The High Court of Justiciary has quashed six convictions of former sub-postmasters in respect of various offences of dishonesty arising between 2004 and 2013, in all of which evidence of shortfalls in accounting was provided by the Horizon system.

The appeals were heard by the Lord Justice Clerk, Lady Dorrian, together with Lord Matthews and Lord Armstrong. While the Crown ultimately conceded in each appeal, it was considered by the court that, in view of the likelihood of further referrals by the SCCRC, it would be helpful to explain the relevant factors in the making of the Crown concessions and the court’s manner of giving effect of them.

Prejudicial Circumstances

Following the decision in Bates and others v Post Office Ltd (2019) and subsequent investigation of the Horizon system, the Scottish Criminal Cases Review Commission commenced an investigation of Scottish prosecutions of sub-postmasters in September 2020, ultimately obtaining the names of over 80 individuals who may have been prosecuted on the basis of Horizon evidence. Six of these convictions were referred to the court in November 2022.

Mr Quarm, the first appellant, died in 2012, with the court granting leave for his widow to bring the appeal. In his case, it was submitted that his plea of guilty was tendered under prejudicial circumstances, as the author of a forensic accounting report he instructed opined that the Horizon system was “watertight”. Mr Smith, who also pled guilty to embezzlement, submitted that his plea was tendered under real error and that his prosecution violated his Article 6 ECHR right to a fair trial.

Ms Sinclair, who was convicted following trial, advanced grounds based on fresh evidence and oppression, having been denied an opportunity to present objectively exculpatory evidence. Ms Smith relied in the main on the grounds advanced for Mr Quarm and Mr Smith and added that her plea was tendered under duress.

The Crown considered the cases of Mr Thomson and Ms Kloosterhuis, the latter of whom was the only appellant to have received a custodial sentence, to not be pure Horizon cases, with Ms Kloosterhuis in particular having admitted to using Post Office funds to pay bills for the shop and petrol side of her business. Both advanced grounds of oppression and prejudicial circumstances.

 

Cases Speak For Themselves

Lady Dorrian, delivering the opinion of the court, began by noting: 

“We agree with the Crown that the trial in any case in which the Horizon evidence was essential to conviction, whether as the primary evidence or as essential corroboration, cannot be considered to have been fair. Not all of the present appeals were accepted to be Horizon cases. Ultimately, the Crown conceded even those which it did not accept were Horizon cases, primarily for public interest reasons.”

On the first four appeals, she added: 

“The four pure Horizon cases largely speak for themselves. They are all cases in which the Horizon evidence was central to conviction, and come within the third specific ground identified by the SCCRC, that the Horizon system was so inherently unreliable that any conviction reliant upon evidence deriving from it must be viewed as tainted by unfairness.”

Turning to the two cases not considered purely Horizon cases, Lady Dorrian said: 

“[Mr Thomson’s] case could be distinguished on the basis that he made unqualified admissions. Nonetheless it was conceded that there had been a miscarriage of justice. The Horizon evidence was very significant in the case. Mr Thomson’s admission had weak evidential value.”

She concluded: 

“Issues were raised on behalf of Kloosterhuis by her solicitor and nothing appears to have been done thereafter. In both these cases the weakness of the non-Horizon evidence meant that the problems with the Horizon evidence were of real significance. For the reasons stated by the Crown we consider the concession that these two appeals should succeed was also well made.”

All six appeals were therefore allowed, with the appellant’s respective convictions quashed.