The Post Office Scandal - The Scottish Dimension

If there is one think everyone in the UK is agreed upon at the moment it is that the Horizon scandal represents a terrible and devastating miscarriage of justice.

The ITV drama Mr Bates v The Post Office follows events through the experiences of Alan Bates, a a former sub-postmaster who identified problems with the Horizon IT system in the early days and later helped to create a campaign group to highlight both the nature and scale of the problem – as well as the impact it was having on so many innocent people.

Mr Bates v The Post Office has touched on politics, as it should. In referencing a letter from Ed Davey to Mr Bates in which the then Lib Dem minister for Postal Affairs initially suggested a meeting would achieve little, the drama has led to several people unfairly targeting Mr Davey as somehow principally responsible for the appalling miscarriage of justice. As I explained in a previous piece, that is simply unfair – and Mr Bates seems to agree.

The ITV series, which still has two episodes to run, has spurred many influential people into overdue action. According to The Guardian, the Prime Minister has today announced “a plan to grant an unprecedented blanket acquittal for hundreds of post office operators wrongly convicted in the Horizon IT scandal”. This is an unprecedented step but, with every conviction looking decidedly unsafe and the process of revisiting convictions on an individual basis proving painfully slow, there is a certain amount of sense in legislating for blanket exoneration.

If parliament approves this legislation, as surely it will, the affected sub-postmasters will all have their convictions overturned by the end of this year. They will also be entitled to an agreed level of compensation.

My understanding, however, is that Rishi Sunak’s proposal will not apply to Scotland or Northern Ireland, which have their own devolved responsibilities for justice. This brings me to the broader question of the issue of Scotland’s sub-postmasters wrongly convicted for fraud and theft.

We haven’t heard enough about the Scottish dimension. ITV have focused on Mr Bates, Ed Davey and Paula Vennells, the Post Office Ltd’s CEO from 2012 to 2019. The drama has not considered the roles of other Post Office CEOs. It’s not really focused on Fujitsu’s failings, nor the failure of Ed Davey’s predecessors and successors to do anything meaningful (at least Mr Davey met with Mr Bates’ campaign group despite initial rejection). In looking at the issue through the experiences of one man, much of the bigger picture is lost. Crucially, it doesn’t tell us about the plight of the sub-postmasters based in Scotland who were prosecuted differently and under a completely different jurisdiction.  

What Mr Bates v The Post Office does well is to highlight how easily the system of private prosecutions can be abused. There are huge questions about how, why and when private prosecutions should be brought in future because they have been shown to perpetuate injustice rather than justice. Over 700 sub-postmasters were privately prosecuted by Post Office Ltd, something that simply couldn’t happen in Scotland. While, technically speaking, private prosecutions can be brought in exceptional circumstances, there have only been two such instances in the last century.

The Post Office’s Horizon system was operational UK-wide, but as justice is a devolved issue the legal approach taken in Scotland was necessarily different. Consequently, the “lessons to be learned” and the questions that need to be asked are not necessarily the same ones that apply to individuals and bodies in England. 

In Scotland approximately 100 prosecutions were brought by the procurators fiscal. Significantly, the procurator fiscal service is a Ministerial Department of the Scottish Government. It is also significant that all prosecutions in Scotland were public, and came under the oversight of Scotland’s justice ministers. 

Last week SNP elected representatives, including Joanna Cherry, gleefully pointed the finger at Ed Davey and the Liberal Democrats. She tweeted: “With government comes responsibility. Lib Dems in the frame for fobbing off the victims of Post Office miscarriages of justice.” Another SNP activist told me that the spotlight on Ed Davey is justified because he is the only former responsible minister who now leads a political party. They would both have been better advised to turn their attentions closer to home because Scotland’s record is even more shameful, if that is possible. 

Firstly, the absence of private prosecutions here means that cannot be used as a legitimate excuse for legal failures. The fact that prosecutions in Scotland were public meant that the prosecutor had a responsibility to make clear that the individual on trial was not alone, as they (and their legal advisors) were led to believe, but that there were several near-identical cases. Why were prosecutors not more honest and forthcoming? 

Secondly, as Scots law requires corroborated evidence (a higher test than in England and Wales) why were so many of these prosecutions successful? It would appear that the sole source of alleged guilt was the Horizon system. Why was other evidence apparently not required? Was our legal and justice system undermined by a willingness to accept Post Office evidence as entirely trustworthy and reliable? With no obvious corroborated evidence, how did these cases even come to trial? Which IT specialists were offering evidence or advice? We need to know what evidence the procurators fiscal had available to them and, if they chose to proceed purely on the basis of Horizon records, why. We also need to know whether judges or sheriffs were biased towards believing a "respectable" organisation such as the Post Office and whether this affected outcomes. 

In short, does the way prosecutions were managed in Scotland prove that our legal system is not only defective but entirely unfit for purpose?

Thirdly, unlike in England and Wales, it took until last year (2023) for the first wrongful conviction to be overturned. Only two appeals have, to date, been successful. Why is this? The Scottish Criminal Cases Review Commission (SCCRC) has contacted 73 convicted sub-postmasters since 2020 – of 16 people who came forward only six have so far been allowed by the SCCRC to proceed to appeal. Why the low uptake and why the low approval rate? There are clearly barriers to justice under the Scottish system – what are they?

Fourthly, no Scottish justice minister ever met with Mr Bates’ group, Justice for Sub-Postmasters Alliance (JFSA). Neither did Humza Yousaf, in his three years as justice minister, ever attend any meeting at all in relation to the horizon scandal – something confirmed by Conservative MSP Russell Findlay in Topical Question Time yesterday. This defies belief. 

The cabinet secretary for justice and home affairs, Angela Constance, responded to Mr Findlay: “It is unfortunate that Mr Findlay has sought to overly politicise the matter when the problem has been in the making since 1999 and was caused by a UK-wide body—the Post Office—that has been scrutinised under reserved powers by successive UK Government ministers. He is correct in saying that the Post Office cannot prosecute in Scotland. Only the Crown Office, which is independent of politicians, can prosecute in Scotland. If the scandal shows us one thing, it is the value of having an independent prosecution system, not one in which a vested interest such as the Post Office is able to pursue prosecutions.”

Which on one level is perfectly reasonable. However, when justice ministers were involved in no meetings whatsoever at a time when the justice system has clearly failed innocent people, then it does call into question how much “scrutiny under reserved powers” is being carried out. It certainly makes SNP attacks on Ed Davey appear rather misplaced, and arguably hypocritical. If questions are to be asked of Ed Davey and other UK ministers (and I think they should be) then – for the sake of balance – other questions should also be asked of Cathy Jamieson, Kenny McAskill, Michael Matheson and Humza Yousaf. 

I don’t for a moment suggest that these ministers were in any way responsible for implementing the Horizon system in the first instance. Neither do I  accuse these ministers of collaborating with the Post Office or of being wilfully negligent, but I will say that gross miscarriages of justice occurred on their watch with the usual prosecutors’ responsibilities and requirements for corroborated evidence seemingly falling by the wayside. That is not a great look and should be of concern to anyone who cares about justice. At the very least, standards were not what they should have been. I'd go as far as to say this saga has fatally undermined any faith the public can have in the justice system.

Ms Constance’s response to Mr Findlay is also interesting for other reasons. She talks of “the value of having an independent prosecution system, not one in which a vested interest such as the Post Office is able to pursue prosecutions” and I’d love to agree, not least because that is a much better system. But the evidence of the Horizon convictions in Scotland is that the outcomes were no better for Scottish sub-postmasters. Indeed, even with an independent review commission (SCCRC), fewer appeals have been successful (2 out of approximately 100 convictions, or 2.0%) than in England and Wales (93 out of approximately 700, or 13.3%). 

In the same debate, the SNP’s Fergus Ewing argued that “any conviction that resulted from the introduction of the flawed Horizon system must be unsafe and flawed and should be quashed” and urged the Scottish government to “work with the UK Government, [to] consider introducing emergency legislation, if necessary, so that the greatest miscarriage of justice of our time can be redressed”. Ms Constance responded by saying “we have an open mind about the best way forward”. 

Rishi Sunak, for all his faults and failings, has at least committed himself to pursuing a particular outcome that would, if approved, ensure that sub-postmasters in England and Wales belatedly receive the justice they have been denied for so long. The Scottish government cannot afford to be non-committal or be playing “catch-up” to events in the rest of the UK.

Indeed, Scottish politicians cannot wash their hands of responsibility for this miscarriage of justice. Under Scots law, in Scottish courts and under an independent prosecution system, Scottish sub-postmasters who had become victims of Horizon’s failures fared no better than their English counterparts. The very system whose checks and balances should have ensured justice for the sub-postmasters instead failed 100 innocent people. I am afraid, unlike Angela Constance, I do not consider that to be a system I can take pride in. 

In a sense there are two different scandals here. Both share a common root cause – the failure of the Horizon IT system and the aggressive and dishonest approach taken by the Post Office. But while in England and Wales the scandal is one of how private prosecutions allowed the Post Office to evade scrutiny, in Scotland the scandal is the failure of a supposedly independent and fair justice system. 

As Fergus Ewing suggested, the first step for Scottish government is to commit itself to righting past wrongs. Given the lack of progress the SCCRC is making, it would seem reasonable to work with Westminster to ensure that the same outcomes applying to sub-postmasters in England and Wales will also be applied here in Scotland. 

But that cannot be allowed to be the end of the matter. 100 Scottish sub-postmasters were let down by the very system that should have served them. Serious questions need to be asked of the Crown Office, the procurators fiscal, the judicial system itself and justice ministers. No stone should be left unturned in the quest to ensure there is no repeat of this shameful episode.

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Update, 10.1.24

Since writing this, some additional relevant information has come to light:

* The Crown Office was first informed of possible issues in May 2013.

* Kenny MacAskill, justice secretary in 2013, said that he had "no recollections" of any discussions with prosecutors or the Lord Advocate at the time.

Given the Crown Office was aware of problems in 2013, why did prosecutions continue? Why was the justice minister not made aware?

I also note that Deputy Crown Agent Kenny Donnelly said: "COPFS estimates up to 100 Scottish cases may be affected.This is lower than in England and Wales due to COPFS policy decisions made in response to awareness of the Horizon system issues, and the fact that all cases in Scotland were prosecuted by the procurator fiscal under the application of Scots criminal law." This seems like a weak attempt to assert the superiority of Scotland's legal system over that of England and Wales. However, I am not sure I agree with his logic. As a proportion of the total number of sub-postmasters, I imagine 100 in Scotland is actually higher than the 700 in England and Wales. In 2010 there were 11,905 Post Offices in the UK, of which 1,446 were in Scotland - it's not difficult to see the real reason why there were fewer prosecutions in Scotland.  

Let's not spin this as somehow being a positive reflection on Scotland's justice system - it isn't. We need to own our failures, learn from them and address them.