Post Office Horizon cases: letters to UK Government

Post Office Horizon letter: 22 February 2024

To: Kevin Hollinrake MP, Minister for Enterprise, Markets and Small Business
From: Angela Constance, Cabinet Secretary for Justice and Home Affairs

Thank you for your letter of 22 February setting out the UK Government’s proposed approach to overturning the convictions of wrongly convicted sub-postmasters and sub-postmistresses and for calling to explain the UK Government’s position.

As I set out during our call, I remain firmly of the view that the best way to ensure that a solution that is quick, fair and treats all affected sub-postmasters across the United Kingdom equally, is for Westminster to legislate for the whole of the UK to overturn the convictions of all those affected.  I would therefore urge you to reconsider the scope of this legislation so that it can apply across the UK.

The cause of these wrongful convictions, wherever they occurred, is the defective Post Office Horizon IT system and the failure of the Post Office to disclose relevant information to prosecutors.  This has infected cases across the UK. Responsibility for overseeing the Post Office is of course a matter  for the UK Parliament and Government.

It is important that convictions in Scotland are treated in the same way as those in the other jurisdictions of the UK, not least in terms of ensuring that those affected are able to access compensation, as you have recognised.  The most effective way in which to ensure this parity of treatment would be to use the same legislative vehicle for all cases.  

If separate legislation is required to be introduced in the Scottish Parliament, it will have to closely mirror whatever approach is taken in the proposed UK Bill for the reasons set out above.

It is therefore inevitable that any Scottish legislation to reverse convictions of affected sub-postmasters has to take account of the criteria in the UK Bill and it will not be possible to introduce it in Parliament until after the UK Bill has been introduced. This will very likely result in Scottish sub-postmasters having to wait longer to have their convictions overturned than would be the case if a single Bill legislated for the whole of the UK.

As we have not yet had sight of the detail of the proposed UK Bill, it is also not clear to us whether the process that it will put in place to quash convictions will be fully within the devolved competence of the Scottish Parliament.  In particular, if there is any requirement for information to be obtained from the Post Office in order to determine a person’s eligibility for compensation, there may well be issues as regards the Scottish Ministers and Scottish Parliament’s powers to compel the Post Office to provide such information.  If this was needed for the Bill to work effectively, it appears to us that it may require the UK Government to seek to pass an order under Section 104 of the Scotland Act 1998, which risks introducing further delay for affected Scottish sub-postmasters.  

In this regard, I am aware from discussions with the Crown Office and Procurator Fiscal Service and Scottish Criminal Cases Review Commission that delays in th Post Office providing information about cases being appealed to the High Court has been a significant factor in delaying consideration of appeals against convictions.

I accept that any decision on whether to legislate for Scotland is a matter for the UK Government. I would however highlight that there are well established processes for UK legislation applying in devolved areas with consent and I see no immediate barrier as to why this could not be the case for this issue. I am committed to ensuring that Scottish sub-postmasters have swift access to justice and insofar as possible are not disadvantaged relative to their counterparts in England and Wales.  

I welcome the commitment you make in your letter that your team will continue to offer support to Scottish colleagues as the UK Bill is being developed. I would emphasise that, in order to minimise any delay in legislating to overturn convictions in Scotland, it would be very helpful if your officials could continue to liaise with Scottish Government officials as the legislation is developed and, in particular, if they could share in confidence the draft legislation as it is being developed.  

As we discussed in our call, I would also very much welcome an in-person meeting in the near future.

I am copying this letter to colleauges in Northern Ireland.