In the lord advocate’s statement to the Scottish Parliament on 16 January, she said that cases of those subpostmasters convicted of fraud would be referred to the Scottish Criminal Cases Review Commission and that all cases would be considered on their merits.

The commission was set up under the Crime and Punishment (Scotland) Act 1997. The Act does not say specifically that all cases, where it is thought  that there has been a miscarriage of justice must be referred to it. If I am correct, there is nothing to prevent the lord advocate applying directly to the High Court to have convictions quashed.

It would be my contention that where the defective Horizon system played a material part in the convictions and where the defective system was the material evidence, these convictions are unsafe. The lord advocate must know which cases these are. Of seven cases already referred to the High Court by the commission, four people have had their convictions quashed. There are, therefore, cases where the defective system played little or no part in the convictions.

If the lord advocate knows which the cases in which the convictions are unsafe, she can do one of two things. One go straight to the High Court, or refer them to the commission. While the commission is independent of the lord advocate, there would not seem to be any basis on which the commission could reach a conclusion that differed from the lord advocate’s position.

Two further points. One is that this matter should and can be dealt with quickly. The second and equally important is that if the lord advocate takes either of the courses suggested, that would avoid the Scottish government passing legislation which would make damaging and irreparable inroads into the constitutional doctrine of separation of powers. If, as has been said, legislation will be enacted to quash convictions, there is no reason in principle why Parliament could not create convictions. If the first minister understands the importance of this doctrine, he should, like angels, fear to tread.

The subpostmasters’ cases are alarming; they do paint the Post Office in a very bad and disturbing light. The lord advocate admitted that the Crown Office and Procurator Fiscal Service had been misled by the Post Office. Her office would not be looked upon favourably if she did no more than pass all the papers to the commission and, in effect say, “Over to you.”

Douglas J Cusine