Douglas J. Cusine: What ails the Crown Office?
Now that the dust has not settled on the Horizon scandal in Scotland as it relates to convictions of sub-postmasters, it is useful to recall what the lord advocate said in the Scottish Parliament on 16 January, writes former sheriff Douglas J. Cusine.
“In September 2020, supported by Crown Office, and with information provided by the Post Office, the SCCRC wrote to 73 individuals who may have been convicted in Scotland on the basis of unreliable evidence from the Horizon system with the purpose of inviting an application for their case to be reviewed. To date, to the best of my knowledge, 16 individuals have come forward to the SCCRC. This has resulted in 7 referrals to the High Court, 4 of which have resulted in convictions being overturned.
“It will be noted that, of those written to, only a small portion of people have come forward to identify themselves as possibly affected. This may be indicative of the fact that not every case in which Horizon evidence is present will represent a miscarriage of justice.”
Note “may be indicative”. Of the total number who may have been convicted on the basis of “unreliable evidence” (73), the number who have approached SCCRC is very small (16). The lord advocate’s position seems to be that the others may not have been wrongly convicted. If that is her position, like the convictions, there may be some doubt hanging over its validity. Consider the following examples. Some may have decided just to put the whole matter behind them and if so, they have decided not to go to SCCRC. People in England have done just that. Some letters may not have reached the intended recipients, as it is not unknown for letters to go astray (unless it is claimed the Royal Mail, like the Post Office, is infallible).
Some people may have moved; some may have died; some may not be in a fit state to deal with the issue. Some may have concluded that there is some wrong with the “justice system” and do not wish to have anything further to do with it, if they can. The legislation setting up SCCRC does not say who can go to it if they feel that they have been wrongly convicted, but the Scottish government’s website says “If you…” In other words, the position seems to be that only those persons who feel that they have been wrongly convicted can go to SCCRC. If that is so, relatives of deceased persons have no locus, nor do those with a power of attorney and certainly not a neighbour of someone who has no known relatives, or relatives who take nothing to do with the “criminal”.
I would respectfully suggest that the stance taken by the lord advocate, which seems to be “if you think you have been wrongly convicted, you must go to SCCRC”, is seriously flawed.
If the Crown Office and Procurator Fiscal Service (COPFS) knows of cases where the conviction depended entirely or materially on the now-discredited Horizon system (and the lord advocate admitted in her statement that COPFS had been misled by the Post Office), it would be iniquitous to sit back and wait for people who can come forward to do so. It may be that COPFS’s position is: “If they have not come forward, they must be guilty, or if they are not, ‘hell mend them’.” As I have said elsewhere, it does not seems to me compulsory to go to SCCRC to have a wrongful conviction overturned; after all, the High Court’s function is so deal with those who argue that they have been wrongly convicted in a lower court. The Post Office cases are different, but there is the nobile officium, an equitable power to put right matters which cannot be put right using the traditional methods.
Were the lord advocate, herself, to take steps to have the convictions of those who were convicted on the basis of the Horizon system overturned without resort to the SCCRC, that would avoid delay and avoid the Scottish Parliament taking the novel and dangerous step of legislating. What’s the problem, lord advocate? Do tell us.