Scotland's Lord Advocate apologises to Horizon scandal victims

16 January 2024, 17:30

The head of Scotland's prosecution service has apologised to those convicted in the Horizon scandal saying they were "failed" by the justice system - and claimed that Scottish prosecutors had been misled by the Post Office.

Lord Advocate Dorothy Bain KC also revealed the Crown Office believed there were 54 cases rather than the 100 initially thought which could have been miscarriages of justice stemming from the faulty system in Scotland.

Addressing MSPs in Holyrood she laid out a timeline of events, which saw the Crown Office halt proceedings based on the system in 2015.

She said the Crown Office was the sole prosecutor in Scotland, with the Post Office having no authority to bring cases in a private capacity as it does in England and Wales.

And that despite concerns being flagged with the Post Office about its evidence in 2013, prosecutors had received repeated assurances the system was "robust".

She said: "I am very deeply troubled by what has occurred, and I remain acutely concerned that the Crown Office and Procurator Fiscal Service was repeatedly misled by the Post Office.

"Assurances which were just not true were repeatedly given.

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

She said the Scottish Criminal Cases Review Commission (SCCRC) - the body which handles potential miscarriages of justice - had written to 73 people in September 2020 who may have been falsely convicted, but that just 16 had come forward. Seven of those cases had been referred to the High Court and four had their convictions overturned.

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

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

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

However she appeared to pour cold water on the idea that Scottish convictions could be overturned or quashed en-masse in the Court of Appeal, or under the UK government's legislative plan to do so in England and Wales - despite First Minister Humza Yousaf hoping that would be the most straightforward approach.

Ms Bain acknowledged there were "long drawn out processes" to establish miscarriages of justice, but 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 said, adding 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.

She also told MSPs she had "sought urgent advice" on the reporting agency status of the Post Office, which allows it to refer cases for prosecution, adding that an investigation into allegations of criminality on the part of the Post Office will need to wait until after the UK-wide public inquiry "and the full scale of their actions is understood".

According to Ms Bain, prosecutors were first made aware of issues with the system in May 2013, but the Post Office said an external law firm had reviewed all potentially impacted cases and concluded there were no concerns about accuracy of evidence in Scotland. A further independent report also found no issues with Horizon.

In August of that year, the Crown Office 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 to support Horizon's robustness - which they "failed to deliver" on time, Ms Bain said.

But it was not until October 2015 that 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".

"During this period, the Post Office did not disclose to Scottish prosecutors the true extent of the Horizon problems as they are now known to be," she said. "Scottish prosecutors received assurances that the system was robust.

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

The Post Office has been asked for comment.

Scottish Tory justice spokesman Russell Findlay suggested the Crown Office new about problems as early as January 2013 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.

However, Ms Bain said the January date was incorrect and based on an inaccurate Post Office document submitted to the UK inquiry.

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

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