I am pleased that my letter in SLN has produced an informed response by Lord Advocate Dorothy Bain KC, by Lord Uist and by Fergus Ewing MSP amongst others. Of necessity and for economy, my initial letter was a simplified, if not simplistic, version of the approach which I asserted should be adopted for the Horizon scandal cases in Scotland.

Before I clarify some elements of my approach to this matter let me pose one question which simply must be answered. What if, following her review of the Scottish cases the lord advocate finds one case – just one – which she is satisfied is a clear miscarriage of justice but where the appellant, for whatever reason, is not prepared to come forward?

What is she to do? Does she leave the public record undisturbed bearing this known miscarriage of justice, or does she have a duty to correct the public record? The answer in my submission is self evident and if the public record can be corrected “administratively” for one it can be done for them all.

Let me now clarify some matters which have arisen. I did not and do not suggest that every prosecution in which Horizon happens to have been mentioned should be the subject of automatic reversal. The Hamilton case in which 39 convictions were overturned and three refused is instructive if only for the fact that the court referred, in terms, to the fact that the three unsuccessful cases were refused because they were “not Horizon cases”.

In one of those cases, for example, a dishonest scheme for processing Giro cheques was identified as being operated. It was being operated using the Horizon equipment. The Horizon system defects were nothing to do with the distinct dishonesty.

I agree with the lord advocate that every case must be looked at on its own merits. I do not agree with her that “due process” involves cases being brought before the appeal court through the SCCRC route.

I also disagree with her when she said words to the effect that not every Horizon case is a miscarriage of justice. That may have been, as was my own letter, simply the use of legal shorthand. In my opinion the expression “Horizon case” should be, as was done in Hamilton, a description restricted to identified miscarriages of justice.

Lord Uist helpfully drew attention to Section 188 of the 1995 Act. Once again, I agree that that section is for summary procedure. I respectfully disagree that there is no similar remedy available for solemn procedure. In my opinion the course which I suggest for solemn cases is no more than an existing and inherent power of the lord advocate and of the Criminal Appeal Court.

All of that having been said, it must be recognised at every level that five cases have already been overturned in Scotland and that, of these five, three have already been finally disposed of “administratively”.

From this fact alone it can be asserted that there is an “administrative” route available which, in my submission, must be followed. That administrative disposal can and should include a full public explanation by the Crown as to why they have adopted the selected course

I say “must be followed” advisedly. In my opinion the adoption of a legislative route is wholly inappropriate, time consuming, expensive and unnecessary standing the existence of the alternative route to which I have referred.

England appears to be heading towards a legislative solution. Everyone from the lord chief justice down recognises that that offends against the separation of powers. It is, however, regarded there as an expedient way to address the problem in that jurisdiction. I make no comment on that.

In Scotland we have, in my submission, a perfectly competent alternative which is quicker, cheaper, respects the separation of powers and which would enable us to demonstrate the strength and flexibility of our system. It is no detraction from the independence of the lord advocate that she should sit down with the first minister and the justice secretary to discuss whether or not an “administrative” route should be taken.

I would be happy to defend the foregoing submissions in any forum.