The Scottish Question
Important submissions about Scotland made at the end of Phase 4 of the Post Office Inquiry
As Sir Wyn Williams spent his final words of Phase 4 gently mocking the English lawyers’ pronunciation of Gaerwen, and as an English man with avowedly Welsh children, I thought I would spent the Sunday after a certain rugby match writing about Scotland.
Stuart Munro, a solicitor advocate representing Susan Sinclair, who became a core participant only in November 2023, made some telling submissions about the situation in Scotland at the end of Phase 4 of the Post Office Inquiry. They are worth quoting from extensively as he raises matters of great significance to the Inquiry and Scotland’s justice system. In particular he raises a set of questions that suggest the Scottish Crown Office and/or Procurator Fiscals have significant questions to answer.
His questions also pose a challenge to anyone who would like to suggest that private prosecution is the sole or main cause of the problem in the Post Office scandal.
Here are some of his points:
Firstly, did the involvement of COPFS, the independent public prosecutor, afford greater protection to those facing allegations and, if not, why not?
Secondly, did POL understand its duties as a Specialist Reporting Agency; did it discharge them, particularly in relation to revelation?
Thirdly, did COPFS comply with its duty of continuing disclosure?
Fourthly, to what extent did the corroboration requirement, that we have in Scottish Criminal Law, act as a safeguard against wrongful conviction?
…
POL has never had any power to prosecute in the Scottish courts, and it is instead a Specialist Reporting Agency, taking on a role broadly analogous to that of the police.
Did, then, the involvement of the Public Prosecutor make any practical difference? I respectfully suggest that, on the face of it, the answer to that question is no. The failure of POL to reveal issues with Horizon meant, at least until 2013, that cases were prosecuted on the same evidential understanding as elsewhere.
COPFS relied on investigation reports in making prosecutorial decisions….
There has been no indication, as I understand it, on the evidence that was led before the Inquiry, of POL being actively interrogated it by COPFS on the basis for prosecutions or being directed to provide further evidence.
Now, one may have hoped that the involvement of a single independent prosecutor would have highlighted similar concerns across multiple cases but it would appear that cases were, in fact, dealt with in local offices without any real understanding of similar cases existing elsewhere….
[Of the] Specialist Reporting Agencies…. POL appears to be the only one which is a commercial enterprise.
In the duty of revelation (the duty of the investigator to reveal all information relevant to the case to the prosecutor) he says:
That duty of revelation plainly encompasses information which would be relevant to an assessment of the reliability of a computer system such as Horizon. Yet it is plain that no such information was provided to COPFS certainly not at the outset. The first indications of concern came, it would appear, in 2013. At that time, POL instructed external solicitors in Scotland for the first time and sought to research COPFS about ongoing cases. It was only in October 2015 that POL finally intimated to COPFS that Horizon prosecutions were no longer considered to be sustainable.
He comes on to discuss the duty of COPFs after conviction, where things get particularly concerning for them:
Section 137 of the 2010 Act provides that: "Where the prosecutor becomes aware of relevant information after conviction, that information must be disclosed to the convicted person as soon as practicable."
This duty was acknowledged by Mr Donnelly at paragraphs 7 to 12 of this witness statement, and by David Teale in his oral evidence, that's INQ00001120 at page 6, but wasn't further addressed.
COPFS appears to accept that it knew of concerns about the reliability of Horizon in 2013, yet no attempt appears to have been made to consider the implications for convicted persons, such as Mrs Sinclair, and the Crown's duties under Section 137. In his evidence, David Teale said that he was not asked to report back on any live cases to the Crown's Head Office. That's at page 10 of the same reference given.
No attempts, he says. That is a damning claim.
He points out that the time period from then until the first quashed convictions was 10 years. He moves on to discuss a claimed superiority of Scottish criminal justice. The corroboration rule and invite the Inquiry to consider,
to what extent did the corroboration requirement act as a safeguard against wrongful conviction?
In the Scottish system, nobody can be convicted of a crime based on a single source of evidence alone. Where there is a strong primary source of evidence, however, all that is required is something that provides an independent check, evidence that is at least capable of supporting that primary source.
Corroboration is often presented as a significant safeguard for accused people and yet here it appeared that the assumption that evidence from a computer system was inherently reliable meant that very little was then thought to be required to corroborate it and, in particular, to corroborate the fact that a crime had been committed, that money had disappeared.
In the case of William Quarm, which the Inquiry considered, corroboration apparently came from admissions…. In the case of my client, Ms Sinclair, the court relied on, essentially, her unwillingness to accept that any money had gone missing, her failure to make a report to the authorities, and so forth…
It would appear that the existence of what might be termed "technical corroboration" was seen as being good enough in the face of this inherent acceptance of the reliability of a computer system and that, as a result, there was no need for COPFS to look any further.
So in conclusion, these are my submission matters which are critical for those affected in Scotland.
Aye, and England and Wales too, which I will come to soon if I can.