If, like me, you have watched any of the three days of questioning of former Post Office CEO Paula Vennells over the Horizon scandal, you will have been left in little doubt that, in the wrong hands, corporate leadership can become a blundering and vengeful force. One that sanctions the punishment of the innocent, while never properly interrogating the motives of those our national poet Burns called the unco guid.
Through the bouts of sobbing and serial forgetfulness, this one-time short-listed candidate to be Bishop of London never seems to have got her head round the capacity of Fujitsu’s Horizon software, controlling the business accounts of some 11,500 local post offices across the UK, to be manipulated by third parties including its Japanese supplier. So hundreds of sub-postmasters and mistresses who took those branches on as small businesses found themselves being prosecuted for fiddling the books.
Some were fined. Others went to jail. But now, in the rush to complete business before the House of Commons shut down for next month’s general election, recently introduced legislation — the Post Office (Horizon System) Offences Bill — has been rushed though all its parliamentary stages and is already law. Designed to cover England, Wales and Northern Ireland, but not Scotland, it quashes convictions and opens the door to financial redress. Scotland’s devolved government wanted to be included in that same measure.
But the UK government decided that because of Scotland’s “historically separate legal jurisdiction” and the “unique role” of the lord advocate, Crown Office and Procurator Fiscal service in prosecutions north of the border that the approach to overturning Post Office convictions here would “most appropriately” be “determined, delivered, and scrutinised by the Scottish government and the Scottish parliament”.
That separate legislation is already making its way through Holyrood. It has the same title, with the addition of Scotland in brackets, as the statute that’s now law in the rest of the UK. It is, as one Tory MSP has claimed, “largely a copy and paste job”. But it is already provoking qualms from Scotland’s legal establishment. As the Times reported, Roddy Dunlop KC, dean of the Faculty of Advocates, argues that the solution of Horizon scandal “should have been left with the courts”.
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Dunlop also claimed: “For the legislature to arrogate to itself the power to overturn convictions is inconsistent with the separation of powers, and in my view a misstep.” He is not alone. Back in January, the lord advocate, Dorothy Bain KC, told MSPs: “The Crown Office and Procurator Fiscal Service is the only public prosecution service in Scotland. It acts independently and makes prosecutorial decisions in the public interest. It receives reports of alleged offences from more than 70 investigative agencies, including the Post Office. The relationship between a prosecution authority and an investigating agency must be based on absolute candour and trust.”
But she went on to admit to the Conservative MSP Sharon Dowey: “In the period from 2013 to 2015, the Crown Prosecution Service in Scotland was simply not aware of the difficulties with the Horizon system because of the lack of disclosure and revelation by the Post Office. As I have pointed out, the Post Office is a specialist reporting agency. For many decades, it has been one of the oldest reporting agencies in this country. It was a trusted organisation with an established reputation as one of the most successful Government agencies in our country. Prosecutors were entitled to take at face value its repeated assurances that the Horizon system was safe.”
But the simple truth is that they are not entitled to take repeated assurances at face value. Perhaps lawyers have prospered too much by being advocates, in law, for all strands of humanity from the strictly law-abiding to incorrigible villains. But from lord advocate to defending the indefensible, practising law gets easier if you can sustain the mantra that the law always knows best. So when Dunlop, on behalf of his faculty, was fretting about that misstep was he simply acting, like any shop steward, to protect his legal fraternity?
When politicians coalesce over what’s to be done about this Post Office scandal or that contaminated blood outrage, we could all do with some more-measured intervention from the lawyers among us. There is already a measure of that self-awareness. When Dunlop intervened on behalf of his fellow advocates, he admitted: “I do, however, understand that this view will not be a popular one.” Spot on, Roddy.
Alf Young is a visiting professor at Strathclyde University
