Supreme Court Forces Correction on Scots Judges: Fair Trials Must Come Before Fashion

A landmark judgment today from the UK Supreme Court has corrected a flawed common law approach and clarified how Scottish courts must handle sexual-offence trials...

Editorial note, August 2026: This article was published on the day of the Supreme Court judgment. Some of its original language characterised the decision too broadly. The Court held that the approach developed by Scottish courts was liable to result in Article 6 violations and had to be modified. It found no Article 6 violation in Daly or Keir themselves, and both appeals were dismissed. The article has been revised to reflect that distinction.

Scotland’s “rape shield” laws — Sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995, were created to protect complainers from unfair and invasive questioning. But for years, judges have applied them so rigidly that critical defence evidence has been kept from juries altogether.

The UK Supreme Court held that the approach developed by Scottish courts was liable to result in violations of Article 6 and therefore had to be modified. It did not find an Article 6 violation in either Daly or Keir themselves, and both appeals were dismissed.

What the Court Decided

The Court explained that sections 274 and 275 form a unified statutory scheme and must be applied alongside the common law of relevance.
It held that the approach developed in Scottish appellate authority had become too restrictive and was liable to exclude relevant defence evidence.

Excessive restrictions can prevent an accused person from presenting an effective defence and can therefore produce Article 6 violations.
Courts must apply the statutory tests case by case, balancing the protection of complainers with the accused’s right to a fair trial.

What Changes in Practice

• Evidence cannot be excluded solely because it concerns a complainer’s behaviour before or after the alleged offence.
• Relevance is an essential threshold, but evidence bearing on consent or credibility is not automatically admissible.
• Courts must apply the common law and the statutory scheme in sections 274 and 275, including the interests-of-justice assessment and the accused’s right to a fair trial.
• The judgment may support a challenge where potentially important evidence was excluded, but the effect on any conviction requires case-specific analysis.

Why This Matters

For years, critics have argued that the Scottish courts had turned 274/275 into a “shield for the state” rather than a protection for the vulnerable.
This ruling restores balance.
It recognises that protecting one person’s dignity cannot mean silencing another’s defence.

The Supreme Court has reminded Scotland’s judges that justice is not achieved by hiding evidence — it is achieved by allowing truth to be tested fairly in open court.

In Short

“Rape shield laws are vital, but they cannot become walls that block justice.”

This judgment is one of the most significant human-rights corrections to Scottish criminal practice in a generation.

The judgment may be relevant to concluded cases in which potentially important defence evidence was excluded under the approach criticised by the Supreme Court. It does not render previous convictions automatically unsafe or impose a general requirement to reopen them. Any challenge requires case-specific examination through the appropriate appeal or SCCRC process.