Submission of David Russell to the Justice 1 Committee
Posted: Thu Jul 13, 2006 12:15 pm
The Scottish Parliament
Justice 1 Committee
Session of 26 June, 2006
SUBMISSION OF DAVID ARNOT RUSSELL TO THE JUSTICE 1 COMMITTEE IN RESPECT OF MATTERS
ARISING FROM THE SESSION OF 7 JUNE, 2006.
1. In respect of the Justice 1 Committee Session of 7 June, 2006 I am a named Witness. In this connection, I continue to represent Peter Swann, the Independent Fingerprint Expert instructed by Shirley McKie in defending the Criminal Proceedings Her Majesty’s Advocate v. Shirley Jane McKie aka Cardwell. I will also be accompanying Mr. Swann upon the resumed Session before the Justice 1 Committee, to be held on 26 June, 2006. In the event, I am in a position to assist the Justice 1 Committee and I proceed to do so.
Fingerprint Evidence and Exhibits Relied Upon by Peter Swann
2. The Justice 1 Committee gave notice on 2 June, 2006 (via Euan Donald’s e-mail) that during the Session of 7 June, 2006) they would wish to be informed as to what material Peter Swann had seen in relation to Mark Y7, the context in which he saw that material and how he was given access to the material. However, save that two Members of the Committee raised issue concerning Mr. Swann’s reliance upon a fingerprint impression published in The Daily Mail (for example, Alex Neil at col.3393), the matter was not pursued during the Session of 7 June.
3. On behalf of Peter Swann, I will now provide the particulars requested by the Justice 1 Committee as to what material he had seen in relation to Mark Y7, the context in which he saw that material and how he was given access to it.
4. On 26 February, l999 Shirley McKie’s then Solicitors, Levy & McRae provided Mr. Swann with Volumes I, II and III of the Crown’s Productions and photographs, which had been made available by the Procurator Fiscal.
5. On 2 March, 1999 Mr. Swann attended the High Court of Judiciary, Saltmarket, Glasgow and inspected and examined the Crown’s Exhibits, namely, Exhibit 102, Door Standard; Fingerprint Form of Detective Constable Shirley McKie (nee Cardwell); photograph of the Mark Y7 and other Exhibits connected with the Case. He was given access to the Crown’s Exhibits in his capacity as Ms. McKie’s Defence Fingerprint Expert and was accompanied throughout the Inspection by her Lawyer, Angela McCracken of Levy & McRae.
6. On 3 March, 1999 Angela McCracken of Levy & McRae wrote to Peter Swann, stating:-
HMA v. Shirley McKie
We refer to the above and now enclose herewith Shirley McKie’s left hand thumb print.
Attached to that letter was a sheet of paper endorsed in red ink Shirley McKie Left Hand Thumb Print. Upon that sheet of paper there were four original fingerprint impressions, made in blue ink, each one being of Shirley McKie’s left thumb, to include a rolled impression. In his evidence to the Justice 1 Committee on 7 June, Mr. Swann confirmed that such rolled impression was “far superior to anything the SCRO has” (col.3389).
7. Subsequent to the Perjury Trial, Her Majesty’s Advocate v. Shirley Jane McKie aka Cardwell, Mr. Swann contacted Terence Kent who was, at the time, Head of the Reactive Crime Sector and IT, at the Police Scientific Development Branch of the Home Office in Sandridge (Police Requirement Support Unit). Mr. Swann, the Former Head of the Fingerprint Bureau, West Yorkshire Police, holding the rank of Superintendent, had also carried out duties upon secondment as Advisor to the Home Office, based at Sandridge. On 16 March, l998 Mr. Kent had received from the Strathclyde Police the original Exhibit, Door Standard right-hand side downstairs bathroom, 43 Irvine Road, Kilmarnock, Police Reference Number. UC01050197. In his Witness Statement of 13 May 1998, made on behalf of the Crown in the Criminal Proceedings, Mr. Kent described how he “unpacked, examined and photographed the Exhibit on Tuesday 17th March (Paragraph 5 of the Witness Statement). Upon request, Mr. Kent provided Mr. Swann with photographs and enlargements of Exhibit Y7, taken from the original negatives, carrying the Mark “T. Kent”, together with duplicate negative. The authenticity of the photographs and negative, which are in my possession, is further corroborated by the original, contemporaneous documents which accompanied disclosure, namely, Mr. Kent’s Witness Statement together with Curriculum Vitae; a letter to Mr. Swann, signed by Mr. Kent; a Police Scientific Development Branch Compliments Slip, again signed by Mr. Kent; and the Business Card of Mr. Kent in his then capacity as Head of Crime Investigation and IT Sector, Police Scientific Development Branch, Home Office Policy Directorate. Such documentation confirms that enlargements of the Mark Y7 were prepared by Mr. Kent, again at the behest of Mr. Swann. In the circumstances, Mr. Swann was provided with original material by the Expert who took the photographs of the Door Standard and of the Mark Y7.
8. Actual size photographs of Exhibit 102 with the Mark Y7 were provided to Peter Swann by Graham Hughes, a Fingerprint Officer who, at the material time, was based in Liverpool, who was also the then Editor of Fingerprint Whorld. Those photographs are in my possession and are authenticated by attachment to a note, signed by Mr. Hughes.
9. Mr. Swann has the negatives, photographs and enlargements of Shirley McKie’s fingerprints, notably of the original rolled impression supplied to him by Levy & McRae on 3 March l999, which were taken, developed and printed by the Fingerprint Bureau, The West Yorkshire Police.
10. On 12 March, l999 Levy & McRae wrote to Shirley McKie and stated in wholly unequivocal terms that:-
So far as Mr. Swann is concerned, he was given all the material which we hold which includes Precognitions, Crown Productions, the video and, of course, your fingerprints. We held nothing back from him. Mr. Kerrigan QC met with him for an entire day, Angela McCracken separately met with him and Donald Findlay QC has met with him. As far as I am aware all the issues which both Senior Counsel wished to explore were explored and Mr. Swann’s Report reflects the issues concerned.
11. It will be evident from the above and, indeed, the Exhibits held, that Peter Swann had access to the best available original material, to include the negatives, photographs and enlargements of Mark Y7, taken by Terry Kent and provided by Mr. Kent, together with the original fingerprints of Shirley McKie, provided by her Lawyers.
The Daily Mail: Publication of Shirley McKie’s Thumb Print
12. In his Fingerprint Charts, produced to the Justice 1 Committee, Mr. Swann exhibited and relied upon the original fingerprints, to include the rolled impression, provided by Shirley McKie. He also made use of a photograph of Shirley McKie’s left thumb print, published in The Daily Mail on 24 October, 2000. In the event, during the Justice 1 Committee Session of 7 June, 2006 Alex Neil challenged Mr. Swann upon his usage of such material, equating it with The Dandy, a comic to which Mr. Neil apparently subscribes (col.3393). However, and as already intimated, the Justice 1 Committee did not question Mr. Swann, in the terms previously notified, as to the fingerprint material relied upon him and the source of such material. Thus, and as will be evident from Paragraphs 4-11 above, Mr. Swann has, at all material times, had access to, and had in his possession, the original fingerprints of Shirley McKie, to include the rolled impression. Mr. Swann’s usage of the fingerprint published in The Daily Mail was, therefore, in addition to, and not in substitution of, the original fingerprints provided by Shirley McKie.
13. In the event, I put the issue to Martin Leadbetter, an eminent Fingerprint Expert (who had also corroborated Peter Swann’s Identification of Exhibit Y7 as being the left thumb print of Shirley McKie). I invited Mr. Leadbetter’s Expert Opinion on Mr. Swann’s usage of a fingerprint published in a newspaper. The Justice 1 Committee have been provided with Mr. Leadbetter’s Curriculum Vitae and are, therefore, aware that he was, until his recent retirement, Head of the Fingerprint Bureau, Cambridgeshire Constabulary. Mr. Leadbetter has 40 years experience as a Fingerprint Expert and is a Life and Distinguished Member of the International Association for Identification; a Founder Life Member and Fellow of the Fingerprint Society; a Member of the British Academy of Forensic Science; Former Secretary of The Fingerprint Society and Assistant Editor of The Fingerprint Society’s Journal, Fingerprint Whorld. In the event, having been provided with all of the salient material, to include the Official Report of the Justice 1 Committee dated 7 June, Mr. Leadbetter wrote to me on 19 June with his Expert Opinion. I duly produce Mr. Leadbetter’s letter (Appendix A1-2). In the event, Mr. Leadbetter stated:-
Having viewed the video proceedings of the above Session, I feel compelled to express my disgust at the manner in which Alex Neil MSP questioned the Witness, Mr. Peter Swann.
The issue which particularly vexed me was Alex Neil’s pathetic attempt to belittle Mr. Swann and his evidence by his reference to “The Dandy”. Is this the sort of behaviour that the Scottish people expect from their elected Representatives? It is probably the case, that Mr. Neil’s knowledge of fingerprint identification is minimal and would have been gained from some toxic source. However, the issue to which Alex Neil referred, Mr. Swann’s use of the impression of Shirley McKie’s left thumb that had been published in The Daily Mail is one that needs to be clarified further.
I have been a Fingerprint Examiner for almost 40 years and continue to practise. Within the Fingerprint Business, it is quite normal that Examiners need to make use of Photostat (Xerox) copies of fingerprints, some of which have been made from original fingerprint forms which themselves have been taken without the necessary care to achieve the best possible results. Many Identifications are effected throughout the UK every day where the Examiner makes use of photostat copies of fingerprints. I have examined the print from The Daily Mail and in the most important aspect it is actually superior to that published on the Internet. If every fingermark and fingerprint that was received into the UK’s Fingerprint Bureaux were copperplate, then we could dismiss all the Country’s Fingerprint Experts tomorrow. Fingerprint Experts are used to dealing with sub-standard material, but in no way can the representation of Shirley McKie’s thumbprint in The Daily Mail be classified as sub-standard.
The issue here, is not one of quality, but of quantity. Quite simply, the impression published in The Daily Mail discloses additional fingerprint ridge detail that is not apparent on the Internet image. Thus, experienced Fingerprint Examiners such as Mr. Swann are availed the opportunity to pore over far more important ridge detail than is disclosed in the Internet image. Personally, I find The Daily Mail image quite satisfactory for Identification purposes and have most certainly had to use material inferior to this in the past when conducting a comparison procedure. I’m sure that even a Dandy reader such as Mr. Neil will appreciate, that in the circumstances we have here, the important issue is to ensure that the maximum amount of information is disclosed for examination in order that an error does not occur.
I should also like to extol Mr. Swann’s handling of Mr. Neil’s insulting proposition. Being a true professional, he remained cool, calm and collected, maintaining absolute control of the situation and did not take the bait.
Despite the impression that certain Fingerprint Examiners attempted to give on the day of this Hearing, that Fingerprint Identification is some sort of mysterious, scientific hocus-pocus, it is not. It is a straightforward process of comparison, which, in the hands of skilled, experienced and dedicated Practitioners is still the finest and most accurate form of personal Identification yet devised; but in addition, the Practitioners must show integrity, something which Mr. Swann has more than his fair share of.
The issue raised concerning the publication of Shirley McKie’s fingerprint in The Daily Mail does, however, remain academic since, as stated, Mr. Swann relied upon and used Shirley McKie’s original fingerprints, to include the rolled impression of the left thumb.
The Taking of Shirley McKie’s Fingerprints
14. As stated, on 3 March, l999 Angela McCracken of Levy & McRae provided Peter Swann with the fingerprints of Shirley McKie, namely, four impressions of the left thumb, to include a rolled impression, which was judged to be of superb quality. During the Justice 1 Committee Session of 7 June, by reference to the original fingerprints of Shirley McKie supplied to Mr. Swann, Bruce McFee put the following question to Arie Zeelenberg (col.3408):-
We heard from Mr. Swann that what I am holding up – Shirley McKie’s left thumb print – is his best evidence. Do you have any comment on the method by which that print was taken? Would you allow somebody to take their own fingerprint or to have their Lawyer, who was untrained in fingerprinting, take an impression and send it to you? Would you consider that to be the best evidence?
Mr. Zeelenberg responded:-
That depends on the result. Good ink and good paper might produce a good image – we do not know.
However, when the same issue was put by Mr. McFee to Pat Wertheim, he contended that it was preferable to use a local Fingerprint Expert as an intermediary, rather than to rely upon fingerprints “that are taken by a lay person and especially to those taken by the Defendant themselves” (col.3409).
15. The first issue is, however, that, as Mr. Zeelenberg conceded, the value of the fingerprint as evidentiary material “depends on the result”. It was Mr. Wertheim who challenged the usage of fingerprints provided by “a lay person” via Lawyers. However, and as Mr. Wertheim was fully aware, Shirley McKie was not “a lay person”. Thus, at the date of her Criminal Trial in May l999, Shirley McKie was a serving Police Officer who, having joined the Service in 1986, had 13 years service. She was, therefore, a fully trained, highly experienced Police Officer. Detective Constable McKie underwent her initial Police Training at Tulliallen and subsequently served in Irvine in Ayrshire and latterly in Kilmarnock. Ms. McKie thereupon transferred to the Criminal Investigation Department. During Ms. McKie’s 13 years service as a Police Officer, she attended Fingerprint Courses and was also fully trained and experienced in the taking of fingerprints. For a number of years after 1986, Ms. McKie’s Police Force did not use SOCO for routine Criminal Investigations, such as low value break-ins. It was commonplace for Officers to undertake basic Crime Scene Investigation. Ms. McKie had formal Fingerprint Training as well as on the job training. Ms. McKie was, as stated, a professional Police Officer, with 13 years service, who was trained and experienced in fingerprints. Ms. McKie was a professional, who was capable, qualified and experienced enough to provide a good set of her own fingerprints as, indeed, was evidenced by the quality of the fingerprints provided to Mr. Swann. Indeed, that is further evidenced by the superior quality of the rolled impression of the left thumb provided by Shirley McKie. In the circumstances, as a highly experienced and capable Fingerprint Expert, Mr. Swann was entitled to rely upon and use the fingerprints supplied by Shirley McKie. No Fingerprint Expert in the so-called McKie Case has been able to produce a more valuable fingerprint than the rolled impression of the left thumb supplied by Shirley McKie herself. If Shirley McKie and her Fingerprint Experts, particularly Mr. Wertheim, have a problem with the rolled impression of her left thumb print, then that is because it matches Exhibit Y7.
The Submission of April, 2006 to the Justice 1 Committee, Made by Shirley McKie’s Counsel and Solicitors.
16. During the Perjury trial of May l999, Her Majesty’s Advocate v. Shirley Jane McKie aka Cardwell, Shirley McKie denied on Oath not less than half a dozen times that she had knowledge of any Fingerprint Expert examining Y7 on her behalf, prior to Pat Wertheim. Ms. McKie thereby committed Perjury, since Peter Swann had conducted such examinations as her Fingerprint Expert prior to Mr. Wertheim. That is a separate and distinct issue from the series of false averments pleaded by Shirley McKie and her Lawyers in the Court of Session Civil Proceedings, Shirley Jane McKie v. The Scottish Ministers and Others. Since Ms. McKie lied on Oath, I have made the open allegation that she committed Perjury during her Perjury Trial. In an attempt to counter that allegation, Shirley McKie’s Lawyers, Andrew Smith QC, Alastair Duncan, Gordon Dalyell and James Cassels made a Submission to the Justice 1 Committee in April, 2006 in which, inter alia they declared:-
The Pursuer advises us – and we have no reason to doubt this – that she was not aware of the opinion of Swann on the matters that she was asked about. At all material times, her father was being advised of the developments and not all matters were communicated to her.
However, that Submission was patently false and deliberately misleading as, indeed, Shirley McKie’s Lawyers were well aware. By letters dated 19 May, 22 May and by e-mail of 20 May, 2006 to the Clerk to the Justice 1 Committee, I lodged Formal Complaint against Shirley McKie’s Lawyers. In support, I have provided the Justice 1 Committee with documentation, to include a letter dated 7 March 1999, signed personally by Shirley McKie, which provides unequivocal corroboration that she had full knowledge of Mr. Swann’s Expert Examination of Y7 on 2 March, l999 and that she had been notified of his Finding, confirming that Mark Y7 was her left thumb print, in agreement with the Scottish Criminal Record Office. There are a number of documents which also evidence the fact that Shirley McKie had contemporaneous knowledge of the Examination conducted by Mr. Swann and his ensuing Expert Findings. Those documents include Iain McKie’s Witness Statement to the MacKay Inquiry, in which he confirmed that within one week of Mr. Swann’s Examination of the Exhibits in the High Court at Glasgow (2 March, l999), Shirley McKie had been told of his Findings, and the fact that he was in agreement with the Identification made by SCRO. In television interviews, Shirley McKie herself has described how “gut-wrenching” it was when her Independent Expert reported that Mark Y7 was her left thumb print. Still further corroboration is provided by the MacKay Report and I duly refer the Justice 1 Committee to the following:-
15.7.3.28 Following Witness Shirley McKie’s arrest, her Defence Team focused on the Fingerprint Evidence as it appeared that the Crown Case was based solely on that Evidence. The initial strategy was to explore the possibility that the Mark had been transposed, ie “planted” on the door frame or that there had been a “mix up” with Marks found on the Marks & Spencer tin, an item Witness Shirley McKie had clearly handled. This has since been dispelled.
15.7.3.29 Consequently, two Independent Experts were asked to give an opinion as to whether Crime Scene Marks could be transposed. They opined that under practical conditions within a Crime Scene, transposition would be impossible. One of these Witnesses having examined copies of the Fingerprint Productions confirmed that Crime Scene Mark “Y7” was made by Witness Shirley McKie. She was informed of the results of this Examination, however she remained adamant that she had not entered the locus.
I again ask The Justice 1 Committee to consider the documentation, to include Shirley McKie’s letter of 7 March, 1999 and the MacKay Report and thereafter, to read the document entitled Submission to the Scottish Parliamentary Inquiry into the Scottish Criminal Record Office and the Scottish Fingerprint Service on behalf of the Legal Advisers to Shirley McKie and the claim that:-
The Pursuer advises us – and we have no reason to doubt this – that she was not aware of the Opinion of Swann on the matters that she was asked about.
In the circumstances, and in accordance with the notification previously given, I have lodged fully documented Complaint Submissions with the Faculty of Advocates and The Law Society of Scotland. I duly produce my two letters of Complaint dated 16 June, together with letter dated 22 June from Carole Ferguson, Solicitor to the Faculty of Advocates (Appendix B3-6).
The Fingerprints of Shirley McKie Taken by Pat Wertheim
17. During the Justice 1 Committee Session of 7 June, Pat Wertheim gave evidence as to how he had taken approximately 100 fingerprints from Shirley McKie (col.3403). Upon being asked whether the 100 prints or so were still available, Mr. Wertheim stated that most of them were not (col.3404). By reference to the fact that he had taken some eight dozen fingerprints from Shirley McKie, Mr. Wertheim gave evidence to the Justice 1 Committee as to how he thereby secured “the best inked impression to compare to that latent print” (Y7) (col.3399). During that Session, the Justice 1 Committee were also told about the work being undertaken on behalf of Shirley McKie by Kasey Wertheim, who was said to be a Forensic Scientist. It was stated that Kasey Wertheim had “made a map of the whole thumb of Shirley McKie” (col.3358). In the circumstances, if, in order to obtain “the best inked impression” (col.3399), Pat Wertheim had to score a century in repeatedly taking Shirley McKie’s thumb print, then how was it that over 4 years later, on 2 June 2003, Kasey Wertheim was required to notify Martin Leadbetter that:-
Near the top of the Mark, there are three bifurcations in close proximity opening up and to the left. This is very common in right thumb tips, and likewise very uncommon in left thumb tips. In fact, these three characteristics do not appear in the left thumb print of Shirley McKie included with the Chart, or in any of the other left thumb prints of Shirley McKie I have had the opportunity to examine. I believe these three bifurcations in combination are the easiest way to prove this print was not made by Shirley. Unfortunately, none of the known left thumb prints of Shirley include the entire tip, a situation which will soon be rectified. I have recently asked Iain and Shirley if they would provide additional known prints of her entire left thumb tip. They have agreed.
I duly refer the Justice 1 Committee to Kasey Wertheim’s e-mail of 2 June, 2004 (Appendix C9). In the circumstances, it is evident that four years after Pat Wertheim had taken 100 fingerprints from Shirley McKie and notwithstanding all of the grandstanding, campaigning and so-called Expert work undertaken by Arie Zeelenberg and Allan Bayle, not one of them had a left thumb print of Shirley McKie which included “the entire tip”. Why was that?
The Internet Images and the Petition to the Scottish Parliament by 171 Fingerprint Experts
18. During the Justice 1 Committee Session of 7 June, issue was raised concerning the quality of the Internet images published and relied upon by Arie Zeelenberg, Pat Wertheim and Allan Bayle. Mr. Zeelenberg and his colleagues continue to defend the Internet images. However, in respect of such issue, I refer the Justice 1 Committee to an e-mail dated 26 May, 2003 from Kasey Wertheim to Martin Leadbetter, in which he said (Appendix C7):-
I have taken the liberty to send you a CD (I hope you don’t mind) that contains as close to original images as possible (high-resolution scans of the negatives) of the Mark and inked print. The Internet simply doesn’t do justice to the Mark. I hope these better quality images offer additional insight for your opinion on the non-identity of the prints. I would be interested in your comments after you review the CD.
In a subsequent e-mail of 2 June, 2003 Mr. Wertheim told Mr. Leadbetter (Appendix C10):-
As I mentioned in my post, I feel that 10 years from now the Latent Print Community as a whole will have an understanding of which “Camp” for lack of a better word, was correct. Unfortunately, I believe the reputations of those who hold fast to the incorrect opinion will suffer severely. Those who have taken sides prematurely based on photocopies and/or Internet copies of the Mark may still have a way out.
Arie Zeelenberg, Pat Wertheim and Allan Bayle continue to place reliance upon the worldwide support of Fingerprint Experts. Thus, on 2 May, 2002, when Michael Russell MSP presented the “Statement” in support of Shirley McKie, it was claimed that it had been “signed by 130 Fingerprint Experts from across the world” (letter dated 2 May, 2002 from Michael Russell MSP to Jim Wallace MSP, Former Minister for Justice). However, I draw to the attention of the Justice 1 Committee the e-mail dated 30 May, 2003 from Mr. Leadbetter to Mr. Wertheim, in which he stated (Appendix C8):-
In your own correspondence you state something to the effect that the Marks on the Internet are not the best images available. I therefore put very little stead or reliability in the conclusions of the 160 or so “Experts” that came to their decision based upon this material. I am not happy about the comment in the accompanying letter to the CD which states, “…as close as you will get to the original material…”. As a practising Examiner who has been confirming Identifications at third check level for more than 20 years, I would always expect to see original material before committing myself.
Mr. Leadbetter went on to state that (Appendix C8) :-
The Petition. This was an inane and extremely pathetic attempt to try and whip up support, purely in numbers, but as expected, none of the UK’s practising Examiners, except one, signed up to it. Even Ron Cook, one of those involved in the BBC tv programmes told me that he would not be signing the Petition. To me, the Petition was a schoolboy approach to solving a serious and controversial issue and frankly, I don’t think it helped your case one bit. Whatever happened to the noble maxim of ACE-V?
I invite the Justice 1 Committee to review that exchange of e-mails (Appendix C7-10).
19. During the Justice 1 Committee Session of 7 June, Arie Zeelenberg sought to criticise Fingerprint Experts, to include Peter Swann, saying they were at risk of “mindset” (col.3410). Mr. Zeelenberg informed the Justice 1 Committee (col.3410):-
Let us not forget that the initial Identification by Mr. Swann was, as he said, made on the charted print. He knew that it had been identified by somebody else and it did not have the 10 discrepancies in the top. That explains his mindset. He then started to explain things.
On several occasions during his Presentation and in giving evidence, Mr. Zeelenberg placed great weight upon the fact that over 160 worldwide- Experts had conclusively Identified Y7 as a Misidentification. Alex Neil put it to Mr. Zeelenberg that “Mr. Swann rubbished the list of 171 International Experts and mentioned those from New Zealand” (col.3421). Mr. Zeelenberg responded that he found the situation “very difficult” and said that the allegations were “appalling.” When Mr. Neil put it to Mr. Zeelenberg that whilst “it may have started as an honest mistake, there is clear evidence of deliberate deceit about the Misidentification”, Mr. Zeelenberg declared that he would “not enter into a debate about whether it is Criminality or not” (col.3367). (If, indeed, Mr. Zeelenberg is not prepared to enter into a debate about whether it is Criminality, then why is he delivering a Lecture on 6 July, 2006 in Boston entitled Shirley McKie Case – Error or Perjury?). Effectively, Mr. Zeelenberg was portraying himself as a Fingerprint Expert, who would not be drawn into such issues as “Criminality”. Having regard to the fact that Mr. Zeelenberg had also warned the Justice 1 Committee about the risk of “mindset”, I now turn to the way in which he (Mr. Zeelenberg) misled the so-called 171 worldwide-Experts into signing-up in support of Shirley McKie. I duly invite the Justice 1 Committee to consider Arie Zeelenberg’s Internet Appeal to Fingerprint Experts. It is clear that since it was made through CLPEX, an open website, the Appeal was open to allcomers. Mr. Zeelenberg did not, however, approach the issue with any professionalism, independence, integrity or objectivity. Whilst Mr. Zeelenberg had the temerity to lecture the Justice 1 Committee and Mr. Swann about “mindset”, he made his Appeal to the so-called International Experts, using biased, intemperate and entirely misleading representations. For example, Arie Zeelenberg told those “Experts” (Appendix D11-13, Open Internet Letter by Arie Zeelenberg):-
This is a generic letter circulating among Fingerprint Experts around the world. As you may have heard a dreadful mistake is made in Scotland with a wrong Identification of a latent Mark in a Murder Case against the Police Officer named Shirley McKie.
Her life and career are ruined as a result of this. After a long investigation the Experts of the Scottish Criminal Record Office refuse to admit to the mistake hiding behind their opinion.
They will be reinstated in their job and may continue to discredit the Fingerprint Science and to make new victims.
Attached is a Transcript of a Presentation from Iain McKie, the father of Shirley, a retired Police Superintendent. It is an accurate summary of the events in this Case and at the same time it makes very clear what devastating effects it has had upon their lives.
Just recently the Scottish Authorities have announced that no mistake was made. SCRO staff simply has (sic) another opinion. This puts the suspicion back upon Shirley’s shoulders and will certainly make it more difficult for her to find justice and compensation.
We need to speak up for the sake of the McKie family and for the sake of Fingerprint Science.
We have a moral and professional obligation to do so.
The international band of “Experts” were thereupon referred to Internet images of latent fingerprints, which carried with them text in the following terms:-
American Latent Print Examiners Pat Wertheim and David Grieve presented testimony that it is NOT an Identification.
The Fingerprint Charts were already fully marked-up. On 22 April 2002, one week after sending out his “Appeal” for the Internet Experts to sign up to his Statement, Arie Zeelenberg sent out further e-mails via the CLPEX website. This time, Arie Zeelenberg told the International “Experts” that (Appendix D16-17):-
It is clear that the majority of Experts in Great Britain are silent. There can only be one logical reason, it is a mistake but they don’t want to admit it. Let us give the Scottish Parliament a direction to go. They have to decide in what is seemingly a battle of the Experts. If we are silent they have no choice. If we speak loudly and massively but with dignity we might convince them that the whole matter is caused by a mistake, and they can correct the wrong.
Remember that it requires only one honest Senior Fingerprint Bureau Head in Britain to stop the agony. Remember Shirley was a Police Officer until her own Organisation acted upon an opinion of fellows in fingerprints.
At no stage did Mr. Zeelenberg invite informed, independent, objective Expert Opinion from the International “Internet Experts”. Instead, he acted as a Cheer Leader for Shirley McKie and her father, Iain McKie. The process adopted by Mr. Zeelenberg was dishonest, misleading and intended to emotionally blackmail foreign Experts to sign up for the cause.
20. If a Medical Practitioner, Research Scientist or any other Expert had attempted to conduct an equivalent Epidemiological exercise, adopting the same tactics as Mr. Zeelenberg, then inevitably, they would have been struck-off by the General Medical Council or any other Regulator responsible for overseeing their conduct. Mr. Zeelenberg’s misconduct is compounded by the fact that the so-called Petition was relied upon to attack SCRO and to bring inordinate, inappropriate pressure to bear upon the Scottish Ministers. It is, however, truly remarkable that Deputy Chief Constable James MacKay was so gullible as to accept without question the falsehood that there was overwhelming evidence of Misidentification from the International Fingerprint Community. Thus, at Paragraph 15.9.1.14 of the MacKay Report, it was stated:-
However they (SCRO) remain arrogant and obdurate and give the impression of defending the indefensible to such an extent that, having regard to the evidence supplied by Experts world-wide, the apparent deception incredibly continues and despite the overwhelming evidence, both SCRO Representatives vehemently adhere to their assertions, depending on dogma and rhetoric.
Again, at Paragraph 15.7.7.10 of the MacKay Report, it was stated:-
Whilst it is acknowledged that the four Experts exercise their right of silence, it is astonishing to find that despite the overwhelming evidence of world-wide Experts, two senior Experts in SCRO, remain dogmatic and obdurate and attempted to persuade others that the Identification of Mark “Y7” is sound.
Deputy Chief Constable MacKay was so influenced and misled by the Zeelenberg exercise that he concluded his Report in the following terms:-
OVERALL SUMMARY
Fingerprint Experts worldwide have collectively expressed the view that while the Misidentifications could initially be attributed to incompetence, these mistakes should have been discovered at an early stage, and failure to do so on the part of the Experts was clearly culpable.
The Justice 1 Committee is invited to consider the methodology used by Mr. Zeelenberg in getting 171 so-called Experts to sign up for the McKie cause. The exercise was a complete and utter travesty of justice. What is of more concern, however, is that the Scottish Ministers, Deputy Chief Constable MacKay and others took it seriously. The concept of 171 eminent, International Fingerprint Experts supporting the McKie cause lent substance and credibility to what had otherwise been a rabble-rousing campaign fronted by Iain McKie. As for Mr. Zeelenberg, he is clearly an expert on “mindset” and he used that tactic to ensure that he would get the required electronic signatures for his Statement/Petition.
The Evidence of Allan Bayle and the Lockerbie Connection
21. During the Justice 1 Committee Session of 7 June, Allan Bayle was specifically questioned as to his involvement, as a Fingerprint Expert, in the Lockerbie Case (col.3412). He was asked to “check to see whether his evidence was used in the Lockerbie Case.” It was recognised that Mr. Bayle’s declared involvement in the Lockerbie Case was being used as “testament to (his) expertise” (col.3412). During the Justice 1 Committee Hearing, Mr. Bayle gave an account of the circumstances in which he resigned from New Scotland Yard, and his involvement in the Lockerbie and McKie Cases. In promoting the McKie cause, as a self-appointed Expert, Mr. Bayle has variously claimed to have been the UK’s Leading Fingerprint Expert, whose evidence was “crucial” to the Conviction of Abdelbaset Ali Mohamed Al Megrahi, the Lockerbie Bomber. Mr. Bayle has also claimed in the past to have resigned from his post at New Scotland Yard as a direct result of his involvement in the Case of Allan McNamara. In the past, Mr. Bayle has aligned himself to each cause celebre in the Fingerprint World and then used his peripheral involvement to launch attacks on Fingerprint Establishments, ranging from Greater Manchester Police and the SCRO to the Federal Bureau of Investigation. By way of example, I produce to the Justice 1 Committee a letter dated 19 July, 2001 from Mr. Bayle to David Blunkett MP, the former Home Secretary (Appendix E18-19). It will be noted that apart from launching an unwarranted attack upon the Forensic Services Department of Greater Manchester Police, Mr. Bayle used his letter for self promotion, declaring that he was “Britain’s Leading Authority on Forensic Ridgeology”. In all of the circumstances, I wrote on 13 June, 2006 to Bruce Grant, Head of Counter-Terrorism Forensic Services at New Scotland Yard and I produce my letter for the consideration of the Justice 1 Committee (Appendix F20-26). There have already been several attempts, with the encouragement of the McKies, to establish a link between the “Conspiracy” at SCRO and Investigation of the Lockerbie Bombing. However, the allegations promulgated by the McKies, Bayle and others are entirely false and having regard to the subject matter, deeply offensive.
The Evett-Williams Review Project
22. During his Presentation to the Justice 1 Committee on 7 June, Arie Zeelenberg referred to the “Collaborative Study” undertaken by Ian Evett (col.3357). A Member of the Committee, Kenneth Macintosh questioned Mr. Zeelenberg about that Study and went on to ask (col.3368):-
Am I right in saying that the Dutch managed to identify only one out of ten prints, whereas the Scottish Bureau Identified nine?
Mr. Zeelenberg went on to retort that the Study was founded upon the fact that “there would be six or seven Identifications within the system, not nine” (col.3369). The exchange continued in the following terms (col.3369):-
Mr. Macintosh: The point is that you only Identified one print and the British Experts Identified nine. Is that right?
Arie Zeelenberg: That is what was shown, which is surprising because they should have Identified only six.
Mr. McFee: That is very important. Can you clarify that? If there were only six sets that matched and the Scottish Experts Identified nine –
Arie Zeelenberg: You cannot explain it that way. You cannot compare systems in that way; it is not meant for that.
In respect of the Study, Mr. Zeelenberg conceded that the Dutch had only made one Identification, but thereupon claimed that in the set of ten prints, there were only six matches. The inference was that if the English and Scottish Experts had Identified nine, then three were entirely erroneous. Once again, however, Mr. Zeelenberg has misled the Justice 1 Committee. Since the Session of 7 June, I have obtained the original documentation in the Study, to include all of the accompanying original photographs. The Study to which reference was made in the Justice 1 Committee Session is, A Review of the Sixteen Points Fingerprint Standard in England and Wales – IW Evett and R.L. Williams, 1989. Mr. Zeelenberg was wrong in stating that there were only six fingerprint matches. The Study material comprised ten Mark/print comparisons. Nine of those Mark/print comparisons, Identified as pairs A to I, were from past casework at New Scotland Yard. The Experts to the Study were in agreement that Marks A to F should result in full Identifications. Marks G, H and I were selected as borderline Cases. Only the tenth comparison, that is to say Mark J was incapable of either full or partial Identification. Thus, the Expert concerned carried out an automated search of 8,000 records, in order to find the nearest match to a small portion surrounding the delta of one of his own thumb prints. The database did not include his fingerprints. He thereupon took the nearest retrieved record and used a dimpled beer mug to select the region of his thumb which gave the closest match to it. Mr. Evett and Mr. Williams reported that Mark J was included in the Study “not as a trick but as a control to evaluate the ability of Experts to discriminate between close matches.” The UK Fingerprint Bureau responded that Set J were all either “not identical” or “insufficient detail”. There were four options for response, namely, a full Identification; a non-provable Identification; not identical; and insufficient detail for an opinion. Experts in the UK had no difficulty with the Study. In respect of the performance of foreign Fingerprint Bureaux, it was reported that at the FBI, four Experts independently examined the Mark/print comparisons and were unanimous in deciding that there were nine Court quality Identifications. It was further reported that most of the North American Experts decided on eight or nine full Identifications. Whilst it was the consensus of the Experts relied upon by Mr. Evett and Mr. Williams that there were six or seven full Identifications, 16% of the participants recorded three or less. Particular interest was taken in respect of Holland, given the fact that “the Head of the National Bureau is currently chairing a Committee which is reviewing quality standards for Fingerprint Evidence.” Arie Zeelenberg took part in the Study. In the event, in their ensuing Report, Mr. Evett and Mr. Williams recorded the following:-
International Comparisons
In Holland the three Members of the Committee that is looking into standards were unanimous that:- one of the comparisons was a Court quality Identification; Set J was not an Identification; and the remaining eight comparisons were inconclusive.
Disregarding Marks J, the Experts to the Evett-Williams Study were in agreement that there were six or seven full Identifications. Nevertheless, the Dutch, under Mr. Zeelenberg, could only Identify one. On the other hand, there was no issue concerning the competency and expertise of UK Fingerprint Bureaux, to include SCRO. The same cannot be said for Mr. Zeelenberg and his Dutch colleagues. The Justice 1 Committee might usefully note that when the so-called “world-wide Experts” supported the Zeelenberg Petition, only two of the UK’s Fingerprint Experts signed up to it. The first was Allan Bayle and the second was a gentleman who had failed his Fingerprint Examinations.
The Fingerprint Report of John MacLeod – Mark Y7
23. The so-called MacLeod Report was published by the Justice 1 Committee on Wednesday afternoon, 21 June. Peter Swann was afforded an opportunity of reading that Report earlier today and at my request, provided me with his preliminary observations upon it. In the circumstances, whilst it is a short form document, prepared on an expedited basis, I attach The MacLeod Report – Critique, prepared by Mr. Swann, dated 23 June (Appendix G27-28). Inter alia, Mr. Swann reported:-
A further point, very relevant, having tried to absorb most of the Report, it appears to me that he has approached it in completely the wrong way and has followed that of Zeelenberg in that his Examinations are “primarily about exclusion and not about Identification”.
Mr. Swann went on to advise:-
The manner in which he (Mr. MacLeod) finds fault with the results of others, suggests to me that Mr. MacLeod’s expertise is lacking in not realising that it is the co-incident sequence of ridge characteristics that is the all important factor in Identification work and not whether a ridge ending can be interpreted as a bifurcation or otherwise.
In respect of Fingerprint Chart K previously produced by Mr. Swann, and lodged with the Justice 1 Committee, he puts the same challenge to Mr. MacLeod as was put to Mr. Zeelenberg, namely, to “answer the questions in the bottom right hand corner of that Chart apart from explaining the other comments I have appended to it.”
24. In respect of the highly selective selection of fingerprint impressions relied upon by Wertheim, Zeelenberg and MacLeod, I refer the Justice 1 Committee to Mr. Swann’s statement:-
Following on from these two appendices we have pages 1 to 29 showing numerous enlargements of Shirley McKie’s thumb print but those of the Crime Scene Mark are not clear enough to use. It is therefore difficult to comment on them but having said this, it is very apparent that Mr. MacLeod is in the very same position as Wertheim and Zeelenberg in that he has never seen a full rolled impression of Shirley’s left thumb and I note that he makes no comment, unless I missed it, regarding the “clear” characteristics at the tip. In this respect, I would again emphasise the point that I intend to make on Monday, that in my opinion, none of them have made a complete Examination of Mark Y7 with a correctly taken impression of the left thumb, so how can they make a judgment and state categorically that it is not her Mark?
Mr. Swann concludes his preliminary assessment of the MacLeod Report by stating:-
Zeelenberg in particular mentioned the expression “mindset” more than once in his Presentation and, to some extent, this may be the underlying reason or problem for their Findings. It shouldn’t be, but we don’t know what has or may have been said to each verbally irrespective of what terms of reference appear in print. In my opinion, Mr. MacLeod should have been given a good clear copy of both Y7 and the left thumb of Shirley McKie and asked for his opinion as to Identity or otherwise with his reason for his Findings whatever they were. From an Identification point of view it doesn’t matter what position it was in, how it was developed or what camera it was photographed with. To carry out the exercise you need to select a suitable area of the Crime Scene Mark for scrutiny and to compare the detail in that area with the appropriate area on the Fingerprint Form. End of story, the remainder is just “packing”, in this Case to prove non-identity, it appears to me at all costs.
The Justice 1 Committee will doubtless recall Allan Bayle’s apology for Misidentification, received at the Session on 7 June. It was established that three Fingerprint Experts were responsible for the Misidentification, that is to say Allan Bayle, Gary Dempster and John MacLeod (col.3423). The Misidentification made by Messrs. Bayle, MacLeod and Dempster had previously been used by the McKies and their Supporters, to include Alex Neil, to call for the immediate closure of SCRO. Whilst the Convener secured Mr. Bayle’s reluctant apology during the Session of 7 June (col.3412), it remains to be seen whether Mr. MacLeod’s apology will be forthcoming. However, just as Mr. MacLeod was wrong on the Bayle “Misidentification”, he was wrong on the Y7 Identification. On that issue, I again refer the Justice 1 Committee to the preliminary response of Mr. Swann (Appendix G).
Peter Swann: Statement to Justice 1 Committee Session on 26 June, 2006
25. In an endeavour to assist the Justice 1 Committee, Peter Swann has prepared a brief statement to the Justice 1 Committee, which will be read during the forthcoming Session of 26 June. I duly produce to the Justice 1 Committee Peter Swann’s said Statement dated 23 June (Appendix H29-30).
David Arnot Russell
Dated: 23 June, 2006 and Lodged by Towells Solicitors of Thornhill House, Thornhill Street, Wakefield WF1 1NL.
TTFN
The Delightful Miss Fabulous
Justice 1 Committee
Session of 26 June, 2006
SUBMISSION OF DAVID ARNOT RUSSELL TO THE JUSTICE 1 COMMITTEE IN RESPECT OF MATTERS
ARISING FROM THE SESSION OF 7 JUNE, 2006.
1. In respect of the Justice 1 Committee Session of 7 June, 2006 I am a named Witness. In this connection, I continue to represent Peter Swann, the Independent Fingerprint Expert instructed by Shirley McKie in defending the Criminal Proceedings Her Majesty’s Advocate v. Shirley Jane McKie aka Cardwell. I will also be accompanying Mr. Swann upon the resumed Session before the Justice 1 Committee, to be held on 26 June, 2006. In the event, I am in a position to assist the Justice 1 Committee and I proceed to do so.
Fingerprint Evidence and Exhibits Relied Upon by Peter Swann
2. The Justice 1 Committee gave notice on 2 June, 2006 (via Euan Donald’s e-mail) that during the Session of 7 June, 2006) they would wish to be informed as to what material Peter Swann had seen in relation to Mark Y7, the context in which he saw that material and how he was given access to the material. However, save that two Members of the Committee raised issue concerning Mr. Swann’s reliance upon a fingerprint impression published in The Daily Mail (for example, Alex Neil at col.3393), the matter was not pursued during the Session of 7 June.
3. On behalf of Peter Swann, I will now provide the particulars requested by the Justice 1 Committee as to what material he had seen in relation to Mark Y7, the context in which he saw that material and how he was given access to it.
4. On 26 February, l999 Shirley McKie’s then Solicitors, Levy & McRae provided Mr. Swann with Volumes I, II and III of the Crown’s Productions and photographs, which had been made available by the Procurator Fiscal.
5. On 2 March, 1999 Mr. Swann attended the High Court of Judiciary, Saltmarket, Glasgow and inspected and examined the Crown’s Exhibits, namely, Exhibit 102, Door Standard; Fingerprint Form of Detective Constable Shirley McKie (nee Cardwell); photograph of the Mark Y7 and other Exhibits connected with the Case. He was given access to the Crown’s Exhibits in his capacity as Ms. McKie’s Defence Fingerprint Expert and was accompanied throughout the Inspection by her Lawyer, Angela McCracken of Levy & McRae.
6. On 3 March, 1999 Angela McCracken of Levy & McRae wrote to Peter Swann, stating:-
HMA v. Shirley McKie
We refer to the above and now enclose herewith Shirley McKie’s left hand thumb print.
Attached to that letter was a sheet of paper endorsed in red ink Shirley McKie Left Hand Thumb Print. Upon that sheet of paper there were four original fingerprint impressions, made in blue ink, each one being of Shirley McKie’s left thumb, to include a rolled impression. In his evidence to the Justice 1 Committee on 7 June, Mr. Swann confirmed that such rolled impression was “far superior to anything the SCRO has” (col.3389).
7. Subsequent to the Perjury Trial, Her Majesty’s Advocate v. Shirley Jane McKie aka Cardwell, Mr. Swann contacted Terence Kent who was, at the time, Head of the Reactive Crime Sector and IT, at the Police Scientific Development Branch of the Home Office in Sandridge (Police Requirement Support Unit). Mr. Swann, the Former Head of the Fingerprint Bureau, West Yorkshire Police, holding the rank of Superintendent, had also carried out duties upon secondment as Advisor to the Home Office, based at Sandridge. On 16 March, l998 Mr. Kent had received from the Strathclyde Police the original Exhibit, Door Standard right-hand side downstairs bathroom, 43 Irvine Road, Kilmarnock, Police Reference Number. UC01050197. In his Witness Statement of 13 May 1998, made on behalf of the Crown in the Criminal Proceedings, Mr. Kent described how he “unpacked, examined and photographed the Exhibit on Tuesday 17th March (Paragraph 5 of the Witness Statement). Upon request, Mr. Kent provided Mr. Swann with photographs and enlargements of Exhibit Y7, taken from the original negatives, carrying the Mark “T. Kent”, together with duplicate negative. The authenticity of the photographs and negative, which are in my possession, is further corroborated by the original, contemporaneous documents which accompanied disclosure, namely, Mr. Kent’s Witness Statement together with Curriculum Vitae; a letter to Mr. Swann, signed by Mr. Kent; a Police Scientific Development Branch Compliments Slip, again signed by Mr. Kent; and the Business Card of Mr. Kent in his then capacity as Head of Crime Investigation and IT Sector, Police Scientific Development Branch, Home Office Policy Directorate. Such documentation confirms that enlargements of the Mark Y7 were prepared by Mr. Kent, again at the behest of Mr. Swann. In the circumstances, Mr. Swann was provided with original material by the Expert who took the photographs of the Door Standard and of the Mark Y7.
8. Actual size photographs of Exhibit 102 with the Mark Y7 were provided to Peter Swann by Graham Hughes, a Fingerprint Officer who, at the material time, was based in Liverpool, who was also the then Editor of Fingerprint Whorld. Those photographs are in my possession and are authenticated by attachment to a note, signed by Mr. Hughes.
9. Mr. Swann has the negatives, photographs and enlargements of Shirley McKie’s fingerprints, notably of the original rolled impression supplied to him by Levy & McRae on 3 March l999, which were taken, developed and printed by the Fingerprint Bureau, The West Yorkshire Police.
10. On 12 March, l999 Levy & McRae wrote to Shirley McKie and stated in wholly unequivocal terms that:-
So far as Mr. Swann is concerned, he was given all the material which we hold which includes Precognitions, Crown Productions, the video and, of course, your fingerprints. We held nothing back from him. Mr. Kerrigan QC met with him for an entire day, Angela McCracken separately met with him and Donald Findlay QC has met with him. As far as I am aware all the issues which both Senior Counsel wished to explore were explored and Mr. Swann’s Report reflects the issues concerned.
11. It will be evident from the above and, indeed, the Exhibits held, that Peter Swann had access to the best available original material, to include the negatives, photographs and enlargements of Mark Y7, taken by Terry Kent and provided by Mr. Kent, together with the original fingerprints of Shirley McKie, provided by her Lawyers.
The Daily Mail: Publication of Shirley McKie’s Thumb Print
12. In his Fingerprint Charts, produced to the Justice 1 Committee, Mr. Swann exhibited and relied upon the original fingerprints, to include the rolled impression, provided by Shirley McKie. He also made use of a photograph of Shirley McKie’s left thumb print, published in The Daily Mail on 24 October, 2000. In the event, during the Justice 1 Committee Session of 7 June, 2006 Alex Neil challenged Mr. Swann upon his usage of such material, equating it with The Dandy, a comic to which Mr. Neil apparently subscribes (col.3393). However, and as already intimated, the Justice 1 Committee did not question Mr. Swann, in the terms previously notified, as to the fingerprint material relied upon him and the source of such material. Thus, and as will be evident from Paragraphs 4-11 above, Mr. Swann has, at all material times, had access to, and had in his possession, the original fingerprints of Shirley McKie, to include the rolled impression. Mr. Swann’s usage of the fingerprint published in The Daily Mail was, therefore, in addition to, and not in substitution of, the original fingerprints provided by Shirley McKie.
13. In the event, I put the issue to Martin Leadbetter, an eminent Fingerprint Expert (who had also corroborated Peter Swann’s Identification of Exhibit Y7 as being the left thumb print of Shirley McKie). I invited Mr. Leadbetter’s Expert Opinion on Mr. Swann’s usage of a fingerprint published in a newspaper. The Justice 1 Committee have been provided with Mr. Leadbetter’s Curriculum Vitae and are, therefore, aware that he was, until his recent retirement, Head of the Fingerprint Bureau, Cambridgeshire Constabulary. Mr. Leadbetter has 40 years experience as a Fingerprint Expert and is a Life and Distinguished Member of the International Association for Identification; a Founder Life Member and Fellow of the Fingerprint Society; a Member of the British Academy of Forensic Science; Former Secretary of The Fingerprint Society and Assistant Editor of The Fingerprint Society’s Journal, Fingerprint Whorld. In the event, having been provided with all of the salient material, to include the Official Report of the Justice 1 Committee dated 7 June, Mr. Leadbetter wrote to me on 19 June with his Expert Opinion. I duly produce Mr. Leadbetter’s letter (Appendix A1-2). In the event, Mr. Leadbetter stated:-
Having viewed the video proceedings of the above Session, I feel compelled to express my disgust at the manner in which Alex Neil MSP questioned the Witness, Mr. Peter Swann.
The issue which particularly vexed me was Alex Neil’s pathetic attempt to belittle Mr. Swann and his evidence by his reference to “The Dandy”. Is this the sort of behaviour that the Scottish people expect from their elected Representatives? It is probably the case, that Mr. Neil’s knowledge of fingerprint identification is minimal and would have been gained from some toxic source. However, the issue to which Alex Neil referred, Mr. Swann’s use of the impression of Shirley McKie’s left thumb that had been published in The Daily Mail is one that needs to be clarified further.
I have been a Fingerprint Examiner for almost 40 years and continue to practise. Within the Fingerprint Business, it is quite normal that Examiners need to make use of Photostat (Xerox) copies of fingerprints, some of which have been made from original fingerprint forms which themselves have been taken without the necessary care to achieve the best possible results. Many Identifications are effected throughout the UK every day where the Examiner makes use of photostat copies of fingerprints. I have examined the print from The Daily Mail and in the most important aspect it is actually superior to that published on the Internet. If every fingermark and fingerprint that was received into the UK’s Fingerprint Bureaux were copperplate, then we could dismiss all the Country’s Fingerprint Experts tomorrow. Fingerprint Experts are used to dealing with sub-standard material, but in no way can the representation of Shirley McKie’s thumbprint in The Daily Mail be classified as sub-standard.
The issue here, is not one of quality, but of quantity. Quite simply, the impression published in The Daily Mail discloses additional fingerprint ridge detail that is not apparent on the Internet image. Thus, experienced Fingerprint Examiners such as Mr. Swann are availed the opportunity to pore over far more important ridge detail than is disclosed in the Internet image. Personally, I find The Daily Mail image quite satisfactory for Identification purposes and have most certainly had to use material inferior to this in the past when conducting a comparison procedure. I’m sure that even a Dandy reader such as Mr. Neil will appreciate, that in the circumstances we have here, the important issue is to ensure that the maximum amount of information is disclosed for examination in order that an error does not occur.
I should also like to extol Mr. Swann’s handling of Mr. Neil’s insulting proposition. Being a true professional, he remained cool, calm and collected, maintaining absolute control of the situation and did not take the bait.
Despite the impression that certain Fingerprint Examiners attempted to give on the day of this Hearing, that Fingerprint Identification is some sort of mysterious, scientific hocus-pocus, it is not. It is a straightforward process of comparison, which, in the hands of skilled, experienced and dedicated Practitioners is still the finest and most accurate form of personal Identification yet devised; but in addition, the Practitioners must show integrity, something which Mr. Swann has more than his fair share of.
The issue raised concerning the publication of Shirley McKie’s fingerprint in The Daily Mail does, however, remain academic since, as stated, Mr. Swann relied upon and used Shirley McKie’s original fingerprints, to include the rolled impression of the left thumb.
The Taking of Shirley McKie’s Fingerprints
14. As stated, on 3 March, l999 Angela McCracken of Levy & McRae provided Peter Swann with the fingerprints of Shirley McKie, namely, four impressions of the left thumb, to include a rolled impression, which was judged to be of superb quality. During the Justice 1 Committee Session of 7 June, by reference to the original fingerprints of Shirley McKie supplied to Mr. Swann, Bruce McFee put the following question to Arie Zeelenberg (col.3408):-
We heard from Mr. Swann that what I am holding up – Shirley McKie’s left thumb print – is his best evidence. Do you have any comment on the method by which that print was taken? Would you allow somebody to take their own fingerprint or to have their Lawyer, who was untrained in fingerprinting, take an impression and send it to you? Would you consider that to be the best evidence?
Mr. Zeelenberg responded:-
That depends on the result. Good ink and good paper might produce a good image – we do not know.
However, when the same issue was put by Mr. McFee to Pat Wertheim, he contended that it was preferable to use a local Fingerprint Expert as an intermediary, rather than to rely upon fingerprints “that are taken by a lay person and especially to those taken by the Defendant themselves” (col.3409).
15. The first issue is, however, that, as Mr. Zeelenberg conceded, the value of the fingerprint as evidentiary material “depends on the result”. It was Mr. Wertheim who challenged the usage of fingerprints provided by “a lay person” via Lawyers. However, and as Mr. Wertheim was fully aware, Shirley McKie was not “a lay person”. Thus, at the date of her Criminal Trial in May l999, Shirley McKie was a serving Police Officer who, having joined the Service in 1986, had 13 years service. She was, therefore, a fully trained, highly experienced Police Officer. Detective Constable McKie underwent her initial Police Training at Tulliallen and subsequently served in Irvine in Ayrshire and latterly in Kilmarnock. Ms. McKie thereupon transferred to the Criminal Investigation Department. During Ms. McKie’s 13 years service as a Police Officer, she attended Fingerprint Courses and was also fully trained and experienced in the taking of fingerprints. For a number of years after 1986, Ms. McKie’s Police Force did not use SOCO for routine Criminal Investigations, such as low value break-ins. It was commonplace for Officers to undertake basic Crime Scene Investigation. Ms. McKie had formal Fingerprint Training as well as on the job training. Ms. McKie was, as stated, a professional Police Officer, with 13 years service, who was trained and experienced in fingerprints. Ms. McKie was a professional, who was capable, qualified and experienced enough to provide a good set of her own fingerprints as, indeed, was evidenced by the quality of the fingerprints provided to Mr. Swann. Indeed, that is further evidenced by the superior quality of the rolled impression of the left thumb provided by Shirley McKie. In the circumstances, as a highly experienced and capable Fingerprint Expert, Mr. Swann was entitled to rely upon and use the fingerprints supplied by Shirley McKie. No Fingerprint Expert in the so-called McKie Case has been able to produce a more valuable fingerprint than the rolled impression of the left thumb supplied by Shirley McKie herself. If Shirley McKie and her Fingerprint Experts, particularly Mr. Wertheim, have a problem with the rolled impression of her left thumb print, then that is because it matches Exhibit Y7.
The Submission of April, 2006 to the Justice 1 Committee, Made by Shirley McKie’s Counsel and Solicitors.
16. During the Perjury trial of May l999, Her Majesty’s Advocate v. Shirley Jane McKie aka Cardwell, Shirley McKie denied on Oath not less than half a dozen times that she had knowledge of any Fingerprint Expert examining Y7 on her behalf, prior to Pat Wertheim. Ms. McKie thereby committed Perjury, since Peter Swann had conducted such examinations as her Fingerprint Expert prior to Mr. Wertheim. That is a separate and distinct issue from the series of false averments pleaded by Shirley McKie and her Lawyers in the Court of Session Civil Proceedings, Shirley Jane McKie v. The Scottish Ministers and Others. Since Ms. McKie lied on Oath, I have made the open allegation that she committed Perjury during her Perjury Trial. In an attempt to counter that allegation, Shirley McKie’s Lawyers, Andrew Smith QC, Alastair Duncan, Gordon Dalyell and James Cassels made a Submission to the Justice 1 Committee in April, 2006 in which, inter alia they declared:-
The Pursuer advises us – and we have no reason to doubt this – that she was not aware of the opinion of Swann on the matters that she was asked about. At all material times, her father was being advised of the developments and not all matters were communicated to her.
However, that Submission was patently false and deliberately misleading as, indeed, Shirley McKie’s Lawyers were well aware. By letters dated 19 May, 22 May and by e-mail of 20 May, 2006 to the Clerk to the Justice 1 Committee, I lodged Formal Complaint against Shirley McKie’s Lawyers. In support, I have provided the Justice 1 Committee with documentation, to include a letter dated 7 March 1999, signed personally by Shirley McKie, which provides unequivocal corroboration that she had full knowledge of Mr. Swann’s Expert Examination of Y7 on 2 March, l999 and that she had been notified of his Finding, confirming that Mark Y7 was her left thumb print, in agreement with the Scottish Criminal Record Office. There are a number of documents which also evidence the fact that Shirley McKie had contemporaneous knowledge of the Examination conducted by Mr. Swann and his ensuing Expert Findings. Those documents include Iain McKie’s Witness Statement to the MacKay Inquiry, in which he confirmed that within one week of Mr. Swann’s Examination of the Exhibits in the High Court at Glasgow (2 March, l999), Shirley McKie had been told of his Findings, and the fact that he was in agreement with the Identification made by SCRO. In television interviews, Shirley McKie herself has described how “gut-wrenching” it was when her Independent Expert reported that Mark Y7 was her left thumb print. Still further corroboration is provided by the MacKay Report and I duly refer the Justice 1 Committee to the following:-
15.7.3.28 Following Witness Shirley McKie’s arrest, her Defence Team focused on the Fingerprint Evidence as it appeared that the Crown Case was based solely on that Evidence. The initial strategy was to explore the possibility that the Mark had been transposed, ie “planted” on the door frame or that there had been a “mix up” with Marks found on the Marks & Spencer tin, an item Witness Shirley McKie had clearly handled. This has since been dispelled.
15.7.3.29 Consequently, two Independent Experts were asked to give an opinion as to whether Crime Scene Marks could be transposed. They opined that under practical conditions within a Crime Scene, transposition would be impossible. One of these Witnesses having examined copies of the Fingerprint Productions confirmed that Crime Scene Mark “Y7” was made by Witness Shirley McKie. She was informed of the results of this Examination, however she remained adamant that she had not entered the locus.
I again ask The Justice 1 Committee to consider the documentation, to include Shirley McKie’s letter of 7 March, 1999 and the MacKay Report and thereafter, to read the document entitled Submission to the Scottish Parliamentary Inquiry into the Scottish Criminal Record Office and the Scottish Fingerprint Service on behalf of the Legal Advisers to Shirley McKie and the claim that:-
The Pursuer advises us – and we have no reason to doubt this – that she was not aware of the Opinion of Swann on the matters that she was asked about.
In the circumstances, and in accordance with the notification previously given, I have lodged fully documented Complaint Submissions with the Faculty of Advocates and The Law Society of Scotland. I duly produce my two letters of Complaint dated 16 June, together with letter dated 22 June from Carole Ferguson, Solicitor to the Faculty of Advocates (Appendix B3-6).
The Fingerprints of Shirley McKie Taken by Pat Wertheim
17. During the Justice 1 Committee Session of 7 June, Pat Wertheim gave evidence as to how he had taken approximately 100 fingerprints from Shirley McKie (col.3403). Upon being asked whether the 100 prints or so were still available, Mr. Wertheim stated that most of them were not (col.3404). By reference to the fact that he had taken some eight dozen fingerprints from Shirley McKie, Mr. Wertheim gave evidence to the Justice 1 Committee as to how he thereby secured “the best inked impression to compare to that latent print” (Y7) (col.3399). During that Session, the Justice 1 Committee were also told about the work being undertaken on behalf of Shirley McKie by Kasey Wertheim, who was said to be a Forensic Scientist. It was stated that Kasey Wertheim had “made a map of the whole thumb of Shirley McKie” (col.3358). In the circumstances, if, in order to obtain “the best inked impression” (col.3399), Pat Wertheim had to score a century in repeatedly taking Shirley McKie’s thumb print, then how was it that over 4 years later, on 2 June 2003, Kasey Wertheim was required to notify Martin Leadbetter that:-
Near the top of the Mark, there are three bifurcations in close proximity opening up and to the left. This is very common in right thumb tips, and likewise very uncommon in left thumb tips. In fact, these three characteristics do not appear in the left thumb print of Shirley McKie included with the Chart, or in any of the other left thumb prints of Shirley McKie I have had the opportunity to examine. I believe these three bifurcations in combination are the easiest way to prove this print was not made by Shirley. Unfortunately, none of the known left thumb prints of Shirley include the entire tip, a situation which will soon be rectified. I have recently asked Iain and Shirley if they would provide additional known prints of her entire left thumb tip. They have agreed.
I duly refer the Justice 1 Committee to Kasey Wertheim’s e-mail of 2 June, 2004 (Appendix C9). In the circumstances, it is evident that four years after Pat Wertheim had taken 100 fingerprints from Shirley McKie and notwithstanding all of the grandstanding, campaigning and so-called Expert work undertaken by Arie Zeelenberg and Allan Bayle, not one of them had a left thumb print of Shirley McKie which included “the entire tip”. Why was that?
The Internet Images and the Petition to the Scottish Parliament by 171 Fingerprint Experts
18. During the Justice 1 Committee Session of 7 June, issue was raised concerning the quality of the Internet images published and relied upon by Arie Zeelenberg, Pat Wertheim and Allan Bayle. Mr. Zeelenberg and his colleagues continue to defend the Internet images. However, in respect of such issue, I refer the Justice 1 Committee to an e-mail dated 26 May, 2003 from Kasey Wertheim to Martin Leadbetter, in which he said (Appendix C7):-
I have taken the liberty to send you a CD (I hope you don’t mind) that contains as close to original images as possible (high-resolution scans of the negatives) of the Mark and inked print. The Internet simply doesn’t do justice to the Mark. I hope these better quality images offer additional insight for your opinion on the non-identity of the prints. I would be interested in your comments after you review the CD.
In a subsequent e-mail of 2 June, 2003 Mr. Wertheim told Mr. Leadbetter (Appendix C10):-
As I mentioned in my post, I feel that 10 years from now the Latent Print Community as a whole will have an understanding of which “Camp” for lack of a better word, was correct. Unfortunately, I believe the reputations of those who hold fast to the incorrect opinion will suffer severely. Those who have taken sides prematurely based on photocopies and/or Internet copies of the Mark may still have a way out.
Arie Zeelenberg, Pat Wertheim and Allan Bayle continue to place reliance upon the worldwide support of Fingerprint Experts. Thus, on 2 May, 2002, when Michael Russell MSP presented the “Statement” in support of Shirley McKie, it was claimed that it had been “signed by 130 Fingerprint Experts from across the world” (letter dated 2 May, 2002 from Michael Russell MSP to Jim Wallace MSP, Former Minister for Justice). However, I draw to the attention of the Justice 1 Committee the e-mail dated 30 May, 2003 from Mr. Leadbetter to Mr. Wertheim, in which he stated (Appendix C8):-
In your own correspondence you state something to the effect that the Marks on the Internet are not the best images available. I therefore put very little stead or reliability in the conclusions of the 160 or so “Experts” that came to their decision based upon this material. I am not happy about the comment in the accompanying letter to the CD which states, “…as close as you will get to the original material…”. As a practising Examiner who has been confirming Identifications at third check level for more than 20 years, I would always expect to see original material before committing myself.
Mr. Leadbetter went on to state that (Appendix C8) :-
The Petition. This was an inane and extremely pathetic attempt to try and whip up support, purely in numbers, but as expected, none of the UK’s practising Examiners, except one, signed up to it. Even Ron Cook, one of those involved in the BBC tv programmes told me that he would not be signing the Petition. To me, the Petition was a schoolboy approach to solving a serious and controversial issue and frankly, I don’t think it helped your case one bit. Whatever happened to the noble maxim of ACE-V?
I invite the Justice 1 Committee to review that exchange of e-mails (Appendix C7-10).
19. During the Justice 1 Committee Session of 7 June, Arie Zeelenberg sought to criticise Fingerprint Experts, to include Peter Swann, saying they were at risk of “mindset” (col.3410). Mr. Zeelenberg informed the Justice 1 Committee (col.3410):-
Let us not forget that the initial Identification by Mr. Swann was, as he said, made on the charted print. He knew that it had been identified by somebody else and it did not have the 10 discrepancies in the top. That explains his mindset. He then started to explain things.
On several occasions during his Presentation and in giving evidence, Mr. Zeelenberg placed great weight upon the fact that over 160 worldwide- Experts had conclusively Identified Y7 as a Misidentification. Alex Neil put it to Mr. Zeelenberg that “Mr. Swann rubbished the list of 171 International Experts and mentioned those from New Zealand” (col.3421). Mr. Zeelenberg responded that he found the situation “very difficult” and said that the allegations were “appalling.” When Mr. Neil put it to Mr. Zeelenberg that whilst “it may have started as an honest mistake, there is clear evidence of deliberate deceit about the Misidentification”, Mr. Zeelenberg declared that he would “not enter into a debate about whether it is Criminality or not” (col.3367). (If, indeed, Mr. Zeelenberg is not prepared to enter into a debate about whether it is Criminality, then why is he delivering a Lecture on 6 July, 2006 in Boston entitled Shirley McKie Case – Error or Perjury?). Effectively, Mr. Zeelenberg was portraying himself as a Fingerprint Expert, who would not be drawn into such issues as “Criminality”. Having regard to the fact that Mr. Zeelenberg had also warned the Justice 1 Committee about the risk of “mindset”, I now turn to the way in which he (Mr. Zeelenberg) misled the so-called 171 worldwide-Experts into signing-up in support of Shirley McKie. I duly invite the Justice 1 Committee to consider Arie Zeelenberg’s Internet Appeal to Fingerprint Experts. It is clear that since it was made through CLPEX, an open website, the Appeal was open to allcomers. Mr. Zeelenberg did not, however, approach the issue with any professionalism, independence, integrity or objectivity. Whilst Mr. Zeelenberg had the temerity to lecture the Justice 1 Committee and Mr. Swann about “mindset”, he made his Appeal to the so-called International Experts, using biased, intemperate and entirely misleading representations. For example, Arie Zeelenberg told those “Experts” (Appendix D11-13, Open Internet Letter by Arie Zeelenberg):-
This is a generic letter circulating among Fingerprint Experts around the world. As you may have heard a dreadful mistake is made in Scotland with a wrong Identification of a latent Mark in a Murder Case against the Police Officer named Shirley McKie.
Her life and career are ruined as a result of this. After a long investigation the Experts of the Scottish Criminal Record Office refuse to admit to the mistake hiding behind their opinion.
They will be reinstated in their job and may continue to discredit the Fingerprint Science and to make new victims.
Attached is a Transcript of a Presentation from Iain McKie, the father of Shirley, a retired Police Superintendent. It is an accurate summary of the events in this Case and at the same time it makes very clear what devastating effects it has had upon their lives.
Just recently the Scottish Authorities have announced that no mistake was made. SCRO staff simply has (sic) another opinion. This puts the suspicion back upon Shirley’s shoulders and will certainly make it more difficult for her to find justice and compensation.
We need to speak up for the sake of the McKie family and for the sake of Fingerprint Science.
We have a moral and professional obligation to do so.
The international band of “Experts” were thereupon referred to Internet images of latent fingerprints, which carried with them text in the following terms:-
American Latent Print Examiners Pat Wertheim and David Grieve presented testimony that it is NOT an Identification.
The Fingerprint Charts were already fully marked-up. On 22 April 2002, one week after sending out his “Appeal” for the Internet Experts to sign up to his Statement, Arie Zeelenberg sent out further e-mails via the CLPEX website. This time, Arie Zeelenberg told the International “Experts” that (Appendix D16-17):-
It is clear that the majority of Experts in Great Britain are silent. There can only be one logical reason, it is a mistake but they don’t want to admit it. Let us give the Scottish Parliament a direction to go. They have to decide in what is seemingly a battle of the Experts. If we are silent they have no choice. If we speak loudly and massively but with dignity we might convince them that the whole matter is caused by a mistake, and they can correct the wrong.
Remember that it requires only one honest Senior Fingerprint Bureau Head in Britain to stop the agony. Remember Shirley was a Police Officer until her own Organisation acted upon an opinion of fellows in fingerprints.
At no stage did Mr. Zeelenberg invite informed, independent, objective Expert Opinion from the International “Internet Experts”. Instead, he acted as a Cheer Leader for Shirley McKie and her father, Iain McKie. The process adopted by Mr. Zeelenberg was dishonest, misleading and intended to emotionally blackmail foreign Experts to sign up for the cause.
20. If a Medical Practitioner, Research Scientist or any other Expert had attempted to conduct an equivalent Epidemiological exercise, adopting the same tactics as Mr. Zeelenberg, then inevitably, they would have been struck-off by the General Medical Council or any other Regulator responsible for overseeing their conduct. Mr. Zeelenberg’s misconduct is compounded by the fact that the so-called Petition was relied upon to attack SCRO and to bring inordinate, inappropriate pressure to bear upon the Scottish Ministers. It is, however, truly remarkable that Deputy Chief Constable James MacKay was so gullible as to accept without question the falsehood that there was overwhelming evidence of Misidentification from the International Fingerprint Community. Thus, at Paragraph 15.9.1.14 of the MacKay Report, it was stated:-
However they (SCRO) remain arrogant and obdurate and give the impression of defending the indefensible to such an extent that, having regard to the evidence supplied by Experts world-wide, the apparent deception incredibly continues and despite the overwhelming evidence, both SCRO Representatives vehemently adhere to their assertions, depending on dogma and rhetoric.
Again, at Paragraph 15.7.7.10 of the MacKay Report, it was stated:-
Whilst it is acknowledged that the four Experts exercise their right of silence, it is astonishing to find that despite the overwhelming evidence of world-wide Experts, two senior Experts in SCRO, remain dogmatic and obdurate and attempted to persuade others that the Identification of Mark “Y7” is sound.
Deputy Chief Constable MacKay was so influenced and misled by the Zeelenberg exercise that he concluded his Report in the following terms:-
OVERALL SUMMARY
Fingerprint Experts worldwide have collectively expressed the view that while the Misidentifications could initially be attributed to incompetence, these mistakes should have been discovered at an early stage, and failure to do so on the part of the Experts was clearly culpable.
The Justice 1 Committee is invited to consider the methodology used by Mr. Zeelenberg in getting 171 so-called Experts to sign up for the McKie cause. The exercise was a complete and utter travesty of justice. What is of more concern, however, is that the Scottish Ministers, Deputy Chief Constable MacKay and others took it seriously. The concept of 171 eminent, International Fingerprint Experts supporting the McKie cause lent substance and credibility to what had otherwise been a rabble-rousing campaign fronted by Iain McKie. As for Mr. Zeelenberg, he is clearly an expert on “mindset” and he used that tactic to ensure that he would get the required electronic signatures for his Statement/Petition.
The Evidence of Allan Bayle and the Lockerbie Connection
21. During the Justice 1 Committee Session of 7 June, Allan Bayle was specifically questioned as to his involvement, as a Fingerprint Expert, in the Lockerbie Case (col.3412). He was asked to “check to see whether his evidence was used in the Lockerbie Case.” It was recognised that Mr. Bayle’s declared involvement in the Lockerbie Case was being used as “testament to (his) expertise” (col.3412). During the Justice 1 Committee Hearing, Mr. Bayle gave an account of the circumstances in which he resigned from New Scotland Yard, and his involvement in the Lockerbie and McKie Cases. In promoting the McKie cause, as a self-appointed Expert, Mr. Bayle has variously claimed to have been the UK’s Leading Fingerprint Expert, whose evidence was “crucial” to the Conviction of Abdelbaset Ali Mohamed Al Megrahi, the Lockerbie Bomber. Mr. Bayle has also claimed in the past to have resigned from his post at New Scotland Yard as a direct result of his involvement in the Case of Allan McNamara. In the past, Mr. Bayle has aligned himself to each cause celebre in the Fingerprint World and then used his peripheral involvement to launch attacks on Fingerprint Establishments, ranging from Greater Manchester Police and the SCRO to the Federal Bureau of Investigation. By way of example, I produce to the Justice 1 Committee a letter dated 19 July, 2001 from Mr. Bayle to David Blunkett MP, the former Home Secretary (Appendix E18-19). It will be noted that apart from launching an unwarranted attack upon the Forensic Services Department of Greater Manchester Police, Mr. Bayle used his letter for self promotion, declaring that he was “Britain’s Leading Authority on Forensic Ridgeology”. In all of the circumstances, I wrote on 13 June, 2006 to Bruce Grant, Head of Counter-Terrorism Forensic Services at New Scotland Yard and I produce my letter for the consideration of the Justice 1 Committee (Appendix F20-26). There have already been several attempts, with the encouragement of the McKies, to establish a link between the “Conspiracy” at SCRO and Investigation of the Lockerbie Bombing. However, the allegations promulgated by the McKies, Bayle and others are entirely false and having regard to the subject matter, deeply offensive.
The Evett-Williams Review Project
22. During his Presentation to the Justice 1 Committee on 7 June, Arie Zeelenberg referred to the “Collaborative Study” undertaken by Ian Evett (col.3357). A Member of the Committee, Kenneth Macintosh questioned Mr. Zeelenberg about that Study and went on to ask (col.3368):-
Am I right in saying that the Dutch managed to identify only one out of ten prints, whereas the Scottish Bureau Identified nine?
Mr. Zeelenberg went on to retort that the Study was founded upon the fact that “there would be six or seven Identifications within the system, not nine” (col.3369). The exchange continued in the following terms (col.3369):-
Mr. Macintosh: The point is that you only Identified one print and the British Experts Identified nine. Is that right?
Arie Zeelenberg: That is what was shown, which is surprising because they should have Identified only six.
Mr. McFee: That is very important. Can you clarify that? If there were only six sets that matched and the Scottish Experts Identified nine –
Arie Zeelenberg: You cannot explain it that way. You cannot compare systems in that way; it is not meant for that.
In respect of the Study, Mr. Zeelenberg conceded that the Dutch had only made one Identification, but thereupon claimed that in the set of ten prints, there were only six matches. The inference was that if the English and Scottish Experts had Identified nine, then three were entirely erroneous. Once again, however, Mr. Zeelenberg has misled the Justice 1 Committee. Since the Session of 7 June, I have obtained the original documentation in the Study, to include all of the accompanying original photographs. The Study to which reference was made in the Justice 1 Committee Session is, A Review of the Sixteen Points Fingerprint Standard in England and Wales – IW Evett and R.L. Williams, 1989. Mr. Zeelenberg was wrong in stating that there were only six fingerprint matches. The Study material comprised ten Mark/print comparisons. Nine of those Mark/print comparisons, Identified as pairs A to I, were from past casework at New Scotland Yard. The Experts to the Study were in agreement that Marks A to F should result in full Identifications. Marks G, H and I were selected as borderline Cases. Only the tenth comparison, that is to say Mark J was incapable of either full or partial Identification. Thus, the Expert concerned carried out an automated search of 8,000 records, in order to find the nearest match to a small portion surrounding the delta of one of his own thumb prints. The database did not include his fingerprints. He thereupon took the nearest retrieved record and used a dimpled beer mug to select the region of his thumb which gave the closest match to it. Mr. Evett and Mr. Williams reported that Mark J was included in the Study “not as a trick but as a control to evaluate the ability of Experts to discriminate between close matches.” The UK Fingerprint Bureau responded that Set J were all either “not identical” or “insufficient detail”. There were four options for response, namely, a full Identification; a non-provable Identification; not identical; and insufficient detail for an opinion. Experts in the UK had no difficulty with the Study. In respect of the performance of foreign Fingerprint Bureaux, it was reported that at the FBI, four Experts independently examined the Mark/print comparisons and were unanimous in deciding that there were nine Court quality Identifications. It was further reported that most of the North American Experts decided on eight or nine full Identifications. Whilst it was the consensus of the Experts relied upon by Mr. Evett and Mr. Williams that there were six or seven full Identifications, 16% of the participants recorded three or less. Particular interest was taken in respect of Holland, given the fact that “the Head of the National Bureau is currently chairing a Committee which is reviewing quality standards for Fingerprint Evidence.” Arie Zeelenberg took part in the Study. In the event, in their ensuing Report, Mr. Evett and Mr. Williams recorded the following:-
International Comparisons
In Holland the three Members of the Committee that is looking into standards were unanimous that:- one of the comparisons was a Court quality Identification; Set J was not an Identification; and the remaining eight comparisons were inconclusive.
Disregarding Marks J, the Experts to the Evett-Williams Study were in agreement that there were six or seven full Identifications. Nevertheless, the Dutch, under Mr. Zeelenberg, could only Identify one. On the other hand, there was no issue concerning the competency and expertise of UK Fingerprint Bureaux, to include SCRO. The same cannot be said for Mr. Zeelenberg and his Dutch colleagues. The Justice 1 Committee might usefully note that when the so-called “world-wide Experts” supported the Zeelenberg Petition, only two of the UK’s Fingerprint Experts signed up to it. The first was Allan Bayle and the second was a gentleman who had failed his Fingerprint Examinations.
The Fingerprint Report of John MacLeod – Mark Y7
23. The so-called MacLeod Report was published by the Justice 1 Committee on Wednesday afternoon, 21 June. Peter Swann was afforded an opportunity of reading that Report earlier today and at my request, provided me with his preliminary observations upon it. In the circumstances, whilst it is a short form document, prepared on an expedited basis, I attach The MacLeod Report – Critique, prepared by Mr. Swann, dated 23 June (Appendix G27-28). Inter alia, Mr. Swann reported:-
A further point, very relevant, having tried to absorb most of the Report, it appears to me that he has approached it in completely the wrong way and has followed that of Zeelenberg in that his Examinations are “primarily about exclusion and not about Identification”.
Mr. Swann went on to advise:-
The manner in which he (Mr. MacLeod) finds fault with the results of others, suggests to me that Mr. MacLeod’s expertise is lacking in not realising that it is the co-incident sequence of ridge characteristics that is the all important factor in Identification work and not whether a ridge ending can be interpreted as a bifurcation or otherwise.
In respect of Fingerprint Chart K previously produced by Mr. Swann, and lodged with the Justice 1 Committee, he puts the same challenge to Mr. MacLeod as was put to Mr. Zeelenberg, namely, to “answer the questions in the bottom right hand corner of that Chart apart from explaining the other comments I have appended to it.”
24. In respect of the highly selective selection of fingerprint impressions relied upon by Wertheim, Zeelenberg and MacLeod, I refer the Justice 1 Committee to Mr. Swann’s statement:-
Following on from these two appendices we have pages 1 to 29 showing numerous enlargements of Shirley McKie’s thumb print but those of the Crime Scene Mark are not clear enough to use. It is therefore difficult to comment on them but having said this, it is very apparent that Mr. MacLeod is in the very same position as Wertheim and Zeelenberg in that he has never seen a full rolled impression of Shirley’s left thumb and I note that he makes no comment, unless I missed it, regarding the “clear” characteristics at the tip. In this respect, I would again emphasise the point that I intend to make on Monday, that in my opinion, none of them have made a complete Examination of Mark Y7 with a correctly taken impression of the left thumb, so how can they make a judgment and state categorically that it is not her Mark?
Mr. Swann concludes his preliminary assessment of the MacLeod Report by stating:-
Zeelenberg in particular mentioned the expression “mindset” more than once in his Presentation and, to some extent, this may be the underlying reason or problem for their Findings. It shouldn’t be, but we don’t know what has or may have been said to each verbally irrespective of what terms of reference appear in print. In my opinion, Mr. MacLeod should have been given a good clear copy of both Y7 and the left thumb of Shirley McKie and asked for his opinion as to Identity or otherwise with his reason for his Findings whatever they were. From an Identification point of view it doesn’t matter what position it was in, how it was developed or what camera it was photographed with. To carry out the exercise you need to select a suitable area of the Crime Scene Mark for scrutiny and to compare the detail in that area with the appropriate area on the Fingerprint Form. End of story, the remainder is just “packing”, in this Case to prove non-identity, it appears to me at all costs.
The Justice 1 Committee will doubtless recall Allan Bayle’s apology for Misidentification, received at the Session on 7 June. It was established that three Fingerprint Experts were responsible for the Misidentification, that is to say Allan Bayle, Gary Dempster and John MacLeod (col.3423). The Misidentification made by Messrs. Bayle, MacLeod and Dempster had previously been used by the McKies and their Supporters, to include Alex Neil, to call for the immediate closure of SCRO. Whilst the Convener secured Mr. Bayle’s reluctant apology during the Session of 7 June (col.3412), it remains to be seen whether Mr. MacLeod’s apology will be forthcoming. However, just as Mr. MacLeod was wrong on the Bayle “Misidentification”, he was wrong on the Y7 Identification. On that issue, I again refer the Justice 1 Committee to the preliminary response of Mr. Swann (Appendix G).
Peter Swann: Statement to Justice 1 Committee Session on 26 June, 2006
25. In an endeavour to assist the Justice 1 Committee, Peter Swann has prepared a brief statement to the Justice 1 Committee, which will be read during the forthcoming Session of 26 June. I duly produce to the Justice 1 Committee Peter Swann’s said Statement dated 23 June (Appendix H29-30).
David Arnot Russell
Dated: 23 June, 2006 and Lodged by Towells Solicitors of Thornhill House, Thornhill Street, Wakefield WF1 1NL.
TTFN
The Delightful Miss Fabulous