Top law officer apologises over Post Office scandal

Scotland's top law officer has apologised to victims of the Horizon scandal.

Lord Advocate Dorothy Bain said Post Office workers had been failed by the criminal justice system.

She said the Crown Office and Procurator Fiscal Service (COPFS), which has sole responsibility for prosecuting cases in Scotland, had been misled by the Post Office.

Ms Bain said she understood the "anger" of victims.

• Crown faces questions over Post Office prosecutions
• Post Office scandal victims in Scotland to be cleared
• Prosecutors told of Post Office concerns in 2013

More than 900 sub-postmasters were prosecuted across the UK accused of theft and false accounting based on evidence from the faulty Horizon software.

First Minister Humza Yousaf has said he would work with the UK government to ensure victims in Scotland are exonerated.

Ms Bain, who was appointed lord advocate in 2021, apologised in a statement to parliament.

"I am very deeply troubled by what has occurred," she told MSPs. "And I remain acutely concerned that the Crown Office and Procurator Fiscal Service was repeatedly misled by the Post Office.

"Assurances which just weren't true were repeatedly given."

Ms Bain said victims had been "failed by trusted institutions and the criminal justice system".

She told MSPs COPFS was first told of issues with Horizon evidence in May 2013, but the Post Office said an external law firm had reviewed all potentially impacted cases and concluded there were no concerns about accuracy of evidence in Scotland as well as an independent report which found no issues with Horizon.

In August of that year, COPFS told prosecutors to "carefully consider" cases where Horizon was a factor, while the following month the Post Office agreed to seek expert advice and a further report on Horizon - which they "failed to deliver" on time, Ms Bain said.

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

The Lord Advocate said the Post Office did not tell prosecutors about known Horizon issues throughout this period.

She said the Scottish Criminal Cases Review Commission (SCCRC) wrote to 73 people in September 2020 who may have been convicted on the basis of unreliable evidence from the Horizon system and invited them to apply for their case to be reviewed.

Ms Bain told MSPs that 16 people had come forward. Seven cases had been referred to the High Court and four had resulted in convictions being overturned.

COPFS had also assessed past cases, finding that 54 could have been affected by faulty evidence.

The lord advocate acknowledged calls for allegations of criminality in the Post Office to be investigated, but said such as step would need to be done at a "UK national level".

The consideration of any potential criminal activity by the Post Office in Scotland would need to wait until the inquiry had concluded and "the full scale of their actions is understood", she told MSPs.

• How the Post Office scandal has affected Scotland
• Why were hundreds of Post Office workers prosecuted?

First Minister Humza Yousaf has said everyone convicted in Scotland as part of the Post Office Horizon scandal will be cleared.

He suggested extending legislation overturning convictions in England and Wales to cover Scottish cases could be the easiest and fastest way to resolve cases, but UK government sources have previously suggested it may be difficult.

BBC Scotland News understands Prime Minister Rishi Sunak has committed to discussions between the justice secretaries in the UK and Scottish governments to find the right way to achieving justice in Scotland.

If an agreement cannot be reached, the Scottish government is still prepared to consider passing Scotland-only legislation.

Others have called for the lord advocate to clear victims of the scandal en masse through the Court of Appeal.

But while Ms Bain acknowledged there had been "long drawn out processes" to establish miscarriages of justice, she said that was necessary to ensure transparency and accuracy.

"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," she added.

The Lord Advocate said the vast majority of convictions involved a guilty verdict and that prosecutors would not proceed with a case in the absence on corroboration, nor would a sheriff convict without it.

Ms Bain explained the Post Office is considered a reporting agency by the Crown Office in Scotland, meaning it can refer offences for prosecution.

She told MSPs she had "sought urgent advice" on that status.

Scottish Conservative justice spokesperson Russell Findlay said the scandal was a "disgraceful mass failure of justice".

Mr Findlay asked the Lord Advocate: "Why did the Crown not come clean as soon as they discovered the Horizon evidence was fundamentally flawed?"

He also questioned whether former law chief Frank Mulholland, who was Lord Advocate at the time, should answer questions before MSPs.

Scottish Labour leader Anas Sarwar questioned why it had taken until 2015 for the COPFS to halt new prosecutions, and why immediate action was not taken to review previous, potentially unsound, convictions.

Referencing potential criminal cases against the Post Office, he said "criminal activity in Scotland should be investigated in Scotland" and does not need to wait for the UK public inquiry.

"Sub-postmasters in Scotland have waited long enough for justice. They shouldn't have to wait a moment longer."

"Better that 10 guilty persons escape, than that one innocent suffer," wrote the 18th century English jurist William Blackstone.

At Holyrood this afternoon, the lord advocate did not sound as if she were a fan of the Blackstone Ratio, as the concept is known.

True, Dorothy Bain KC apologised for the "harm caused" by miscarriages of justice in Scotland in the Post Office scandal, while also blaming the Post Office for deceiving Scottish prosecutors about the reliability of the Horizon computer system.

But in setting out how she believed Scotland's prosecution service, and the courts, should respond, it was clear that Ms Bain opposed any notion of blanket acquittals for those caught up in the affair.

Instead, she defended a system which saw perhaps 100 people convicted in Scotland (the exact number remains unclear and disputed) and just four subsequently cleared, so far at least.

Ms Bain accepted that appeals through the Scottish Criminal Cases Review Commission were "long, drawn-out processes" but insisted they remained the constitutionally proper response.

For a scandal characterised by public protestations of innocence from distressed postmasters and their families, it was striking how many times the lord advocate talked about guilt during her evidence, stating, repeatedly, that "not every case will be a miscarriage of justice".