333. In coming to its overall conclusions on the various issues which stem from the original identification of mark Y7 as having been made by Shirley McKie, the Committee is, above all else, mindful of its remit to consider the implications of the McKie case and to address the issue of public confidence in the standard of fingerprint evidence in Scotland. 

334. The Committee considered that, in order to understand the steps that the Scottish Criminal Record Office and the Scottish Fingerprint Service must take to restore public confidence, it was first necessary to go back to the controversy which surrounds the status of mark Y7. 

335. While this part of the inquiry was difficult for witnesses, the Committee considered it vital that those who wished to express a view on mark Y7 were given an opportunity to do so. 

336. This was particularly important in respect of the individual SCRO fingerprint officers.  Over a period of years, following the acquittal of Shirley McKie, these individuals have been constrained from commenting on a number of issues with which they were intimately involved. Indeed, to a large extent they were on the receiving end of criticism from a number of sides and, until this inquiry, they had not had the opportunity to respond.  It was right that this inquiry afforded the opportunity for these individuals to have their say.

337. Furthermore, it was right that the Committee should take evidence from experts from all sides of the argument around mark Y7.  The Committee was fully aware of the passions that this subject invokes and therefore took great care in being as dispassionate and fair as possible in its management of the inquiry.

338. As was stated in the introduction to this report, it was not appropriate for the Committee to pass judgement on any allegations of criminality and certainly not to allege criminality on the part of any individual.  Likewise it was not appropriate for the Committee to act as a disciplinary tribunal for the SCRO officers or, indeed, anyone else. Neither was it appropriate for the Committee to re-try Shirley McKie.

339. The Committee considered it important to go into considerable detail in ascertaining why witnesses either did or did not consider that mark Y7 was made by Shirley McKie.  This was done in the full knowledge that it has been acknowledged by HMIC, ACPOS, the chief executive of the Scottish Police Services Authority and Scottish Ministers that a misidentification was made. 

340. In this part of the report, the Committee has set out the way in which the various fingerprint experts arrived at their conclusions on mark Y7. As part of this process, the Committee has exposed the level of disagreement which exists between the experts.

341. What emerged from the evidence-taking process was that the differences of opinion as to the identification of mark Y7 are so fundamental that they cannot, in the opinion of the Committee, be reconciled.  Illustrative of this complete lack of consensus is the fact that John Berry and Peter Swann could, between them, find 32 ridge characteristics in agreement between mark Y7 and Shirley McKie’s left thumbprint and yet Arie Zeelenberg could find none in agreement and 20 in disagreement.

342. The Committee found it staggering that respected and highly experienced experts could have such widely divergent professional opinions on the identification of mark Y7.

343. But the level of disagreement goes far deeper than one group of experts simply coming to a different conclusion on the identification of mark Y7.  There appears to be fundamental disagreement among the experts on most matters relating to the analysis to which mark Y7 has been subject.  One such area is that there is no agreement on the way in which dissimilarities between marks are accounted for.

344. In this section of the report, the Committee has been able to detail the numerous areas on which there is disagreement and, in so doing, has hopefully clarified for the general public why mark Y7 has proved so contentious.  The Committee recognises, however, that the general public will still not know why the different experts hold such opposing views on so many matters relating to mark Y7.

345. It should be noted that it is not uncommon for disputes over identifications to occur between experts within a fingerprint bureau.  In these circumstances if a resolution cannot be found then a mark is deemed not to have been identified and will proceed no further.  It is far less common for a dispute to arise after an identification has been verified by other experts within a bureau and presented as evidence in a court case. 

346. However, it is important to note that it is not unprecedented for a single fingerprint to be the subject of such a complete breakdown in consensus among experts.  Scotland is not the only jurisdiction with experience of such a case.  The Committee notes the example of Danny McNamee.  In 1987, Danny McNamee was sentenced for conspiracy to cause explosions in Hyde Park in 1982. As part of the appeal process in 1998, 14 experts analysed a single thumbprint.  The appeal judgement includes the comment—

“Remarkably, and worryingly, save for those who said that the print was unreadable, there was no unanimity between them, and very substantial areas of disagreement.”

Mark Y7 in the context of the inquiry remit

347. The Committee has not given a view as to whether mark Y7 was correctly identified or not.  It was not part of the remit of the inquiry to give a view on this matter. Indeed, any opinion proffered by the Committee as to whether mark Y7 was or was not made by Shirley McKie would be reported as being the verdict of a re-trial of Ms McKie.

348. Instead, the remit of the inquiry is forward-looking and is focussed on the efficiency of SCRO and the Scottish Fingerprint Service.   The primary reason for undertaking the inquiry was to contribute to the process of restoring public confidence in the Scottish Fingerprint Service.

349. The Committee is of the view that it is the efficiency and effectiveness with which this organisation is run in 2007 that is critical to whether the general public can have confidence in the use of fingerprint evidence in the Scottish criminal justice system.

350. On the issue of public confidence in fingerprint evidence, it is worth noting that, in light of the controversy that has ensued over the status of mark Y7, it might have been thought that there would have been an upsurge in appeals to criminal convictions predicated on the notion that fingerprint evidence is no longer reliable.  This has not happened.

351. Equally, however, the Committee considers that it would be complacent and wrong to dismiss mark Y7 as a one-off.  Accordingly, it was highly relevant for the Committee to look back in time to examine what lessons can be learned from the key events that surrounded the initial identification process in relation to mark Y7 as well as looking at the inquiries, inspections and reports that followed.

352. It is clear to the Committee that, at best, the case highlighted inconsistencies in the identification and verification procedures within the SCRO Fingerprint Bureau.  Procedures, in so far as they were written down at all, appear not to have been properly followed or to have been ignored.  Furthermore there appear to have been a number of instances when ad hoc procedures were adopted.

353. The obvious next step is for the Committee to address whether these inconsistencies were confined to the identification and verification process applied to mark Y7 or whether they were indicative of wider problems affecting the operation of the SCRO Fingerprint Bureau in 1997 and beyond.  Accordingly, the next section of the report explores the HMIC inspection of the SCRO Fingerprint Bureau in 2000 and the problems it identified in the operation of the Bureau.


Footnotes:

17 Until 1999, Scottish fingerprint bureaux procedures required a minimum of three experts to verify the identification of a mark.

18 Hugh Macpherson, written evidence, available in Justice 1 Committee, 5th Report, 2006 (Session 2) - Written evidence received on Scottish Criminal Record Office inquiry (SP Paper 558)

19 Alister Geddes, written evidence, available in Justice 1 Committee, 5th Report, 2006 (Session 2) - Written evidence received on Scottish Criminal Record Office inquiry (SP Paper 558)

20 Arie Zeelenberg, report on mark Y7, January 2006, as submitted by Digby Brown, available in Justice 1 Committee, 5th Report, 2006 (Session 2) - Written evidence received on Scottish Criminal Record Office inquiry (SP Paper 558)

21 Alister Geddes, written evidence

22 Official Report, Justice 1 Committee, 26 June 2006, c 3574

23 Ibid

24 Official Report, Justice 1 Committee, 26 June 2006, c 3574-3575

25 Official Report, Justice 1 Committee, 26 June 2006, c 3562

26 Ibid

27 Official Report, Justice 1 Committee, 30 May 2006, c 3210

28 Hugh Macpherson, written evidence

29 Official Report, Justice 1 Committee, 30 May 2006, c 3239

30 Hugh Macpherson, written evidence

31 William O’Neill, supplementary written evidence, available online, at: http://www.scottish.parliament.uk/business/committees/justice1/ScottishCriminalRecordOfficeInquiryHomepage.htm

32 Robert Mackenzie, supplementary written evidence, precognition statement to Tayside Police, available in volume 2 of this report

33 Digby Brown Solicitors, written evidence, available in Justice 1 Committee, 5th Report, 2006 (Session 2) - Written evidence received on Scottish Criminal Record Office inquiry (SP Paper 558)

34 John MacLeod, report to the Scottish Executive on mark Y7, July 2004, available online, at http://www.scottish.parliament.uk/business/committees/justice1/ScottishCriminalRecordOfficeInquiryHomepage.htm

36 Ibid

37 Digby Brown Solicitors, written evidence

38 William O’Neill, supplementary written evidence

39 Robert Mackenzie, supplementary written evidence, precognition statement to Tayside Police

40 Robert Mackenzie, supplementary written evidence, precognition statement to Tayside Police

41 Charles Stewart, written evidence, available in volume 2 of this report

42 Ibid

43 Robert Mackenzie, supplementary written evidence, precognition statement to Tayside Police

44 Ibid

45 Ibid

46 Robert Mackenzie, supplementary written evidence, precognition statement to Tayside Police

47 Official Report, Justice 1 Committee, 26 June 2006, c 3589

48 Terry Foley, written evidence

49 Official Report, Justice 1 Committee, 7 June 2006, c 3357

50 ACPOS, written evidence, available in Justice 1 Committee, 5th Report, 2006 (Session 2) - Written evidence received on Scottish Criminal Record Office inquiry (SP Paper 558)

51 Ibid

52 Official Report, Justice 1 Committee, 12 September 2006, c 3710

53 Official Report, 9 February 2006, c 23255

54 Official Report, Justice 1 Committee, 26 June 2006; c 3564

55 Official Report, Justice 1 Committee, 30 May 2006; c 3248

56 Official Report, Justice 1 Committee, 26 June 2006; c 3551

57 Official Report, Justice 1 Committee, 26 June 2006; c 3495

58 Official Report, Justice 1 Committee, 7 June 2006; c 3406

59 Official Report, Justice 1 Committee, 7 June 2006, c 3348

60 Official Report, Justice 1 Committee, 7 June 2006, c 3399

61 Official Report, Justice 1 Committee, 26 June 2006, c 3496

62 Official Report, Justice 1 Committee, 30 May 2006, c 3239

63 Official Report, Justice 1 Committee, 26 June 2006, c 3565

64 Robert Mackenzie, supplementary written evidence, precognition statement to Tayside Police

65 Arie Zeelenberg, report on mark Y7, 12 January 2006, submitted by Digby Brown

66 Official Report, Justice 1 Committee, 30 May 2006, c 3239

67 Ibid

68 Official Report, Justice 1 Committee, 26 June 2006, c 3552

69 Official Report, Justice 1 Committee, 26 June 2006, c 3552

70 Official Report, Justice 1 Committee, 7 June 2006, c 3369

71 Official Report, Justice 1 Committee, 26 June 2006, c 3354

72 Official Report, Justice 1 Committee, 7 June 2006; c 3405

73 Official Report, Justice 1 Committee, 26 June 2006; c 3532

74 Note of ACPOS facilitated meeting, Scottish Police College, Tulliallan, 15 August 2000 as submitted by Alan Dunbar, available in volume 2 of this report

75 Malcolm Graham, written evidence, available in volume 2 of this report

76 Arie Zeelenberg, report on mark Y7, 26 May 2000, submitted by Digby Brown

77 Ibid

78 John MacLeod, report to the Scottish Executive on mark Y7, July 2004

79 Peter Swann, written evidence, available in Justice 1 Committee, 5th Report, 2006 (Session 2) - Written evidence received on Scottish Criminal Record Office inquiry (SP Paper 558)

80 Ibid

81 Ibid

82 Official Report, Justice 1 Committee, 7 June 2006; c 3406

83 Report on mark Y7 by Arie Zeelenberg dated 26 May 2000, as submitted by Digby Brown

84 Ibid

85 Official Report , Justice 1 Committee, 7 June 2006; c 3239

86 Official Report, Justice 1 Committee, 30 May 2006; c 3235

87 Charles Stewart, written evidence

88 Official Report, Justice 1 Committee 7 June 2006; c 3382

89 Official Report, Justice 1 Committee 26 June 2006; c 3547

90 Official Report, Justice 1 Committee, 7 June 2006; c 3346

91 Arie Zeelenberg, report on mark Y7, January 2005, submitted by Digby Brown

92 Official Report, Justice 1 Committee, 7 June 2006; c 3351

93 Official Report, Justice 1 Committee, 7 June 2006; c 3370

94 Official Report, Justice 1 Committee, 7 June 2006; c 3366

95 Official Report, Justice 1 Committee, 7 June 2006; c 3374

96 Ibid

97 Official Report, Justice 1 Committee, 30 May 2006; c 3269

98 Official Report, Justice 1 Committee, 26 June 2006, c 3555

99 Official Report, Justice 1 Committee, 26 June 2006, c 3556

100 Official Report, Justice 1 Committee, 7 June 2006; c 3394

101 Ibid

103 Report of fingerprint analysis and comparison, prepared for HMIC by Torger Rudrud and Arie Zeelenberg, 28 June 2000 - as annexed to Digby Brown’s submission to the Justice 1 Committee

104 Report of fingerprint analysis and comparison, prepared for HMIC by Torger Rudrud and Arie Zeelenberg, 28 June 2000 - as annexed to Digby Brown’s submission to the Justice 1 Committee

105 The term "original material" was applied by witnesses to the inquiry in various ways. The Committee uses it to mean material which is a true representation from an authenticated source.

106 Robert Mackenzie, supplementary written evidence, precognition statement to Tayside Police

107 Official Report, Justice 1 Committee, 7 June 2006; c 3387

108 Official Report, Justice 1 Committee, 7 June 2006; c 3250

109 Official Report, Justice 1 Committee, 7 June 2006; c 3355

110 Official Report, Justice 1 Committee, 7 June 2006; c 3399

111 Official Report, Justice 1 Committee, 26 June 2006; c 3552

112 Official Report, Justice 1 Committee, 26 June 2006; c 3582

113 Official Report, Justice 1 Committee, 7 June 2006; c 3368

114 Official Report Justice 1 Committee, 7 June 2006; c 3403

115 Hugh Macpherson, written evidence

116 Official Report, Justice 1 Committee, 30 May 2006; c 3210

117 Official Report, Justice 1 Committee, 30 May 2006; c 3217

118 Ibid

119 See paragraphs 218 – 225

120 Official Report, Justice 1 Committee, 26 June 2006; c 3528

121 Official Report, Justice 1 Committee, 26 June 2006; c 3502

123 Charles Stewart, written evidence

124 Official Report, Justice 1 Committee, 7 June 2006; c 3382

125 Official Report, Justice 1 Committee, 26 June 2006; c 3544

126 Official Report, Justice 1 Committee, 26 June 2006; c 3405

127 In 1988-89 the authors carried out a review of the requirement in England and Wales that a fingerprint identification should be based on at least 16 points of comparison before evidence may be given in court.  The review included: visits to bureaux in the UK and in various other countries; a study of the statistical aspects of fingerprint identification; a historical review; and a collaborative study in which fingerprint experts from many different bureaux at home and abroad examined ten sets of comparisons.  A paper describing the conduct of the review and its conclusions can be found at http://www.scafo.org/library/120101.html.

128 Official Report, Justice 1 Committee, 7 June 2006; c 3353

129 A review of the 16 point standard in England and Wales, I Evett and R Williams, October 1995

130 Synopsis of the Mackay Report

131 Ibid

132 Official Report, Justice 1 Committee, 26 June 2006; c 3562

133 Official Report, Justice 1 Committee, 30 May 2006; c 3213

134 Official Report, Justice 1 Committee, 30 May 2006; c 3214

135 Official Report, Justice 1 Committee, 30 May 2006; c 3215

136 Ibid

137 Official Report, Justice 1 Committee, 7 June 2006; c 3401

138 Official Report, Justice 1 Committee, 26 June 2006; c 3560

139 William O’Neill, supplementary written evidence

140 Official Report, Justice 1 Committee, 26 June 2006; c 3559

141Official Report,Justice 1 Committee, 23 May 2006; c 3148

142 Official Report, Justice 1 Committee, 26 June 2006; c 3554

143 Official Report, Justice 1 Committee, 7 June 2006; c 3360

144 Official Report, Justice 1 Committee, 26 June 2006; c 3554

145 Jean McClure, supplementary written evidence, available in volume 2 of this report

146 Greg Padden, supplementary written evidence, available in volume 2 of this report

147 Ibid

148 Official Report, Justice 1 Committee, 26 June 2006; c 3561

149 Official Report, Justice 1 Committee, 23 May 2005; c 3148

150 Ibid

151 Robert Mackenzie, supplementary written evidence, precognition statement to Tayside Police

152 William O’Neill, supplementary written evidence

153 Official Report, Justice 1 Committee, 12 September 2006; c 3691

154 Official Report, Justice 1 Committee, 20 June 2006; c 3456

155 ACPOS, written evidence

156 Ibid

157 Strathclyde Police Joint Board Scrutiny Committee Investigation Report – ‘The Black Report’

158 ACPOS, written evidence

159 Strathclyde Police Joint Board Scrutiny Committee Investigation Report – ‘The Black Report’, page 18

160 Strathclyde Police Joint Board Scrutiny Committee Investigation Report – ‘The Black Report’

161 Strathclyde Police Joint Board Scrutiny Committee Investigation Report – ‘The Black Report’, page 3

162 Strathclyde Police Joint Board Scrutiny Committee Investigation Report – ‘The Black Report’, page 4

163 Ibid

164 Official Report, Justice 1 Committee, 20 June 2006, c 3475

165 Strathclyde Police Joint Board Scrutiny Committee Investigation Report – ‘The Black Report’, page 3

166 Strathclyde Police Joint Board Scrutiny Committee Investigation Report – ‘The Black Report’, pages 3 and 4

167 Strathclyde Police Joint Board Scrutiny Committee Investigation Report – ‘The Black Report’, page 9

168 Ibid

169 Strathclyde Police Joint Board Scrutiny Committee Investigation Report – ‘The Black Report’, page 3

170 Strathclyde Police Joint Board Scrutiny Committee Investigation Report – ‘The Black Report’, page 11

171 Official Report, Justice 1 Committee, 20 June 2006; c 3474

172 Arie Zeelenberg, report on mark Y7, January 2006, as submitted by Digby Brown

173 Precognition statement of Pat Wertheim, 26 May 2000, as submitted by Digby Brown

174 John MacLeod’s Report to the Scottish Executive July 2004

175 Strathclyde Police Joint Board Scrutiny Committee Investigation Report – ‘The Black Report’, page 17

176 ACPOS Presidential Review of SCRO, Interim Report, 14 September 2000, page 9

177 S1W-16832

178 Submission from Scottish Criminal Record Office – copy of letter from Harry Bell to all Scottish Chief Constables 2 June 1999, available in volume 2 of this report

179 Synopsis of the Mackay Report

180 Lord Johnston’s charge to the jury HMA v Shirley McKie

181 Official Report, Justice 1 Committee, 7 June 2006; c 3352

182 Ibid

183 Official Report, Justice 1 Committee, 7 June 2006; c 3353

184 Official Report, Justice 1 Committee, 30 May 2006; c 3229

185 Synopsis of the Mackay Report

186 ACPOS Presidential Review Group - CMRT scrutiny report, para 13.7.41

187 Opinion of Lord Emslie, Shirley Jane McKie v John Orr, 14 February 2002

188 Opinion of Lord Hodge, Shirley Jane McKie v the Scottish Ministers, 30 March 2006, para 11

189 Opinion of Lord Hodge, Shirley Jane McKie v the Scottish Ministers, 30 March 2006, para 13

190 Opinion of Lord Wheatley, Shirley Jane McKie v Strathclyde Joint Police Board, 24 December 2003, para 15

191 Opinion of Lord Hodge, Shirley Jane McKie v the Scottish Ministers, 30 March 2006, para 15

192 Ibid

193 Opinion of Lord Hodge, Shirley Jane McKie v the Scottish Ministers, 30 March 2006, para 17

194 Opinion of Lord Hodge, Shirley Jane McKie v the Scottish Ministers, 30 March 2006, para 18

195 Opinion of Lord Hodge, Shirley Jane McKie v the Scottish Ministers, 30 March 2006, para 36

196 Official Report, Justice 1 Committee, 12 September 2006; c 3715

197 Official Report, Justice 1 Committee, 12 September 2006; c 3715

198 John MacLeod’s Report to the Scottish Executive July 2004

199 Official report, Justice 1 Committee, 12 September 2006; c 3725

200 Official Report, Justice 1 Committee, 12 September 2006, c 3716

201 Minister for Justice, supplementary written evidence

202 Official Report, Justice 1 Committee, 12 September 2006; c 3721

203 Shelley Jofre, written evidence, The Judgement in R. v Gilbert Thomas Patrick McNamee, available in volume 2 of this report

Volume 1 Volume 2 Volume 3 Contents Previous Next