Scotland's Lord Advocate apologises to Post Office victims

She said the “right process” for people to clear their names was through the Scottish Criminal Cases Review Commission (SCCRC) and the High Court of Appeal.

That was necessarily time-consuming and complex, she told MSPs in a statement at Holyrood, but the facts and circumstances of each case had to be considered.

Ms Bain also repeatedly denied that the body she leads, the Crown Office and Procurator Fiscal Service (Copfs) was responsible for any miscarriages of justice over Horizon.

She said the Post Office had been a trusted investigating agency in Scotland and prosecutors had been entitled to take its assurances about Horizon at “face value”.

She said the Post Office’s repeated failure to disclose problems and mislead prosecutors was a “truly exceptional” and “unique” scandal.

She also said Scottish prosecutors took a cautious approach to the software system from 2013 to 2015, before ending prosecutions based on it, even though it was not until 2019 that a court action in England conclusively established it was defective.

Earlier, the IT company behind the scandal admitted it had a “moral obligation” to help compensate the subpostmasters who were wrongly prosecuted based on flawed Horizon data. 

Paul Patterson, the boss of Fujitsu Europe, told MPs on the Commons Business and Trade Committee, apologised for the “appalling miscarriage of justice” people had suffered.

“We were involved from the very start. We did have bugs and errors in the system. And we did help the Post Office in their prosecutions of subpostmasters. For that we are truly sorry.”  

The global boss of Fujitsu, Takahito Tokita, also told the BBC in Davos that his firm “apologised for the impact on the postmasters’ lives and their families”, but declined to confirm it would return any of the money it earned from the flawed Horizon system.

Those whose convictions are quashed are eligible for a £600,000 compensation payment.

Read More: Horizon scandal: All Scottish sub-postmasters wrongly convicted to be exonerated

First Minister Humza Yousaf has said he would like to work with the UK Government on a mess exoneration of those convicted using evidence from Horizon, perhaps through Holyrood agreeing to nod through legislation crafted at Westminster.

Ms Bain said she was ready to help “expedite” cases where possible, but her comments suggested she wants the courts to overturn any wrongful convictions, not legislation. 

Around 900 subpostmasters across the UK were wrongly convicted because flaws with the Post Office’s Horizon accounting software made it appear that money had gone missing.

South of the border, the Post Office acted as the prosecuting authority in court as well as conducting investigations.

However in Scotland, where up to 100 subpostmasters were prosecuted, the Post Office’s role was far more limited.

After it had reported its findings to the Crown Office, Scottish prosecutors then decided whether to go to court and only if the Horizon evidence could be corroborated.

Read More: SNP call on Ed Davey to hand back knighthood over Horizon IT scandal

Ms Bain said: “I am very deeply troubled by what has occurred, and I remain acutely concerned that the Crown Office and Procurator Fiscal Service was repeatedly misled by the Post Office. Assurances which were just not true were repeatedly given. 

“To those wrongfully convicted, I understand your anger and I apologise for the way you have been failed by trusted institutions and the criminal justice system and I stand beside you in your pursuit of justice.”

She said the SCCRC,  the body which handles potential miscarriages of justice, wrote to 73 people in September 2020 who may have been falsely convicted, but only 16 had come forward, with seven cases referred to the High Court and four overturned convictions.

The Crown Office also assessed past cases, finding that 54 may have been impacted by faulty evidence.

“I want to assure this chamber, those wrongly convicted, and the people of Scotland that I will do all I can do to prevent such an affront to justice and our system from ever happening again and to right the wrongs which have occurred,” the Lord Advocate said.

“I commit to transparency in the information which is held by the Crown Office and Procurator Fiscal Service, subject to the restrictions of the ongoing appeals and the public inquiry.”

She added: “Scotland has its own legal system and due process must now take place, and that means that any affected case must be considered by the Scottish Criminal Cases Review Commission before being referred to the High Court of Appeal. That is the process, and the legal system requires each case to be considered on its own facts and circumstances, having regard to all of the evidence, not just Horizon evidence.

“This process does unfortunately take time. But every effort is being made, and has been made, to expedite the cases where possible, and I know that the Scottish Government have engaged with the UK Government to try and create an expedited process.”

Ms Bain said she had sought “urgent advice” on whether the Post Office should remain one of around 70 specialist reporting agencies to the Crown Office or could not be trusted. 

She said prosecutors were first made aware of issues with the IT system in May 2013, but the Post Office said an external law firm had reviewed all potentially impacted cases and concluded there were no concerns about accuracy of evidence in Scotland.

But in August that year, the Crown Office told prosecutors to “carefully consider” cases where Horizon was a factor, and the following month the Post Office agreed to seek expert advice and a further report to support Horizon’s robustness – which they “failed to deliver”.

It was not until October 2015 when the Crown Office told its prosecutors to “assess all Post Office cases” with orders issued to “discontinue or take no action in cases which relied on evidence from the Horizon system to prove a crime had been committed”.

Ms Bain said: “During this period, the Post Office did not disclose to Scottish prosecutors the true extent of the Horizon problems as they are now known to be.

“Scottish prosecutors received assurances that the system was robust.

"These were assurances that prosecutors, without the benefit of hindsight, were entitled to take at face value. They would not have known, nor indeed suspected, that the Post Office may not have been revealing the true extent of the Horizon problems.”

SNP MSP Fergus Ewing asked the Lord Advocate to follow the advice of former Sheriff Kevin Drummond KC and present the appeal court with a list of convictions that the Crown Office considered unsound and no longer supported, obliging it to quash them all.

Rejecting the idea, Ms Bain said it was “misleading” to suggest that she could simply tell the court to quash a list of convictions, as sound public policy demanded more than that.

She said: “Prosecutors have to be able to explain why it is that they’re no longer relying on a conviction. Not every Horizon case will be a miscarriage of justice.

"There were in cases otherwise sufficient evidence to support the criminal conviction.”

She noted not all the cases involving Horizon evidence in England and Wales had been overturned by the court of appeal.

“It’s not as simple as me saying, Here’s a list, quash convictions.

"It’s imperative that due process is followed, that a lawful consideration is taken of all the cases consistent with the rule of law, that sound public policy underpinning the need for our court of criminal appeal to understand why somebody might have pled guilty and now seeks to withdraw their plea and certain evidence is no longer relied on by the prosecuting authorities.

“These are issues that are rightfully explored in our court of criminal appeal before the decision is made by them to quash the conviction.
“We have a process that’s in place here, and it’s the right process, it’s due process, recognising not all Horizon cases will result in a finding of a miscarriage of justice. There was other evidence in the cases that would indicate a reasonable basis for a finding of guilt.”

Tory MSP Russell Findlay said: “While victims might welcome the Lord Advocate’s apology, the Crown Office seems determined to dodge its critical role and responsibility and to pin the blame on others.

“This is the same Crown Office that spent years denying any wrongdoing in relation to the Rangers prosecutions, before paying out £60 million in compensation.

“The Lord Advocate failed to answer why the Crown did not come clean as soon as they were made aware of problems with Horizon.

“Dorothy Bain is not responsible for her predecessor Frank Mulholland but she also failed to answer whether he should explain his role to parliament.”

Scottish Labour leader Anas Sarwar said: “Ministers and the Crown Office knew of issues with the evidence from the Post Office over a decade ago in 2013.

“But we need to know why new prosecutions were only formally halted two years later and why no immediate action was taken to review all previous convictions as to whether they were unsafe.”