Credit: William - stock.adobe.com

The recent ITV drama on the Horizon scandal has shocked the nation. This has been an issue that has troubled me since listening to Nick Wallis’ excellent documentary series on BBC Radio 4 in 2020. Since then, I concluded that the Scottish legal system has not been immune to this scandal. There are certain issues I wish to encourage discussion on following the excellent comments by Dr Andrew Tickell and Stuart Munro.

Despite politicians in Scotland portraying this is an issue solely relating to England and Wales and one for the UK government to resolve, there is evidently a Scottish perspective which needs to be reckoned. Scots law and the devolved Scottish justice system was complicit.

In some respects, what has occurred in this jurisdiction is even worse than what has occurred in England and Wales given the independent state prosecutor, COPFS, had a central role in the criminal proceedings that have destroyed so many innocent livelihoods, aspirations, and futures. The narrative at Holyrood seems to focus on the Post Offices and Fujitsu alone but, as lawyers, we should be asking why COPFS proceeded in the way it did. COPFS performs an important check in instigating criminal proceedings, but it seems there was a failure here.

In England and Wales, the poacher turned gamekeeper in the form of Post Office Ltd can explain why those private prosecutions were brought. However, to quote from the Scottish Criminal Case Review Commission (SCCRC):

Therefore, how this has happened in Scotland, and the charging decisions of COPFS requires a sober assessment. There are searching questions, ones which should trouble shrieval and senatorial minds, as well as procurators fiscal and the crown agent. Dr Tickell has spoken on the concerns raised in respect of COPFS’s conduct, as too has Stuart Munro.

The knowledge of COPFS

The Justice for Subpostmasters Alliance (JPFA) was formed in 2009 so clearly complaints of the evidence used by prosecutors had been known for some time, and yet COPFS continued to act on the reporting of the Post Office until at least 2013 (out of the known six published cases that the SCCRC has referred).

The restrictive rules on private prosecutions may have mitigated the horrors inflicted on innocent sub-postmasters in Scotland. However, COPFS still commenced proceedings where it is now clear that they should not have been brought with the ‘constructive’ knowledge that the evidence may not be reliable (given the sub-postmasters complaints, prosecutors should have been put on notice). Equally, the ‘actual’ knowledge of COPFS of the evidential issues in 2013 should have started the alarm bells ringing.

However, at the time of COPFS having either ‘actual’ or ‘constructive’ knowledge, it appears COPFS did not think it pertinent to take any action such as write to those convicted to express their concerns on their convictions or encourage them to apply to the SCCRC. Even if the Post Office remained reluctant, it would not have been difficult for COPFS caseworkers to compile a datasheet of all Post Office reported cases and urgently undertake a review many years ago.

One may argue that it is not the place of a prosecutor to aid the convicted in the context of an adversarial legal system. Yet as an independent state prosecutor with a paramount interest in justice, knowing that convictions may be unsafe, the moral and political argument is there. It appears the Cabinet Secretary for Justice was not even made aware so clearly there was murmurings at Chambers Street that were never acted upon in the public forum. In a democratic society, that is a disgrace and a full investigation by the present lord advocate and cabinet secretary for justice is required.

Righting the wrongs

Turning to the rectification of this scandal in the Scottish criminal context, the investigations by the SCCRC only commenced its reviews in spring 2020 following applications by the accused. Six have now been referred, with two convictions overturned. In the intervening gap, those affected suffered financially, physically, and mentally whilst being ostracised by their communities.

If there had been more of a drive in the early stages of the ‘actual’ knowledge in 2013, the various arms of the Scottish justice system could have made progress in correcting wrongs (not least of all the fact that the investigative powers of the SCCRC could have been utilised against POL and COPFS) but it appears there was obfuscation and delay.

The reasons for the delays in rectifying these serious errors are not entirely clear but it appears that the applicants awaited the decision of the High Court of England and Wales before doing so. That leaves an unanswered question on whether the High Court of Justiciary and/or the SCCRC could have carried out a similar fact-finding exercise much earlier without the need for a London court to come to a conclusion. Of course, this was a multi-jurisdiction issue but there was no reason why Scotland could not have been the forerunner.

The inquiries (and lack thereof)

The Horizon inquiry has secured the right from the Scottish ministers and the UK government to investigate devolved matters. However, it appears that this only in respect of:

Whether this will examine the intrinsic knowledge of COPFS and hear evidence from those making charging decisions remains to be seen. What is clear is that this is an inter-agency scandal in Scotland.

COPFS should urgently review whether they can continue to afford Post Office Limited the right to be a reporting agency or whether Post Office should have to go through Police Scotland or the National Crime Agency as any other business should. One would argue, given their unreliable reporting, the Post Office have now lost that right. COPFS needs to review its own charging decisions to ascertain whether the evidence was not interrogated as thoroughly as it should have been.

In England and Wales, a concern by Nicholas Cooke KC has been raised on the reluctancy of the judiciary to test the computer data in a court forum. Additionally, the lord justice-general and sheriffs principal must examine how these cases were tried.

The burning flame of injustice

Whenever miscarriages of justice are raised, an inexplicable fury burns inside me. I suspect it is because it goes to the very reason why I chose to study and practise law, like many other of your readers and in the Crown Office; to ensure that justice is served to our community. However, what seems to accelerate the flame into a passioned inferno is that these injustices have occurred within our own jurisdiction.

The legislative system is now stepping in to resolve the catastrophe inflicted by the judicial system. As Nicholas Cooke KC has raised in England, this step-in lets the criminal justice system sweep its mess under the carpet. In Scotland, we need to act to prevent this happening.

The next step should be to examine what has happened across all devolved justice administrations (the judiciary, prosecutors and the SCCRC), and crucially, how such miscarriages of justice can be prevented from ever happening again. The Post Office is having its reckoning, and has for some time, but the Scottish instruments of state that allowed this travesty are escaping public responsibility and need its own examination.

Anon.