Horizon Information Technology Prosecutions

– in the Scottish Parliament am 2:26 pm ar 16 Mai 2024.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Liam McArthur Liam McArthur Democratiaid Rhyddfrydol 2:26, 16 Mai 2024

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.

The Lord Advocate (Rt Hon Dorothy Bain KC):

I welcome the opportunity to address Parliament to provide an update on the steps that have been taken by those working in the criminal justice system to address prosecutions in Scotland involving evidence from the Post Office Horizon IT system. In my previous statement, I confirmed that the Crown Office and Procurator Fiscal Service and I are committed to addressing all miscarriages of justice. To that end, I made it clear that work has been under way in Scotland to address that issue since 2020. That has included collaborating with the Scottish Criminal Cases Review Commission to assist in identifying and referring impacted Scottish cases before the High Court of Justiciary for review.

Notwithstanding the practical challenges that have been faced in identifying and assessing the potentially impacted cases, because of the passage of time and the limited availability of records, I understand that the Scottish Criminal Cases Review Commission has made efforts to write to all individuals in Scotland it considered might have been affected by the issues and has invited them to apply for review of their case. I am pleased that individuals have come forward. So far, six convictions have been quashed by the appeal court, two appeals are currently before the court and 10 cases are being reviewed by the commission.

On 30 April 2024, Scotland’s appeal court issued an opinion regarding the now-concluded cases. That judgment endorsed the approach taken by both the SCCRC and the Crown in assessing the different circumstances in which Horizon evidence played a role in the original cases and in concluding that those appeals should succeed.

In my previous statement, I made it clear that, as Lord Advocate, I could seek to address miscarriages of justice only within the legal framework that is available to me and that for that reason—and despite what some have wrongly suggested—it is not possible for me to achieve mass exoneration of all those who have been impacted. I make it clear that that was not a comment on whether I support the concept of mass exoneration. As Lord Advocate, I have a responsibility to protect the administration of justice in Scotland and to uphold the rule of law. I can use only the tools that are available to me, as I have done to date.

Members will recall that I committed to reviewing the Post Office’s continuing status as a specialist reporting agency. I can now confirm that, because of its fundamental and sustained failures in connection with Horizon cases in Scotland, I have decided that Post Office Ltd is not fit to be a specialist reporting agency. It is therefore no longer able to investigate and report criminal allegations directly to the Crown and should now instead report any allegations of criminality to Police Scotland for investigation. I can also advise that work is under way to strengthen the guidance and safeguards that exist to ensure that all specialist reporting agencies abide by the essential duties of disclosure and candour in reporting cases for prosecution.

On Tuesday this week, the Scottish Government introduced the Post Office (Horizon System) Offences (Scotland) Bill. As the principal legal adviser to the Scottish Government, I advise the Government on the legislative competence of any bills that it seeks to introduce. I exercise my legal adviser functions objectively and independently. Although ministers share collective responsibility, the Cabinet Secretary for Justice and Home Affairs has ministerial responsibility for that legislation and it will be for her to set out the Scottish Government position.

I will now address questions that have been posed in recent weeks regarding the actions that the Crown took in response to concerns that were raised in 2013 about the integrity of the Horizon system. As I previously explained, at no time did the Post Office disclose to the Crown the true nature and extent of the issues with its Horizon system. Reference has been made in the chamber to the findings in the interim report by the independent accountancy firm, Second Sight, which was published in July 2013. Second Sight identified two instances in which defects or bugs in the Horizon online system had affected 76 branches across the United Kingdom, but it concluded that there was

“no evidence of system wide problems with the Horizon software”.

Those findings were endorsed in the House of Commons by the relevant minister shortly after the report’s publication.

Crown Office officials were given assurances by the Post Office that those isolated bugs did not affect the small number of potentially impacted cases that had been reported to the Crown. It was also explained that those cases had been reviewed by the Post Office in light of the report and that no concerns had been raised. Notwithstanding those assurances from the Post Office, Crown Office officials, noting that the report recommended further interrogation of the system, requested that the Post Office obtain further expert evidence to support the integrity of the system.

As I explained previously, while that was awaited, Scottish prosecutors were expected to carefully consider any Post Office case on its specific facts and circumstances. When concerns regarding Horizon arose, prosecutors were advised to suspend prosecutions and await further expert evidence.

In 2015, because of the Post Office’s failure to provide further evidence to support the system, cases that relied on evidence from the Horizon system were to be discontinued. The Crown is reviewing its records to identify the cases that may have been affected by those failures in disclosure by the Post Office.

Four cases have been identified that were prosecuted after the meeting in 2013 and resulted in a conviction. Records suggest that those four cases involved Horizon evidence, admissions by an accused and a plea of guilty in circumstances where there was independent legal representation for the accused. Those cases had not been drawn to the Crown’s attention by the Post Office as cases of concern that necessitated further examination. All four of those cases have been made known to the commission, and I am aware that one at least is under review.

However, 11 cases have been identified in which prosecutors decided to suspend consideration of proceedings and thereafter take no further action. Those decisions were a direct result of their concerns about the accuracy of the Horizon system and were consistent with the instruction to prosecutors to adopt a cautious approach. That limited the extent of the harm that the Horizon IT system may have otherwise caused.

It has been suggested, with the benefit of hindsight, that the Crown should have been more suspicious of the Post Office and should have conducted a review of convictions involving Horizon. However, the state of knowledge as it then was is not what it is now. The Post Office, its lawyers and, indeed, UK Government ministers continued to support the Horizon system during the 2013 to 2015 period, and beyond. Some of the evidence that is before the on-going Post Office inquiry suggests worrying levels of deliberate and sustained concealment and deception used by the Post Office during that period. Unfortunately, it was only after the English litigation in 2019 that the true nature, extent and depth of the problems with Horizon were revealed.

Notwithstanding that, I am committed to reflecting on whether anything could have been done differently by Scottish prosecutors. In that regard, I await with interest the outcome of the UK Post Office IT inquiry, and I will continue to consider whether any lessons require to be learned.

It is important to remember that at the heart of the issue are individuals who were wrongly convicted of a crime that they did not commit. Next week, Parliament will debate legislation that is designed to address this issue. The opportunity for debate is a development that I welcome, as the merits of the Scottish Government’s bill can be considered and debated by you, the parliamentarians who are elected to do so.

Photo of Liam McArthur Liam McArthur Democratiaid Rhyddfrydol

The Lord Advocate will take questions on the issues arising from her statement. I intend to allow around 20 minutes for that, after which we will move on to the next item of business. I encourage members who wish to ask a question to press their request-to-speak buttons, if they have not already done so.

Photo of Russell Findlay Russell Findlay Ceidwadwyr

I thank the Lord Advocate for advance sight of her statement. In January, she told Parliament:

“This miscarriage of justice is truly exceptional—nothing similar has ever been seen before. Its facts and circumstances are unique”.—[Official Report, 16 January 2024; c 16.]

I whole-heartedly agree, which is why my party has made repeated attempts to have the head of Scotland’s independent prosecution service return here. I am grateful that she has now decided to do so.

In her statement, the Lord Advocate said that she had not previously opposed mass exoneration, which the bill proposes. However, that was the impression given by her statement in January, so I ask her to use this opportunity to be clear about whether she agrees with her Cabinet colleagues that mass exoneration is the right thing to do. My party believes that it is the right thing to do.

It is also regrettable that the Scottish National Party has sought to turn the matter into yet another excuse to pick a constitutional fight with UK ministers. In its own words, the Scottish Government now recognises the need for stand-alone Scottish legislation.

It is also regrettable that the Government now suggests that the Scottish bill can be passed only after the UK law has passed. I urge the Scottish Government to have the confidence in this Parliament to commit to passing the legislation before summer. We have the power to do so. I ask the Lord Advocate whether she agrees.

I previously asked the Lord Advocate whether the former Lord Advocate Frank Mulholland could come to Parliament. I ask again: should her predecessor come to Parliament, and has she spoken with him about Horizon?

The Lord Advocate:

I will begin by addressing the bill that is before the Parliament. The Government of which I am a member has introduced a bill that reflects the Government’s position. Like all ministers, I share that collective position. In my statement and when I answered questions here in January, I addressed the proposition that I could use my authority to achieve a blanket exoneration through the courts, and I explained why it would not be possible for me to do that. Those comments have been taken out of context and held to show that I am opposed to a legislative approach to addressing miscarriages of justice. As Lord Advocate, I exercise my retained functions, including decisions that are taken in my capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland independently of other ministers.

In relation to legislation, my role as a law officer is to certify that Government legislation is within the Parliament’s legislative competence, as will be clear from the fact that the Government has introduced the Post Office (Horizon System) Offences (Scotland) Bill and that I have provided that certification.

I have not discussed these matters with Lord Mulholland but, from the material that is available to me and from my understanding of what happened in the background, I think that at no stage was he involved in any matter to do with Horizon cases.

On the question of my attendance in Parliament or my wishing to come here or not, I have made it endlessly clear that I am prepared to come to the Parliament to answer questions about the functions that I undertake. I take very seriously my accountability to the Parliament for the exercise of my functions as the head of the system of prosecution. My presence today demonstrates that. I have been candid about the Crown’s actions. I am absolutely committed to transparency to retain the public’s confidence in the Scottish prosecution system.

Photo of Liam McArthur Liam McArthur Democratiaid Rhyddfrydol

Thank you, Lord Advocate. We will have to move on. There is a lot of interest in the issue, as members will appreciate. Questions and responses will need to be as brief as they can be.

Photo of Pauline McNeill Pauline McNeill Llafur

I thank the Lord Advocate for coming to the Parliament and for the full and frank responses that she has given so far.

It is clear from the Post Office Horizon inquiry that senior Post Office officials came to Scotland in 2013 because they were concerned that procurators fiscal were, rightly, questioning the reliability of the Horizon system and because of the recommendation by procurators fiscal at the time that all cases based on the Horizon system should be stopped. After that meeting, the policy changed to one based on considering case by case. Why were Crown Office officials satisfied to change the policy at the time, having asked for further evidence to support the integrity of the Horizon system but not yet having it?

I thank the Lord Advocate for her letter to me this week. In it, she notes that, regrettably, four cases have been identified that were prosecuted after that meeting in 2013 and that resulted in convictions, on the basis of admissions or pleas of guilt. As we know, however, many sub-postmasters pled guilty to avoid jail. We should have all the factors fully explained so that we can learn lessons.

Photo of Pauline McNeill Pauline McNeill Llafur

After 2015, why did the Crown Office not apply its on-going duty of disclosure to all the people who had been convicted using Horizon evidence? No cases were revisited and no convicted postmasters were written to until well after—

Photo of Liam McArthur Liam McArthur Democratiaid Rhyddfrydol

Thank you, Ms McNeill. I call the Lord Advocate.

The Lord Advocate:

As I have said, the litigation in England and Wales in 2019 was a significant turning point, as was the decision in the Hamilton case in 2021. It was at that point that the true extent of the problems with the Horizon system was fully known. Up until that point, the Post Office maintained its position and continued to defend the Horizon system. Work has been under way by the Crown in Scotland and the Scottish Criminal Cases Review Commission for four years now. Since 2020, the Crown has worked with the Scottish Criminal Cases Review Commission and other agencies to identify affected cases and the steps by which we can correct those injustices.

The passage of time is recognised, but the significant turning point was 2019, rather than 2015, as is clear from the litigation and the reported cases that have been made available publicly since that time.

Photo of Fergus Ewing Fergus Ewing Scottish National Party

Some crimes that might have been committed by sub-postmasters and sub-postmistresses, such as benefit fraud or cheque fraud, probably have nothing to do with Horizon whatsoever, so those convictions should not be quashed. However, I will ask the Lord Advocate to answer a question on an issue that has been troubling me and, I think, others since her statement to the Parliament in January.

In her statement, the Lord Advocate indicated that, in her view, not all Horizon cases involved miscarriages of justice. However, when Horizon and the associated Fujitsu software were part of the chain of evidence that led to a conviction, surely such evidence must be utterly tainted and discredited. Secondly, in relation to sub-postmasters who pled guilty to such crimes, I believe that it has been conclusively shown in the evidence to the Wyn Williams inquiry that some such confessions and guilty pleas were extracted by improper pressure exerted by the Post Office. Can the Lord Advocate provide a full explanation of that, please?

The Lord Advocate:

A very general definition of “miscarriage of justice” is a conviction wrongly returned against an innocent person. In some cases, it has been shown that Horizon-identified shortfalls were correctly identified shortfalls. That was demonstrated by an admission of guilt, which included an explanation of why the funds were taken and what was done with them and an independent verification of the use of those funds in the way described, with no suggestion or claim being made that the Horizon identified shortfall was inaccurate. In any such case, there can be no suggestion of a miscarriage of justice.

In relation to cases in which there might have been a miscarriage of justice, since I made my statement to the Parliament in January, the Lord Justice Clerk, the second most senior judge in Scotland, issued an opinion of the appeal court on 30 April 2024. The opinion advised that the court agreed with the Crown that the trial or the plea in any case in which Horizon evidence was essential to conviction, whether as primary evidence or as essential corroboration, cannot be considered to have been fair and has resulted in a miscarriage of justice. That is the approach that the Crown was taking and continues to take.

The point about guilty pleas is important, because the vast majority of the cases that are coming before the appeal court and the ones that we have considered are cases in which the accused has pled guilty, there has been an admission of guilt and the accused individual was independently legally represented at the time. A guilty plea in those circumstances requires careful consideration and the input of the appeal court in order to determine whether to quash a conviction.

The circumstances of admissions of guilt and guilty pleas are carefully considered in the round when concerns in relation to whether there has been a miscarriage of justice are looked at.

Photo of Liam McArthur Liam McArthur Democratiaid Rhyddfrydol

The Parliament will be aware that it allocated 30 minutes for this item of business. I am prepared to exercise a degree of leeway, but a further 11 members wish to ask questions. We now have nine minutes to get through those. I want to get in everybody who wants to ask a question before we move on to the next item of business, but the questions will need to be brief, as will the responses, Lord Advocate.

Photo of Murdo Fraser Murdo Fraser Ceidwadwyr

The Lord Advocate said in her statement that 11 cases have been identified in which prosecutors decided to suspend consideration of proceedings and take no action as a direct result of their concerns about the accuracy of the Horizon system. If no fewer than 11 individual fiscals were concerned about the accuracy of the Horizon system, why was that not ringing alarm bells at the top of the Crown Office and Procurator Fiscal Service? Why was the decision to cease all further prosecution proceedings not taken at that point?

The Lord Advocate:

I have already explained that the extent to which the Horizon system was fundamentally flawed was not identified until 2019, and thereafter in 2020 when the decisions of the English Court of Appeal and the decision in the Bates case were returned. That was the starting point at which everybody became aware of the fundamental difficulties with the system. When prosecutors became aware that bugs in the system had been mentioned in the Second Sight report, they looked at the report, asked the Post Office about it and were given absolute assurance that there was nothing wrong with the system or with any of the Scottish cases that had been prosecuted thus far. There was therefore no basis, after the decisions were taken not to prosecute the 11 cases but to go forward with the four, for a full review to be done of all that had gone before. That is consistent with the way in which the courts in England and Wales have approached the matter to date.

Photo of Evelyn Tweed Evelyn Tweed Scottish National Party

From what we have heard during the public inquiry, it would appear that, over the years, people at the top of the Post Office have provided misleading information on the Horizon cases. Does the Lord Advocate share my concern in that regard? What is her response to the evidence that has come out of the public inquiry?

The Lord Advocate:

I am grateful for the question and, of course, share the member’s concern. The Post Office was a respected and trusted agency but, through its actions, many innocent people have suffered and had their lives ruined. While the public inquiry is on-going and appeal cases remain live in Scotland, I am obviously limited in what I am able to say. However, I am deeply troubled and concerned by the evidence that the inquiry has heard. The on-going inquiry requires to fulfil its remit. I await its outcome with interest. Any criminality in Scotland by any individuals in the Post Office will be considered through the normal process of reporting. As members will know, the issue affected the entire United Kingdom. I am therefore committed to working closely with other agencies across the UK on that front.

Photo of Baroness Katy Clark Baroness Katy Clark Llafur

Until 2015, I was a member of the UK Parliament and a member of the select committee that took evidence in that year. However, like many other MPs, I was aware of the serious concerns that had been raised about the Horizon convictions prior to then. Does the Lord Advocate not accept that it was clear from at least 2013 that it was unsafe to prosecute those cases and that any convictions were unreliable? Has the Lord Advocate given thought to why the Crown Office wished to accept what the Post Office said and to prosecute so many people who had always been law abiding, when there was so much concern that there had been miscarriages of justice?

The Lord Advocate:

I recognise the question whether prosecutors could have done more earlier, but that proposition relies on the benefit of hindsight. It is a professional responsibility of prosecutors to reflect on how they have handled cases, to help to ensure that they do better in the future. The issues surrounding Horizon have now been the subject of detailed scrutiny in the Crown Office. At present, nothing has been identified that shows that prosecutors should have dealt with matters differently. A public inquiry is under way, and the appeal court in Scotland has cases under consideration. If anything identified in those processes indicates that things could have been done differently, we will, of course, pay great attention to that.

Photo of Ruth Maguire Ruth Maguire Scottish National Party

Will the Lord Advocate expand on the reasons for the Crown Office and Procurator Fiscal Service’s decision to stop relying on Horizon-related evidence only from 2015? What had been expected from, but not supplied by, the Post Office at that time?

The Lord Advocate:

In 2013, the Crown Office was assured by the Post Office that Scottish cases were not affected and that Horizon continued to be robust. Notwithstanding those assurances, prosecutors requested that the Post Office provide further evidence to support what it was saying. While prosecutors awaited those instructions being carried out, they adopted a cautious approach to cases that relied on Horizon evidence.

In 2015, the Post Office confirmed that it was not in a position to provide the evidence that the Crown Office had requested. On that basis, in the absence of independent evidence to demonstrate that Horizon was, in fact, safe, a decision was made to no longer rely on Horizon evidence.

Photo of Maggie Chapman Maggie Chapman Green

I thank the Lord Advocate for her statement. She spoke about convictions that have already been quashed by the High Court and about two that are currently before the court. However, we do not know about any cases in which convictions might have been upheld by the High Court or in which the High Court refused to give leave to appeal. If such cases exist, they would be excluded from the bill as it is currently drafted. What assurances can the Lord Advocate provide that such cases that have already been considered by the High Court will be given a fair hearing, given that more and more information is coming to light through various routes, including via the public inquiry, which is on-going?

The Lord Advocate:

There have been no appeals in relation to cases refused by the court of appeal in Scotland. It will perhaps be of some comfort to Ms Chapman to hear that.

In so far as the on-going process is concerned, the court of appeal is looking at those cases individually and with great care. It should be made clear to members in the chamber that the court of appeal in Scotland is taking matters extremely seriously. For some time now, there has been a dedicated bench that is listening to the cases, having many procedural hearings and being advised of how matters are progressing. That dedicated bench has set down how it considers that cases should be presented and argued, and how, in certain circumstances, appeals should be granted.

There is great comfort to be taken from the facts that there have been no appeals refused in Scotland, that we have a dedicated bench that is looking at these matters and that all the appeals that have thus far been taken have been granted by the court on the basis of the Crown’s concession. It is clear that the same process will be delivered for the two outstanding cases.

Photo of Clare Adamson Clare Adamson Scottish National Party

In her statement, the Lord Advocate said that the Scottish Criminal Cases Review Commission has been involved in identifying those who may have been wrongly convicted and that letters have been sent out. How many letters were issued and how many responses have been received? Can the Lord Advocate envisage any other mechanism by which the courts could proactively reach out and encourage people to come forward, rather than the onus being on the wronged parties, who are very sceptical and very scared, to do so?

The Lord Advocate:

I think that that question was asked of me previously, when I gave my first Post Office statement in the chamber. There is a distinction between the role of the Crown Office and Procurator Fiscal Service and the role of the Scottish Criminal Cases Review Commission in these matters. They have very distinct roles to carry out.

With regard to the number of letters that the commission has issued and the uptake of those, and the decisions that the commission has made to refer cases, I ask that that question be referred to the Scottish Criminal Cases Review Commission. My understanding is that, in every single case that has been referred to the commission, the commission has written to the individual or to their family. For precise detail and to be absolutely accurate, however, that question should be directed to the commission.

With regard to anything else that could be done in order to assist and encourage people to come forward, I simply restate what I have said previously. If you consider that you are a victim of a miscarriage of justice in these matters, you should come forward, and you will be supported and given assistance. You will be supported by the Scottish Criminal Cases Review Commission and we will do all that we can to bring the matter to the courts, if it is for the courts, or the matter will thereafter be dealt with under the legislation, if it is passed by the democratically elected parliamentarians who sit in the chamber today.

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Democratiaid Rhyddfrydol

I am grateful for the clarity as to this Parliament’s role in making things right. We should move forward with haste. It is right that the Post Office has now been stripped of its status as a specialist reporting agency. It deceived everyone at every turn, laying down a smokescreen of lies long after it realised that it was at fault. People paid for that with their livelihoods and, in some cases, their lives. Can the Lord Advocate advise us as to what lessons have been learned and what safeguards have been employed in the specialist reporting agencies that remain and in the COPFS, which receives their reports, to protect against similar unsafe prosecutions in the future?

The Lord Advocate:

The question is about the specialist reporting agencies and what can be done to ensure that they meet the legal framework within which they operate, which includes a duty of revelation and a duty of disclosure. Those obligations are placed on the Crown in Scotland, and the specialist reporting agencies should understand that they need to take them very seriously. There was plainly a complete abdication of responsibility by the Post Office in relation to the special status that it was given, which resulted in the terrible consequences of the cases.

Work has been on-going in the Crown Office to revisit the advice, support and direction that are given to the specialist reporting agencies and to tell them again about the law that they need to operate within and their duties of revelation and disclosure. We have reflected on the issues and we are not beyond reflection in looking at them. We continue to revisit how there could be such a complete and utter abdication of the legal rules that apply to specialist reporting agencies as came about in this particular case.

Photo of Keith Brown Keith Brown Scottish National Party

The Lord Advocate stated that the Post Office and the UK Government, in her words,

“continued to support the Horizon system during the 2013 to 2015 period, and beyond”

and that there were

“worrying levels of deliberate and sustained concealment and deception ... during this period.”

Can the Lord Advocate say whether that might present a liability for the Post Office and the UK Government separately from any agreed compensation scheme? Given that the concealment was “deliberate and sustained” and that it can reasonably be said to have led to the imprisonment, the traumatisation and even the suicide of some of the victims of the disgraceful deception, could it result in criminal proceedings against those who were responsible for that deception?

The Lord Advocate:

I am not in a position to answer Mr Brown’s question today. We really need to await the outcome of the public inquiry, which has been on-going for many years now, and we would need to understand what the outcome would be of any particular investigation that the UK authorities are involved in looking at. I have said that it should be a UK-wide investigation. The profound issues that concern us today are ones that concern everybody across the United Kingdom. I am not in a position to answer the specific question about criminal or civil liability today.

Photo of Jamie Greene Jamie Greene Ceidwadwyr

Of course, the Post Office is guilty of the most egregious failures in this whole sorry saga, but let us not forget that it was the Crown in Scotland that prosecuted people here. Given that fact, and particularly in the absence of Police Scotland’s involvement in any evidence gathering or assisting the Crown’s prosecution, why did the Crown take or seek no evidence contrary to that which was offered by the Post Office? Why did technical evidence that ultimately led to prosecutions go unchallenged? Why was it simply taken at face value, given the disastrous consequences of that?

The Lord Advocate:

I have already explained that Post Office Ltd had been a specialist reporting agency in Scotland for a significant period of time—for many decades. It was a highly respected institution, in respect of which it was given UK-wide recognition. The Crown Office is not an investigating agency. It relies on specialist reporting agencies to report cases under a duty of disclosure and revelation. The Crown was entitled to take at face value the evidence that was submitted by the Post Office and the assurances that were repeatedly given to the Crown as to the situation with Horizon evidence.

I have said before that, in 2013, the Crown Office was assured by the Post Office’s legal team, which included barristers and professional lawyers working with the Post Office’s internal legal team, that it had looked at all the Scottish cases and that there was no difficulty with any of them.

Photo of Michael Marra Michael Marra Llafur

I am glad that the Lord Advocate has begun to change her tune slightly on the position regarding specialist reporting agencies. On her appearance in the chamber on 16 January, she insisted that the Crown Office must be able to continue to trust without question the evidence of all such agencies above the citizens of Scotland armed with readily available evidence as to the lack of reliability of those reporting agencies’ evidence. Can the Parliament have faith that a letter reminding other agencies of their duties is sufficient to prevent a repeat of the circumstances in which the voice of the establishment automatically trumped the voice of citizens?

The Lord Advocate:

I did not say what Mr Marra has said that I said. I refute that completely. However, I have repeatedly said this:

“I am deeply troubled by what has occurred”.—[Official Report, 16 January 2024; c 14.]

I hope that the statements that I have made give reassurance that prosecutors have never sought convictions in the knowledge that Horizon was unreliable. All prosecutors were acting in good faith and on the basis of information that was supplied to them by the Post Office.

I know that innocent people have suffered, that people were convicted when they should not have been and that people were forced to live for years with injustice. The responsibility for that lies with the Post Office and its repeated failures. However, I have previously apologised as head of the system for the prosecution of crime—the Post Office is part of that system in Scotland—to the people who have suffered as a result of the scandal.

I continue to expect specialist reporting agencies, which are given the confidence of those appointments by the Crown in Scotland, to meet their legal obligations in relation to duties of disclosure and revelation. I explained earlier that we have revisited and reflected on the need to provide further direction to and support for specialist reporting agencies and to remind them of what the law requires them to do—if, indeed, they require to be reminded.

Photo of Craig Hoy Craig Hoy Ceidwadwyr

Speaking in the chamber in January, the Lord Advocate, without qualification, said:

“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.” —[Official Report, 16 January 2024; c 14.]

In what way can that very clear statement be taken out of context?

The Lord Advocate:

I did say that, and that is absolutely right. As Lord Advocate, with ministerial responsibility for the Crown Office and the prosecution service, I was explaining what I could do in the context of the available mechanisms. I could not give a blanket exoneration through the mechanisms of law that are available, and I could only explain what I could do, in conjunction with the Scottish Criminal Cases Review Commission and the Court of Appeal, to remedy any miscarriage of justice. That is what I explained. The explanation is completely right and is not out of context, and I never, at any point, made any comment on the proposed legislative option that is now before the Parliament.

It is open to us to understand that we can deal with miscarriages of justice through our existing court system. That is the view that has been expressed by many eminent members of the legal profession, including the former Lord Chief Justice of England and Wales in the recent debate in the House of Lords.

However, there are other options, such as legislation, and it is for the Government and the Parliament to develop the policy to be implemented. The Lord Advocate does not offer a view on policy, nor do they have a vote. I am a law officer; it is not part of my function. It is for this Parliament of democratically elected members to choose between the available options, and that is what they are being asked to do.