14 years after the "human error" which led to a fingerprint being misidentified, and the years of denial by the legal and political establishment which persisted in maintaining the science was infallible, the Campbell Inquiry made 86 substantive recommendations to restore credibility to the service. Iain Mckie challenges the entire legal fraternity to answer the obvious question: so why has nothing happened?

The ‘Fingerprint Inquiry Scotland Report’ was published on 14th December 2011. This 3 year project which is estimated to have cost somewhere in the region of £5 million resulted in a report which contained 86 recommendations. They amounted to a forensic and withering critique of the way in which fingerprint evidence has been prepared and presented over the last 14 years in Scotland. The report raised all sorts of questions about the way we deal with expert evidence in this country and placed huge question marks over the validity of past, present and future evidence.

Something you might think would be of interest to Scotland’s legal profession. Not so it seems.

To date all that has been heard from Scotland’s legal profession is a resounding silence resonating through the Judicial Office for Scotland, the Law Society of Scotland and the Faculty of Advocates.

Nary an update, comment or advice – nothing.

Not that this is unprecedented given that two relatively recent critiques of forensics received the similar silent treatment.

In 2009 the American Academy of Sciences was extremely critical at the way forensic evidence was gathered and presented.

‘The committee …… concluded that the courts cannot cure the ills of the forensic science community. "The partisan adversarial system used in the courts to determine the admissibility of forensic science evidence is often inadequate to the task……..And because the judicial system embodies a case-by-case adjudicatory approach, the courts are not well-suited to address the systemic problems in many of the forensic science disciplines."

The committee also concluded that two criteria should guide the law's admission of and reliance upon forensic evidence in criminal trials: the extent to which the forensic science discipline is founded on a reliable scientific methodology that lets it accurately analyze evidence and report findings; and the extent to which the discipline relies on human interpretation that could be tainted by error, bias, or the absence of sound procedures and performance standards.

The report points out the critical need to standardize and clarify the terms used by forensic science experts who testify in court about the results of investigations. The words commonly used -- such as "match," "consistent with," and "cannot be excluded as the source of" -- are not well-defined or used consistently, despite the great impact they have on how juries and judges perceive evidence.

In addition, any testimony stemming from forensic science laboratory reports must clearly describe the limits of the analysis; currently, failure to acknowledge uncertainty in findings is common. The simple reality is that interpretation of forensic evidence is not infallible -- quite the contrary, said the committee. Exonerations from DNA testing have shown the potential danger of giving undue weight to evidence and testimony derived from imperfect testing and analysis.’

In March 2011 the Law Commission report ‘Expert Evidence in Criminal Proceedings in England and Wales’ was equally scathing and contained recommendations whereby judges in England and Wales would become ‘gatekeepers’ of expert evidence (as in the American model) making an assessment of its reliability and relevance before it was heard in court. They also produced a draft Criminal Evidence (Experts) Bill which is being considered by the government.

The American Academy of Sciences Report observed: "Reliable forensic evidence increases the ability of law enforcement officials to identify those who commit crimes, and it protects innocent people from being convicted of crimes they didn't commit,"

Not rocket science you might think but a truth that bears repeating nevertheless.

So what does it take to motivate our legal profession, whose default position appears to be diffident complacency, into action?

In the absence of any contradictory evidence I am left to assume that Scotland’s Courts, Crown Office and legal profession are all patiently waiting for someone else to bite the bullet and meanwhile the threat of injustice increases. You will struggle to find cases where forensic evidence and expert witnesses have been effectively challenged in our Scottish Courts and until my daughter's cases fingerprint evidence was virtually infallible.

Are we naive enough to believe that over the 14 years that chaos reigned within our fingerprint identification system that Shirley McKie was the only person misidentified by experts working under extreme and at times unbearable pressure?

My experience in the wake of my daughter’s case in trying to alert the justice system to the dangers inherent in the way we collect, examine and present expert evidence was not an encouraging one. However over a decade of denial was brought to a conclusion by the report.

But what if any difference has it made? Sadly I believe that even today defence counsel appear reluctant to mount any real challenge to expert witnesses. This despite a demonstrable gulf between the theoretical rules and procedures surrounding the gathering and presentation of forensic evidence and the practical realities involved.

Any lawyer with the foresight to do so should go to the 86 Fingerprint Report recommendations where they will find an excellent template for cross examining expert witnesses.

It is of small comfort to understand that this is not only a Scottish illness.

‘For his book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, University of Virginia law professor Brandon Garrett examined the trial transcripts and other legal documents of the first 250 people to be exonerated by DNA in this country. He discovered that in more than half these cases, trials were tainted by “invalid, unreliable, concealed, or erroneous forensic evidence.” The errors ranged from analysts making up statistics on the fly, implying that their methods were more scientific than they actually were, and exaggerating or distorting their findings to support the prosecution.’

The fact is that the ‘Fingerprint Scotland Report’ gives the legal establishment in Scotland the opportunity to finally face the problems inherent in fingerprint and forensic evidence and at the same time offer support to Scotland’s hard working and dedicated forensic experts.

My challenge is awake from your slumbers and realise that while forensic evidence is an invaluable tool in the prevention and detection of crime it is also a recipe for injustice where the mantle of infallibility is bestowed and we have a legal establishment which shows little interest in oversight, support and development.

Iain A J McKie