External lawyers reviewed all potentially impacted Scottish cases and found no issues

By Bill Heaney

Labour MSP Pauline McNeill put First Minister John Swinney on the spot when she asked what the Scottish Government’s response is to reports that the Crown Office and Procurator Fiscal Service continued to prosecute postmasters when there was evidence that the Horizon computer system used by the Post Office was flawed.

The First Minister told Ms McNeill: “As the Parliament will be well aware, and as the Lord President reminded me when I took the oath of office yesterday, the Lord Advocate [Dorothy Bain] and the Crown Office and Procurator Fiscal Service are, rightly, independent of the Government in their responsibility for the prosecution of crime.

“I am advised that it was not until the decisions by the courts in England and Wales in 2019 and 2021 that the full extent of the issues with Horizon emerged. Until that point, the Post Office maintained that the system was reliable—indeed, the Post Office told Scottish prosecutors in 2013 that its external lawyers had reviewed all potentially impacted Scottish cases and found no issues.

Labour’s Pauline McNeill, First Minister John Swinney, Tory Russell Findlay and Dorothy Bain, the Lord Advocate.

“In 2015, the Crown Office and Procurator Fiscal Service was not provided with further evidence that had been promised by the Post Office to demonstrate that Horizon was as robust as it suggested. Therefore, the decision was taken to no longer rely on Horizon until such time as that further evidence was provided.”

He added: “As we all know, the Post Office has, at best, obfuscated and, at worst, hidden the issues with Horizon. It is only through the on-going public inquiry that we are learning to what extent that was undertaken.”

Pauline McNeill added: “We know that, in 2013, Post Office lawyers came to Scotland to meet senior procurator fiscals to convince them to keep prosecuting cases. However, forensic accountancy firm Second Sight’s interim report was given to the Crown Office and flagged that there were defects or bugs in the Horizon software, giving rise to 76 branches being affected by incorrect balances or transactions.

“In an email to me this week, Second Sight director Ron Warmington said that it would have been beneficial if there had been ‘a little less naivety’ from the Crown Office and that, if the Crown Office had at least taken the precaution of checking the report and calling him or the Second Sight offices, the outcome might well have been different.

“Does the First Minister agree that, notwithstanding the independence of the Crown Office, it should be fully accountable for the miscarriages of justice in Scotland, because it did not provide the checks and balances that it should have?

“It chose to continue to prosecute cases for five years and never wrote to a single victim or attempted to overturn any of those convictions until now. Given that, should the Lord Advocate not come to this Parliament and answer further questions?”

The First Minister replied: “From her long service in the Parliament’s justice committees, Pauline McNeill will understand that we are getting into territory where I will, if I answer in a great deal of detail, be intruding on the independence of the Lord Advocate. I will not do that. The Lord Advocate is an independent office-holder and I want to ensure that I protect the independence of the Lord Advocate by my actions.

“The issues that Pauline McNeill raised are material to Crown Office decisions about the prosecutions that have been taken. I will relay to the Lord Advocate the points that have been made by Pauline McNeill today. I met the Lord Advocate last night to confirm my desire for her to continue as the Lord Advocate, but I will convey to her the points that Pauline McNeill has made.

“We will, of course, also continue to engage with other parties in Parliament about the appropriate way in which the issue can be addressed in Parliament.”

Tory Russell Findlay said: “The Scottish Conservatives have tried to get the Lord Advocate in here three times to answer Pauline McNeill’s questions, and many other questions, because Scotland’s Post Office victims deserve those answers, yet the Scottish National Party and the Greens voted against that reasonable request. I ask, again: why will John Swinney not do the right thing, and why he is adding to the distress and delays of the Horizon victims?”

However, Mr Swinney wound up that debate with this: “As an experienced member of the Parliament’s Criminal Justice Committee, and as somebody who knows his way around the issues in our courts and our judicial system, Mr Findlay knows that the Lord Advocate is independent in the prosecutorial decisions that are taken.

“I will convey to the Lord Advocate the issues that Pauline McNeill and Russell Findlay have raised with me. As I said in my answer to Ms McNeill, we will continue to co-operate with other political parties about the best way to address those.”

Douglas Ross has today written to the Lord Advocate urging her to make a statement to parliament to clear up the SNP Government’s “mixed messaging” on delivering justice for Scottish victims of the Post Office scandal.

Dorothy Bain previously implied to parliament in January that she opposed the blanket exoneration of sub-postmasters, yet she now has a key role in the drafting of Scottish legislation which achieves that.

The Scottish Conservative leader is seeking clarity on whether the Lord Advocate’s personal view has changed or whether she disagrees with the principle underpinning the bill.