Lord Advocate, Dorothy Bain's statement to the Scottish Parliament on Post Office Horizon IT prosecutions
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00:00 I am grateful to the Parliament for inviting me to address this very important matter.
00:13 I wish to take a moment at the outset to acknowledge the harm caused to the people in these cases
00:19 who have suffered a miscarriage of justice. The wrongly accused and convicted sub-postmasters
00:27 and postmistresses are due an apology from those who have failed them, and I do that today
00:34 as the head of the system of criminal prosecution in Scotland. The post office is part of that
00:42 system, and I apologise for the failures of those in the post office who were responsible
00:49 for investigating and reporting flawed cases. As a prosecutor, preventing and correcting
00:57 miscarriages of justice is as important to me as inviting a court to convict for a crime.
01:04 That is fundamental to my commitment to the rule of law.
01:09 Today, I shall set out what Scotland's prosecutors have done to protect the rights of postmasters
01:17 and what they have done to uphold proper administration of justice.
01:20 There is a great deal that could be said on that, but I am limited in time.
01:26 However, I am determined that the public should understand the issues that have arisen,
01:32 and I am committed to future transparency and the publication of information when I
01:38 can appropriately do that, being mindful of on-going legal processes.
01:45 The Crown Office and Procurator Fiscal Service is the only public prosecution service in Scotland.
01:51 It acts independently and makes prosecutorial decisions in the public interest. It receives
01:59 reports of alleged offences from more than 70 investigative agencies, including the post office.
02:06 The relationship between a prosecution authority and an investigating agency must be based on
02:15 absolute candour and trust. As an investigating agency, the post office must act fairly,
02:21 and that includes an obligation to reveal to prosecutors all material that may be relevant
02:29 to the issue of whether the accused is innocent or guilty.
02:33 It is clear that the post office failed in its duty of revelation and, as a result,
02:41 some individuals were prosecuted when they should not have been.
02:45 Where miscarriages of justice have happened, it is because prosecutors in Scotland accepted,
02:52 as they were entitled to, evidence and explanations at face value from the post office.
02:59 When it became clear that those explanations could no longer be relied upon, prosecutors changed
03:07 policies, dropped cases and subsequently supported the work of the Scottish Criminal
03:13 Case Review Commission, the Court of Appeal in Scotland and the UK-wide public inquiry.
03:19 To help Parliament understand the impact of the post office's failures in its duty of revelation,
03:27 I shall summarise the history of the work of Scotland's prosecutors
03:31 when dealing with cases that have come to be known as horizon cases.
03:37 Between 2000 and 2013, there is no record of prosecutors having been made aware of the bugs
03:45 and errors in the horizon system that we now know. Significantly, those bugs and errors impacted on
03:54 the reliability of evidence submitted by the post office. In May 2013, the post office
04:06 first contacted prosecutors via its external lawyers to address public concerns that had been
04:12 raised regarding the horizon system. In the months that followed, the post office and its external
04:19 lawyers sought to provide assurance to prosecutors that the system was robust. In providing those
04:27 assurances, post office lawyers referred to two reports, one of which had been prepared by the
04:34 independent auditor, Second Sight, which concluded that there were no systemic defects with the
04:41 horizon system. Further, post office advised prosecutors that it had instructed an independent
04:49 law firm to review all potentially affected concluded Scottish cases and that no concerns
04:56 about the accuracy of the evidence submitted by the post office in reporting those cases
05:02 for prosecution were raised. Despite those assurances, in particular the independent
05:08 report that concluded that there was no systemic issue with the system, on 7 August 2013,
05:15 recognising the continuing public concern, Scottish prosecutors were advised to carefully
05:22 consider any post office case to determine whether horizon impacted it while information was awaited.
05:31 That advice was shared to assist prosecutors to consider how best to proceed.
05:37 On 5 September 2013, a meeting took place between Scottish prosecutors and post office officials,
05:47 including their external legal counsel. At that meeting, post office officials repeated
05:54 their assurances to Scottish prosecutors, but moving forward it was agreed that post office
06:01 would obtain expert evidence and a further report to support the integrity of horizon evidence.
06:09 Meantime, Scottish prosecutors continued to follow the approach that was set out in advice
06:16 issued to them on 7 August 2013. Post office failed to deliver those assurances timeously,
06:25 and as a result, in the months that followed, prosecutors took the decision to take no further
06:33 prosecutorial action in several newly reported cases. Post office and Crown Office officials
06:40 met again on 6 October 2015. During that meeting, post office officials advised that they remained
06:49 confident in horizon. Indeed, the then chief executive officer of the Post Office Ltd
06:56 had given evidence to that effect at a parliamentary select committee in February 2015,
07:03 advising that they remained confident in the horizon system.
07:09 Notwithstanding that, post office confirmed that it was unable to provide a final expert report
07:16 or provide expert evidence that would support the integrity of the horizon system and defend
07:22 challenging court. At that stage, in light of the failure to provide a final report from second
07:31 sight or provide any expert evidence regarding the horizon evidence, Scottish prosecutors
07:38 formalised what was by then their cautious approach. On 20 October 2015, prosecutors were
07:47 advised to assess all post office cases and report for Crown Council's instruction,
07:52 with a recommendation to discontinue or take no action in cases that relied on evidence
08:00 from the horizon system to prove that a crime had been committed.
08:05 During that period, post office did not disclose to prosecutors in Scotland
08:10 the true extent of the horizon problems, as they are now known to be.
08:15 Scottish prosecutors received assurances that the system was robust. Those were assurances
08:23 that prosecutors, without the benefit of hindsight, were entitled to take at face value.
08:29 They would not have known, nor indeed suspected, that the post office may not have been revealing
08:36 the true extent of horizon problems. Because of the failures by the post office, we now know
08:43 that a number of people in Scotland may have suffered a miscarriage of justice.
08:48 In circumstances such as these, our justice system enables those who may have suffered
08:55 a miscarriage of justice to appeal a conviction by virtue of an application to the Scottish
09:00 Criminal Cases Review Commission, which may review and refer a case to the High Court of
09:06 Justiciary for appeal. The findings in the English group litigation headed by Alan Bates,
09:13 which was later endorsed in 2021 by the English Court of Appeal when it quashed 39 convictions
09:22 of those who it had held had suffered a miscarriage of justice, are significant.
09:26 It was those judicial determinations that identified and confirmed, beyond doubt,
09:32 the extent of the problems with horizon and the adverse impact that they had had
09:38 on prosecutions across the United Kingdom.
09:41 In September 2020, supported by the Crown Office and with information provided by the post office,
09:50 the Scottish Criminal Cases Review Commission wrote to 73 individuals who may have been
09:56 convicted in Scotland on the basis of unreliable evidence from the horizon system, with the purpose
10:02 of inviting an application for their case to be reviewed. To date, to the best of my knowledge,
10:10 16 individuals have come forward to the Scottish Criminal Cases Review Commission.
10:16 Of those 16, the commission has made seven referrals to the High Court,
10:22 four of which have already resulted in convictions being overturned.
10:27 In addition to those individuals who have been written to by the commission
10:32 in recognising the role it can play in assisting the commission's work, the Crown Office,
10:38 separate from the list identified by the post office, identified potentially affected cases
10:46 with a view to identifying whether any other individual may be impacted, to ensure that no
10:53 possible miscarriage of justice is missed. This was the basis for the recent information
10:59 from the Crown Office that around 100 cases may be horizon cases. Work is ongoing to review those
11:06 cases, and as of today that number has reduced to 54. Those cases continue to be considered
11:13 by prosecutors as potential horizon cases, but most of them have already been written to
11:20 by the Scottish Criminal Cases Review Commission. It will be noted that, of those written to,
11:27 only a small portion of people have come forward to identify themselves as possibly affected.
11:33 That may be indicative of the fact that not every case in which horizon evidence is present
11:42 will represent a miscarriage of justice. It is important to recognise that in Scotland
11:48 there is an established route of appeal in circumstances such as this. That route involves
11:54 the Scottish Criminal Cases Review Commission considering cases in the first instance,
11:59 prior to referring appropriate cases to the Court of Appeal. That is an important process,
12:05 because not every case involving horizon evidence will be a miscarriage of justice,
12:11 and each case must be considered carefully and with regard to the law.
12:17 It is also important to recognise the important and established constitutional role of our
12:23 appeal court in Scotland, and that due process must be followed. Scottish prosecutors have
12:30 taken appropriate steps to expedite those appeals where possible. That has included
12:36 obtaining a court order against the post office in order to recover essential documentation
12:42 relevant to the appeals.
12:43 Before I finish, I want to say that I am deeply troubled by what has occurred,
12:52 and I remain acutely concerned that the Crown Office and Procurator Fiscal Service
12:59 was repeatedly misled by the post office. Assurances that were just not true were repeatedly
13:07 given. To those wrongfully convicted, I understand your anger and I apologise for the way that you
13:16 have been failed by trusted institutions and the criminal justice system. I stand beside you in
13:24 your pursuit of justice. I want to assure the Parliament, those wrongly convicted and the people
13:31 of Scotland that I will do all that I can to prevent such an affront of justice to our system
13:37 from ever happening again, and to right the wrongs that have occurred. I commit to transparency
13:45 in the information that is held by the Crown Office and Procurator Fiscal Service,
13:49 subject to the restrictions of the on-going appeals and the on-going public inquiry.
13:55 I can also advise Parliament that I have sought urgent advice on the continued status of the post
14:02 office as a reporting agency in Scotland. I know that there are calls for allegations of criminality
14:10 in the post office to be investigated. That is a step that requires to be tackled at a UK
14:16 national level. The consideration of any criminality in Scotland on the part of those
14:22 responsible for the failures of the post office will require to wait until the public inquiry
14:28 has concluded and the full scale of their actions is understood.
14:32 The Lord Advocate will now take questions on the issues raised in her statement.