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WRITTEN SUBMISSION TO THE CHAIR
by
LIVINGSTONE BROWN,
on behalf of
CORE PARTICIPANT, SUSAN SINCLAIR
1. This written submission is presented to the Chair following conclusion of Phases 5, 6 and 7 of
the Inquiry, on behalf of Core Participant, Susan Sinclair. It is intended that this will provide
the background for a closing oral submission.
Introduction
2. Susan Sinclair is a former subpostmaster who ran the Stuartfield Post Office near Peterhead,
Aberdeenshire. She was wrongfully convicted of embezzlement at Peterhead Sheriff Court in
2004. She was the first to successfully have her conviction quashed by the Appeal Court in
Scotland (which only happened as recently as September 2023) and, to date, is the only
subpostmaster identified in Scotland to have a conviction after trial overturned on appeal.
3. Following the successful appeal of her conviction in September 2023, Susan Sinclair was
granted Core Participant status in the Inquiry in November 2023, on the basis that her
experience of the audit, investigation and criminal prosecution, which materialised after a so-
called ‘shortfall’ was identified by the Horizon IT system, was different from those criminally
prosecuted by the Post Office in England and Wales. Rather, she was prosecuted by the
independent Scottish public prosecutor, the Crown Office and Procurator Fiscal Service
(‘COPFS’) following the submission of a Standard Prosecution Report (‘SPR’) by Post Office
Limited (‘POL’) in its capacity as a recognised Special Reporting Agency (‘SRA’) in Scotland.
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Her involvement in the Inquiry is, therefore, made even more significant by her being the only
Core Participant to specifically represent the lived experience in Scotland, having been
prosecuted under the Scottish legal system and in accordance with the principles of Scots
criminal law. This submission therefore draws to contrast the lived experience of those who
fell victim to the Horizon IT scandal in Scotland, based on the evidence of the most recent
phases of the Inquiry, in order to assist the Chair in fulfilling the Inquiry’s Terms of Reference,
and particularly in ‘ensuring there is a public summary of the failings which occurred with the Horizon
IT System at the Post Office leading to the suspension, termination....prosecution and conviction of
subpostmasters’1, It is presented with a view to assisting the Chair with his final assessment of
ultimately what went wrong and the lessons that must be learned by all.
4, Whilst this firm's involvement in this Inquiry has been to formally represent Ms Sinclair as a
Core Participant, our experience in the aftermath of the scandal is not only confined to her case;
indeed our firm is currently instructed to represent fifteen separate individuals who have fallen
victim to the actions of the Post Office in varying degrees of severity and who now seek to
claim the compensation to which they are rightfully entitled. Our involvement in the Inquiry
to date has therefore drawn upon the lived experiences of all of those individuals, and upon
recognising that their experience has been different to those who fell victim in England and
Wales, we have been, and remain, committed to ensuring that those affected in Scotland
specifically are given a voice.
5. Inclosing submissions presented orally to the Chair at the conclusion of Phase 4, we sought to
address four key questions:
(a) Did the involvement of COPES, the independent public prosecutor, mean that greater
protection was provided to those facing allegations in Scotland, and if not, why not;
(b) Did POL understand its duties as a Specialist Reporting Agency, and did it discharge
them, particularly in relation to revelation;
(0) Did COPFS comply with its duty of continuing disclosure; and
1 httpsy/www. postofficehorizoninquiry.org.uk/about-inquiry
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(d) To what extent did the corroboration requirement that we have in Scottish criminal
law act as a safeguard against wrongful conviction?
6. Having heard and read the evidence disclosed as part of Phases 5, 6 and 7 of the Inquiry, those
questions are now revisited and addressed in turn in this submission.
Did the involvement of COPFS, the independent public prosecutor, afford greater protection to
those facing allegations, and if not, why not?
7. At the conclusion of Phase 4, we submitted that the involvement of COPFS as the independent
public prosecutor made no practical difference to the outcome in Scotland; it did not offer
greater protection to those facing criminal allegations derived from Horizon evidence or
prevent the scandal from occurring north of the border. Rather, COPFS was reliant on Standard
Prosecution Reports submitted by POL in making its prosecutorial decisions; cases in Scotland
proceeded on the same evidential understanding as elsewhere, without further, independent
scrutiny of POL’s investigations. In his third witness statement, a senior official in COPFS,
Deputy Crown Agent Kenneth Donnelly, confirmed that ‘a summary of the evidence obtained from
the Horizon system would first be provided to COPES within the SPR [Standard Prosecution Report]
provided by POL’2. Given that the ‘Horizon system required a degree of specialist knowledge to
understand the information it provided in its raw form, the POL Reporting Officer would provide a
simplified explanation of the SPR as to what the Horizon evidence was and how this supported the
evidence against the accused’? and that all information contained within an SPR submitted by
POL would be regarded as ‘accurate and true’4. He confirmed that ‘for the process to work properly
the prosecutor requires to be provided with all relevant information in the SPR’S and for ‘many
summary level cases it is not necessary for the prosecutor marking the case to read and examine all the
witn
es statements and/or productions’; indeed ‘it will only be during the course of further procedure,
? WITN10510300 Third Witness Statement of Kenneth William Donnelly, para 70
3 WITN10510300 Third Witness Statement of Kenneth William Donnelly, para 70
4WITN10510300 Third Witness Statement of Kenneth William Donnelly, para 67
° WITN10510300 Third Witness Statement of Kenneth William Donnelly, para 67
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where the accused has pled not guilty at first calling, that all case material will be provided to COPES
by the Reporting Officer’. Thus, the decision to prosecute subpostmasters in Scotland appears to
have been taken by COPFS without any real scrutiny of the underlying Horizon evidence in
the majority of cases, with full trust being placed in POL to accurately summarise and report
all relevant evidence to COPFS.
8. With the benefit of hindsight, only now has it been made clear to COPFS that such full and
trusting reliance on POL was, in fact, misplaced. In its opinion on the first six Scottish Horizon
cases referred by the Scottish Criminal Cases Review Commission, the Scottish Criminal
Appeal Court held ‘the POL investigator submitted an ‘incorrect and misleading’ standard
prosecution report to the Crown’ in the case of Aleid Kloosterhuis’, but this would have not been
clear to COPFS at the time of making its prosecutorial decision, given that, as Kenneth Donnelly
acknowledged, ‘absent any information from POL or elsewhere that the evidence that POL was
submitting was potentially flawed and faced with an admission of guilt and an intention by the accused
to plead guilty, [which appears to have been the case for all 60 Scottish Horizon cases since
reviewed by COPFS, with the exception of Susan Sinclair, which went to trial§], it would not be
considered necessary by the prosecutor to review raw Horizon data’ 9.
9. In such circumstances, the involvement of an independent public prosecutor did not afford
greater protection to those facing criminal allegations in Scotland; rather its reliance on POL as
the sole provider of information to support such criminal charges effectively meant that its
involvement was essentially limited to acting in the capacity of ‘agent’, rather than affording
the independence that one might have expected would arise from its involvement. Even where
doubts and queries appear to have been raised by prosecutors involved in the consideration of
individual Horizon cases in Scotland prior to prosecution, they deferred to POL investigators
(in most cases, Robert Daily specifically), who were able to resolve any doubts as to the
© WITN10510300 Third Witness Statement of Kenneth William Donnelly, para 68
7 RLIT0000200 Opinion of the Court in the Appeals by William Quarm, Susan Sinclair, Colin Smith, Judith
Smith, Robert Thomson and Aleid Kloosterhuis [2024] HCJAC 15, para 31
5 WITN10510300 Third Witness Statement of Kenneth William Donnelly, para 72
° WITN10510300 Third Witness Statement of Kenneth William Donnelly, para 84
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reliability of Horizon evidence! or who would cite the difficulties in obtaining further
evidence to support the alleged criminality which seem to have been accepted without further
question”. It appears that only once specifically called upon in 2014 to defend the accuracy of
the Horizon system as a potential Crown witness did Robert Daily acknowledge to prosecutors
that he could not 2. Indeed, in her statement to the Scottish Parliament on Horizon Information
Technology Prosecutions on 16 January 2024, the Lord Advocate confirmed that ‘when it came
to the reporting of Horizon cases, [the Post Office] professed to be an expert in the Horizon system and
its operation’ and that ‘its experienced staff provided statements explaining the operation of Horizon
and they spoke to how it was used to commit criminal offences’ 13. From the evidence available to the
Inquiry, it appears there was very little independent scrutiny by COPFS in its consideration of
the material provided to it by POL (including no real scrutiny of the Horizon output), with its
role offering little benefit in providing the extra layer of protection that one might have hoped
for. It is crucial that this point is recognised in the Chair’s consideration of the removal of POL’s
prosecutorial authority and the deference of the prosecution of POL criminal cases to the
Crown Prosecution Service in England and Wales.
10. Similarly, one might have hoped that the involvement of COPFS, as a single independent
prosecutor with appropriate overview of POL criminal cases reported to it in Scotland, would
have identified the same issues arising in various different cases, such that patterns and
similarities could be established. However, it appears that the benefit that this might have
offered was negated by such cases being considered by individual prosecutors sitting in local
offices, dealing with local cases. There was no central bank of cases reported by POL to COPFS
considered by the same team with appropriate oversight and corporate knowledge of other
cases involving a similar set of circumstances. This is explained by Procurator Fiscal Depute,
Angus Crawford, where he states ‘within COPFS each individual office marks their own cases which
merit proceedings...For example, a Procurator Fiscal Depute in Aberdeen could be marking a Post Office
*° WITN11690100 First Witness Statement of Malcolm MacDonald MacLeod, paras 12-14
1 WITN11770100 First Witness Statement of Angus Crawford, para 13(ii)
12 WITN11770100 First Witness Statement of Angus Crawford, para 12 (ix)
13 Official Report, Meeting of the Scottish Parliament, 16 January 2024 (Lord Advocate’s Statement on Horizon
Information Technology Prosecutions) !
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case similar to the cases I marked in Glasgow. If the PF Depute marking the Aberdeen case was not aware
of any potential Horizon IT issues, and these issues had not been highlighted in the [Standard
Prosecution] report, the marking depute would accept the Horizon evidence as being accurate. Assuming
there was a corroborated case, usually the Horizon evidence and the accused admissions, that case would
likely be prosecuted’,
11. With prosecutors effectively working in silos, patterns could not be established where the same
issues arose time and time again. Notwithstanding the question of whether or not individual
accused persons raised concerns about the accuracy of the Horizon evidence relied upon, had
such concerns been forthcoming, they would be dealt with on an individual basis by individual
prosecutors sitting in individual local offices; there was no opportunity to piece these together
in order to view such concerns within a wider context. Even by July 2013, which COPFS
identifies as the earliest point that it first became aware of concerns with the Horizon IT system
at an institutional level, COPFS Policy only contacted those prosecutors directly involved in
cases which were, at that time, being reviewed by POL (or indeed by lawyers instructed on
POL’s behalf), and relevant information and direction was only communicated to a targeted
group of individual prosecutors "8. One key potential benefit of COPFS being a single public
prosecution body - oversight of similar cases across the country - was therefore lost.
Did POL understand its duties as a Specialist Reporting Agency, and did it discharge them,
particularly in relation to revelation?
12. In our submissions presented to the Chair at the conclusion of Phase 4 of the Inquiry, reference
was made to the statutory duty of revelation which POL was required to comply with, in its
role as a Specialist Reporting Agency under the Criminal Justice and Licensing (Scotland) Act
2010 (the ‘2010 Act’). The legislation requires that, as soon as practicable after the first
appearance in court, the investigating agency (in this case, POL) must provide the prosecutor
** WITN11770100 First Witness Statement of Angus Crawford, para 13(ii)
*8 WITN10510300 Third Witness Statement of Kenneth William Donnelly, paras 126-133
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with details of all the information that may be relevant to the case for or against the accused
that the agency is aware of or was obtained in the course of investigation the matter 1°.
13. Whilst concerns relating to the reliability and accuracy of the Horizon system were relayed by
POL to COPFS around 4 and 5 September 2013, it appears that these were downplayed at this
meeting and the true extent of the problems with Horizon was not disclosed to COPFS until a
much later date. In his witness statement, Simon Clarke describes the meeting between POL
and COPFS representatives (Paul Miele and Paul Beaton), which he attended with Martin
Smith and Jarnail Singh on 4 and 5 September 2013. He states that ‘the meeting had been called for
by POL because the Procurator Fiscal had informed POL that all SPM prosecutions in Scotland were to
be terminated...on the basis that, as POL were then unable to prove that Horizon was wholly reliable
and were concerned that a conviction could potentially be unreliable’ ’. Prior to this meeting, a
representative of COPFS’s Policy Unit had been contacted in relation to concerns arising with
Horizon on 14 May 2013, and in the months that followed, was informed as to the concerns
arising from Second Sight’s review of the Horizon IT system, and the Helen Rose Report".
There appears to be no evidence to suggest that COPFS was made aware, or obtained a copy,
of Simon Clarke's advice dated 8 July 2013 at that stage; rather a redacted version of this was
only disclosed to COPFS in 20231°. In his witness statement, Mr Clarke says that ‘POL were
concerned that an intention to stop all cases, rather than just those where evidence of alleged misconduct
derived from Horizon would have raised a considerable public relations storm for POL’, which
provided the basis for POL’s meeting with COPFS. Ultimately, POL was successful in
persuading COPFS to deviate from its intended course of action in terminating all POL criminal
prosecutions at this point, and rather to favour an individualised review of pending Scottish
cases in light of this information. The information provided by POL to COPFS at this meeting
extended only to the findings of the Second Sight and Helen Rose reports”! and the meeting
16 Criminal Justice Licensing (Scotland) Act 2010, s.118 & s.120
17 WITN08130100 First Witness Statement of Simon Andrew Clarke, para 58
18 WITN10510300 Third Witness Statement of Kenneth William Donnelly, paras 31-34
19 WITN10510300 Third Witness Statement of Kenneth William Donnelly, para 86
20 WITN08130100 First Witness Statement of Simon Andrew Clarke, para 58
2 COPF0000233 Minute of meeting taken by COPFS Policy PFD
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passed without mention of Simon Clarke's discrediting of Gareth Jenkins; nor was it made clear
that there were concerns as to the reliability of Legacy Horizon, which had been in use from
2000 to 2010. Whilst acknowledging that further forensic analysis was required, POL advised
that, upon review of all live cases, the defects identified in the reports did not play a part in live
Scottish cases 72.
14. The motivations behind the manner in which POL relayed the issues with the Horizon system
to COPFS at this meeting in 2013 are clearly questionable: it was concerned with a ‘considerable
public relations storm’*3 should COPFS decide to suspend all POL prosecutions in Scotland.
Meanwhile it was commercially incentivised to recover payment of shortfalls from
subpostmasters under criminal confiscation proceedings which would follow a criminal
conviction; it had engaged in a campaign under the Network Transformation Programme to
tighten the contractual obligations imposed on subpostmasters in terms of the requirement to
repay any shortfalls; and was wholly concerned as to the maintenance of its reputation in light
of the Royal Mail Group’s Initial Public Offering, as announced on 12 September 201374. The
party line provided by POL at the time was that the issues identified with Horizon were not
systemic and did not impact any live or concluded cases in Scotland. Clearly, this has now
been shown to be incorrect.
15. Upon a further meeting with POL in 2015, COPFS decided to proceed on the basis that all
Scottish cases reliant on Horizon evidence required to be reported to Crown Counsel with a
recommendation for proceedings either not to be taken or be discontinued, which was a
decision taken due to POL’s failure to provide further supporting evidence to speak to the
credibility of the Horizon data”. Notwithstanding this, Procurator Fiscal Depute Angus
Crawford speaks to his involvement in the criminal case against Rauf Akhtar Bashir, which
Crown Counsel only decided not to prosecute in February 2017”,
2 COPF0000233 Minute of meeting taken by COPFS Policy PED
23 WITN08130100 First Witness Statement of Simon Andrew Clarke, pai
2 Transcript of Day 3 of Oral Evidence by Paula Vennells, 24 May 2024
25 WITN10510300 Third Witness Statement of Kenneth William Donnelly, para 145
26 WITN10510300 Third Witness Statement of Kenneth William Donnelly, para 157
27 WITN11770100 First Witness Statement of Angus Crawford, para 14 (vi)
16.
17.
18.
19.
20.
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Not only did POL fail to timeously reveal all relevant information and evidence which was
available at the time of its first meeting with COPFS in 2013 (as also acknowledged by Paula
Vennells in her oral evidence to the Inquiry on 24 May 2024), it is remarkable that prosecutors
within COPFS have only, in recent years, discovered the involvement in Fujitsu in the supply
of underlying Horizon data to POL, having previously only had dealings with POL
investigators for this purpose.°
In terms of s.118 and 120 of the 2010 Act, the statutory duty of revelation extends until the
conclusion of the proceedings (such as the recording of a guilty plea or the determination of a
later appeal). The COPFS Guidance on Disclosure of Evidence for Specialist Reporting
Agencies®, published in December 2011, highlights a wider obligation at both common law
and in terms of the Convention:
‘17.1... It must be remembered that the common law and convention law obligations continue to exist
in relation to any new information which comes to light at any stage even after conclusion of proceedings
in terms of the legislation.’
POL must accordingly have been aware that it remained under a duty to reveal to COPFS any
new information that was potentially relevant to any case that it had reported, regardless of
whether or not proceedings remained live. There was no evidence that it did so.
With reference to the Chair's request for submissions as to the duty of POL to disclose the
advice of Simon Clarke to convicted subpostmasters and/or other persons convicted on the
basis of Horizon data, under the Scottish system POL plainly had a duty to reveal that
information to COPFS, which in turn had a duty to disclose it to individuals who were facing
or had been convicted of allegations based on Horizon data.
In light of the evidence that has emerged as a result of this Inquiry, on 16 May 2024 Scotland’s
most senior Law Officer, the Lord Advocate, publicly announced that POL was now stripped
28 Transcript of Day 3 of Oral Evidence by Paula Vennells, 24 May 2024}
29 WITN11770100 First Witness Statement of Angus Crawford, paras 10 & 13(iii)
30 https://www.copfs.gov.uk/publications/disclosure-of-evidence-guidance-for-specialist-reporting-
agencies/html/#revelation-in-solemn-cases-and-disclosure-sch
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of its role as a Specialist Reporting Agency in Scotlands", This was deemed by Paula Vennells
to be a ‘very appropriate response’*2, and similarly, this did not come as a ‘great surprise’ to Nick
Read, who was of the view that this was ‘in keeping with the direction of travel of the last five
years’8, John Bartlett similarly confirmed in terms that POL ‘did not want to have that status
anymore’ #4, Indeed, the Lord Advocate has confirmed that work is now underway in Scotland
to strengthen the guidance and safeguards that exist to endure that all Specialist Reporting,
Agencies abide by the essential duties of revelation and candour in Scotland, the clear
implication being that POL did not. It is submitted that POL plainly failed to discharge its
duties of revelation; the evidence presented to this Inquiry has not established whether it even
recognised those duties existed.
Did COPFS comply with its duty of continuing disclosure?
21. Under the Scottish system, information is disclosable* if:
(a
it would materially weaken or undermine the evidence that is likely to be led by the
prosecutor in the proceedings against the accused,
(b
it would materially strengthen the accused's case, or
aS
it is likely to form part of the evidence to be led by the prosecutor in the proceedings
against the accused.
22. COPFS has a duty to disclose such information to accused persons, as soon as reasonably
practicable, throughout the currency of proceedings and beyond. Section 137 of the Act
specifically obliges COPFS to disclose such information to those who have already been
convicted. Where those convictions were based, at least in part, on evidence drawn from the
31 Official Report, Meeting of the Scotti:
Information Technology Prosecutions) i
32 Transcript of Day 3 of Oral Evidence by
33 INQ00001195 Transcript of Day 3 of Oral Evidence by Nick Read, 11 October 2024
34 INQ00001198 Transcript of Oral Evidence by John Bartlett, 17 October 2024
it, 16 May 2024 (Lord Advocate’s Statement on Horizon
% Criminal Justice and Licensing (Scotland) Act 2010, s.121(3)
10
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Horizon system, information capable of undermining the reliability of that evidence plainly
satisfied the test for disclosure.
23. Despite, on its own account, COPFS becoming institutionally aware of the concerns about the
Horizon system by 2013, there is nothing to suggest that any effort was made to disclose that
information to those who had already been convicted.
24. In his statement, Deputy Crown Agent Kenneth Donnelly confirmed that there is no evidence
to suggest the Second Sight or Helen Rose reports were disclosed to accused or convicted
subpostmasters or to the courts, following receipt of these by COPFS in 2013; these reports were
only recently disclosed within the context of proceedings before the Appeal Court in
2022/2023, and to the handful of subpostmasters whose cases were considered thereby..*° This
is despite the Horizon Issues Judgement of Mr Justice Fraser in the case of Alan Bates and
others, and related press coverage in 2019, and despite knowledge of individual prosecutors
that had, themselves, found the Horizon system to be ‘wanting’, or had personal knowledge
of the concerns surrounding Horizon from around 2013, when the ‘internet was awash with
information’ documenting such concerns*8.
25. Curiously, a view was said to have been taken upon receipt of the Second Sight and Helen Rose
reports in 2013, that the reports did not meet the statutory test for disclosure and revelation,
and reliance was placed solely upon reassurances from POL that the bugs, errors and defects
identified in these reports had not impacted live or concluded cases. Given that, at the time of
POL’s disclosure of these reports, further action was still to be taken by Second Sight and
external lawyers, and an independent expert was to be identified, COPFS was content for POL
to instruct a review into past cases, and claimed it had no reason to not to trust POL’s
conclusions. *?
© WITN10510300 Third Witness Statement of Kenneth William Donnelly, paras 113-114
37 WITN11690100 First Witness Statement of Malcolm MacDonald MacLeod, para 21
8 WITN11770100 First Witness Statement of Angus Crawford, para 12 (vi)
38 WITN10510300 Third Witness Statement of Kenneth William Donnelly, paras 106-110 & 124
i
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26. Only now is it acknowledged by COPFS that these reports should have been disclosed to
subpostmasters once the issues with Horizon fully came to light, and that, at the time, COPFS
did not comply with its duty of disclosure *,
To what extent did the corroboration requirement that we have in Scottish criminal law act as a
safeguard against wrongful conviction?
27. In the Scottish system, nobody can be convicted of a crime based ona single source of evidence
alone. The corroboration rule requires a second source. That need not be a second source of
equivalent strength to the first; where there is a strong primary source of evidence, all that is
required is an independent check, something that is at least capable of supporting it.
28. Corroboration is often presented as a significant safeguard for the rights of accused persons. It
provides a balance to other rules that differ from other jurisdictions, such as the ability of juries
to convict by a simple majority, the inability of a trial judge to exclude evidence they consider
to be unreliable or incredible, and - at least until the UK Supreme Court's decision in Cadder in
20104! - the absence of any right on the part of an individual to be represented by a solicitor
during a suspect interview.
29. As set out above, only one of the Scottish cases reviewed by COPFS appears to have proceeded
to trial: that of Susan Sinclair. Every other case was resolved by a plea of guilty. It would be
wrong to conclude, however, that the corroboration requirement only featured in the Sinclair
case. In many cases, decisions to plead guilty would have been based upon an assessment by
legal representatives of the evidence likely to be relied upon at trial and the prospects of
securing an acquittal. That will necessarily have included an assessment of whether the
charges were supported by corroborated evidence.
30. In marking cases, COPFS will have considered the corroboration available. In many cases, that
will have come from admissions supposedly made by suspects when confronted by
4° WITN10510300 Third Witness Statement of Kenneth William Donnelly, para 166
41 Cadder v Her Majesty’s Advocate [2010] UKSC 43
12
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investigators“, In the case of Susan Sinclair, the trial sheriff said that he relied upon her
unwillingness to accept that any money had gone missing - essentially, her persistent denials
that she had done anything wrong".
31. Ultimately, there is no reason to believe that the corroboration rule provided any greater
protection for those wrongly accused in Scotland.
Conclusion
32. Conclusions will be set out during the forthcoming oral submission.
42 INQ00001120 Transcript of Oral Evidence by David Teale, 25 January 2024
43 COPF0000052 Report by Trial Sheriff (Sheriff Garden), p.12
13