CLPEX Chat Board

S of A:

The defence productions would have to have been lodged by the defence prior to the trial commencing. SCRO were aware that PW and DG were to give evidence challenging the ident. They admitted that in evidence when they gave it and were therefore able to see, if they wished, the defence productions. Stewart even went as far as to say that he had never seen a presentation like that of PW's before. He did not take the opportunity then to say that the image was inferior.

The SCROs who gave evidence were in the court house at the time that PW and DG gave evidence. This is referred to in the Mackay and Roberston report and there were "raised voices". They had an open track to the prosecutor and could easily have alerted him to the inferior quality of the images if that was a valid point.

When she was asked to look at the defence productions prepared by PW containing the photograph of Y7, Fiona McBride refused to even take it from defence counsel. It was therefore clearly available to the court during the prosecution case. Contact with SCRO continued until the point of the verdict. Evidence was given in the paliamentary inquiry that the prosecutor said it was not the fingerprint evidence that lost the case (although he did not apparently tell them what DID lose the case).

Again we come back to the point: if the defence productions were available to SCRO before and during the trial, why did they not rubbish them when cross examined by defence counsel and say: hey, this photo of Y7 is no use. This whole presentation is no use. And Pat Wertheim is no use.

It really is surprising that this point is raised now if it is a valid one.

DD, your last posting made me aware that I am more unfamiliar with the procedures and protocols of the justice process in Scotland than I thought. QC Findlay gave strict instructions that Pat and I were not to discuss any facet of the case prior to testimony. We honored that, so I was unaware of the presentations Pat had prepared, and saw them for the first time in the court room. Is this standard practice? If so, does this apply to the prosecution?

At no time was I asked by Mr. Findlay, or during precognition, whether I had a presentation. If I had prepared something, I would have informed counsel of the material but I would not have mentioned it during precognition. From your posting, QC Findlay would, in turn, have to provide this to the prosecution in advance? And, I gather, these could be furnished to the prosecution witnesses for review prior to the start of trial. If I had prepared something but this had not be furnished to the prosecution, would the presentation not be admitted?

There were minor differences noted between testifying there than here, and I was aware of most of these. One item did surprise me, however. I had never been asked my age in court before.

Andrew Shriever - I'm not clear on why you would think that 'S.C.R.O. supporters' would support the internet images at all considering the S.C.R.O. four don't even feel that the images bear a resemblance to the mark that they compared.

Dick Dastardly - In court we trust that the Prosecution will do his job well and lead the experts through the evidence. If only. We have all at one time or another felt that as witnesses, examination by the prosecution can be worse than by the defence. Unfortunately, the line of questioning is outwith our control and after the trial as I see it is the only time the S.C.R.O experts could have thought about about anything in relation to how the prosecution handled their testimony or Pat Wertheim's testimony for that matter. Are you certain DD, that PW's images were available to the four experts prior to their examination/cross examination? When I viewed the live stream of the Justice 1 hearing, Fiona McBride stated that she was handed evidence that was said to be the mark and the fingerprint, however she could not speak to them because she did not recognise them as the mark and the print she had examined with the other three experts
and it wasn't until she watched Pat Wertheim's presentation that she realised that she had been given Pat Wertheim's version of the mark and the fingerprint.

"The SCROs who gave evidence were in the court house at the time that PW and DG gave evidence. This is referred to in the Mackay and Roberston report and there were "raised voices". They had an open track to the prosecutor and could easily have alerted him to the inferior quality of the images if that was a valid point."

Are you saying DD, that the S.C.R.O experts should have left their seats in the court room in the middle of Pat Wertheim's examination/cross examination to talk to the prosecution? Is this practice accepted in courts in Scotland? I would genuinely like to hear if that is the case.

I wish to return to a matter I raised in a previous post in relation to the Danish experts accusation of a third erroneous ident in the Marion Ross case. I now have documentation of their report that reveals that they were given the correct evidence for comparison.

"Kristian Rokkjaer and Frank Rasmussen from the Fingerprint Department of the Danish Police travelled to Scotland to examine the SCRO evidence in the Case. Of the bank note print, their Report says:- "On the photograph marked QD2, at least four clear details were seen. These details cannot be found on David Asbury's right little finger, nor on his other fingers as indicated in the SCRO's Report."

So again I ask, human error or jumping on the bandwagon? I personally find it very disturbing that this question has to be asked and even more disturbing that the subject title of this thread is "there they go again" with further posts in support of this subject heading relating to a recent alleged erroneous ident from experts/non experts that haven't viewed the evidence. If Allan Bayle is found to be wrong, he will have ultimately shot himself and the supporters of this thread in the foot. Furthermore those supporters WILL be perceived by others to have jumped on the band wagon or even worse for their reputations, are seen to be on an S.C.R.O witch hunt. I agree completely with Kafka that those "taking the word of others are entering dangerous territory."

Has the images been released for others to establish the validity of the comment of 'There they go again'. Just wondered if any one could confirm this?

If handed a court production that was not recognised by witness do they not have a right to make no opinion on said productions. It would seem unfair for the person on the stand to pass any opinion on them without examining them in detail under the correct conditions.

I will be interested to find out the outcome, if any, of others' findings of Mr.Bayle's recent 'expert analysis' of the current case where he commented that scro should be shut down. Of course if the productions are released and viewed in their original state.

Kafka

The Metropolitan Police Fingerprint Department have confirmed the S.C.R.O. identification of the palm print which Alan Bayle in recent weeks claimed was erroneous.

In light of this new evidence, anyone with any sense, whether they be fingerprint people, journalists or politicians will not treat Allan Bayle as a credible witness. Bayle was in error with S.C.R.Os 'Sinclair' ident. Again claiming it to be erroneous. Any further reports of S.C.R.O erroneous identifications by the U.Ks 'foremost leading fingerprint expert' (how did he gain this title - did he earn it?) in all likelyhood will be dismissed or ignored. 'The Boy Who Cried Wolf' is a very fitting new title for Bayle and boy he has earned it this time.

"There they go again" - what does this tell us about the author of this thread and those that supported it?

I invite all of you (you know who you are and yes, we read the posts, so we know who you are) to comment on Bayle's blunder.

To err is human, to witch hunt ain't fine.

Amen to that.

Son Of Adam

"Andrew Shriever - I'm not clear on why you would think that 'S.C.R.O. supporters' would support the internet images at all considering the S.C.R.O. four don't even feel that the images bear a resemblance to the mark that they compared."

Son of Adam,

So are you saying that the SCRO four believe that the latent that Pat W. compared and testified to is a different latent from the one they compared and identified? Or is it the same latent, but just looks different from the one they examined?

[/quote]

AS, I'm not sure where you are going with this question. I guess it's one you should direct at the four experts. They say there are differences between the images they examined and submitted to the Crown and the images that Pat Wertheim used at the Perjury Trial & viewed on the internet. Who can say why there are differences, yet there are, according to the S.C.R.O four at the Parliamentary Inquiry.

The following article I believe says it all. You cannot convince me that witch hunting is not at play here. This is not the way that we in the fingerprint profession should behave. In order for the Fingerprint Service to move on, this type of conduct has got to come to a complete stop.

BBC News Friday 26 May

Call to close fingerprint bureau

A Holyrood committee is investigating the McKie case
An MSP has called for the Scottish Criminal Records Office's fingerprints bureau in Glasgow to be closed.
The SNP's Alex Neil said it could no longer be trusted after an independent expert said a print in a criminal case was wrongly identified in February.

At least one of the officers making the identification was also involved in the controversial Shirley McKie case.

Former Metropolitan Police officer Alan Bayle said the case of the February print was an obvious misidentification.

'Not identical'

Mr Bayle told the BBC's Newsnight Scotland programme that the SCRO in Glasgow was becoming a "byword for incompetence".

He said: "I was approached by the solicitor dealing with this particular case and he showed me a palm mark and a copy of the accused.

"When you first look at it you think all the lines are in the right place but when you actually look at doing the comparison it is nothing like it and it is very serious.

"It only took me a couple of minutes to see it is not identical."

The prosecution in that case has now been by dropped by the procurator fiscal for reasons other than fingerprint evidence.


Alan Bayle said the February print was an obvious misidentification

Holyrood's Justice 1 Committee is carrying out a parliamentary inquiry into the Shirley McKie case.

Ms McKie, a former Strathclyde Police officer, was accused of leaving her fingerprint at the home of Kilmarnock murder victim Marion Ross in 1997.

She always denied the print was hers and was later cleared of perjury.

Earlier this year the Scottish Executive paid Ms McKie, from Troon in Ayrshire, an out-of-court settlement of £750,000 in compensation.

Ministers said that "an honest mistake" had been made in identifying Ms McKie's fingerprint at the murder scene.

'Final straw'

The latest inquiry is intended to restore confidence in the fingerprint service.

Mr Neil said the February case highlighted by Mr Bayle was the "final straw" for the SCRO, as it followed reforms which were supposed to put right the problems identified by the McKie case.

He said: "We have now realised this week that there was a misidentification in 2000, another one in the Mark Sinclair case in 2004 and now in February of this year.

"So quite frankly I don't think there is anything else other than to close down the Glasgow bureau and handover their work to the other bureaux in Scotland, because anything coming out of the Glasgow bureau now cannot carry any credibility."

He said: "We have now realised this week that there was a misidentification in 2000, another one in the Mark Sinclair case in 2004 and now in February of this year.

Take note - all three of the above cases, quoted by Bayle have been found to be correct identifications by S.C.R.O. This strongly suggests that the author of this thread and his campaigners have been scrutinising the work of the wrong people. I do not and will not support the brand of bullying I have witnessed on this thread and what it highlights to me is that there is not a truer saying that applies to this occasion than 'what goes around, comes around'.

I will watch proceedings tomorrow at Holyrood with interest. It will be compelling viewing to see both sides of this debate on stage...at the same time. A first in years of debate I think. I am certain that this will prove a less than comfortable experience for Mr Bayle if the reports on this thread are true. But then again, I will not comment on this matter either as I have never seen the evidence.

The question has been asked about what access the SCROs had to the defence productions and when.

Of course, this can only be known to the SCROs and the prosecution. I do find it a little strange that not only are so many wrong according to SCRO, but now we have a serious suggestion that the proscecutor failed to do his job properly.

Of course, it is a possibility. However, any prosecutor would have been clearly aware of the importance of the SCRO evidence, and would have had unrestricted access to SCRO for clarification of the position.

I do not know if they had the defence productions before giving evidence, but would be surprised if they did not. THey were aware prior to giving evidence for the prosecution that there was a dispute by the defence and that an expert was to give evidence about that. At least one of the SCROs so testified.

It would be impossible to believe that they would not then ask the prosecutor or his office: who is this defence expert, and what does he say? That would instantly have produced information that there was a defence production lodged.

Any suggestion that SCRO could not easily discuss matters with the prosecution before or immediately after their evidence (when they chose to remain in the court) is impossible to understand and contrary to all understanding of the court procedures. A note passed to the prosecutor, when PW was in the witness box saying "The image of Y7 is flawed because it is contaminated" would be all that was required. The court productions were available during the trial at all times, even when Shirley McKie was giving evidence for some hours. They could have been reviewed then.

Fiona McBride gave evidence and was directly asked to look at the production. The exchange in cross examination went like this (I have slightly edited it, but not missed out anything material as far as I can see)

"I’m not going to go into this in detail,
but just one thing from Defence Production No. 2, and
if you look at the right hand side of Defence
Production No. 2 and you move the acetate sheets and
look at the photograph which lies beneath, and put
that on the screen, please and zoom in on the one on
the right which is the crime scene mark, as close in as
you can if you will and take the acetates off, all the
acetates. Four or five ridges from the top of the mark
what do we see opening to the left?

— I really couldn’t express an opinion. I have not seen this
before and I haven’t studied it and I can’t say in Court
here…

You must have seen it before with respect because it is the mark that you looked at? —
Well it appears to have had —— I have not seen it in this format and I would like to check…


BY MR. FINDLAY: That is a photograph of the mark which has been referred to as Y7. It is a photograph of the same mark that you have looked at on a number of occasions. Do you recognise it?

— No, I looked at it a few years ago. I really can’t say unless I have signed against it that that is the fact but I am sure it is what you are saying and that that is correct, but I have never seen it in this format before and whether it has been altered or whatever I don’t know.



So, just have a look at that and maybe to make it easier for you if you just look on the screen, look at the mark on the screen in close up and look at the top and come down one, two, bifurcation,
bifurcation shown quite clearly, wouldn’t you agree? —

No I wouldn’t. I would like to check that mark under glass. The enlargement is only for illustrative purposes and I certainly won’t make an identification of something that size."


What is clear from this is that FM was aware that there was a defence production (i.e. the acetates). She was aware that it was challenging her opinion. And, before Pat Wertheim and David Grieve gave evidence there were at least hours if not days to consider what the importance of this all was. She and her colleagues could have looked at it, and if necessary been recalled as witnesses by the prosecution.

We are expected to believe that the inferior quality of PW's photo of Y7 is so clear as to be obvious, but she made no mention of it when looking at the production, and refused to look at it or comment. Neither did she ask the prosecutor to take it away and look at it. This would have been obvious for a witness to do.

It is also interesting that the defence presentation clearly showed a plain (not rolled) impression. She did not say "Hang on, the inked mark is not sufficient for this purpose. It is plain, not rolled." Whatever else is not clear about the presentation, it is obvious to anyone in half a second that a plain and not rolled impression was used by PW.

If SCRO have not misbehaved in this, the shifting sands of their response is at least partly to blame. It began with leaking to the press that PW had only two weeks experience in fingerprinting. The source of this has now been traced to SCRO supporters. This was defence no 1: The Cowboy defence.

After a long time of simply repeating "we are right", the next defence put up was: we were the only ones with access to the originals. This was the Originality defence. But once it was pointed out that Durham, PW all had access to the originals, that was no use.

Defence three was the Contamination defence: that Y7 was altered in some way by damage. This though is only of importance if the alteration was material. There is dispute about this, but the original negatives are now available as are working records of SCRO. So that defence will not do either.

Defence 4: the Rolled Print defence. Only using a rolled print is good enough, says Mr.Swann, and this is supported on other threads on this site. This too is a matter of dispute, but the difficulty is that it is one that was not raised before and brings in to doubt its truth. So defence 5 is brought in and only within the past few weeks as far as I can see.

Defence 5: There was failure by the prosecution to present the case properly. They should have called Swann as a witness and made the court productions available. That is why, they say, defence 4 and 3 were so late in coming out.

Had all of these (except the cowboy defence which was too childish to be continued) come out at the beginning, then an outside observer might think there could be something in them. But things constantly change. Another example is the cropping of the print. This was said to be because the machine did not allow the whole print to be copied. That is not what was said in the civil case by the Executive: they said it was for "presentational purposes" including the size of the photo production book was too small. And it of course raises the question: why did FM not say in her evidence when closely questioned about where points were: "I am sorry but this reproduction is unacceptable because the machine is no use." If that was the real reason for the difficulty, then she should have said it. She did not, and it calls in to question the truth of her evidence.

Everything and everyone is to blame apart from SCRO, we would have to believe.

There are some complex details in the facts. Without a public inquiry we will never resolve them. SCRO would, I am sure, want to support the call for such an inquiry. Will they be asking the Parliamentary Inquiry to recommend that? I may have overlooked it in the evidence, but I don't recall them making that request?

I overlooked the response to the Danish question. Your information is simply not the information that I have about what was passed to the Danes.

I have seen documentation which indicates that the detail on the photographs were omitted because the incorrect lighting was used. A different photograph which revealed the correct detail was available to SCRO but not supplied to the Danes. As soon as they were provided with the correct photos they immediately corrected their report and advised the prosecution of their concern and anger about the position.

It may not be anyone's fault that this happened. Alan Bayle should not have jumped to conclusions, I agree. But neither should anyone jump to conclusion that the Danes are somehow incompetent which is the thrust of contributors to this thread. The important thing is when a mistake is made that it is acknowledged as soon as possible.

DD - From viewing the Justice 1 Inquiry last Wednesday and today, it is clear that the Prosecution could have played a better part in the proceedings. When I read your transcript of Fiona McBride's cross examination, it appeared to me that she hadn't been privy to Pat Wertheim's productions prior to her appearance in the witness box and it is clear that she was not prepared for it. Despite this, she dealt with the line of questioning as most experts would by not commenting on evidence she did not recognise and had not seen before. Were the three experts afforded the opportunity to study Pat Wertheim's images? Did they testify under advisement? It was mentioned at last Wednesday's Justice 1 Inquiry that Fingerprint Experts answer to the Procurator Fiscal and the Procurator Fiscal decides what evidence Fingerprint Experts present in Court. This could be one more to add to the list of reasons why the S.C.R.O four felt that the Prosecution had let them down.

I note that you, DD mention factors such as S.C.R.Os 'charting pc', what type of impressions Pat Wertheim had taken, failure from the prosecution to do his job properly as being issues that have been raised only in recent weeks. It is worth mentioning again, that S.C.R.O and Peter Swann have been gagged for the last seven to nine years. The Justice 1 Inquiry is the first opportunity either party has had a forum to discuss the case.

Finally DD - you mention Pat Wertheim's two week training - I myself have not heard this before. Could you clarify if this is true or not?

DD - From viewing the Justice 1 Inquiry last Wednesday and today, it is clear that the Prosecution could have played a better part in the proceedings. When I read your transcript of Fiona McBride's cross examination, it appeared to me that she hadn't been privy to Pat Wertheim's productions prior to her appearance in the witness box and it is clear that she was not prepared for it. Despite this, she dealt with the line of questioning as most experts would by not commenting on evidence she did not recognise and had not seen before. Were the three experts afforded the opportunity to study Pat Wertheim's images? Did they testify under advisement? It was mentioned at last Wednesday's Justice 1 Inquiry that Fingerprint Experts answer to the Procurator Fiscal and the Procurator Fiscal decides what evidence Fingerprint Experts present in Court. This could be one more to add to the list of reasons why the S.C.R.O four felt that the Prosecution had let them down.

I note that you, DD mention factors such as S.C.R.Os 'charting pc', what type of impressions Pat Wertheim had taken, failure from the prosecution to do his job properly as being issues that have been raised only in recent weeks. It is worth mentioning again, that S.C.R.O and Peter Swann have been gagged for the last seven to nine years. The Justice 1 Inquiry is the first opportunity either party has had a forum to discuss the case.

Finally DD - you mention Pat Wertheim's two week training - I myself have not heard this before. Could you clarify if this is true or not?

Hi DD

You say A Bayle should not have jumped to conclusions. Did he or did he not make a comparison of the recent 'identification' and say it was an obvious mistake by SCRO? What do you now think of your own pre-judgements you talked about? Can you comment further?

Kafka