Reports & recommendations

Examiners should receive training which emphasises that their findings are based on their personal opinion; and that this opinion is influenced by the quality of the materials that are examined, their ability to observe detail in mark and print reliably, the subjective interpretation of observed characteristics, the cogency of explanations for any differences and the subjective view of ‘sufficiency’.

Fingerprint examiners need to be provided with training to enable them to articulate their reasoning. The SPSA, in conjunction with members of the academic community as appropriate, should determine how best to explain the process of reasoning in arriving at a non-numeric conclusion.

Steps should be taken to reduce the risk of over-familiarity with prints where an examiner has prior knowledge of the print before conducting an analysis of the mark: (i) Examiners should be made aware of the risks arising from over-familiarity with prints, by way of written guidance and training. (ii) As wide a range of examiners as possible should be involved in the work when this risk is present. As an example, when an identification is made in such circumstances at least one verifier should be an examiner who has not previously seen the prints in question.

SPSA guidance to fingerprint examiners should emphasise the need at the evaluation stage to reflect on: tolerances, the quality of similarities, the nature of differences, any explanations for differences, the extent to which reverse reasoning may have been employed and the sufficiency of matching characteristics.

Practitioners should conduct their individual ACE comparisons conscious of the fact that they are working in a field where there is no certainty and where there is scope for differences of opinion. When it comes to verification, examiners should be encouraged to be open and to adopt a challenging attitude to the opinions of other examiners, irrespective of seniority. Standard Operating Procedures should emphasise that the fact that one examiner reaches the opposite conclusion from another, or entertains any doubt, does not necessarily cast any aspersion on the competence of either examiner.

The SPSA should review its Standard Operating Procedures relative to handling differences of opinion and provision should be made not only for cases of disagreement between examiners but also for instances where an examiner has some doubt about the finding which is being verified.

The SPSA should amend its procedures to include a review panel to consider any disagreement between examiners: (i) Where there is a disagreement between examiners the further investigation should be conducted by a panel the members of which should have had no prior involvement with the mark in question but need not come from outside SPSA. (ii) The members of the panel should each examine the mark independently without any background information about the case or knowledge of the conclusions of the other panel members. (iii) Once the panel members have reached their own conclusions, they should, as a panel, look at the reasoning of the earlier examiners. (iv) A result of the review should be that examiners understand why they came to different views. (v) If the panel members are unanimous, then the result can be reported.

In relation to digital images: (i) the digital original should be stored separately; (ii) any digital image processing should be carried out only on accurate replicas of the digital original; (iii) any adjustments made to the digital image should be recorded as part of the audit trail.

Where notes are required as a result of the preceding recommendations, the notes should be taken at each stage of ACE-V by every examiner involved in the process at that stage and should cover the following matters: (i) the assessment of the quality of the mark at the analysis stage and any sign of distortion; (ii) the characteristics identified at analysis including their type and the sequence of them; (iii) the characteristics taken into account at the comparison stage including their types and sequence in mark and print; (iv) any revision to the initial analysis made at the comparison stage; (v) any differences observed at the comparison stage; (vi) the explanation for any differences; (vii) any third level detail relied upon in arriving at the conclusion; (viii) the reasons for the conclusion at the evaluation stage; and (ix) any consultation with any other examiner during the ACE-V process.

The omission of the SPSA from the statutory scheme of disclosure under sections 117 to 120 inclusive of the Criminal Justice and Licensing (Scotland) Act 2010 should be reviewed. The SPSA should be regarded as having the same duties as regards provision of information to COPFS as investigating agencies under those provisions.

SPSA and COPFS should agree and implement, as a matter of urgency, a process for the provision of information by SPSA to COPFS. COPFS should provide SPSA with information and advice as to the Crown’s duty of disclosure with a view to informing SPSA’s understanding of the nature and extent of the information that SPSA will require to provide to COPFS.

The following information should always be provided to the Crown: (i) a list of names of all examiners who have examined the mark at SPSA and their opinions as to the mark and the comparison; (ii) whether the complex marks process has been invoked; (iii) any discussions between examiners relating to the formulation of conclusions about a mark; (iv) any differences of opinion between examiners; (v) whether the mark has been subject to facilitated discussion or panel review.

The joint report prepared should be supported by the production of the individual opinions. It should be a matter for the Crown and defence to determine whether the joint report would suffice in a given case, or whether examiners should be called to give oral evidence.

Each examiner’s separate opinion should cover: (i) the images of the mark and also the specific print used in the comparison; (ii) the examiner’s opinion about the quality of the mark; (iii) if the examiner considers the mark to be complex; (iv) whether third level detail is relied upon and the fact that such detail still requires to be supported by further research that has been validated; (v) identifying any differences between mark and print; (vi) a summary of the reasons why any differences between mark and print have been discounted and whether the examiner relies on objective studies and evidence to account for such differences or on common sense and experience; (vii) the characteristics relied on in making the identification, the number of such characteristics, and the classification of such characteristics, (e.g. ridge ending, bifurcation); (viii) a marked up image of the mark and print with a legend specifying the type of the ridge detail (including any third level detail) relied upon and the associated ridge counts; (ix) the opinion of the examiner; (x) any consultation with another examiner during the ACE-V process, including any facilitated discussion or panel review; and (xi) the fact that any novel method such as probabilistic analysis has been used or relied on.

Fingerprint examiners engaged by the defence should be afforded access to any other images of the mark or fingerprint forms as are available to SPSA and COPFS. If negatives are available, arrangements should be made on request to provide the defence examiner with any print reasonably required. If the image is in digital format the defence examiner should be given sight of the digital original and should be provided with a copy of the same.

In the event of a challenge to an identification the defence should disclose the full reasons why it believes that the SPSA examiners’ opinions are incorrect. This may require the disclosure of marked up images of mark and print with a legend specifying the type of characteristic and associated ridge counts. Such disclosure should take place at a reasonable time before the trial in question. It should take place where appropriate in the context of the provision of defence statements in accordance with section 124 of the Criminal Justice and Licensing (Scotland) Act 2010.

The discussions about the possibility of having a national dip sampling regime should be pursued, as this would introduce an element of external validation. The proposal whereby some dip sampling will be carried out by SPSA personnel from other bureaux should be implemented in the interim.

The SPSA should develop a procedure for the provision of information to COPFS where issues have been raised about the performance of an examiner who may be required to report or give evidence. COPFS should provide SPSA with guidance as to the nature and extent of the information that should be provided in order to enable COPFS to comply with its duties of disclosure to the defence.

COPFS should ensure that appropriate written guidance as to fingerprint evidence is available to its staff. COPFS should also ensure that a sufficient number of lawyers fully conversant with fingerprint evidence are available to deal with any issues that may arise.

A system should be devised whereby any authorisation of fingerprint examiners under section 280 would be confined to the authorisation of individuals who are employed by an institution which has achieved appropriate accreditation. It would be for the Scottish Government to satisfy itself in the course of the review referred to in recommendation 76 as to what constitutes appropriate accreditation, and by whom that accreditation should be carried out.

The system of registration on the National Register of Fingerprint Experts should be reviewed. If it continues in use it should be revised to ensure that the criteria for registration and the records are kept up to date and that the records indicate competence. Should SPSA for any reason decide that an examiner is no longer competent to practise, it should notify the NPIA so that the examiner’s name is removed from the register and also the Scottish Government so that authorisation under section 280 is withdrawn.

Absence of authorisation under the Act should not be taken as disqualifying a witness from being treated as an expert in relation to fingerprint evidence. The witness should be prepared to demonstrate his or her expert status on ordinary common law principles.

Requirements for research and development should be identified and collated and an appropriate scheme of research and development prepared by SPSA. Appropriate arrangements and funding (when available) should then be provided to enable research and development to take place on a UK basis and where appropriate through co-operation on an international basis.

Specific matters to be included in the scheme of research and development include: (i) the frequency of particular characteristics or combinations of characteristics in fingerprints; (ii) the use of data as to the frequency of particular characteristics or combinations of characteristics as a means of assisting examiners in their work; (iii) the weight to be given to third level detail, and as to its reliability; (iv) distortion and the effect of movement; (v) which marks ought to be assessed as complex; (vi) the specific factors that may cause variations among examiners; and (vii) contextual bias.

The SPSA should task identified staff with: (i) maintaining up-to-date knowledge of cases, at least in anglophone jurisdictions, in which fingerprint evidence has been disputed; and (ii) monitoring cases in which courts, inquiries or other investigating bodies have made significant criticism of existing fingerprint practice and of considering whether those criticisms should be taken into account in developing and improving fingerprint practice in Scotland. Such staff should be tasked also with advising an identified contact in COPFS as to these matters.

COPFS should task identified staff with maintaining up-to-date knowledge of cases, at least in anglophone jurisdictions, in which fingerprint evidence has been disputed, and with liaising with an identified contact in SPSA in relation to any implications that the findings of such courts may have for fingerprint evidence in Scotland.