Meeting of the Parliament [Draft]

Meeting date: Tuesday, January 16, 2024

Official Report 1009KB pdf

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Horizon Information Technology Prosecutions

The next item of business is a statement by Dorothy Bain KC on Horizon information technology prosecutions. The Lord Advocate will take questions at the end of her statement, so there should be no interventions or interruptions.

14:22  

I am grateful to Parliament for inviting me to address this very important matter. I take a moment at the outset to acknowledge the harm caused to the people who have suffered a miscarriage of justice. The wrongly accused and convicted sub-postmasters and postmistresses are due an apology from those who have failed them, and I give them that today as head of the system of criminal prosecution in Scotland.

The Post Office is part of that system, and I apologise for the failures of those in the Post Office who were responsible for investigating and reporting on flawed cases. Preventing and correcting miscarriages of justice is as important to me as a prosecutor as is inviting a court to convict someone of a crime. That is fundamental to my commitment to the rule of law.

Today, I shall set out what Scotland’s prosecutors have done to protect the rights of postmasters and what they have done to uphold the proper administration of justice. A great deal could be said about that, but I have limited time. However, I am determined that the public should understand the issues that have arisen and I am committed to future transparency and to the publication of information when I can do that appropriately, while being mindful of on-going legal processes.

The Crown Office and Procurator Fiscal Service is the only public prosecution service in Scotland. It acts independently and makes prosecutorial decisions in the public interest. It receives reports of alleged offences from more than 70 investigative agencies, including the Post Office. The relationship between a prosecution authority and an investigating agency must be based on absolute candour and trust. As an investigating agency, the Post Office must act fairly, which includes an obligation to reveal to prosecutors all material that may be relevant to the issue of whether the accused is innocent or guilty.

It is clear that the Post Office failed in its duty of revelation and that, as a result, some individuals were prosecuted when they should not have been. Where miscarriages of justice have happened, it is because prosecutors in Scotland accepted, as they were entitled to, evidence and explanations at face value from the Post Office. When it became clear that those explanations could no longer be relied on, prosecutors changed policies, dropped cases and subsequently supported the work of the Scottish Criminal Cases Review Commission, the court of appeal in Scotland and the United Kingdom-wide public inquiry.

To help Parliament to understand the impact of the Post Office’s failures in that duty of revelation, I will summarise the history of the work of Scotland’s prosecutors when dealing with cases that have come to be known as Horizon cases.

Between 2000 and 2013, there is no record of prosecutors having been made aware of the bugs and errors in the Horizon system that we now know significantly impacted on the reliability of evidence submitted by the Post Office.

In May 2013, the Post Office, via its external lawyers, first contacted prosecutors to address public concerns that had been raised regarding the Horizon system. In the months that followed, the Post Office and its external lawyers sought to provide assurance to prosecutors that the system was robust. In providing those assurances, Post Office lawyers referred to two reports, one of which had been prepared by the independent auditor, Second Sight. It concluded that there were no systemic defects with the Horizon system. Further, Post Office advised prosecutors that it had instructed an independent law firm to review all potentially affected concluded Scottish cases and that no concerns were raised about the accuracy of the evidence submitted by the Post Office in reporting those cases for prosecution.

Despite those assurances and, in particular, the independent report that concluded that there was no systemic issue with the system, on 7 August 2013, in recognition of the continuing public concern, Scottish prosecutors were advised to carefully consider any Post Office case to determine whether Horizon impacted it while information was awaited. That advice was shared to assist prosecutors to consider how best to proceed.

On 5 September 2013, a meeting took place between Scottish prosecutors, Post Office officials and their external legal counsel. At that meeting, Post Office officials repeated their assurances to Scottish prosecutors but, moving forward, it was agreed that Post Office would obtain expert evidence and a further report to support the integrity of Horizon evidence. In the meantime, Scottish prosecutors continued to follow the approach that was set out in the advice that was issued to them on 7 August 2013.

Post Office failed to deliver those assurances timeously and, as a result, in the months that followed, prosecutors took the decision to take no further prosecutorial action in several newly reported cases. Post Office and Crown Office officials met again on 6 October 2015. During that meeting, Post Office officials advised that they remained confident in Horizon. Indeed, the then chief executive officer of Post Office Ltd had given evidence to that effect at a parliamentary select committee in February 2015, advising that they remained confident in the Horizon system. Notwithstanding that, the Post Office confirmed that it was unable to provide a final expert report or provide expert evidence that would support the integrity of the Horizon system and defend challenge in court.

At that stage, in the light of the failure to provide a final report from Second Sight or any expert evidence regarding the Horizon evidence, Scottish prosecutors formalised what had, until then, been their cautious approach.

On 20 October 2015, prosecutors were advised to assess all Post Office cases and report for Crown counsel’s instruction with a recommendation to discontinue action, or take none, in cases that relied on evidence from the Horizon system to prove that a crime had been committed.

During that period, Post Office did not disclose to prosecutors in Scotland the true extent of the Horizon problems as they are now known to be. Scottish prosecutors received assurances that the system was robust and, without the benefit of hindsight, were entitled to take those assurances at face value. They would not have known, nor suspected, that the Post Office might not have revealed the true extent of the Horizon problems.

Because of the failures by the Post Office, we now know that a number of people in Scotland may have suffered a miscarriage of justice. In such circumstances, our justice system enables those who may have suffered a miscarriage of justice to appeal a conviction by virtue of an application to the Scottish Criminal Cases Review Commission, which may review and refer a case to the High Court of Justiciary for appeal.

The findings in the English group litigation that was headed by Alan Bates—which were later endorsed in 2021 by the English Court of Appeal when quashing 39 convictions of those who, it held, had suffered a miscarriage of justice—are significant. Those judicial determinations identified and confirmed beyond doubt the extent of the problems with Horizon and the adverse impact that those had had on prosecutions across the United Kingdom.

In September 2020, supported by Crown Office, and with information provided by the Post Office, the Scottish Criminal Cases Review Commission wrote to 73 individuals who might have been convicted in Scotland on the basis of unreliable evidence from the Horizon system, with the purpose of inviting an application for their case to be reviewed. To date, to the best of my knowledge, 16 individuals have come forward to the Scottish Criminal Cases Review Commission. From those 16, the commission has made seven referrals to the High Court, four of which have resulted, already, in convictions being overturned.

In addition to individuals having been written to by the commission, the Crown Office, in recognising the role that it can play in assisting the commission’s work, has, separately from the list that was identified by the Post Office, identified potentially affected cases, with a view to identifying whether any other individual may be impacted, in order to ensure that no possible miscarriage of justice is missed. That was the basis for the recent information from the Crown Office that around 100 cases may be Horizon cases. Work is on-going to review those. As of today, that number has reduced to 54 cases that are continuing to be considered by prosecutors as potential Horizon cases. However, most have already been written to by the Scottish Criminal Cases Review Commission.

It will be noted that, of those people who were written to, only a small proportion have come forward to identify themselves as being possibly affected. That may be indicative of the fact that not every case in which Horizon evidence is present will represent a miscarriage of justice.

It is important to recognise that, in Scotland, there is an established route of appeal in circumstances such as this. That route involves the Scottish Criminal Cases Review Commission considering cases in the first instance, prior to referring appropriate cases to the court of appeal. That is an important process, because not every case involving Horizon evidence will be a miscarriage of justice, and each case must be considered carefully and with regard to the law.

It is also important to recognise the important and established constitutional role of our appeal court in Scotland, and that due process must be followed. Scottish prosecutors have taken appropriate steps to expedite those appeals where possible. That has included obtaining a court order against the Post Office in order to recover essential documentation that is relevant to the appeals.

Before I finish, I want to say this. I am 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 that were just not true were repeatedly given. To those wrongfully convicted, I understand your anger, and I apologise for the way in which you have been failed by trusted institutions and the criminal justice system. I stand beside you in your pursuit of justice. I want to assure the chamber, those wrongly convicted and the people of Scotland that I will do all that I can to prevent such an affront of justice of our system from ever happening again and to right the wrongs that have occurred. I commit to transparency in the information that is held by the Crown Office and Procurator Fiscal Service, subject to the restrictions of the on-going appeals and the on-going public inquiry. I can also advise Parliament that I have sought urgent advice on the continued status of the Post Office as a reporting agency in Scotland.

I know that there are calls for allegations of criminality in the Post Office to be investigated. That is a step that requires to be tackled at a UK national level. The consideration of any criminality in Scotland on the part of those who are responsible for the failures of the Post Office will require to wait until the public inquiry has concluded and the full scale of their actions is understood.

The Lord Advocate will now take questions on the issues that were raised in her statement. I intend to allow around 30 minutes for questions, after which we will move on to the next item of business.

I thank the Lord Advocate for advance sight of her statement.

Although the Crown’s apology will be welcomed, many questions remain unanswered. The Post Office Horizon scandal is a disgraceful mass failure of justice. Innocent people have been branded as thieves, hounded and wrongly convicted. Some of them have gone to their graves and reputations have been destroyed.

Every single Scottish prosecution was undertaken by the Crown Office. We know that in 2013, Crown prosecutors refused to put at least one suspect in the dock, due to concerns about Horizon evidence. However, it was not until two years later that it abandoned all prosecutions.

When the full extent of the scandal emerged, the Crown had a legal duty to disclose that to victims, but it did not. The public should also have been alerted to the damage that had been inflicted on innocent Scots. They were not alerted.

Members should remember that this is the same Crown Office that denied wrongdoing over the Rangers prosecutions, only then to compensate victims with more than £60 million of taxpayers’ money. During both the scandals, the Lord Advocate was Frank Mulholland. Why did the Crown not come clean as soon as it discovered that the Horizon evidence was fundamentally flawed? Should Frank Mulholland come to the Parliament to answer victims’ questions?

First, I will deal with the reference that Mr Findlay made in relation to a January 2013 case. That is an inaccuracy that has been widely reported and repeated in this Parliament. It has been said that the date on which prosecutors must have been aware of Horizon issues was January 2013. That date comes from documentation that was presented to the public inquiry. A Post Office case disclosure document that was referred to in the inquiry contained a date in January 2013 as the date on which a case was closed in Scotland because of concerns regarding Horizon.

I can advise members that the date in that Post Office case closure document is inaccurate. The case to which the document relates was not, in fact, reported to prosecutors in Scotland until May 2013. It could not, therefore, have been disclosed in January 2013. We know that the case was, in fact, closed in 2014 because of concerns regarding how long it was taking for the Post Office to confirm its position regarding Horizon and because of the risk of raising a prosecution in which essential evidence might have been unreliable. My officials have written to the inquiry to correct that inaccuracy.

Separately—it is incumbent on me to say this—the Post Office is a specialist reporting agency and has been for many decades. It is one of the oldest reporting agencies. As a result, it was a trusted organisation with an established reputation as one of the most successful Government agencies. When it came to reporting Horizon cases, the Post Office professed to be expert on the Horizon system and its operation. Its experienced staff provided witness statements to explain the operation of Horizon, and they spoke of how it was used to commit criminal offences. At the time when the cases were reported, there was no reason to doubt that evidence. Indeed, the Post Office obtained an independent report to confirm that there was no systemic issue with Horizon. It simply could not have been anticipated that the Post Office, its investigators and the independent auditors would have been so wrong.

This miscarriage of justice is truly exceptional—nothing similar has ever been seen before. Its facts and circumstances are unique, and I consider the risk of anything similar occurring again to be remote.

The reporting agency had a duty of disclosure under the Criminal Justice and Licensing (Scotland) Act 2010. It was incumbent on the agency to operate under the code of practice that was issued on 6 June 2011. The disclosure duty on the Crown in relation to Horizon simply was not engaged. It had no information undermining the Crown case or supporting the defence case that required to be disclosed.

We were told that the system was reliable; that was the position of the Post Office right up until 2019, when we can see from the decision in the Bates case that it continued to assert that the system was sound. I therefore reject the statements that have been made by Mr Findlay and the undermining of the prosecution service in this case.

I thank the Lord Advocate for her statement.

The sub-postmaster scandal is, without a doubt, one the most shocking miscarriages of justice in recent history. Hundreds of Scottish sub-postmasters and their families had their lives ruined, and I am sure that they will welcome the apology today. However, I am not sure that we have learned anything new from today’s statement, and questions still remain.

Ministers and the Crown Office knew of issues with the evidence from the Post Office more than 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 with regard to whether they were unsafe.

I welcome the recognition that there may have been criminal behaviour by Post Office officials in Scotland, but I question the Lord Advocate’s suggestion that it is for the UK to take action to look at that at UK level. Surely, criminal activity in Scotland must be investigated in Scotland, and that does not need to wait for a public inquiry. Sub-postmasters in Scotland have waited long enough for justice. They should not be forced to wait a moment longer.

I simply go back to my statement and highlight the fact that, between 2000 and 2013, there was no record of prosecutors having been made aware of the deficiencies in the Horizon system.

In May 2013, the Post Office lawyers contacted the Crown to address public concerns. In that meeting and, indeed, thereafter, right up until October 2015, the Post Office officials advised the Crown Office officials that they remained confident in Horizon. That statement was made by the Post Office, including officials from the Post Office, its legal team, its barristers, who attended in Scotland, and its expert reporters. All those individuals, throughout that period, asserted that the system was sound. They continued to assert that the system was sound well into 2019, as we know from what was said in the decision by the court in England in the Bates case.

It is simply wrong, therefore, to assert that the Crown Office officials knew that there were problems with the Horizon system. Until such time as the Bates decision was issued and, ultimately, the Court of Appeal in England and Wales issued the Hamilton decision, it is wrong to say that the Crown was aware of problems, did nothing about them and continued to prosecute in the face of reported problems. That is just not what happened.

In relation to criminality in Scotland, if reports of criminality by individuals within the Post Office are made to the Scottish police, then naturally, through the normal process of reporting to the Crown Office and Procurator Fiscal Service, we will be advised of the police investigation and subsequent report, and what that has revealed. Obviously, if that material comes in, there will be a reaction to it. However, I understand that the police and other prosecutors across the UK have identified those issues.

It is important that we bear in mind that the on-going public inquiry requires to fulfil its remit. I am not saying that we will do one thing and not the other, but we need to be aware of the complex situation that we are in. We have live cases before our court of criminal appeal, there is an on-going public inquiry and the Scottish Criminal Case Review Commission continues to do its work. However, any separate new reports of criminality will be considered, as they should be.

The issue is byzantine in its complexity, not least because of the many varied contracts and terms under which postmasters were employed over the period. Some postmasters of long standing, when faced with—in the Lord Advocate’s words—“bugs and errors” associated with Horizon, handed back their businesses but, according to them, they were coerced into signing non-disclosure agreements. They were scared then and they are scared now. Will the Lord Advocate comment on the legal status of any such NDAs signed by Scottish postmasters and the likelihood of prosecution under such an NDA?

I am afraid that I do not know any of the detail that has been referred to. I do not know of a non-disclosure arrangement or a non-disclosure agreement having been entered into by individual sub-postmasters or sub-postmistresses. If it is an issue that is relevant to the on-going work of the Crown and the Scottish Criminal Cases Review Commission, that information should be passed to the relevant individuals and to the Crown Office so that we can consider it in the round when we are considering the actions involved in the case by the Post Office and its investigators.

Susan Sinclair, Judith Smith, Rab Thomson and William Quarm are just a few of the many who were prosecuted by the Crown Office in Scotland on the basis of the flawed Horizon IT system used by the Post Office; one of them has since died. Last week, the Scottish National Party’s Cabinet Secretary for Justice and Home Affairs said that the scandal showed the value of having an independent prosecution system. Her statement will jar with sub-postmasters who were prosecuted by the so-called independent system. Does the Lord Advocate agree that the independent prosecution system in Scotland completely failed those wrongly convicted sub-postmasters?

I do not agree at all with that statement. I can only go back to the explanation that I gave in my statement. In the period from 2013 to 2015, the Crown Prosecution Service in Scotland was simply not aware of the difficulties with the Horizon system because of the lack of disclosure and revelation by the Post Office. As I have pointed out, the Post Office is a specialist reporting agency. For many decades, it has been one of the oldest reporting agencies in this country. It was a trusted organisation with an established reputation as one of the most successful Government agencies in our country. Prosecutors were entitled to take at face value its repeated assurances that the Horizon system was safe.

It is also important to understand this. I have apologised profusely for the failings in the system that have led to all those individuals who have suffered a miscarriage of justice being so impacted; they were convicted when they should not have been, and they have been forced to live for years with injustice. However, in this country, we have a process for establishing whether there has been a miscarriage of justice. Not every Horizon case in Scotland will be capable of being characterised as a miscarriage of justice, because in Scotland we have corroboration, and a number of cases did not solely rely on Horizon evidence. It is critical that, when we consider whether there has been a miscarriage of justice, the appeal court in our country is allowed to take cognisance of what has happened and be informed of what has happened.

At any appeal hearing, it will require to be explained to the court of appeal why the Crown does not support a conviction. The court of appeal will require to be told, for example, in cases in which there has been an admission of guilt, why that admission of guilt should be withdrawn, and, in cases in which there was a plea of guilty, why that plea of guilty should be withdrawn.

There are long, drawn-out processes that I accept are taking some time to conclude, but it is critical that we have a due process that is clear and transparent. That is the process that we are currently engaged in with the appeal court, with the work of the Scottish Criminal Cases Review Commission and with the work that the Crown Office and Procurator Fiscal Service is doing in relation to the appeals.

Yesterday, I was contacted by a lawyer of a constituent who was prosecuted for stealing £30,000 from the Post Office. He is not a sub-postmaster but his mother was, and they were both prosecuted for theft. My constituent even repaid the £30,000 so that his mother did not have to go to jail. I do not imagine that that is a unique case, but will any quashing of convictions in any legislation be extended to cover everyone whose convictions are directly related to Horizon and the Post Office?

I think that what is being referred to is a case that is currently live before the court of appeal in Scotland, and I cannot comment on live cases. I recognise from the particular information that has been referred to that that is one of the live cases that is before the appeal court.

It is important to understand that many of these cases are very old, and it is difficult to establish the factual circumstances in many of the affected cases, because of the Crown policy of destruction of summary cases that are more than two years old and of sheriff and jury cases that are more than five years old. Much of the material that we require to rely on and interrogate has been obtained through the Post Office and, indeed, some of the work of the Scottish Criminal Cases Review Commission.

Although evidence obtained from a Horizon system may have featured in any case, that does not necessarily mean that the prosecution was reliant on that evidence and that no crime was committed. In many cases, as I have pointed out, there was an immediate and unequivocal admission of guilt by the accused, but identification and corroboration of the offence came via the Horizon system.

One difficulty encountered is the passage of time. We have been required to recreate to the best of our ability what the prosecution case may have been, based on information from a variety of sources. That is time consuming and challenging. Complex legal issues arise relating to the sufficiency of evidence and whether Horizon was essential or not essential to the sufficiency of evidence. That introduces questions about withdrawals of guilty pleas and, in any normal case, those are difficult issues for appellate law. They become even more difficult in circumstances for Horizon cases for the reasons that I have described.

The on-going process that I and the prosecution service are involved in, and the recognised processes that we are engaged in, are time consuming and complex, so there are good reasons for why it is taking quite so long.

Finally, I point to the issue that I raised before. It was not until 2019, when the English court decided that the Horizon system was fundamentally flawed, in the face of repeated assurances by people from the Post Office, that we could begin to make the progress that we are now making for all those people who have suffered a miscarriage of justice.

Stuart Munro of the Law Society of Scotland wrote that the Procurator Fiscal Service appeared to ignore the requirement of the prosecution when it prosecuted the sub-postmasters by using one source of evidence. He said that it did not apply the principle of corroboration, because the evidence came from a computer system that was criticised for its lack of reliability as far back as 2009. What is the Crown’s position on that? Obviously, the Post Office had a vested interest in defending its system, but it was one source of evidence, it would appear. I fully appreciate the complexity of the issue, but will the Crown examine whether corroboration was properly applied in the 73 conviction cases that we know about to ensure that there was more than one source of evidence in order to take those people to prosecution?

Ms McNeill has made an important point. Yes, of course we will look at the cases that are before the Scottish Criminal Cases Review Commission. We have done so, and we have widened the scope of the cases that have gone to the commission. We have looked to see whether there was a source of evidence that was independent of the flawed Horizon system evidence, which the Post Office supported.

I also recognise the suggestion that prosecutors could have done more and earlier, but my position is that that proposition is incorrect. It presupposes that the Crown knew that sub-postmasters were being told by the Post Office that they were the only ones affected. It also fails to recognise that those cases were being dealt with across the country and were not restricted to one locality. Had there been a spike in one area, that might have been an identifiable trend, but the reality is that many cases were spread out.

It will be known that it is not unusual for individuals to protest their innocence. It is easy now to reflect with the benefit of hindsight and say that the concerns of a postmaster should have carried more weight because of the concerns of another postmaster across the country, but that is simply not correct. What resulted in the miscarriages of justice here—I really cannot be clearer about this—is the fact that the Horizon system was unreliable and the Post Office was aware of that, yet it failed to properly inform the Crown about it.

The vast majority of the cases that may be affected by the issue were cases in which the accused pled guilty to the offence. Often, those pleas were tendered under legal representation. Although it is impossible to comment on every case, prosecutors do not mark cases to proceed in the absence of corroboration—they simply do not do that. Defence solicitors do not advise clients to plead guilty in the absence of corroboration. In cases that proceed to trial, the sheriffs do not convict in the absence of corroboration. As a result, it is reasonable to infer that, in cases that resulted in a conviction—whether by guilty plea or conviction after trial—other evidence was available that was capable of supporting the finding of guilt.

I thank the Lord Advocate for her statement and for her support for me in my efforts to represent my constituent Robert Thomson, who is a former postmaster of Cambus post office, in his quest for justice, which is, at long last, getting the attention that it deserves.

I disassociate myself from the stomach-churning attempts by those on the Tory front bench to protect their friends in the UK Government by trying to blame the Crown Office.

One of the more striking things about the scandal has been how difficult it has been for victims to claim compensation for what is a very obvious miscarriage of justice. That was confirmed in the UK Parliament this morning, with a solicitor for many of the affected sub-postmasters, Neil Hudgell, revealing that only three people of around 900 wrongly prosecuted had been fully compensated so far.

Does the Lord Advocate agree that the 2006 scrapping of the discretionary compensation scheme for victims of miscarriages of justice under Labour and the Anti-social Behaviour, Crime and Policing Act 2014, which further limited the compensation available to victims of miscarriages of justice under the Conservative and Liberal Democrat coalition, represent a continual weakening of the UK’s ability to respond to miscarriages of justice by successive UK Governments? [Interruption.] I know that that is uncomfortable for the Conservatives. [Interruption.]

Thank you, members.

Does the Lord Advocate agree that the scandal has shown that the UK’s system for responding to miscarriages of justice is not fit for purpose?

Mr Thomson’s case is to come before the appeal court soon, and I cannot comment on live cases. I make it clear that the Crown and the Scottish Criminal Cases Review Commission have had work under way on the issue for a number of years. We have worked closely with the commission and other agencies to identify cases that are affected and to take what steps we can to correct injustices.

Scotland has its own legal system, and due process must now take place. That means that the commission must consider any affected case before referral 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 the evidence and not just Horizon evidence.

Unfortunately, that process takes time, which has impacted on Mr Thomson’s case, but every effort is being made and has been made to expedite such cases where possible. I know that the Scottish Government has engaged with the UK Government to try to create an expedited process.

I am not in a position to comment on the compensation scheme for victims of miscarriage of justice, which is outwith my remit.

I remind members that they should seek to avoid referring to specific cases that may be active before the courts.

There is a great deal of interest in the statement. I appreciate that the Lord Advocate wishes to give as comprehensive a response as possible, but we have a great deal of interest remaining in the item.

This has been one of the most appalling miscarriages of justice in our national story. Lives and livelihoods have been ruined. Former Post Office workers across all four nations are now rightly pursuing the justice that they have been denied for so long.

It is clear from the Lord Advocate’s statement that the Crown Office—like members of the public, the press and Government officials—was repeatedly lied to as part of an industrial-scale deception. The Lord Advocate confirmed to Anas Sarwar that any criminality by the Post Office will be considered after the public inquiry concludes, if complaints are made to Police Scotland. Will that consideration apply solely to the Post Office as an agency as a whole? Could it apply to specific individuals in the agency? Can Police Scotland act directly on the inquiry’s findings or would a third-party complaint be needed to begin legal proceedings?

A complaint of criminality on the part of Post Office officials or the corporate entity of the Post Office would be considered by the Scottish police and investigated and reported in the normal fashion. In addition, when there is a complaint of individuals’ criminality, a report should be made to the police, and the normal processes of police investigation and reporting to the Crown Office and Procurator Fiscal Service should be carried out.

As I said in my statement, the review is on-going. The Crown Office continues to seek to identify the true extent of affected cases in Scotland. We expect the number of relevant affected cases to be relatively low, but I know that one miscarriage of justice in Scotland is one too many.

I am also awaiting urgent advice on the Post Office’s continued status as a specialist reporting agency, and members can be confident that I will look at that advice carefully and consider the options that are open to me.

Our first priority must be to correct the miscarriages of justice. That is what I intend to do and where our immediate focus must be. I ask Mr Cole-Hamilton to please be assured that all options will be considered in due course. Determinations from the on-going public inquiry will have to be considered in due course, and lawyers in the Crown Office will consider the extent to which findings can be relied on. That is not a straightforward question to answer at this stage.

I note that relatively few applications have been made to the Scottish Criminal Cases Review Commission in relation to this matter. To what extent is consideration being given to how deep trauma can affect cognitive capacity and how the potential for retraumatisation could act as a barrier to some people applying for a review? What further support, if any, can be offered by either the Crown or the SCCRC in this situation?

That is an important question, and it is a legitimate point to make in the circumstances of these cases, in which individuals such as sub-postmasters and sub-postmistresses were brought into the criminal justice system without any previous involvement or understanding of what might be involved. There is no doubt that the impact of cases that involve a miscarriage of justice will have been deeply traumatising and had a significant impact on individuals, and that might very well speak to the fact that only 16 out of the 70-odd cases that have been referred to the commission have responded to say that they have been a victim of a miscarriage of justice.

Today, I have a message for people: if you have been a victim of a miscarriage of justice because of the Horizon system failures, please be assured that your complaint, application or indication of a need for help will be supported. You will be supported in clearing your name, if that is what is to happen in your case. The support will be there.

The commission, the Crown Office and any other institutions that are involved in helping people who are the subject of a miscarriage of justice are aware of the deep trauma that is being brought about by these cases. We are here to help you. If you have been a victim of a miscarriage of justice, please come forward.

I thank the Lord Advocate for her statement and associate myself with the comments that others have made. The apology is welcome, as sub-postmasters have been failed by what should be trusted institutions.

I heard what the Lord Advocate said about addressing any criminality by the Post Office or by individuals in the Post Office. However, will the Crown Office consider pursuing the Post Office and/or Fujitsu for proceeds of crime in respect of bonuses that were earned through defrauding sub-postmasters?

Fujitsu’s involvement came about because of its contractual arrangements with the UK Government to provide services under the Horizon system. The question of proceeds of crime is also an issue that arises under United Kingdom legislation.

We, in Scotland, are capable of raising our own proceedings, and we raise proceedings in relation to offences that have been committed within our jurisdiction. However, given the UK-wide issues at play, we will work closely with our prosecuting authority colleagues across the United Kingdom to identify the best way in which any prosecution of any individual or corporate entity can be brought forward to ensure that justice is served and, where any wrongdoing has happened, those who are responsible for that are brought to justice.

Today, at this stage, we cannot just say that things will be done in Scotland or that things might be done in England. I predict that the sensible way forward would be to have a UK-wide approach, supported by prosecuting authorities across the whole of the United Kingdom.

Can the Lord Advocate confirm whether she or any of her predecessors had discussed the issue of wrongful convictions of sub-postmasters with any Scottish Government ministers before 2024? If so, when were those discussions and who were they with? If she cannot, is that not one of the very many important questions that the Parliament should be entitled to put to Lord Mulholland?

The question is whether I have discussed the matters with Scottish ministers in 2024.

Prior to 2024.

Prior to 2024. No, I had not discussed any of the issues in the cases with Scottish ministers in 2024 before—

Or your predecessors.

Or my predecessors. No, I have not—I have not discussed the matter with them.

Mr Hoy mentioned Lord Mulholland, one of my predecessors in office. As I stand here, I am not quite sure between which years he served as Lord Advocate, but I have never discussed these cases with him, if that is the question.

Surely all evidence from the Horizon computer system is now utterly discredited, so if that evidence played any part in a conviction, surely a reasonable doubt must therefore appertain.

The Lord Advocate will be aware of the article by former sheriff Kevin Drummond KC in Scottish Legal News last Friday, in which he suggested that the swiftest solution in overturning this egregious miscarriage of justice would involve the Lord Advocate announcing the intention of Crown Office prosecutors to present to the appeal court in Scotland a list of convictions, with case references, informing it that investigations have revealed those convictions as being unsafe and based on flawed evidence. The court would then be invited to overturn the convictions and would have no alternative but to do so. Will the Lord Advocate follow former sheriff Kevin Drummond’s advice?

I thank Mr Ewing for raising former sheriff Kevin Drummond’s advice, which was published recently. He identified a process by which cases could be brought to the appeal court and the Crown could indicate that it did not support the convictions. That is true, but it is not the whole picture. It is misleading to suggest that I could simply attend the appeal court with a list of cases and tell the court of criminal appeal to quash the convictions. There is such a process but, for reasons of sound public policy and in recognition of the constitutional role of our court of appeal, prosecutors always have to be able to explain why they are no longer relying on a conviction.

As I have explained, not every Horizon case will involve a miscarriage of justice. In some cases, there was sufficient evidence to support a criminal conviction. That is demonstrated by the material from England and Wales that shows that, of the cases that have been referred to the Court of Appeal in England, only some—not all—have resulted in a conviction being quashed because of a miscarriage of justice.

Therefore, it is not as simple as my providing a list of convictions to be quashed. It is imperative that due process be followed and that lawful consideration, consistent with the rule of law, be taken of all cases. Sound public policy underpins the need for our court of criminal appeal to understand why somebody might have pled guilty but is now seeking to withdraw their plea, and why certain evidence is no longer being relied on by the prosecuting authorities. Those issues are rightfully explored in our court of criminal appeal before a decision is made by it to quash a conviction.

The process that we have in place is the right one. There should be due process, in recognition of the fact that, as I have said, not all Horizon cases will result in a finding of a miscarriage of justice. In some cases, there was other evidence that indicated a reasonable basis for a finding of guilt.

Although Mr Drummond is well recognised in the field of criminal law, he is wrong in his assertion that I can simply do what he suggests.

In May 2023, I hosted sub-postmasters from across Scotland in the Parliament. All of those gathered appeared to have given up on the idea of real justice in this issue. It was a stain that they had learned to live with. Their voices had gone unheard.

The Lord Advocate has told us today that the word of a venerable, trusted institution, the powerful and their lawyers trumped the word of ordinary citizens and the mounting evidence from reports in publications such as Computer Weekly as far back as 2008. Is the Lord Advocate telling us that evidence from a so-called trusted institution must be taken at face value? Does she not think that, if the Crown Office listens only to the establishment, further appalling miscarriages of justice are inevitable in Scotland?

I have already set out that the Crown Office and Procurator Fiscal Service was not advised of the deep and profound difficulties with the Horizon system. It did not know about that until 2019, as a result of the work of Mr Bates and the sub-postmasters and sub-postmistresses, who took the action that they did in the courts in England and Wales. I have already pointed out that it is clear from the judgments in the case of Bates and in the case of Hamilton that the Post Office continued to assert that there was nothing wrong with Horizon.

There has to be a system of reporting and a system by which the Crown prosecution service in Scotland can rely on successful Government agencies with established reputations as its specialist reporting agencies, and on the fact that individuals in those agencies meet their legal obligations, as set out in statute and in the code of practice. At the time, there was no reason to doubt the evidence that the Crown was being given.

As I have said, we are looking carefully at what has happened here, and we are not immune to reflection on that. There has, of course, been a miscarriage of justice, and we need to eliminate the risks of miscarriages of justice. We are looking urgently at the Post Office’s specialist reporting agency role.

I recognise that innocent people have suffered and that people have been convicted when they should not have been. The responsibility for that lies with the Post Office and its repeated failures. As I have said, I have no problem with apologising as the head of a system of which the Post Office is part. I apologise to all those who have suffered as a result of this scandal. I have committed to transparency in these matters, and I hope that my presence here today demonstrates that commitment. I have been very candid about the actions of the Crown, and we remain engaged in assisting where we can to remedy the wrongs that have happened.

I am keen to ensure that all members who wish to put a question are able to do so. For that to happen, I would be grateful for more concise responses, Lord Advocate.

I say to members that I am reviewing the potential impact of continuing on any following business.

Will the Lord Advocate explain how the role of the Crown Office makes Scotland’s situation different from that in England, and whether that will have any practical effect on how Scotland resolves the issue?

There is a difference in the sense that, when the cases were prosecuted in the relevant period up to 2015, in England and Wales, they were prosecuted by the Post Office. As I understand it, that was up until about the end of 2015, although I might be wrong on the precise dates. Those were private prosecutions that were undertaken by the Post Office in England and Wales. The degree to which that process has impacted on what has happened in England and Wales is one of the major issues that is being looked at by the public inquiry there. I am not in a position to talk about that, but Sir Wyn Williams is looking at that issue significantly.

There is a difference in the sense that, in Scotland, the Crown prosecution service is the sole prosecuting authority and the reporting agencies that we rely on to inform our work are subject to duties of disclosure under legislation and a code of practice. I suppose that that is the difference, in the sense of what the arrangements were. Also, because of the role of the Crown Office in Scotland and the need for corroboration here, there might be a lesser impact of the Horizon system on the cases that are now considered to be miscarriages of justice.

The Lord Advocate has been very open with members this afternoon, and she should be commended for that, but what I fear is missing from her responses so far is an acknowledgement that there is a duty on prosecutors to have confidence in the credibility and quality of the evidence that they present in court. Self-evidently in the cases that we are discussing, that evidence was flawed and should not have been presented. There are therefore questions as to the rigour with which prosecutors addressed the evidence that was presented by the Post Office.

I will ask the Lord Advocate a specific question about her statement. She gave us dates in May, August and September 2013 when the Crown Office discussed potential issues with the Horizon system to which they had been alerted. How long after that was the decision taken not to take further prosecutorial action? Did that apply just to new cases or also to cases that were already in the system?

I think I said that Scottish prosecutors were following the assurances that were given by the Post Office via its external lawyers, its barristers and its officials that the system was robust. At no time did that advice from the Post Office change at all. The Crown Office is independent, and it had been advised that prosecutors in England and Wales had instructed an independent law firm to review all potentially affected concluded Scottish cases and that that review had revealed no concerns about the accuracy of the evidence submitted or impact on any of the cases up until that point. It was entirely reasonable for the Crown to accept that. The Crown Office was never told that there was a problem with Horizon. It was told in 2013 that all the concluded Scottish cases had been reviewed and there were no concerns about the accuracy of any of the evidence in those cases.

There was then an indication of a second Second Sight report coming out, so the Crown took the decision to take a cautious approach. After that, there were cases where no further prosecution was taken, and there were cases where prosecutions were discontinued. Prosecutors took great care over what they did. In 2015, when it was clear that the second report was not forthcoming, the Crown said at that point, “That’s it”—it would not progress with those cases unless it got Crown counsel’s instruction on the case. Prosecutors then looked at all Post Office cases and reported for Crown counsel’s instructions, with a recommendation to discontinue or take no action in cases that relied on evidence from the Horizon system to prove that the crime had been committed.

I know that those answers are long, but it is really important to be clear about the fact that at no time were we told by the reporting agency that there was a problem. We were assured that the previous cases from prior to 2013 had been looked at and that there were no problems with them. We were assured of that.

I wish to pursue a point made by Michael Marra. The Lord Advocate has said that prosecutors were entitled to take what the Post Office gave them at face value. Later, she said that they had to be able to rely on the agencies concerned. Surely, with hindsight, none of the 70 agencies should be completely trusted now. No individual is completely trustworthy, and surely no agency is completely trustworthy.

Specialist reporting agencies have been in place for a long time—hundreds of years, in some cases. The point is that this case relates to the deficiencies in Horizon and the fact that the Post Office was not candid about the problems. That is right, and that is what has caused the enormous problems. However, we work with many reporting agencies. For example, Police Scotland, including its legacy forces, has been our main investigative agency for many years in Scotland, and it has carried out that role successfully. There is no reason to doubt the professionalism of Police Scotland in its work, its duty of candour or its duty of revelation.

There has to be some system, but if part of that system fails, as it clearly has done in this case, we need to look at what has happened, find out what has gone wrong and remediate where we can. I have made it clear that we are looking seriously at the reporting agency—the Post Office—and we will consider whether it is a reporting agency that we can continue to work with and have confidence in. We rely on reporting agencies to report professionally, with candour and in line with their duties of revelation, as set down in law.

“The patronising disposition of unaccountable power” was the title of the Bishop of Liverpool’s report into the Hillsborough disaster, and it seems like an apt title for this egregious miscarriage of justice. The member for Falkirk East commented that the trauma that was visited on people was significant and that simply sending a letter to them might be damaging in itself. Will the Lord Advocate look at the processes for engaging with the individuals who have been identified by the Scottish Criminal Cases Review Commission, of which only around a fifth have come forward, and find a more proactive way of engaging with them? Will she perhaps also consider the potential costs of access to justice, particularly for those who found themselves bankrupted by the original convictions?

It is important to recognise the different roles of the prosecution service and the Scottish Criminal Cases Review Commission in such cases. The reason for the creation of the Scottish Criminal Cases Review Commission was to provide an independent body that could explore issues such as miscarriages of justice in such circumstances. The commission is the body that should be approaching individuals, many of whom, I accept, have been severely impacted and traumatised by what has happened.

We can inquire of the commission what trauma-informed practices it has in place—I can do that—but it is not for the Crown Office to communicate with, write to and engage to any degree with those who are badly affected by the miscarriages of justice in this case.

On the representation that individuals get, the commission brings its case to court and all those whose cases are currently before the appeal court have counsel instructed. A system is therefore in place for the commission and lawyers to argue the cases for individuals.

I do not understand there to be a question around whether individuals would be able to afford representation in the court of criminal appeal. I can be corrected on that, and I can find out a bit more about it and write to Parliament about the process and the support mechanisms that are available, but the important thing might be for contact to be made with the commission to find out what it is doing to recognise the reasons for people not coming forward and what can be done to support people with those types of cases.

Only 16 cases have come forward and only half of those have been referred by the commission to the court of appeal. That is a low number compared with the number of people who were written to. I hope that that answers the question. I can explore in further correspondence anything else about the process and what support the commission can give.

Is it the Lord Advocate’s position that there will be no expedited process in Scotland for clearing the people who have been wrongfully convicted? Even if we get such a process in England, there will be nothing like that in Scotland. Is that what she is saying?

I hope that I answer this question correctly. I am not saying that there is an expedited process in England and Wales for cases going through the Court of Appeal. Indeed, in the past few days, the commission has explained the challenges in taking en masse appeals through the Court of Appeal in England and Wales. There are a lot of interesting blogs by the Criminal Cases Review Commission in England and Wales. A recent one, which was published in July 2023, indicates the challenges of en masse appeals through that process. We also know that—[Interruption.]

Through the chair, please.

We know that, in relation to England and Wales, some appeals have been processed, some have been granted and some have been refused. There is, similarly, a process in Scotland that mirrors the process of the Criminal Cases Review Commission in England and Wales. Every effort is being made by the court here to expedite those cases, where possible. I know that the Lord Justice Clerk said exactly that at the latest hearing of the case.

Other expedited processes are distinct and separate from the criminal justice process. However, if there is a quicker way to do this, and it is highlighted, and it is lawful and the right way to proceed, that is what will be done. I am not taking any decision in this case to go slow.

The scandal hinges on the fact that the Post Office continued to investigate and prosecute people after it knew that evidence from Horizon was flawed. I push the Lord Advocate on her timeline. She is saying that it was not until 2019 that the Crown Office was told that the evidence was unsound or that it had reason to doubt it. However, that is simply the point at which it was proved in a court of law, which is different from knowing and having reasons to doubt it. Indeed, the Crown Office’s timeline suggests that.

In 2013, the Crown Office said that it needed to carefully consider evidence. In 2015, it stopped the prosecutions. There were public questions published in Computer Weekly as long ago as 2009, and there were questions in many national newspapers. When did questions regarding the safety of the evidence first arise in the Crown Office? What steps to investigate that did the Crown Office take, because that was clearly before 2019? When did the Crown Office know that the evidence was not safe? Was that before or after the decision to stop the prosecutions?

The period in which the prosecutions stopped was 2015. It is important to make a distinction between what the Crown Office and Procurator Fiscal Service knew and the work of the reporting agency. The Crown Office was entitled to rely on the reporting agency, which I referred to previously, and the work that it did.

In the period from 2013 to 2015, the agency indicated—through its experienced staff, through witness statements and demonstrations of the operation of Horizon and in meetings with Crown Office and Procurator Fiscal Service representatives—that there was no problem with the Horizon system and that, in previous cases that had been prosecuted by Scottish prosecutors, there were no concerns about the accuracy of the evidence that had been submitted by the Post Office. Following 2013, when the issue was raised in meetings because of public concern, Scottish prosecutors were assured that the Horizon system was robust and that it would have no impact on the evidence that was available to Scottish prosecutors and the safety of that evidence.

In relation to what Scottish prosecutors knew, they did not know through that period of time—from 2013 to 2015—that there was any difficulty whatsoever with the Horizon system. That continued to be the position of the Post Office thereafter. It said that there was no problem with the Horizon system, and it was only after the adjudication of the courts in England and Wales in 2019 that that was asserted as being positively wrong. It is quite clear from the reported decisions of the court of criminal appeal in England and Wales that, until 2019, the Post Office refused to accept that there were problems with Horizon. It is clear from the reported decisions that that is the case.

The Lord Advocate has apologised for something, on behalf of the Crown Office, but I am a complete loss and cannot understand exactly what that apology is for because, for the past 58 minutes—for almost an hour—we have heard one justification after another for what the Crown Office has done. The Lord Advocate has also made repeated assertions that not every case involving Horizon is a miscarriage of justice.

Since the Bates judgment in 2019, it has been a known fact that Horizon was not a reliable source of evidence, but was, in fact, flawed and a fraud.

Is there a presumption behind the Lord Advocate’s comment about not every case involving Horizon being a miscarriage of justice? Since 2019, has the Crown Office reviewed every single one of the 73 convictions? Why is the Crown waiting for people to come forward rather than being more proactive in engaging with all the people who have been impacted by the scandal? It seems to me that, for the past hour, we have heard only excuses.

I do not accept that. There must be an understanding of the clear distinction between the role of the Crown Office and Procurator Fiscal Service and the work of the Scottish Criminal Cases Review Commission.

Let me be clear. In the Hamilton decision, the court of criminal appeal in England recognised that not all cases were Horizon cases. In the Hamilton decision, the majority of convictions were quashed, although a number of convictions were not quashed, because they were not Horizon cases. That is the process that the courts in England and Wales have been going through, and we must bear in mind that the courts in Scotland will have to go through that process. They will have to look at each case individually to determine whether it is a Horizon case, in the sense of being a miscarriage of justice because reliance on Horizon evidence has resulted in that miscarriage of justice.

The situation in Scotland is more complicated because of our rules of corroboration. In Scotland, questions of miscarriage of justice move from being the Crown’s responsibility to being that of the Scottish Criminal Cases Review Commission. The commission has undertaken work in relation to the 70-odd cases that are with it and has written to everyone involved. It is only appropriate, because of the separation of roles, that the commission should do that work. It is not for, and it would be wrong for, the Crown to be seen to pursue individuals who have been, or who have asserted that they have been, subject to a miscarriage of justice. That is just not the way that our system works at all.

I am not in any sense suggesting that nothing has gone wrong here. It quite plainly has, and I have apologised for the way in which the system has resulted in those unfortunate events. However, prosecution stopped in Scotland in 2015 because we could not prove that the system was okay. That was not because we had to prove it; that would be a misunderstanding of the role of the Crown. It became clear only in reading the Hamilton decision that the court of criminal appeal in England and Wales had, for the first time, considered cases of that nature, determined the approach that was to be taken to understand what was a Horizon case and what was not and decided that certain convictions should be overturned and that certain others should not be. We know that that process has continued to be pursued in England and Wales, and it will be pursued in Scotland until such time as matters change, if they do.

Nobody is hiding anything here. It is important to understand that we did not know. We were not told. We are entitled to rely on the reporting agency’s assurances, and it is very sad indeed that we were misled to the extent that we were. I do not think that I can say any more about it than that.

I will take two further questions. I call Ash Regan, to be followed by Kevin Stewart.

The Crown Office had an overview of all the cases that were prosecuted in the Scottish courts. I ask the Lord Advocate why the volume of cases among the highly vetted sub-postmaster population did not trigger concerns as to the veracity of the technical evidence.

I can only repeat what I have said about what happened in this case. Assurances were provided to Scottish prosecutors. In particular, an independent report said in August 2013 that there was no systemic issue with the system. In meetings with Post Office officials, Scottish prosecutors were assured that there were no difficulties with the system and that there were no difficulties and no concerns about the accuracy of the evidence that the Post Office had submitted in relation to concluded cases. That being the situation, it is difficult to see what else the Crown could have done.

As I said in response to Ms McNeill, who referred to Mr Munro’s points, that suggestion presupposes that the Crown knew that the sub-postmasters were being told by the Post Office that they were the only ones affected. It fails to recognise that the cases were being dealt with across the country and were not limited to one locality. Had there been a spike in one area, there may have been an identifiable trend, but the reality is that the many cases were spread out.

What has resulted in miscarriages of justice here—I cannot be clearer about this—is that Horizon was unreliable and the Post Office was aware of that yet failed to properly inform the Crown about it.

I am grateful to the Lord Advocate for her statement and for the length of time that she has taken to answer questions on it. I thank her for going into some depth.

Some would say that I am a plain and simple man, Presiding Officer. We have heard from the Lord Advocate about a lack of candour and about being misled by the Post Office. Can we take it that, for a long time, the Crown Office and Procurator Fiscal Service was told a pack of lies by the Post Office? Does the Lord Advocate feel that it was the duty of the Crown Office and Procurator Fiscal Service to scrutinise the Post Office, or was that a job for the UK Government?

I think that what I can do is to answer that in the context of the Crown prosecution service in Scotland being supplied with information from a specialist reporting agency that had provided reports to the Crown Office for many decades. It was a trusted organisation with an established reputation as one of the most successful Government agencies. When it came to the reporting of Horizon cases, it professed to be an expert in the Horizon system and its operation. Its experienced staff provided statements explaining the operation of Horizon and they spoke to how it was used to commit criminal offences.

At the time when the cases were reported, there was no reason to doubt that evidence. Indeed, the Post Office obtained an independent report confirming that there were no systemic issues in Horizon. It simply could not have been anticipated that the Post Office, its investigators and its independent auditors could have got it so wrong. This miscarriage of justice is truly exceptional. Nothing similar has ever been seen before. Its facts and circumstances are unique.

It is incumbent on a reporting agency to meet its obligations of disclosure under the 2010 legislation and the code of practice of 2011. The duty of disclosure on the Crown in relation to what it knew about the Horizon system was simply not engaged. No information was given to the Crown Office that the Horizon system was unsafe, so there was no basis at all on which we could provide evidence to the defence that indicated an undermining of the Crown’s case or supported the defence case. We were told that the system was reliable.

That concludes the ministerial statement. The next item of business is a stage 1 debate on the Visitor Levy (Scotland) Bill. I will allow a moment or two for front bench members to organise themselves.