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…

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.

Today, the UK Supreme Court ruled that this approach breaches the right to a fair trial under Article 6 of the European Convention on Human Rights.
The judgment, delivered unanimously, forces Scotland’s judiciary to change course immediately.

What the Court Decided

Sections 274 and 275 must now be read as a single, balanced system.
The Court found that the High Court of Justiciary’s long-standing “common-law” limits — which blocked most evidence about a complainer’s behaviour, motives, or credibility — went too far.

Such blanket exclusions, the Court said, make it impossible for some accused people to defend themselves properly.
Judges must now conduct a balancing test: they must weigh the complainer’s right to dignity against the accused’s right to present a full defence.

What Changes in Practice

• Defence evidence can no longer be dismissed simply because it concerns the complainer’s behaviour, before or after the alleged offence.
• Relevance is the key test — if it goes to the question of consent or credibility, it should be heard.
• Courts must justify any exclusion by showing that the harm of admitting it outweighs its value to the truth.
• Appeals may now succeed where evidence was wrongly kept from juries.

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.
For those wrongly convicted under an overly restrictive system, it opens a genuine path to appeal.

The decision now places a duty on trial judges, prosecutors, and defence counsel to review how evidence is handled in ongoing and past cases. For campaigners and those fighting wrongful convictions, it may mark the first real opportunity in years to seek justice under a fairer standard.