Post Office Horizon IT scandal: Key questions for Crown Office remain unanswered – Martyn McLaughlin

Role of Scotland’s public prosecution service in the wrongful convictions of sub-postmasters demands scrutiny

As the Post Office Horizon IT scandal comes home to roost, it is worth remembering that for all the noise around reserved matters and the usual constitutional blame games, there remain vital questions yet to be answered by Scotland’s public prosecution service.

Unlike in England, where the Post Office pursued private prosecutions, cases in Scotland were brought by the Crown Office and Procurator Fiscal Service (COPFS) until late 2015. We know little about how that process played out. What we do know, however, ought to set the hares running.

In a statement to Holyrood this week, Lord Advocate Dorothy Bain said the Crown was “not advised” of the “deep and profound” difficulties with Horizon, and “did not know about that until 2019”, as a result of the work of Alan Bates and others. There are two glaring problems with this position.

The Crown Office and Procurator Fiscal Service was responsible for prosecutions around the Post Office Horizon scandal (Picture: Yui Mok/PA)

The first is that a public prosecution service should not passively digest evidence it is spoon-fed by investigative agencies like the Post Office. Ms Bain rightly accused the Post Office of failing in its “duty of revelation”, but prosecutors did not adequately avail themselves of powers to make their own enquiries; they could have interviewed witnesses themselves, or before a sheriff under oath.

The second is that it is scarcely credible that COPFS was blindsided to the serious problems with Horizon until 2019. During the ongoing public inquiry chaired by Sir Wyn Williams, it emerged last November that COPFS considered bringing charges against a Glasgow sub-postmaster in 2013, only for procurator fiscal Angus Crawford to decide not to proceed with prosecution, having “cited issues with Horizon”.

Was Mr Crawford’s analysis shared throughout COPFS, and if not, why not? Did it spur any review of Post Office cases? And did the COPFS not think it prudent to ensure that concerns with evidence lodged by a specialist reporting agency were not more widespread?

We also know that Jarnail Singh, a senior criminal lawyer with the Post Office, wrote in an email in March 2014 that he traveled to Scotland for a meeting with COPFS that was of the “utmost importance”, given prosecutors had “concerns about the safety of prosecuting using Horizon data”. He added: “This one-to-one meeting avoided unfortunate developments north of the Border which would have adverse publicity for POL [Post Office Ltd] south of the Border.”

As has been pointed out by Dr Andew Tickell, senior law lecturer at Glasgow Caledonian University, this email raises pertinent questions. Who did Mr Singh meet with? What were the “unfortunate developments” he referenced? And what steps did the COPFS take regarding prosecutions in the wake of the meeting?

In any case, there was plenty of external concern that ought to have sparked reasonable doubts; the Justice for Subpostmasters Alliance was formed by Mr Bates as early as 2009, and concerns over prosecutions elsewhere in the UK began receiving press attention from the likes of Private Eye and the BBC in 2011.

Ms Bain promised those wrongly convicted that she would stand with them in their pursuit of justice, and commit to a transparent approach going forward. A helpful first step in service of that goal would be to answer the questions above with a rigour that has been conspicuous by its absence.