Scotland’s most senior law officer has apologised “profusely” to the victims of the Horizon scandal, while insisting it is “simply wrong” to suggest that prosecutors in the country pursued cases in the face of reported problems with the discredited software system.
In a statement to the Holyrood chamber on Tuesday afternoon, the lord advocate Dorothy Bain directly addressed those who were wrongfully convicted on the basis of evidence from the faulty digital accounting system, in what has been described as one of the greatest miscarriages of justice in UK history, affecting up to 1,000 post office operatives across the UK.
Bain told Scottish Horizon victims: “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.”
In Scotland, the Crown Office and Procurator Fiscal Service (COPFS), which is headed by Bain, had sole responsibility for prosecuting Horizon cases – in contrast to England and Wales where the Post Office pursued the vast majority of cases directly.
Bain said that she was “acutely concerned” at the manner in which Post Office officials “repeatedly misled” Scottish prosecutors. Humza Yousaf, the first minister, confirmed last week that his government will work with UK counterparts to ensure victims in Scotland are exonerated.
But Bain also raised the possibility that “not every case in which Horizon evidence is present will represent a miscarriage of justice”, pointing out that of 73 individuals written to by the Scottish Criminal Cases Review Commission only 16 people have come forward to identify themselves as possibly affected. Of those, seven cases were referred to the high court and four convictions subsequently overturned.
Setting out the timeline for MSPs, Bain said that, between 2000 and 2013, there was no record of prosecutors having been made aware of deficiencies in the Horizon system.
In May 2013, Post Office lawyers contacted the Crown to address public concerns about Horizon but advised Crown officials “that they remained confident in the system”.
The Post Office also told Scottish prosecutors that an external law firm had reviewed all potentially affected cases and concluded there were no concerns about accuracy of evidence north of the border.
In August 2013, the Crown Office told prosecutors to “carefully consider” cases where Horizon was a factor, while the Post Office continued to give assurances as to Horizon’s robustness.
It was not until October 2015 that the Crown Office told prosecutors to “discontinue or take no action in cases which relied on evidence from the Horizon system to prove a crime had been committed”.
Challenging Bain on the timeline, the 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 … 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.”
Bain said that post office officials and their legal team continued to assert that the system was sound “well into 2019” until the result of the group action brought by Alan Bates which ruled that Horizon contained bugs, errors and defects.
“So it is simply wrong to assert that Crown Office officials knew that there were problems with the Horizon system … did nothing about it and continued to prosecute in the face of reported problems. That’s just not what happened,” she said.
Responding to repeated questioning about why the Crown did not review previous cases or halt prosecutions earlier, Bain repeated that “responsibility lies with Post Office”.
Bain told MSPs that the Crown Office had assessed past cases, finding that 54 may have been affected by faulty evidence.
Bain also told MSPs she was “looking urgently” at the specialist reporting role of the Post Office in Scotland, adding that any 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”.
