Good morning and welcome to the Justice 1 Committee's 12th meeting of 2006. I have apologies from the deputy convener, Stewart Stevenson. In his place is Brian Adam, whom I welcome. Will you confirm that you are substituting for Stewart Stevenson?
I am.
I ask members to do the usual by checking that their mobile phones and other pieces of equipment are switched off.
In effect, we had between four and five weeks to deliver the action plan. That was a very short timescale, but we tried to make ourselves as familiar as we could be with what you called the science of fingerprinting, with the Scottish fingerprint service and with the background to why we are where we are.
You mentioned the HMIC report. Was that the main report that informed your recommendations? Did you use other reports?
As you know, the HMIC report was published in 2000. We also considered all three follow-up reports to it.
What were those reports?
The reports were of reviews in 2002 and 2003 and of a reinspection of the SCRO, including the Scottish fingerprint service, in 2004.
Were you given sight of any other reports—for example, the MacLeod and Mackay reports?
No, I was not. I have not read those reports.
So you mainly used the HMIC reports. You have talked about an organisation in crisis, and there has been talk about the nature of the service. How did you identify what was wrong in the service? Did you mainly use the reports from 2000, 2002 and 2003?
Yes. We also had discussions with the heads of bureaux around how they saw the organisation. We built from that, and we got a strong impression that there was an organisation in crisis. Since our report was drafted, we have met all the staff of the Scottish fingerprint service, and our conclusions have been reinforced by that.
We have a number of detailed questions for you, which we will move on to, but I want to clarify one thing. In arriving at your conclusions and before you made your recommendations, did you identify what you would regard as failings or flaws in the organisation?
No—quite the contrary. We found an organisation that, since 2000, had moved on incredibly. It had introduced standards, processes and systems that had vastly changed the organisation since 1997. We saw an organisation that was improving, developing and learning. We hope that the action plan will build on that learning and improvement.
We can understand that. However, before we move on to your recommendations, we need to explore what failings you identified in the first place, in order to understand how the organisation has improved. Did you identify any issues in 1997, when this all started?
No. As a consequence of what happened in 1997, the public, the press and the fingerprint world had an uncomplimentary opinion of the Scottish fingerprint service. That was the state in which the organisation was functioning, and we saw the action plan as trying to improve the situation. Notwithstanding the organisation's name change and the creation of the Scottish fingerprint service as an entity in 2002, the four fingerprint bureaux were effectively still operating in isolation from one another. I have articulated that in our report. We did not see an organisation with a sense of corporate responsibility or a corporate culture; we saw an organisation in which, it would seem, one bureau felt that it was legitimate to criticise another bureau publicly without feeling any responsibility for the effect that that might have on the other bureau. It was, effectively, criticising the Scottish fingerprint service; however, it did not see that, as it did not regard the Scottish fingerprint service as an entity—the fingerprint bureaux still saw themselves as part of the Scottish Criminal Record Office, which was perceived as the organisation.
Good morning. In terms of science and Scots law, it is always a good idea to corroborate what one is doing. In the light of the fact that you are bringing together the forensic science service and the fingerprint service, has any consideration been given to carrying out DNA testing on the original specimens, which might help to clarify the position?
You might want to ask some of the other panel members to comment on that, but from my position, the answer is no. I have not looked at the mark. What benefit would looking at the mark have for the action plan? I am trying to address the action plan and take the organisation forward. Revisiting the mark, whether through DNA testing or some other means, would do nothing to take the organisation forward. It has to move forward, and the action plan seeks to make sure that it does.
Surely the purpose of the organisation is not to satisfy its own needs but to satisfy the needs of justice. One of the arguments that you have used for bringing together the fingerprint service, the forensic science service and possibly the scene-of-crime service is that, by doing so, an integrated approach will be created. Surely you should rely not just on one technique but on all the techniques that are available to you. I ask you to consider bringing back to us, at some future point, your consideration of whether the case should be looked at again, given that your approach is to take an integrated approach to investigations rather than to look at things in isolation.
Personally, I cannot. I ask Mr McLean whether he has a comment on that.
The Scottish fingerprint service did not exist as a single body in 1997. At that time, there were seven separate bureaux that operated their own procedures. There was no common organisation.
Were those procedures written down?
I am unable to answer that question at the moment, but I am sure that there are people who can.
Will you find out for us?
We will get back to you with the answer.
I am glad to hear that, but we need to know what happened in 1997. I suspect that, unless procedures were written down, the differences between bureaux—or the differences between the service in Scotland and services elsewhere—can be explained by the fact that the culture or approach in each bureau relied on its experience rather than on standards. We need to understand why we had those differences. People adhere to one view or another, but the public deserves to know why the differences existed. I am offering you an opportunity to explain that. If you are unable to do so today, you can investigate and come back to us.
It may be that Mr Innes can add something, although he was engaged in 2001 as a change manager to bring the Scottish fingerprint service into being. To say that that was not an easy job is perhaps an understatement. There was resistance to change in the organisation, including resistance to the introduction of standards and common practices throughout the services. Some bureaux perhaps do not accept that certain things require to be done in a certain way, but the introduction of common standards and the achievement of ISO accreditation have required changes to be made.
Do you agree that there could be some danger in going beyond simply introducing standard operating procedures and imposing a central direction? There are two parts to the process. One is the actual analysis, which is much better done according to a standard operating procedure. However, there is a danger in overlaying a culture that says, "You will all reach the same conclusion, irrespective of what you see before you." To put it in black-and-white terms, I suspect that that might have happened in this case.
Looking forward, the action plan builds in a series of valves that allow the very issues that you are raising to be aired. How does an organisation's culture allow that organisation to criticise itself? What is the right approach? It will partly involve the series of safeguards that we are discussing putting in place through the action plan, which will address that question in the future. For example, safecall is a confidential helpline of which I have had experience in previous roles. Individuals can use it to contact, anonymously if they choose, an outside organisation and raise issues with it. Those issues are fed back into the organisation, but the outside organisation demands answers.
We are jumping a wee bit ahead of ourselves here. Before we get to the question whether we have confidence in the service, we are trying to establish where we started off.
There are various documents. Some of the review documents to which David Mulhern has referred document those processes. We are happy to take that request away and bring a document to the committee, setting out the exact situation at that time.
We would be grateful if you could tailormake that for us. We have limited time for this inquiry. We have a wee bit more understanding of the matter, having been down at the SCRO on Monday, but we would find such a document very helpful.
My question goes back to the issue of where we start from. Mr Mulhern states in his report that the Shirley McKie print was a misidentification, but that is not accepted by a number of experts within the SCRO. They have publicly disputed that there was a misidentification. How can those people continue to work in the SCRO? I have received confirmation from the Minister for Justice that they no longer provide expert evidence in court, but are they providing fingerprint evidence for others to use in court? Why are they still employed by the SCRO as fingerprint experts if their services cannot be used?
I will start and will hand over to Mr McLean, who I know will have a view. I stress that there has been a criminal investigation and a disciplinary investigation into the experts in the SCRO. The outcome of both investigations was that there had been no wrongdoing.
But the Mackay report did not say that. It recommended criminal action.
Can I comment?
Before you answer, I make it clear that the questions are to be on the theme that the committee wants to address, which is to try to follow chronologically what happened in 1997.
That is what I am trying to do.
Can we please stick to that?
What happened in 1997, according to the Mackay report, was cover up and criminality. The people who were accused in the report of cover up and criminality still work at the SCRO. As long as they are still working at the SCRO, how can any of us have any confidence in it, no matter how many action plans are put in place?
Mr Neil's point is at the centre of the culture issue that was raised by the convener at the start of the discussion. The Shirley McKie case is at the centre of the debate. Some people in the SCRO hold the opinion that it was a correct identification and other people in the SCRO say that it was a misidentification. Externally, some people say that it was a correct identification and others say that it was a misidentification. The Scottish Executive settled the civil case in February. The criminal case against Shirley McKie found her not guilty, but on the other side a disciplinary investigation, chaired by Doris Littlejohn, the former president of the Central Office of Industrial Tribunals (Scotland), found that there was no disciplinary case to answer.
My point remains in respect of the people who were responsible for the misidentification. Mr Mulhern accepts in his report that it was a misidentification, the Minister for Justice has accepted that it was a misidentification, the Lord Advocate has accepted that it was a misidentification, and by far the majority of experts who have examined the fingerprint accept that it was a misidentification, yet the experts in the SCRO are still publicly saying that those people are all wrong. They say that Mr Mulhern must be wrong, that the Lord Advocate must be wrong and that the Minister for Justice must be wrong—the whole world, except for them, must be wrong. Those people, who maintain—contrary to all that opinion—that there was not a misidentification, still work in the SCRO. Are they still providing—directly or indirectly—evidence on fingerprinting for the SCRO to use in court or in preparation for court proceedings?
Those people are not eligible to attend court as witnesses.
I know that. That is not my question. Are they still involved in preparing fingerprint evidence within the SCRO?
They are involved in working within the SCRO office. I cannot discuss the exact role, but perhaps Mr Innes can.
The answer to the question is no, they are not.
Why are they still employed within the SCRO?
Alex, you cannot go on like this.
I have not had a go yet, convener.
You have had an answer. Your question was—
If this inquiry—
Please do not speak over the convener. You should know that.
Can I raise a point of order? The inquiry will have no credibility if we are not entitled to ask—
Mr Neil—
Do not interrupt me.
Do not speak over the convener.
You are speaking over me.
I will suspend the meeting if you continue. l am afraid that speaking over members is the prerogative of the convener. I will let you ask any questions that you like, but all other members are being orderly and will be called in order. If you do not mind, I would be grateful if you would be orderly, too. You have had a fair go.
I am trying to be orderly.
The committee is well aware of the differences of opinion. Please give us some credit. We have not even started the inquiry yet.
Is there a general acceptance in the SCRO and the fingerprint service that the culture and practices that existed in the late 1990s had to change?
Yes, I believe that there is. When I look back at where we have moved from 2001 to where we are today, I see the many changes that we have made to procedures, processes, training, our accreditation system and annual testing. The staff within the SFS have accepted the lessons from 1997 and have put into place the changes—they accomplished that. Those same people, as everyone knows, have a divergence of opinion over an identification that was made in 1997. However, that has not stopped them making progress with the change programme that was put in place to create the service that exists today, which is at least equal to the other services in the United Kingdom and better than most of them.
You alluded to this question, but is there a genuine and general acceptance in the SCRO and the fingerprint service that the identification of Shirley McKie's print in 1997 was incorrect?
No. What I have found among the experts in the Scottish fingerprint service is a wide spectrum of views—which probably reflects the wide spectrum of views among outside experts—from, "It is," to "It isn't," to "I don't know," to "From what I have seen, I'm not sure." That wide spectrum of views exists among the experts in the service.
Let us explore how wide that spectrum of views is. You will agree that leadership and culture are incredibly important. Mr Mulhern has said that he saw an organisation that, since 2000, has moved on incredibly from where it was, but that, before that, there was no sense of corporate organisation or structure. I am sure that you will be aware of a joint letter by Kenneth Macintosh MSP and Des McNulty MSP that cited a letter that employees of the SCRO had sent to Lord Cullen, the Lord President and Lord Justice General, on 14 November 2005.
You have just exemplified the divergence of views and opinions that I told you exist among the experts in the service over the identification in 1997. It must be said that we are considering a service that has established the Scottish fingerprint service; combined seven fingerprint bureaux into four; put resources in place for quality and training; recruited resources to manage the training programme nationally; and put in place an operational planning system under which work is transferred between the bureaux. In the past five years—
I hear that, Mr Innes, but I do not hear that you have changed the culture or tried to bring about in some way an acceptance among key members of your staff that they made a misidentification in the Shirley McKie case. I put it to you that your organisation will not progress until there is an acceptance that an error was made. If people do not accept that an error was made, they do not appreciate the need to change. What did you do when you found out about the existence of the letter from the SCRO staff?
I read and recorded the letter. I ensured that the staff were expressing their own views and not those of the Scottish fingerprint service.
If you ensured that they were expressing their own views and not those of members of the Scottish fingerprint service, did you have sight of the letter before it was sent?
No, sir. I got sight of the letter after it was sent.
The letter states that it does not express the views of the Scottish Criminal Record Office, so I wondered why you laboured that point.
I meant that I checked it again.
Outbursts of very strong feeling have come from different parties over a long period—they have come from both the Aberdeen and Glasgow bureaux—because there is difficulty in managing the culture of the organisation. There is great diversity of opinion about this single issue. As Mr Innes said, however, that has not prevented our moving the organisation forward in many ways.
It appears that in one part of the country you face disciplinary action for doing that and in another you continue in your position.
That is totally incorrect.
We will investigate that further.
I shall be pleased if you do that, because you are factually incorrect.
It will be interesting to see what happens.
I am not qualified to say, because I was not there in 1997 and I am not a fingerprint expert. I cannot give you a view on whether there was a misidentification.
You do not accept the deliberations of the court.
Of course I accept the deliberations of the court.
Do you therefore accept that there was a misidentification?
I accept that the court found Shirley McKie not guilty of perjury.
We are finding a situation in which the culture of the organisation will not change significantly despite the good efforts of Mr Mulhern and the processes that others have tried to implement. As long as the leadership of the SCRO sits here today and cannot express confidence in the decision of a court—and of many fingerprint experts the length and width of the globe—that there was a misidentification, there is a serious problem in your organisation.
The SCRO accepts the decision of the court and we accept the Scottish Executive's decision to settle the case. Individuals in the organisation, as well as individuals outwith the organisation, still disagree strongly about the decisions. I agree that some sort of closure requires to be found.
Is it the case that there is disagreement among the majority—
The majority?
Of your employees.
There is a fair division. Many people in the Glasgow bureau take the side of their colleagues there and many people take a different view in the other three bureaux. It is as simple as that.
We have a great deal of interest in the staff of the Glasgow bureau, some of whom have many years' experience of working in Glasgow. Is it the case that the majority of your experts who work in Glasgow still believe that the court was wrong?
A majority of experts who work for me in Glasgow believe that the identification was correct.
And therefore that the court was wrong. That says it all, convener.
At the risk of moving forward in the action plan, I wish to reassure Mr McFee about what I have found about the Scottish fingerprint service. I had a collective meeting with the Glasgow bureau—we could not bring together everybody at that point for logistical reasons—and I had a separate and subsequent meeting with staff of all four bureaux. To a person, there was extreme and extraordinary enthusiasm about the action plan and to move forward as a single organisation. I understand Mr McFee's concerns and misgivings, but the staff are a collective of people who are very keen to act corporately to take the service forward. They have pride and confidence in the service for which they work.
Mr McLean, you seemed anxious to answer Bruce McFee's question in relation to the question that was put to you about officers who have been disciplined for speaking out in public. Can you clarify your position?
The suggestion is that, if an individual with a particular perspective speaks out, disciplinary action will be taken against them, but that it will not be taken against someone with a different perspective. That is incorrect. Two disciplinary investigations are on-going at present. It would be inappropriate for me to go into those in detail, other than to say that they concern a breach of the SCRO's communications policy.
Does the investigation relate to the 50 people who signed the letter?
I took legal advice on the issue and was advised that there was no prospect of proper disciplinary action being taken in that regard.
So there are two live disciplinary actions in the SCRO in relation to the issue that Bruce McFee first raised—that of officers who have said something publicly.
Yes.
However, the 50 people who signed the letter are not subject to any investigation.
No. As I said, legal advice was sought and obtained, and I was advised that there was no likelihood that disciplinary action would be taken in that regard.
It is extraordinary that, as my colleague has highlighted, you appear to be taking action against some folk, but not others.
I did not say that that was the case.
You have made public the fact that you are investigating some people. How does that help to move forward the culture of the organisation? I understand the great difficulties that the existence of such disparate views and strongly held positions causes, but how does instituting disciplinary action on this sensitive matter, on what appears to some of us, at least, to be a partial basis, help the development of a positive culture for the future?
I refer to what David Mulhern said earlier. We are about moving forward. The organisation has a corporate communications policy that covers speaking to the media and it appears that that has been breached on some occasions. If that has happened, I need to have the matter investigated to find out what has gone wrong. If I do not do that, we will end up with anarchy, with everyone speaking to the media and doing exactly what they please. I suggest that that would be inappropriate.
Surely releasing a letter with 50 names on it is a prima facie instance of the same kind of circumstance. Are you suggesting that if the others had acted on a collective rather than an individual basis you would have adopted the same approach?
I understand that the letter was not given directly to the media. The investigations that are on-going concern people who have communicated directly with the media.
The letter contains allegations of perjury and suggests that Lord Wheatley was misled.
Yes.
Is that not a subject that you consider would merit even an investigation?
Bruce, I did not call you to speak. You have heard the answer to your question and can take a view on that. A process is under way against two officers and no disciplinary action is being taken against the 50 people who signed the letter. That is the position.
I would like to pursue the issue that Bruce McFee raised, before I turn to the question of staff and motivation. You said that two disciplinary actions are under way. Are both of those in Glasgow?
One is in Glasgow and one is in Aberdeen.
I am not aware of the Glasgow case in detail, but I am a bit more aware of the case in Aberdeen. Mr Mulhern, too, may want to comment. Do you agree that any person who works for an organisation has a responsibility both to that organisation and to himself or herself? If they decide that, regardless of the organisation, they would like to express their personal opinion, in their own time, at their own expense, how can disciplinary action be taken against them? In the case of the Aberdeen member of staff, my understanding is that there is some difficulty in finding somebody who is prepared to carry out the disciplinary action.
I am unable to comment on the specifics of the Aberdeen case. For the benefit of the committee, perhaps I should explain that the reason that inquiries have been conducted in Glasgow and Aberdeen goes back to the fact that next year the Scottish fingerprint service will become part of the Scottish forensic science service. At present, rather than being employed by the SCRO or the Scottish fingerprint service, the staff in each of the bureaux are employed by the local police board. Disciplinary action is a matter for that board. Such action is a bit presumptive anyway, because on two occasions there appears to have been a breach of the SCRO corporate communications policy. In both those cases, the local force has been asked to investigate whether a disciplinary offence has been committed.
My understanding is that the decision to discipline the person in Aberdeen was taken not by anybody in Aberdeen but by you. Is that correct?
The decision was not to take disciplinary action, but to carry out a disciplinary investigation.
That decision was taken by you.
Yes. As was the decision to have the Glasgow situation investigated.
I want to be absolutely clear on this. If you had not intervened, nobody in the Aberdeen office would have instigated an investigation. Is that correct?
No. Because of the nature of the employment relationship between me and the senior management of Aberdeen at the time, I wrote to the chief constable in Aberdeen and asked him about an investigation. He could easily have said no. Discussions take place at different levels with the various police boards that employ staff regarding concerns that we have over people's actions. Those discussions may be on disciplinary matters or personnel issues, but dialogue goes on all the time.
Does Mr Mulhern want to comment?
As part of the action plan, I have at my disposal two high-level organisational change human resource individuals who will inform me and help me to develop the Scottish fingerprint service for the future, based on a healthy culture that encourages criticism of its own organisation. Only by encouraging criticism does one encourage change. That is what I would like to come out in the future of the action plan. Many of the actions around culture and leadership focus on that.
So you would not mind somebody criticising an organisation, even from within? In this case, the person did it in his own time and said that the opinion was his own.
With respect, I would be reluctant to answer that question in a hypothetical context. The Scottish fingerprint service and the SCRO are not my organisation, so it would be inappropriate for me to comment.
But would you confirm that in the future, you would be happy for an individual who had a criticism to be able to express that criticism?
We would like to create a climate that encourages such an approach.
So that climate has not existed up to now.
There is a climate in which people are encouraged to bring things to my attention or to the attention of the Scottish fingerprint service. Cultural issues that we are exploring this morning sometimes prevent that from happening. My deputy Mr Innes and I make regular visits to all the bureaux and speak to the staff on an open forum basis. Equally, Mr Mulhern will formalise a facility whereby staff can call and report things anonymously. Staff in each of the four forces have that facility at present, but I welcome the fact that that will be built on and moved ahead. There are real challenges in this. There is no point in me sitting here and saying that everything is absolutely wonderful. It is not. There are cultural difficulties and there are differences of opinion that are deep-rooted and need to be addressed. We are addressing them.
From what you have said, may I take it that when the committee considers which other witnesses it might call on—that decision is still to be made—as far as the SCRO is concerned there is no issue if we intend to call any of the fingerprint experts who are employed by the SCRO?
Absolutely not. When the committee visited us on Monday, you were free to walk round and speak to all our staff and all our staff were free to come and speak to the committee. The disciplinary investigations concern breach of policy, and I am pleased to say that there is no policy to prevent our staff from speaking to a committee of the Scottish Parliament.
They can say what they want to us.
Absolutely.
I have a supplementary question.
Is it on that point, Alex? I trust you to be honest this time.
I believe that, as part of Mr Mulhern's exercise, an outside employee support services company—Independent Counselling and Advisory Services—undertook some survey work among staff. Is that correct?
No. That was facilitated by the current director.
Could we get a copy of the report?
I will have to check that. The media attention and the political scrutiny around the SCRO and the Scottish fingerprint service have had an effect on staff, and sickness levels rose sharply in February. There was a lot of stress-related illness. At that point, I decided to call in an external firm to support staff throughout the Scottish fingerprint service, not just those in Glasgow. The general conclusions of the report could be made available to you, but for reasons of confidentiality we could not make information about individuals available to you.
No. I would not have imagined that individual responses could be made available, but I presume that the report reached some general conclusions.
I have not yet seen the report.
When it becomes available, can we get copies of it?
Absolutely.
That was going to be one of my questions. The ICAS survey was done in all four bureaux. If we could get copies of the report, that would be fantastic.
I did not visit the bureaux; I facilitated bringing together the heads of all the bureaux in Glasgow and I met them in Glasgow. Thereafter, I met all the experts and staff of the Scottish fingerprint service in Glasgow, separately. On the day when the report was presented to the committee, I had the Glasgow and Edinburgh fingerprint bureaux brought together in Glasgow. For logistical reasons, Aberdeen and Dundee were present at that meeting via videoconferencing. At the same time that Mr McLean was putting the action plan for the Scottish fingerprint service on the intranet, I was meeting the staff to tell them what the action plan said and what it was intended to achieve. I have made a commitment to convene another such meeting in the next few weeks, when the bureaux have had a chance to reflect on the report. I reiterate the fact that all the views that we have received back about the report have been extremely positive.
So, you did not consult all the bureaux about your report; you told them what the report was going to say.
Yes.
I have one or two other wee queries. Somebody referred to the fact that most of the staff in the four bureaux are not employed by the Scottish fingerprint service.
None of the staff is employed by the Scottish fingerprint service.
How many of the staff in Glasgow are employed by the SCRO?
The SCRO is not an employer in that sense. All the staff who are based in Glasgow are employed by the Strathclyde police joint branch board; all the staff who are based in Edinburgh are employed by the Lothian and Borders police joint branch board.
So who employs Mr Innes and Mr McLean?
The Strathclyde police joint branch board.
Fine. I just wanted that to be made clear.
I was.
When did that contract come to an end and has it been renewed?
I will comment on that, as I am Mr Innes's line manager. There has been a change in employment law with regard to fixed-term contracts. If someone has been on a fixed-term contract for more than four years, they become a permanent employee. Mr Innes has just become a permanent employee and does not have a fixed-term contract.
Perhaps you could comment on my next point, too. Mr Innes has already said that he does not have any expertise in fingerprint bureaux or in the Scottish fingerprint service as such. He is, in effect, a manager who came from Ford. However, the 2001 HMIC report recommended that someone in that position should have some expertise in the field. Why then did you not employ someone with expertise?
Unfortunately, I was not there in 2001 so I cannot tell you that. However, I know that Mr Innes was selected as a man who had considerable experience as a change manager. Similarly, the other three bureaux outwith Glasgow have people who are not fingerprint experts managing the organisation and working with processes and people, while the fingerprint experts do what fingerprint experts do.
We have heard about and discussed what is commonly referred to as the Cullen report. I understand that, at some point, a letter dated 28 April 2005 was sent to the Lord Advocate by David Russell. That letter was given to Mr Innes and then widely circulated among the staff.
The letter was widely distributed to all and sundry and made available on the internet. I gave it to the staff in each of the four bureaux because it contained the fact that other independent experts had been employed who agreed with the identification of the mark. I felt that the staff needed to have that information although they could have gathered it from the press and everywhere else. It was a public document and it was made available. During that time, we tried to make all the information available to all the staff. We have not tried to keep anything from them.
I have a couple of very brief points to make and one question for Joanne Tierney.
No.
Did you and the staff in Glasgow receive prior warning about the Shirley McKie settlement? Did you know in advance about the publication of the court case?
I was aware—as was everyone else—that in the previous July, the Scottish Executive had accepted that the mark was not Shirley McKie's, and I was aware that negotiations were going on to settle the case. I am trying to remember what happened in February of this year. I might have had a phone call from the Executive saying that the case was going to be settled, or that it was due to go to court but that it was still under discussion. On the morning of the day when the case was due to go to court, I heard about the settlement in the media in the same way as everyone else.
So you did not know before that.
I knew that negotiations were going on to settle the case.
Convener, I would like to ask Joanne Tierney a question.
We are half an hour behind schedule and we still want to hear from the fingerprint experts.
Will Mr Innes give us a copy of all the material that he circulated to the staff?
Yes.
Convener, may I ask for one piece of information?
Very quickly.
The HMIC report recommendations have been implemented and we now have the action plan from Mr Mulhern. The Minister for Justice has confirmed that despite the reforms that have been made during the past couple of years, there have been two further misidentifications—one in the Mark Sinclair case and one in another anonymous case. Are there any others? Is there a third or a fourth case of a mistake or misidentification?
It would be inappropriate to comment on the Sinclair case.
I am not asking you to comment on the case. Two further cases of misidentification have been confirmed by the Minister for Justice. Is there a third or a fourth?
Not to my knowledge.
I know of one of those cases but have no knowledge of the second, and I know of no others.
Does Mike Pringle have another question?
I can come back to Joanne Tierney later.
I want to ask Mr Mulhern about his action plan for the Scottish fingerprint service in light of the mergers that are about to take place. What challenges will arise from the merging of the Scottish forensic science service with the Scottish fingerprint service? When will it be appropriate to integrate the scene-of-crime examiners into the new organisation?
As I see it, the first priority must be to get the Scottish fingerprint service to recognise itself as an organisation. Until that happens, it will not be able to merge with anything else because it does not yet exist as an organisation other than in name. Thereafter, we will need to achieve the integration of the Scottish fingerprint service into the Scottish forensic science service.
Thank you for that response. I have other questions on the mergers, but I want to take you back to what you said at the beginning of your reply about relationships in the Scottish fingerprint service. In response to my colleague Brian Adam, you said that you saw a division among the four bureaux at the moment and that you wanted to establish unity among them, which will be important if they are to become part of a bigger body.
I am sorry, but I am not sufficiently informed technically or practically about what currently exists to answer that question. I do not know whether that is possible. Perhaps John McLean would like to say something.
Several issues are involved. People have considered and discussed the issue before. The decision is not for me but for the Crown Office or the Scottish Executive to take. I have a rudimentary knowledge of DNA and understand that Shirley McKie has been in proximity to the mark in preparing her defence case. I do not know whether that is of any value. I understand that other techniques can be used, such as multiple hits of DNA, which may possibly reveal something, but the question is for others, not for me, to consider.
Perhaps the only fingerprint expert here could answer the question.
I cannot comment on whether it would be possible to DNA the mark because I am not qualified in DNA matters; I am an expert in comparing fingerprints, I am afraid.
I understood that to be the case, Joanne.
Mr Mulhern will head up the combined service. Will he go back to his colleagues and ask that question and then report back to us?
I am the interim chief executive of the Scottish police services authority, which will have various facets, one of which will be the Scottish forensic science service. I am not sure that I can answer the question or that I am in a position to do what you have asked me to do.
Perhaps you might let us—
I let you have one go, Brian, but Mary Mulligan has the floor, if you do not mind.
Given the witnesses' responses, it would be more appropriate for the committee to call people who could answer my question. I thank the witnesses for saying that they are not the appropriate people to answer it. It is now up to us to call the appropriate people to give us the responses that we seek.
I am unaware of the comment that you mention.
I am sorry, but I cannot find it in our papers. I will try to find it.
I am not aware of the context in which the comment was made, but I stress that the Scottish fingerprint service has worked extremely hard to ensure that there is separation between the scene-of-crime examiner and the fingerprint expert. Historically, the same person could carry out both functions, which was not good, for obvious reasons. It meant that the person who recovered a mark would try to identify it and the Scottish fingerprint service recognised that that conjunction of roles might lead people to be more motivated towards identification than they would otherwise be. There has been a complete separation of the two functions and nowhere in Scotland will a scene-of-crime examiner examine a fingerprint mark. I am guessing that that is the context in which ACPOS made the comment.
The comment is in the evidence that ACPOS submitted to the committee's inquiry. We will hear from witnesses from ACPOS later in the meeting, so I will pursue the matter with them.
I intend to explore the matter during the next 12 months, so I cannot answer your question at this stage.
If there are no other examples, where did the idea originate?
I am saying that I have no examples, but the approach does exist. I cannot tell you right now that we can go to X to find examples, but the approach exists elsewhere.
Okay.
For the avoidance of doubt, is it the case that none of the four fingerprint experts in SCRO had the dual role of being a scene-of-crime examiner as well as a fingerprint expert?
Yes.
That is helpful.
The question might more properly be directed to ACPOS, but I will put on my hat from a previous role. It is the duty of the senior investigating officer who is in charge of a crime to manage the crime scene and to ensure that only people who have the proper authority and a proper purpose may enter the crime scene.
Is it correct to say that someone who is part of the inquiry team would not necessarily have the authority to enter the crime scene? I imagine that it would be detrimental to the inquiry if people who were not entitled to be at the crime scene had access to and walked around the scene.
That is absolutely correct. Certainly when a serious crime has been committed, the police protect the crime scene by putting people at the doors, putting tape around the scene and keeping logs that record who enters the scene, to ensure that people have a proper reason to be there.
As a matter of interest, if Shirley McKie had been at the scene of the crime in question, would she have been there legitimately?
I do not know the answer to that question.
Perhaps DCC Mulhern can answer the question.
I am sorry, I do not know either.
Perhaps someone will answer my question during the committee's inquiry.
When officers join the police service, their fingerprints are taken and held on a manual database. As part of the on-going IDENT1 project, which is referred to in the action plan, those prints will be held in a separate section of an automatic—or, if you like, computerised—database.
Were Shirley McKie's fingerprints in the database?
I do not know the answer to that.
I was not there at the time but, from what I understand, Shirley McKie's tenprints came in with all the other eliminations in the case; they were checked against the mark; and we ended up where we ended up. The prints were not on the database. As Mr McLean has pointed out, police eliminations are not a standing part of the electronic database that can be searched. They are kept on a manual database to be eliminated in any case that comes along. The fingerprint service receives a photograph of the mark, and then tries to identify any tenprints that the investigating officer sends in either as eliminations or suspects.
So, as long as they are on the database, the fingerprints of any police officer who is legitimately at the scene of a crime are eliminated. I imagine that if those prints are not or cannot be eliminated early on, they simply hang around and assume greater importance.
The fingerprint service will have a scene-of-crime mark, the identity of which is unknown. First, it will try to find out whether it belongs to someone—the deceased, the doctor, a family member or whoever—who was at the scene of the crime legitimately. If the mark can be eliminated straight away, we will not have to carry out any further work on it. The same is true of suspects.
Given that the elimination process presumably forms part of the training for the service, I wonder whether Joanne Tierney is able to shed some light on the matter.
The elimination process is fundamentally the same as the identification process. As for whether certain prints assume greater significance, I point out that the key part of the training focuses on the purpose of the service, which is to account for fingerprints that are found at the scene. We are sent information on which we use our skills and expertise to make comparisons and provide results. Any question about the significance of marks and whether they are elimination prints, suspect prints or identification prints rests firmly with the investigating officer or procurator fiscal. We receive a fingerprint, look at the information on it, compare it against a tenprint the identity of which is known and send out our conclusion. The only difference between identifying an elimination print and identifying a print that we are requested to present in court is the fact that court identification requires the use of the old numeric standard of the number of points of comparison. That is not necessary for the elimination process.
My understanding is that there might be a lesser standard of identification for an elimination fingerprint. For example, because the print at the crime scene or some other locus is found on the database and can be eliminated, no one need dwell too long on the matter. Did you have Shirley McKie's fingerprint on record to compare it with the mark found at the scene of the crime? If so, how many experts looked at the print? Did someone try to corroborate it with someone else? When such corroboration proved impossible, were more people then brought in? It appears that four experts looked at the fingerprint.
I was not employed at SCRO at the time but, as I understand it, as with the comparison process, elimination prints that were found at a serious crime scene would have been second-checked by another expert. The four experts to whom you referred are required if the evidence is to be presented in court. Identification is subject to the verification process, which involves three experts, including the initial examiner.
But you are unable to say whether Shirley McKie's print was on the database.
One of the people who made the comparison at the time would be better placed to answer that question.
I turn to the presentation of evidence in court, for which the 16-point standard is used. In retrospect, it was felt that in the McKie case the experts from abroad might have presented the evidence more effectively and in a way that made it come alive more or made it more easily understood. Will you elaborate on that? We are considering best practice and what procedures it would be best to adopt. I am interested to find out whether the action plan picks up on that.
Very much so. The numeric standard was introduced as the standard for the presentation of evidence in court in 1953. One element of that standard was that 16 points of comparison should be displayed in a single print. Over time, the courts came to accept that if 16 points of comparison were visible, experts would not be called on to explain fully how they arrived at their conclusions. Although experts would have been aware of the reasons for their identifications, they were not given an opportunity to provide great explanations. Experts in countries that did not operate the 16-point standard would have had more practical experience of explaining how identifications were made, whereas in the United Kingdom as a whole, not just in Scotland, it was taken for granted that if one went to court and the 16-point standard had been met, that would be sufficient.
Am I right that it is probably fair to say that rather than the meeting of the 16-point standard being regarded as sufficient verification, there is now an awareness that more detail is needed and that explanation of how the 16 points of comparison have been arrived at is necessary?
Absolutely.
Is it fair to say that such explanation was not provided in the McKie case?
In Scotland, we still adhere to a numeric standard. The non-numeric standard will not be introduced until we get the go-ahead for its use. For the past five years, we have been preparing for the introduction of the non-numeric standard, which represents a qualitative rather than a quantitative approach. The improvement that it would bring is probably encapsulated in a quotation from a couple of fingerprint experts, which states:
You will understand that much of what we are trying to achieve is assessment of whether we have moved on from what went wrong in the past. One of the problems in the McKie case that has been highlighted is the presentation of evidence and the use of the 16-point standard. Is it fair to say that the evidence that was presented in that case could have been elaborated on and that, if that had been done, there might have been greater understanding of where diversions of opinion were possible?
Joanne Tierney might be able to comment on that in more detail, but the proposed move to the non-numeric standard represents the adoption of a quality approach, which we have been working on for some time.
I understand that.
We were not ready to make that move until we had in place the ISO accreditation, competency testing for staff and the training regime that we have established. Those measures all demonstrate that our organisation has moved on.
That is reasonable. People move on and learn from experience. Perhaps Joanne Tierney will respond to my point.
Do you mean on the presentation of evidence under the 16-point standard?
On its presentation in the McKie case, specifically, because we are examining what went wrong then and how improvements can be made.
I cannot comment on the presentation of the evidence in the McKie case, not having been privy to that. I can say that following the move to the non-numeric standard, the training process and continuous professional development produce people with expert qualifications who can offer robust and informed explanations. We use external consultants from across the United Kingdom in the training.
On the presentation of evidence to courts, in your view, as somebody who trains, in what circumstances would it be acceptable for officers to present to a court photographs of a mark that have been cropped to take out parts of the mark? What would be the dangers in doing that?
It would depend on what you mean by cropped.
Instead of presenting the full mark in evidence, only the parts where comparisons were made were presented; parts where comparisons were not made were not presented.
I think that you are referring to the court enlargements that are used as a visual representation of the identification process. On best practice in making up such enlargements, it is not possible to make an enlargement to encapsulate the entire photograph. That is what I mean when I say that it depends what you mean by cropped. However, we would take the majority area of the fingerprint and enlarge that to display the characteristics that we find.
If one of your officers presented to a court an enlargement of a mark that showed areas of comparison but did not show areas where the officer knew there was no comparison that would prove an identification, would that be acceptable practice?
With respect, if we had something that was an identification, there would not be areas of no comparison, so the circumstance that you describe would not arise.
We will come back to the question of whether such a circumstance arose.
A glaringly obvious aspect of reports from the Taylor report onwards is the resource issue, in terms of funding and staffing levels. Can you comment on the impact of that? Studies of any organisation would probably show corners being cut and people under pressure because of absenteeism, a lack of funding and increased workload. Can you comment generally on that and on whether you think that the resource issue has been resolved? I do not see anything specific in the action plan that gives me confidence that things have changed greatly in that respect.
I cannot comment on the position in 1997, but Ewan Innes will always ask me for extra resources. The SCRO and the Scottish fingerprint service are now well resourced. There are high numbers of staff, both professional experts and support staff. Currently, while the Scottish fingerprint service is within the SCRO, it is provided with administrative and personnel support and the like.
Has it got its full complement of staff?
Yes. We have conducted several studies of what the resourcing should be and are currently in the middle of one. The latest round of trainees whom we have put into the system should get us to what we estimate is the required level of staff. All we have to watch for now is any attrition of that level.
Are you advertising for staff? What is being done to recruit and retain staff?
We continually do surveys of the peer group of fingerprint experts in the UK to ensure that our wage levels are comparable. Our most recent such exercise said that they were. We still find it difficult to attract experts to Scotland from other parts of the country. The few successes that we have had moved here for personal reasons rather than anything else. Over the past five years, our retention of staff has been fairly good. The only staff losses have been due to retirement.
The strategic plan for the Scottish Criminal Record Office and the forensic science service is continually looking two or three years ahead to determine whether we are matching staff to demand and whether there are staff who are due to retire or expected to leave for some reason. It is important to look ahead because it can take up to five years to train up a fingerprint expert.
It seems to me that a lot of things in the action plan have evolved over time and are in place at present. How many of the things in the action plan are being carried out now? In a sense, it is not a plan to be acted on because the things that it contains are already in place. I am thinking of the points on absenteeism, accreditation and so on.
I return to your question about the apparent absence of information on establishment in the plan. We relied on the 2004 review of the establishment of the Scottish fingerprint service as a baseline for current resources. We found that the outcome of the 2004 review matched the current staffing levels, so we saw no great imperative to examine staffing now.
I hope that that confidence is not found at the expense of a 22-point action plan that is, in fact, only a 1, 2, 3, 4 or 5-point action plan because everything else has been done. That would be misleading.
I will continue that line of questioning but in a bit more detail. Will you furnish the committee with figures on how many staff you have and how many of them are still trainees?
Yes. The annex to the action plan includes information on staffing levels, but we found that it did not identify trainees. An amended version that qualifies the information is being worked on for presentation to the committee.
It will be helpful to have that information. Obviously, the other consideration is that the officers' workload is changing. I presume that if the workload increases, the staff complement will increase too.
A lot of changes are taking place in the fingerprint world at the moment. I mentioned the introduction of IDENT1 and the changes to the way in which people work. A lot of good load-sharing work goes on between the various bureaux and a professional approach is taken. There is also an effective office management system. I have never come across an organisation like the SCRO for creating management information—it is very good at that. The management of workloads in the fingerprint service is very effective. We need to look ahead to ensure that our staffing complement continues to match the workload requirement.
The action plan talks about a marked difference between routine absence levels in the Glasgow bureau and those in the other three bureaux. How significant has that difference been historically, and what is the situation like now?
The McKie case and the media and political interest in it have taken their toll on staff. Staff sickness levels have gone up and down with the cycles of media interest. At one point, in February, just after the settlement was announced, the sickness absence level was up at about 20 per cent. That was unusual, and quite a lot of those absences were stress related; the figure has now gone down significantly. We have a fairly robust absence management policy in place, which was succeeding in bringing the absence figures down, year on year. That blip at the end of the year cost us the gain that we had made. I will let Mr Innes comment in more detail about those figures.
In Glasgow, we have an automatic clocking system that we introduced in 2003-04, so we have ready access to the absence figures. The Glasgow bureau, as a whole, had a high absence level of 11 per cent last year. Within that, the absence level among fingerprint experts was running at about 5 to 6 per cent. The different police forces all have different information technology systems and clocking systems, so we have to work it out manually to get the same sort of measurement. Within the other, smaller bureaux, however, the average absence level is 3 to 4 per cent.
That is an important issue, as absence levels are a good indicator of the ethos and culture of a workplace. I appreciate the fact that you have recorded those figures.
A detailed breakdown of delivery has been presented to the Minister for Justice, and I understand that she intends to keep Parliament and the committee fully informed of delivery of the various action points.
As they are delivered? I am asking whether, to accompany the action plan, there is a more detailed timetable that gives the anticipated completion dates and says who is responsible for monitoring completion.
Yes, there is. That is in the hands of the minister just now.
Okay. Thank you.
At the moment, who has ownership of seeing through the action plan? Is that still to be determined?
I do.
So you will see all the recommendations through to the end.
That is the intention.
When we get to that stage, how will you judge whether you are satisfied that the recommendations are bringing about increased confidence in the service?
I was just asked whether there are definite dates for delivery of each of the action points. Yes, there are. That is the first test that can be applied. How will we know whether what is delivered is making any difference? I am looking to the fingerprint experts, the organisational development and change experts, and the HR experts to act as my conscience and say whether I am delivering anything and whether what I am delivering has any effect. I would like to think that I will have the opportunity first and foremost to show the committee—how I do it is a matter for the committee; I could come back as the committee thinks appropriate—that the progress that I suggest that we will make and are making is to the committee's satisfaction and is making a difference.
I will have to draw questions to the panel to a close. I will take brief pressing questions, but members should bear it in mind that I want to move on to the second panel, so I would appreciate brief questions.
I have questions for Joanne Tierney. I assume that a pillar with the fingerprint that is alleged to be Shirley McKie's on it still exists somewhere. Is that the case—yes or no?
I am led to believe so, but I have no idea.
Is the doorpost that is alleged to have had Shirley McKie's fingerprint on it still in existence with the fingerprint still on it?
I understand that the answer is yes, but that is a matter for the Crown Office and the Scottish Executive.
I thank Mr McLean for that confirmation. That leads to a question for Joanne Tierney. If the doorpost is in existence, could you still obtain evidence from it, because fingerprints do not deteriorate?
That depends on the circumstances in which the item has been retained. It is not possible with any degree of accuracy to calculate the length of time for which a fingerprint will last or to age prints to determine how long they have been on an item. If the item has been stored in ideal circumstances, there is a chance that a fingerprint might still be on it. That depends on the circumstances in which the item has been retained and on whether it has sustained damage or been inadvertently removed.
I understand that the bureaux in Edinburgh, Aberdeen and Dundee each have a quality assurance officer who is the senior expert in examining fingerprints and that you are the senior expert in Glasgow. Is that correct?
I am the training manager and I am responsible for the co-ordination and management of training. Each bureau has a different structure for the seniority of experts.
I am really asking whether those four people are experts in examining fingerprints. Am I right or wrong to think that they are?
You are correct.
So one way of reaching resolution is to ask the three quality assurance officers and you to re-examine the fingerprint, with the Crown's co-operation. Do you agree?
Given the profile that the case has, I believe that fingerprint experts would be satisfied about identification only if they could conduct an independent analysis and comparison evaluation of the mark themselves. I am not sure whether that is logistically possible or even appropriate; the Executive would have to make that decision.
But that could happen.
Any fingerprint expert could look at the mark and reach a conclusion, but in the light of the numerous comparisons and examinations that have been made of the material, I am not sure what purpose that would serve.
Let us reach our own conclusion on that.
No.
You have never seen it.
I have not.
Have the other three quality assurance officers seen it or asked to see it?
Not as far as I am aware.
Fine. Thank you.
The committee will have many questions along the line of the questions from Brian Adam and others. We need to keep the dialogue with you open, because we need to be sure that we understand the process from beginning to end. Mr McLean offered to provide a report on that to the committee.
I have a note to send you in early course the ICAS report, the report on the processes that were followed in 1997 and information on the current processes.
I will be quick. I referred to two recent misidentifications and mistakes, which the Minister for Justice has confirmed took place in the past two years. One involved the Mark Sinclair case and the minister did not identify the other case. In producing the new action plan, did Mr Mulhern consider whether implementation of the action plan would have prevented those two recent mistakes?
I did not.
Will you now do that?
Obviously, in the context of moving forward, I am interested in what we can learn from any misidentification.
The key issue is that, as the Minister for Justice has confirmed, those mistakes happened after the reforms that resulted from the HMIC report were implemented. You have confirmed that there have been no others, but we are talking about two recent mistakes that occurred after the reforms were implemented. Clearly, all is still not well in the SCRO.
I am not in a position to fully answer your point on the misidentifications, Mr Neil, but I am happy to come back to you on it. I do not have the information with me, but I am happy to give it to the committee.
I based it on the written reply that I received from the Minister for Justice. She said that two cases were involved.
Yes, I saw it.
It would be helpful to have that.
I am not sure of the exact wording that the minister used or whether what was said about the marks is completely resolved. I would like to check on that before I come back to you.
My point is that—
We have noted the point; it is a valid one. Given the history, it is important that we know whether there have been other cases of misidentification and if someone has examined them. We cannot otherwise have confidence in agreeing the action plan. On behalf of the committee, I ask you to get back to us on that, Mr McLean. We would be grateful for the information.
The matter may not be as straightforward as Mr Neil thinks it is. Certainly, I will come back to you on the matter.
I bring in Bruce McFee, whom I ask to be extremely brief.
I hoped to get back in earlier during Mike Pringle's questioning. I seek clarification on the Swann letter. You said that you circulated it to your staff in the fingerprint service, Mr Innes. Did it not cross your mind for one minute that, in distributing the letter—which, as you said, was freely available elsewhere—you were simply reinforcing the belief within your department that your staff were right in their initial identification?
No. It was part of the method of operation that I use all the time. When I visit the bureaux and sit down with staff, we discuss anything and everything that is current, both inside and outside the service. The letter contained information on the service. I left a copy of it in each bureau. In doing that, I was saying, "Anyone who wants to read it can read it." I do that with all information. Now we post the stuff that comes up on the news on our intranet. We also send out copies to all the bureaux, just to keep them aware of what is going on.
So—
We will have to close it at that, Bruce.
So, with hindsight, you do not think that it was a bad idea. If another letter came in tomorrow, would you do the same thing again?
Yes, if I felt that the information was pertinent and if it involved the experts.
And you do not think that it reinforced the belief that was held.
We have posted all the information that has appeared in the media over the past few weeks, although it was very critical of SCRO. We are as open and transparent as we can be.
With respect, I asked whether it reinforced—
That is the end of your questioning, Bruce.
Yes. First and foremost, I thank the committee for giving us the opportunity to come to the committee today. We have presented an action plan that we think takes the Scottish fingerprint service forward. It will deliver a series of actions in which the public can have confidence and which will give pride back to the staff in the service. Most important, it will deliver to the criminal justice system a service on which it can rely and in which it has confidence—a service that is recognised as world class.
Thank you. I thank all the witnesses who appeared before the committee this morning. We will discuss the issues further as the months go on.
Meeting suspended.
On resuming—
Our second panel of witnesses is made up of Bruce Grant, the head of the counter-terrorism forensic services of the Metropolitan police; Arie Zeelenberg, the senior adviser on fingerprints to the Dutch national police force; and Danny Greathouse from the Department of Homeland Security of the United States. We are pleased to have them here. I apologise for the wait that they have had, but they will see that we are trying to cram in as many questions and get as much information as we can to inform us. We are extremely grateful to them for giving evidence.
Gentlemen, I am aware of the remit that you have been given in contributing to the action plan, but I am interested in hearing from each of you what you think you can contribute to the implementation of the plan.
I have read the action plan and support it as a good way forward. I would like to benchmark the action plan against the processes that are already in place, not only in the SCRO, but possibly the other fingerprint bureaux in the UK and in the Metropolitan police, to see whether we can learn from that and bring possible further improvements to the Scottish fingerprint service.
I agree with Mr Grant. I have read the action plan, which touches the necessary bases. However, we need to see the plan in action rather than on paper—that is important. I share Mr Grant's view that the process offers an opportunity for the US Department of Homeland Security and fingerprint agencies throughout the world to look at the attempt to make the SFS a world-class fingerprint operation. We can obviously learn from mistakes, but we can also learn from an attempt to make things better, while recognising that mistakes have been made in the past.
If you will allow me, I would like to make a general statement first. I am from the Netherlands and English is not my mother tongue. Furthermore, I am in dactyloscopy—the generic term for fingerprinting outside the English-speaking countries—and not in diplomacy, so I hope you will be tolerant of my language. I will try to express myself as well as possible.
I am pleased that you support the action plan. Are there any issues that could have been included in it that have not been?
By the nature of the issue, coming from the outside and having to resolve problems, the plan has to be imposed from the top down. The things that have to happen, in my view, have to happen from the bottom up. A culture cannot be changed from the outside. The plan does not necessarily concentrate on that issue but we should pay particular attention to it.
We need to be cognisant of future demands and of the technology that will emerge in the fingerprint service during the next five to 10 years. We need to ask what the customer or the stakeholder will require of a future fingerprint service, and whether there are any other external factors that might influence the growth or otherwise and the direction of the Scottish fingerprint service. Those factors need to be taken into consideration because the advances in technology will drive change.
Of particular interest to me is how the new trainees who are on board now and will come on board in the future will be brought into the plan. What information will be given to them and in what setting will they be placed to help them to assume the culture of excellence? People will retire from the service, so how will the plan be incorporated into people coming into the organisation? Part of that relates to Mr Grant's concern about changing technologies. Technology will change the fingerprint examiner's job considerably over the years; it has done so recently and it will continue to do so.
Although you are happy with the plan as it is set out, and that a top-down approach will be needed to develop the new culture, you seem to be saying that there needs to be something else. Can any of you say what that is? The issue is about the people who will be delivering the service changing their working practices and developing them for the future. Is there something in particular that will change the culture, rather than the structures of the organisation?
Changing a culture is something different. As I said earlier, it is easier to discuss the hard side of the plan today.
I have a brief last question. I asked Mr Mulhern about the amalgamation of the various agencies that is taking place at the moment and whether he could provide an example of the same thing happening internationally. In your experience, are there examples of the handling of crime scenes, fingerprints and so on being brought together in one organisation?
Yes. I refer to the history of the directorate of forensic services in the Metropolitan police. At one stage, the crime scene examiners were also fingerprint experts. However, they did not take the work back to the fingerprint bureau. It was separated, so that the expert who was working from the police station did the forensic trace recovery and sent the material, including the fingerprints, to the bureau. The Metropolitan police had its own forensic science laboratory, which was then moved to a forensic provider, but the system continues. Within our directorate, the crime scene examiner and fingerprint examiners come under a line command.
In my career at the Federal Bureau of Investigation, originally all the fingerprint work—the tenprint work and the latent fingerprint work—was in a separate division, rather than in the laboratory division. In 1993, the latent fingerprint group was incorporated, which has been a definitive plus. In a more formal laboratory environment, the examiners have felt more involved in the established processes of scientific examination.
I will not go into huge detail, but there has been a counter-terrorist team for 36 years. The members of that team work cradle to grave. They go out to the scenes, bring the evidence back to the bureau and work their own cases. They also do their own physical and chemical extraction in the laboratory. They have an overview of the case, understand it and get to know the forensic traces. That approach has been hugely successful. We have found no disadvantages to it and it has been subject to serious scrutiny by independent experts and top QCs for as long as I can remember. It works.
There is a project in the Netherlands to create clusters of DNA from DNA detected at crime scenes—from cigarette ends, chewing gum, blood and so. We then try to elaborate on fingerprints by comparing the DNA with prints found at the crime scenes, because penetration of fingerprint collections is much easier than penetration of DNA collections. Fingerprint collections are also larger. If there was one piece of fingerprint in a collection of 100 DNA samples, I could search in our collection and do a wider search—of palm prints, for example—or I could send the mark over the border. That approach brings great results and makes sense. Facilities do not necessarily have to be in the same location; it is possible to exchange data.
I welcome the witnesses to Scotland—or rather, back to Scotland.
In 1997 in England and Wales we started to move towards implementation of the non-numeric set standard. There were standard operating procedures, but they were very thin. We certainly had verification processes—they have always been documented—but case handling and matters such as tenprint handling were still being developed. Not all the standard operating procedures were in place, but we certainly had a verification process, which has not really changed. It is important to say that anyone has the right to challenge another person's opinion—that is written into our verification procedures south of the border, but I do not know what the situation is in Scotland.
In 1997 what is now the Department of Homeland Security IDENT fingerprint operation was not in existence, because it did not start until early 1998, so I cannot comment in that regard.
I will make one distinction between me and my colleagues. I suffer from too much knowledge—I have been involved in the case. The question about the nature of the mistake also relates to the quality of the print. I am one of the lucky fellows who was invited by HMIC—I did not solicit for it—and I have seen all the material. I have seen the original doorframe and the original prints. I do not know exactly what the procedures were in the SCRO then, but I honestly believe that, whatever procedures are followed, it should be possible to establish pretty quickly where there is not an identification. I stress that that is irrespective of the procedure followed.
Would any of you like to suggest why we have two different sets of views and how they were arrived at? If we are to change the culture, we must have an understanding of why there is a different and rigidly held opinion on each side of the argument. If we cannot get to that, it will be almost impossible to effect a change in the culture.
I wish I could answer that. In my 37 years' experience, I have never known a case involving two such polarised opinions. It is disturbing. The black-and-white nature of it is bizarre. That is all that I can say. I do not understand why there are such polarised opinions in this case.
As I understand it, it was not just the one print that was involved. Notwithstanding the circumstances of sub judice rules, I would mention that, even in the same case, there was another print over which there was a difference of view. There must be an undermining of public confidence in fingerprinting in general. Should we insist on having some independent corroboration by an alternative technique, such as DNA or whatever else might be available?
Before you answer that question, I suggest that Brian Adam's previous question is fundamental at this stage. Anything that you are prepared to say now is critical for our understanding of whether or not these issues are a matter of debate between experts. Mr Zeelenberg, you have been particularly vocal on the issue. I wish to reiterate what Mr Adam asked you. As you say, there was a misidentification. What factors, in your opinion, most contributed to that misidentification?
I have a problem here. I was invited to give evidence because I am a member of the panel advising the Minister for Justice and David Mulhern on the future. However, I was also expecting to be involved in looking back, looking at the print and delivering a presentation specifically on that, but that would require some extra equipment.
I know that you have made that offer. That can be done, if that offer is on the table. For the information of those present, Mr Zeelenberg is keen to present his view of why the identification of the print is a misidentification. We cannot do that today, because we have not prepared for it. However, we can consider your offer, Mr Zeelenberg, for which we are very grateful.
I will try to address the matter as far as I know the facts—and I have seen many facts of the case. It is typical for any court case to have facts and to try to fit the best story to them. I will deliver you the story as I see it now, from everything that I know.
Can I break that down a wee bit? We are talking about the elimination print. In your view, the person who made the initial comparison simply made a mistake. The methods were not at fault.
Your view is that, when other experts looked at the print, they simply backed that up. It was easier for them to do that.
There must have been a psychological process in which one person confirmed what the other said without looking properly. Other things might be involved, such as pre-charted fingerprints and people not looking properly for themselves. Then, of course, procedures can kick in. If one follows the analysis, certification, evaluation and verification—or ACEV—method of analysis, one looks at the latent and marks what one sees. One puts away the comparison print, perhaps in another room, and looks only at the latent. Then one goes back to the comparison print and tries to find the same thing there. It is absolutely impossible to make an identification on the latents.
You say that, even though anyone who did that would be putting their professional integrity on the line. We know that the training to become a fingerprint expert is onerous. Do you think that the successive experts who verified the print would put their professional integrity on the line just so that they could back up the first analysis?
I am not sure that I understand your question.
You said that the first match was a mistake but that, because of the culture, it was easier for the other experts who looked at the print to back up the decision than for them to say, "In my view, that is not a match." I put it to you that you are making quite a strong suggestion about professional experts who would simply back up such an opinion. Would they not be putting their professional integrity on the line if they did not really believe that the print in front of them was a match?
We know that it happened, and we all know that it was a mistake. That is the fact that we have now arrived at. It happened and we are trying to find explanations. I was not a fly on the wall. I was not there, but I can try to understand what happened, and it definitely relates to culture.
Is the culture of the organisation the biggest factor that has contributed to the mistake.
I am afraid that that is my view.
Is that the view of the other panel members?
Not necessarily. I am not commenting on whether it was a mistake or not. I have seen a lot of opinions flying around, but I work on continuity of evidence and on the chain of evidence and integrity, so I will not give an opinion on anything until I see the original material. Such considerations may have clouded the case, because few people, as I understand it, have seen the original material. I do not understand how others can make comments without seeing the original material. In my line of work, it is paramount that we understand the integrity and the provenance of what we are looking at.
I would just like us to be clear about technical levels. What do you mean by original material?
I think that, north of the border, you call them productions, but I will not comment on that. Scotland Yard has been criticised for not commenting on the case but, to my knowledge, we have never been approached officially to make a comment on it.
I just wanted to clarify what you meant when you mentioned the original material. Did you mean the original mark?
I meant the original mark and the photographs of the mark. I would like to see the chain of evidence so that I could satisfy myself that I had the original material in front of me before I made a comment. What disturbs me about the case is that a lot of comments have been made by people who, I believe, have not seen the original material. As a professional, I find that disturbing.
What were they looking at? Were they looking at photographs of the mark?
I do not know what they have been looking at. I know that there are images on the internet, but I do not know the provenance of those images. I do not know whether they are original images, but I presume that many opinions have been expressed based on those images. That is why we have what we call a wall of silence, and that is why there has not been much comment south of the border.
I would like to concentrate on Mr Zeelenberg, because I am aware of his involvement in the case.
Yes.
You have explained how the identification could have come about. Could you give the committee an indication of how clear it should have been and what evidence you had to enable a fingerprint expert to identify that the print was not that of Shirley McKie?
First of all, let me say that I think that the SCRO and I agree about a few things, and one of them is that it was either from McKie or from another person, but not from both. We agree on that, so one of us is wrong. There cannot be an in between.
In your view, how easy should it have been for one fingerprint expert, far less half a dozen—or rather, four—to identify that the print was not that of Shirley McKie?
Pretty easy.
Very easy?
Pretty easy. It depends where one starts. There are five similar points and if one has a leap of conviction, one may work backwards. However, there are three incoming lines at the tip of the print, which come from the left. Those lines are very clear to see and they are not in the fingerprint of Shirley McKie. Even the SCRO has admitted that.
In your opinion, how could it be that so many officers continued to confirm that the print was Shirley McKie's, even in court—which meant committing perjury—and as recently as the past few weeks? How could we arrive at a situation in which so many officers in one organisation continued to back up one another's story? I will be blunt. Are we talking about a series of crucial mistakes or a degree of collusion among officers in backing up one another's story?
Mr Zeelenberg, you have already answered that question, but feel free to answer it again.
Part of the answer is outside my domain because it relates to psychology, but that is what happened. The good part is that, according to the letter from SCRO staff, most people have not seen the original material. That may be the explanation. It is up to them why they signed the letter. A few of the people who signed it obtained their certification after 2000, which is worrying.
That was a helpful elaboration on the question that I asked originally. I will return to the supplementary question that I tried to ask. Does the experience of the Shirley McKie case undermine confidence in fingerprinting per se? Does it mean that we should be cautious about using only fingerprint evidence and that we should perhaps obtain corroboration of an individual's involvement through the use of a different technique, such as DNA?
Whenever we deal with humans, we are dealing with fallibility. Unfortunately—or fortunately—in fingerprint work, the human part of the chain is both its weakest and its strongest part. Throughout the history of fingerprint work, mistakes have been made. The question is whether they have been well known, and there are not many well-known mistakes at the level that we are talking about.
I take it that you are not advising us that we should no longer rely on fingerprint evidence.
Just the opposite. I believe that the science of fingerprints is a valid science of individual identification. That has been proved in court through scientific hearings on individuality. If anything, the use of fingerprints will become more important.
Do you agree that it would be better if we had independent corroboration of an individual's presence at a scene through the use of an alternative technique?
If that were possible. However, I do not think that we should make the assumption that DNA will always be available as a back-up.
We will come back to the question of the process.
I can answer the question. I do not accept what is being said. Fingerprints have been under challenge for more than 100 years. To keep it in context, very few mistakes have been made. There have been countless hearings in the United States at which the science and the validity of fingerprints have been challenged, and every one has failed. The American courts have gone through that countless times. Fingerprints are and will remain the primary biometric for the foreseeable future.
I was trying—
Brian, I need to shut this discussion down.
From what has been said, I think it would be true to say that the identification of fingerprints is an opinion-based exercise, as opposed to a completely exact science in which there are definitive rights and wrongs. Is that correct?
The words qualitative and quantitative have been used, and it is a qualitative-quantitative process. You are absolutely right to say that it depends on the quality and quantity of the material that we have. Some comparisons are extremely challenging.
Given the qualitative and quantitative nature of the process, there will, from time to time, be a difference of opinion within areas of one fingerprint. As I understand it, when the verification process is gone through, those areas of disagreement are looked at through a resolution process in which people talk to one another and look at the print after the expert has come to their initial conclusion. Perhaps in the light of that, certain things may be pointed out that the expert had not seen—or that the other person had not seen—and, as a result, they might say, "You are quite right," or, "Oh, yes. I did not see that." From that, an agreement can be reached. Is that often the case in the hard cases, in which we are looking at sufficiency of information for identification, as we were in the Shirley McKie case?
Not necessarily; it is a bit more complicated than that. It depends on the experience of the individual. There is often discussion with trainees because they are not experienced, but certainly between experts. If there is a disagreement in a comparison—not between individuals, but between the images—that cannot be logically explained, that is it. We have to say that that comparison is negative.
Can I stop you there? You say that it cannot be logically explained. Would not a discussion help that? Are you saying that the expert is so expert that he can learn nothing from a trainee, even though the trainee may turn out to be the proverbial Sherlock Holmes?
No, I never said that at all.
That is the impression that you gave.
No. I said that discussion is generally with trainees and experts. You are quite right—that also happens.
I was talking about the hard cases. If you do not mind, convener, I would like to expand on this a bit.
My suggestion to William Taylor, there and then, was to talk with the experts. I still believe that the only and best way forward is to admit to the mistake and learn from it. That could have happened then. I take the Mayfield case from the FBI as an example. A mistake was made and it was admitted by the FBI, and it is now seen as a blessing in disguise. There has been a gigantic overhaul, an impressive research programme has been put in place and all the procedures have been revisited. What people learned from that mistake is that they were fallible. That is one piece of the equation.
So you have never had the opportunity to have that discussion.
I saw the original material at the time of the investigation. A meeting was set up in Tulliallan. In my view, it should have been a feet-on-the-table discussion with the experts, but it was something completely different. There was an investigative team and the procurator fiscal was there. It was quite official. There was a kind of stand-off between the two parties, who had made up their minds, and there was no free discussion.
Was your conclusive opinion on the internet print the same as that of the four experts?
It is. They are all images from one and the same latent fingerprint.
And your conclusion was based on that.
Yes.
I want to pursue this point on the basis of some of the public statements that Arie Zeelenberg has made following the Tulliallan meeting. You have said that you believe that this started off as a mistake that was made in the original identification by the SCRO. By the time that you got to Tulliallan, was it still a mistake—honest or otherwise—or had things become a bit more sinister? You are on record as saying that one of the presentations by the SCRO on the alleged Shirley McKie print—which was definitely not hers—had an element of criminality about it.
I did not use the word criminality. I am running out of material to demonstrate what I am trying to say. You ask whether it started as an honest mistake. Yes, definitely. Somebody made an error; otherwise, the prints would not have been hooked up. There is some similarity between them. The SCRO had two years in which to reconsider before the matter went to court. The print was heavily disputed, and the SCRO should have revisited it. There are signs that that happened and that people's conflicting opinions were suppressed. That is all in the transcripts of the meetings. I do not know where and when the investigation became malicious, but I would say that, at a certain moment in time, the SCRO knew that it was not Shirley McKie's print.
And are the prints—
No, no, no. Other members—
I think that it is fair to pursue this, convener. It is a very important point.
Mr Zeelenberg is talking about the tip of the fingerprint—
Exactly.
Okay. Could you just hold on a minute? I will call you, but remember that there are other members who have not spoken yet. You can pursue the matter, but please make it brief because Mike Pringle has been waiting to speak.
Absolutely. I thank you for your indulgence, convener, as I am not a member of the committee.
I think that the opinion still is that it is a print laid out on a single occasion. I am sorry that I am not able to show you, but I have a beautiful PowerPoint presentation on it. The tip of the print was made with pressure and the bottom part was made with less pressure. That explains a lot of things. By the time of the meeting in Tulliallan, I said that I could not be 100 per cent certain that the print was made by a single finger—we can never be certain of that, as no one was a fly on the wall. Nevertheless, the SCRO and I think that the print was made by the single placement of one finger.
You made an offer to the committee earlier that you would be prepared to go into depth on this issue if the committee was interested. We cannot do justice to the issue today, so I suggest to members that if they want to pursue the same line, we take up Mr Zeelenberg's offer. I call Mike Pringle to speak next because he has been waiting for a long time.
My questions are mainly for Arie Zeelenberg. My understanding is that you were at Tulliallan to present the Mackay report. Is that correct?
To present the Mackay report?
Yes. You were involved in the Mackay report.
Yes.
And you were at Tulliallan when that report was presented.
No. I was interviewed by staff involved in the Mackay report. What was presented was the SCRO presentation, which was also delivered to ACPOS.
Right. Can you tell me who else was present at Tulliallan then?
Oh, a lot of people. I can give you a list.
Well, let us save time—you give us the list.
Both. It must happen at both ends at the same time.
Fine. In September 2002, four world experts, of whom you were one, lodged a petition with the Scottish Parliament. Do you think that the action plan answers the questions that you posed in the petition? My understanding is that no action has been taken on the substance of your petition.
My problem is that I do not want to disagree with the other experts on the panel, but I said previously that I have a different position.
To be fair, the petition was from you, Pat Wertheim, Allan Bayle and David Grieve, so the other two experts on the panel were not involved. Only you can answer the question.
Underlying the petition is the fact that 171 experts from 18 countries asked for the case to be resolved—that is basically their message. The problem is that I was called in from outside. I was not involved in the creation of the petition. However, we wanted the case to be resolved and it seemed that Scotland was unable to do that itself, so people from outside were needed. I did not choose to submit the petition, but there was no other way. We had to keep the pressure on to get things done. It is a pity that the case was not resolved in 2000 or 2001—I regret that.
My understanding is that the committee has been told that we will not get copies of the Mackay report or the two MacLeod reports. I believe that the committee must pursue that issue. In your view, is there anything in those three reports that would mean that we should not see them? We have all heard about the misidentification, and the reports say that there was a misidentification. Everybody has talked about that and about the organisation's culture. There must be something in those three reports that somebody is trying to hide. In your opinion, what is it?
I do not know. I can give only my presentation of the facts and my observations. I was prepared to do that in the McKie court case. You can draw your own conclusions. Drawing conclusions about what is wrong or right is not my ball game.
Leading up to that case, were any issues raised about the quality of the evidence that the SCRO presented during the perjury trial? In particular, you have alluded to the tip of a print that was clearly not that of Shirley McKie. Was there any comment about evidence that was produced in court in which photographs of fingerprints were cropped so that the tip was not visible?
Do you mean at the meeting in Tulliallan?
No, I mean in relation to your knowledge of the case in which you were invited to provide evidence. Was there any evidence or suggestion that the photographs that SCRO officers had presented had been cropped?
What I have seen from the original productions is that they were cropped and the tip was left out.
So the tip of the fingerprint that proved conclusively that the print was not Shirley McKie's was cropped from the production that appeared in court.
Yes.
This has been an extremely useful session. I am sure that we have not been able to cover everything that we would like to have covered. To sweep things up, there are a few things that I want to clarify. You have tried to give us your insight and view as to why the misidentification took place. That is very important evidence for us and for our examination of where we started and the impact of the action plan. I want to check that Mr Greathouse agrees with what the other two experts have said about that, as his view was not too clear.
I am sorry—on what specifically?
On what we have been hearing about the reason for the misidentification, the whole issue of the quality of the print, the organisational culture aspect and how analysis is done in terms of objectivity. I wanted to check that those were also your own views.
I do not have nearly as much knowledge as either of the other two witnesses, so I really do not want to speculate in that way. That would be unfair to the committee. The factors that they have raised would be factors that should be considered at any time—not just in this case, but in others that might be similar. It would not be fair of me to speculate to the committee.
That is fine.
I think that we will be working with him for some time. We want to see the plan in action. I think that there will come a time when, perhaps based on our recommendations and the findings of this and other committees, it will become an internal charge to maintain whatever recommendations and reviews are necessary. However, I do not foresee that the three of us will be involved for a long period of time. I think that when the committee and Mr Mulhern are satisfied that we have given as much information and guidance as we can give, it will be time for the people of Scotland to move on.
On 15 August 2000, the Crown Office announced that the mark, which was identified by SCRO officers as being that of Marion Ross, on the Marks and Spencer tin found in David Asbury's home had been misidentified. Paragraph 1.1 of the action plan for excellence states that there was a misidentification of Shirley McKie's print, but it makes no reference to the Marion Ross misidentification. Do the witnesses believe that, unless that issue is also resolved, it will be difficult for the fingerprint service to move on and merge with the forensic service?
I think that that question is okay, but before the witnesses answer it, I should mention the sub judice rule in relation to the case, of which Bruce McFee is well aware. I need to put that on the record before anyone answers that question.
I mentioned the matter of the tin only because the Crown Office made that particular announcement on 15 August 2000. I do not want to go into the other aspects of the case, which are still before the court.
I wonder if I could respond to a general point. As a matter of curiosity, it would be good for me to see that print, but I am not sure that our giving an opinion would move the culture forward or change people's opinions. I have a difficulty as regards the two polarised groups, and I cannot see a huge change, even after all these years. I would like to take the Scottish fingerprint service forward and stop looking back. Personally, I do not think that we are going to change opinions.
That is a helpful comment.
It is helpful, but the difficulty for us is that, if we do not understand what happened, we cannot move on.
The question was asked earlier about how we change the culture. The first issue is that the management and leadership of the SCRO must take the Scottish fingerprint service forward, put these events behind them and deliver a professional service.
We are with you on that. However, as you will realise, the committee wants to examine how we got to the present situation. Ultimately, we feel that part of our job is to contribute in some way to restoring confidence in the service. We will have to go through a process to get there, which is why your evidence as experts has been invaluable. You have been frank and honest with us, which we appreciate. The committee will consider Mr Zeelenberg's offer to take up the misidentification in more detail. We will discuss that at next week's meeting. I thank all three witnesses for their time and apologise again for keeping them waiting.
I, too, apologise for keeping the witnesses waiting. Perhaps we all talk too much and ask too many questions.
I preface my remarks by saying that, for some of the time when the deliberations were taking place, I was not in a place to offer a view on how the judgment was made. However, I happily sit here as president of ACPOS and I will do my best to give the detailed knowledge that we have.
If you do not know the answer to the following question, I am happy for you to say so. My understanding is that, at the time to which you refer, the suggestion was made that it should be expected that any person who was recruited for senior management within the SCRO would have knowledge of the fingerprint service—they might not be a fingerprint expert, but they would at least have knowledge of the service. Was that a recommendation in the report?
I do not know. If it was, it will be in the report, but I am not sure that it is. I cannot answer the question.
That is a fair comment. Perhaps we can follow it up later.
Perhaps I should clarify that there is representation from ACPOS as well as from police board conveners and the Executive on the organisation that has come together as the Police, Public Order and Criminal Justice (Scotland) Bill has gone through the Parliament. That organisation is sometimes called the common police services shadow board and it is sometimes referred to as the Scottish police services authority as we move towards that new entity. I am one of the ACPOS representatives on that body and, later this afternoon, I will discuss in that forum the replacement of John McLean as director. There are proposals on the table to ensure that, in the interim, before we get to clarity of position—which has partly been dependent on completion of the action plan, acceptance of it and approval for its implementation—leadership is sustained. It is proposed that the current deputy director should act up, but we will need to support him because he has been doing a job already and a lot of work is going on. We need to ensure that the correct provisions are in place.
My questions have concerned the proposed merger of the various arms of the service. I have your submission in front of me, but I would like you to say a little about how you feel that that will progress. I know that you are aware of, and were supportive of, what the previous experts said.
Yes. If you go back into the history that is documented in ACPOS's submission, you will find that we have been taking that work forward from the mid-1990s. In 2002, chief constables, as part of the executive committee that was then the governance body for the SCRO, agreed as part of the change management review that had been constituted that we should create a Scottish fingerprint service. Chief constables ceded the authority for the fingerprint services in the different forces into the one nominal body and we have had a sort of Scottish fingerprint service ever since that time. You have touched a bit on the difficulties in the management and leadership of that. However, we are happy that that service should become a formal authority, as in David Mulhern's plan.
What resources in particular do you doubt are in place to achieve that?
In the forensic science service, we have four separate laboratories. They provide a good service year in, year out to Scotland's police, courts and public, but merging them into one will involve a bit of change. That comes with the wider SPSA agenda to change terms and conditions and involves the softer issues, such as taking people with us, getting people on board and securing their ownership of the organisation.
Given the comments that have been made this morning about disunity within the SFS, will that be an added problem? How will that problem be overcome?
That is clearly an issue that needs to be addressed, as the committee heard in evidence from its first panel. John McLean and Ewan Innes described work that they have undertaken and the support that they have introduced to resolve the issue. It is clear that responsibility lies not just with the fingerprint service or the SCRO, but with chief constables as well, because the people in the service started off as employees of police forces and they are known as people who work within the building. We all have a responsibility in ensuring that the service comes together. I am sure that ACPOS will have no hesitation about playing its part in that.
Paragraph 92 of the ACPOS submission mentions
I think—this is probably more opinion than fact—that it is inevitable that, where people have an historical association with another large organisation, there is bound to be some affection of identity. That can, and does, happen in any merger of organisations. People wonder whether the Strathclyde force should be called "Strath Glasgow" and whether West Lothian will ever be part of Lothian and Borders police. Such problems arise in mergers because of people and myth, but leadership can resolve the problem. Among ACPOS's leadership, there is no desire or intention, and there never has been, to do anything other than move away from the current set-up to a single fingerprint service of which we can be proud. That is why we talk about a Scottish fingerprint service.
Therefore, there are no concerns about the danger of the fingerprint service slipping back into that relationship. Will the new structure ensure that there is a more resolute service in the future?
The agenda that the common police services shadow board has for the police service at large is, like that of all who have an interest in policing, to ensure that the new authority is a terrific success. For some time now, we have said that the current legal arrangements make it difficult to deliver common services. That is why we argued for change. ACPOS and others will try to ensure that the college maintains its proud history and that both the SCRO, which does a lot of work beyond fingerprints, and the Scottish Drug Enforcement Agency also maintain that. We need to see this through. We second people to those services and they come back to our forces, so we want the services to work well and we support them.
It is useful to have the extensive submission from ACPOS. I want to ask about three of its paragraphs in particular.
I probably can answer your question. If I check later and find that I was wrong, I will be the first person to come back and tell you that.
In that case, do you accept that paragraph 101 of your submission is rather unsatisfactory for the committee? The paragraph responds to our question 4, which was:
Yes. However, as I said, primacy is with the Crown so ACPOS cannot do other than to give the replies that we have given.
I want to be clear about this. Was the report originally commissioned by ACPOS, but handed to the Crown Office and Procurator Fiscal Service after the complaint was made?
I was not part of the team at the time, but our submission sets out that ACPOS personnel at the time recognised that a number of pieces of further work needed to be done in the light of the emerging findings of the then HMCIC, Bill Taylor. Rather than wait, they got on with that work, one element of which was to try to resolve the conflict about the identification. However, that situation was very quickly superseded because a criminal complaint was made and the Crown was brought into the matter, so ACPOS could no longer make a judgment on the matter.
By what mechanism did a report that ACPOS commissioned end up at the Crown Office?
I understand that a complaint of a criminal nature was made and the Crown Office became involved, I think through Mr Gilchrist. I have no doubt that there was a conversation between ACPOS and the Crown about how the matter should be dealt with. Paragraph 55 of our submission summarises what happened.
I understand that Mr Mackay was instructed on 23 June 2000 to carry out the investigation and that he did not receive verbal instruction of Mr Gilchrist's interest until 7 September 2000, some two and a half months later. Is that also your understanding?
I cannot answer that, but I believe that the on-going inquiry would have been discussed between Mr Mackay and Mr Gilchrist. That is the way in which such crimes are usually managed.
Are you suggesting that the report would have been classed as confidential shortly after it was completed, or would it have been more recent than that?
I believe that the report would have been classed as confidential prior to it being submitted. However, I do not know. It is probably best not to surmise about the understanding between Mr Gilchrist and Mr Mackay over the marking of that report as confidential. I do not know.
If you found that out, it would be useful if you were to come back to the committee with the information. Was it a request or a demand? The word "requested" is used in paragraph 57. Is that just a euphemism?
It is probably a choice of words, but I do not know whether it was a judgment by Mr Mackay, who was obviously responsible for the report's completion and submission, or whether it was a judgment by Mr Gilchrist about the nature of the inquiry when there was no clarity about how the situation would develop. I just do not know; I am offering an opinion.
So you do not know whether the report's confidential classification was requested or demanded.
No, I do not. I am also not sure that I can provide an answer to the question that you asked me earlier.
It would be very useful if you could point us in the direction of who classified the report as strictly confidential and when.
That information would have to be obtained through the Crown.
The witness has made it clear that he is not in a position to answer. The committee will have to decide whom it wants to answer that question.
The committee will have to call Mr Mackay to resolve that point if we can get no further answers today.
I do not feel as if I have been instructed by anyone. If any criminal inquiry is the hands of the Crown, it would be wrong for any police officer to seek to do anything else with it. That is the normal arrangement. I have not been instructed.
One of the recipients of the report was Mr William Rae, who was the president of ACPOS at the time.
As I understand it, that is right. He is the honorary secretary of ACPOS.
He received the Mackay report.
Our report says that the report was submitted to the ACPOS secretariat and to the Crown.
And to Mr Gilchrist, and to John Duncan, who was the deputy chief constable of Strathclyde police at the time.
It might have been, but I have no knowledge of that.
That information would be useful. My information is that John Duncan received a copy of the Mackay report.
I do not know. Although he is a member of ACPOS, his role as deputy chief constable of Strathclyde is different.
I realise that you cannot answer some of the questions, but it would be helpful to be clear about which ACPOS members had a copy of the report and in what capacity. The committee will need to decide whom we want to ask about the rest of it.
I would be happy to clarify that. Our response is that the ACPOS secretariat got a copy of the report, but our difficulty comes about because of the primacy of the Crown.
I want to explore some of the issues around chief constables' legal liability for seconded officers. I understand that the chief constable is legally liable for a seconded officer's conduct, actions and discipline. Can you explain a bit more about that?
Resolving the legal basis of the common police services is important to that issue. We second officers, but other people are employed as support staff—as opposed to police officers—in the name of a legal entity. ACPOS is not, at the moment, a legal entity, so we cannot employ people. There is difficulty determining where liability lies, and it tends to go back to the chief constable. If there have to be disciplinary proceedings, they will have to take place within the legal entity.
To be quite clear, seconded officers in the SCRO are employed by Strathclyde joint police board.
Yes.
At the time of the Taylor report, for example, the 18 police officers' actions would have been the responsibility of the chief constable.
Yes.
What kind of things would they be involved in? I asked the question earlier but I did not get an answer. Who goes to the scene of a crime, for example? What does it mean if someone is part of an investigation team? What does that entitle them to do? Do they automatically go to the scene of a crime or is access restricted to certain personnel?
Maybe Mr Latimer could respond.
As was pointed out earlier, when a serious crime occurs we want to maximise the evidential opportunities afforded by the scene. There will be an expectation—certainly on the part of the senior investigating officer—that controlled access to the scene will be maintained and that a log will be kept of all those who have been to the scene. We want to ensure that the forensic examination can continue without interruption, so we expect only minimal visits by those who need to be there.
If someone—a police officer, for example—was at that locus but they were not a member of the inquiry team and they did not have a legitimate reason to be there, would that be a disciplinary matter?
Not necessarily. It depends on the circumstances. It might be sufficient to have words of advice with the individual concerned.
But it could possibly be a disciplinary matter.
It could be, but it depends on the circumstances. We could go through a range of hypothetical scenarios. At one end of the continuum, a judgment could be made that the matter is serious and merits further, formal investigation.
For the sake of ensuring that the scene is not contaminated, is it not important that you know exactly who should be there and that strict rules are laid down about that? We want to move forward and make sure that we have the best possible procedures, including scene-of-crime procedures.
I expect—both as a chief constable and as chair of the crime business area in ACPOS—there to be close control over access to the scenes of serious crimes.
I understand that William Rae, who was chief constable at the time, received sight of the Taylor report before it was published and that he apologised to the McKie family. That is in the Taylor report and, I think, in your report. With hindsight, was that premature?
Do you mean the apology?
Yes.
I know that the report mentions that Mr Rae, who was then the president of ACPOS, saw the McKie family at that time. I would not like to say that it was premature. I do not know what judgment he made in deciding to go, so it would be wrong of me to speculate.
I am thinking specifically about legal liability. The report has not been published and aired properly. Mr Rae, in his position as chief constable, made an apology. Was it premature of him to do that, before we had a chance properly to dissect the report?
I do not believe that either of us has seen the report, so we cannot offer an opinion on Mr Rae's reasoning. Clearly, he had the opportunity to consider issues that neither the president nor I have had the opportunity to consider. He would have made a judgment—
Mr Latimer, I think that Margaret Mitchell is referring to the HMIC report, which we would like to think you have seen.
It is the report of June 2000.
Sorry.
You mean the primary inspection report. I cannot make an assumption about Mr Rae's knowledge at that stage. I am confident that he must have believed that as president of ACPOS, which was the role he was fulfilling—
I will put it another way. If you were giving a lecture on the matter to your fellow members in ACPOS, would you advise them to take that course of action?
I will move away from that issue, because I cannot make a judgment on it. If one recognises that an error has been made—if that is what Mr Rae did—it is often better to say, "We have not got it right," than wait until a legal judgment is made many years later. However, I cannot comment on the particular case.
Why was a settlement not reached at that point?
I cannot answer that. The governance of the SCRO lies not with ACPOS but with the Executive. At that stage, there was an SCRO executive committee, but legal responsibility lay with the Executive. The matter was not one for William Rae, although I would be surprised if he had not spoken to the Executive about his intended action and what he felt to be appropriate. However, we are involved in speculation, and I would not like to say that I have clear knowledge of the matter.
I want to clarify an issue to do with the James Mackay report. In the two and a half months after ACPOS commissioned the report, before it was referred to the Crown Office, did you receive an interim report from Mr Mackay, either verbal or written?
I do not know, although in that short period I doubt it. There is an interim report, which was published on 14 September 2000 and should be among the papers to which you have access.
I have not seen that. Can it be circulated to the committee?
It might be embedded within the change management review team report, to which you should have access.
Just to be sure, can it be circulated to the committee?
Absolutely. It is dated 14 September 2000.
I also want to clarify an issue about the further reports that were done by Mr MacLeod. Did ACPOS have any involvement in the investigations that Mr MacLeod undertook on behalf of the Crown Office?
Not to my knowledge.
Before we move on, I want to be clear about one issue. Chief Constable Wilson, did you say that there is an interim Mackay report?
No. I was referring to an interim report of the ACPOS presidential review. I was trying to be helpful. One report was prepared by Mr Mackay. Mr McInnes was part of the presidential review. The interim report might not have the answer.
To ask my question again, in the two and a half months or so after ACPOS commissioned the Mackay report, but before the Crown Office asked Mr Mackay to investigate a criminal complaint, did he submit a verbal or written report?
The report that I have in front of me, which has a reference to the work of Mr Mackay and which is dated 14 September 2000, might lead me to answer the question in the affirmative. If the committee does not already have that report, it can have it. The report also refers to other work on the fingerprint service that was being done by Mr McInnes.
We would like to have that report, to ensure that we have all the available information.
As I quickly scan through it, I see that it seems to be about the remit for both groups. To give members a flavour of the conclusion, the interim report states:
Mr Latimer was, for a time, the chair of the SCRO executive committee. When did you hold the chairmanship?
Immediately prior to the establishment of the shadow CPS board that has been mentioned. My recollection is that it was in 2003-04.
During that period, you were active in The Herald, claiming that the McKie family had made what you described as ill-informed and unsubstantiated allegations against the SCRO. Are you still of that view?
To clarify the context, I wrote one letter to The Herald, but I do not regularly correspond with any of the national newspapers. Please remind me of the comment that was attributed to me and I will be very willing to help you.
You referred to ill-informed and unsubstantiated allegations. As the chair of the SCRO executive committee, what action did you take to get to the truth of the McKie case?
As chair of the SCRO executive committee I had a responsibility to ensure that all the recommendations and suggestions that emerged from, for example, the HMIC report on its primary inspection of the SCRO in 2004 were properly implemented. The executive committee and I, as chair of the committee, had a role in overseeing that that was done. During the preparation for the primary inspection, I was involved in discussions with HMIC about ACPOS's view on the progress that had been made since 2000. I would characterise my role as one of providing strategic oversight; leadership and direction when appropriate; and support to the director of SCRO. The HMIC primary inspection of 2004 made positive comments on the direction and support that ACPOS was able to give.
Did you at any time commission an internal or external investigation into the specifics of the McKie case? We still do not know why a misidentification was made. It now appears that two misidentifications were made in one case. Did you take specific action to find out why the problem had arisen?
No. My role was to provide leadership and direction in seeking continuous improvement and starting to drive forward change.
Given the impact of the McKie case on the SCRO's reputation and credibility, would it have been appropriate to provide leadership by making an effort to get to the bottom of why the problem had arisen?
I was aware that a range of inquiries and investigations had been undertaken over the years. I arrived north of Hadrian's wall in September 2001, so perhaps I was not as familiar with the detail of what had happened as were some of my colleagues.
With hindsight, do you think that you made a mistake in not carrying out a specific investigation to find out what had happened in the McKie case?
My view was that such investigations had already been led. The investigations and the involvement of the Crown have been discussed during this meeting. I did not regard it as my role to take the matter further at the time.
It is two minutes past 2 pm and the meeting must finish by 2.15 pm.
SCRO has a wide range of responsibilities. For example, it manages databases such as the intelligence database, it manages the records office and it does work on number plate recognition. As president of ACPOS, I have gone on record in the past few weeks saying that in relation to fingerprints we have confidence in SCRO. If the police service had no confidence in the work of the fingerprint service, we would have done what we did in the late 1990s and commissioned further work to deal with the matter.
I am sure that the committee will have follow-up questions. As you know, many reports have been written on the subject and the committee must ensure that it is clear about what reports exist and who commissioned them. Thank you for your patience in waiting to give evidence and thank you for your evidence.
Meeting closed at 14:06.