Section 275
The exception, how it works, and why it matters
Section 275 of the Criminal Procedure (Scotland) Act 1995 is the exception to the general prohibition created by section 274. It is the mechanism through which a court decides whether evidence that would otherwise be excluded can be placed before the jury. It is one of the most consequential and most contested provisions in Scottish criminal law and one that has been the subject of scrutiny at the highest judicial level.
This page explains what section 275 requires, how applications work in practice, what the courts have said about how it should be applied, and why it matters so profoundly to the fairness of serious sexual offence trials in Scotland.
What section 275 does
Section 275 allows a court to permit evidence or questioning that would otherwise be prohibited under section 274 — but only where specific conditions are met and only after an application has been made, considered and decided before the trial begins.
It is not a general discretion to admit whatever evidence a court considers relevant. It is a structured exception with defined criteria that must be satisfied before prohibited evidence can be admitted.
The existence of the exception reflects a recognition that the general prohibition in section 274, however well-founded in principle, will in some cases prevent genuinely relevant evidence from reaching the jury. Section 275 is Parliament's attempt to identify the circumstances in which that outcome is unjustifiable and to provide a mechanism for addressing it.
The conditions for admission
For evidence to be admitted under section 275 a number of conditions must be satisfied.
The evidence must relate to a specific occurrence or occurrences of sexual or other behaviour — not general character evidence or vague assertions about the complainer's sexual history.
The evidence must be relevant to a matter in issue at the trial — genuine probative value in relation to something the jury actually has to decide.
Even where evidence is relevant it will only be admitted where its value to the defence outweighs the potential harm to the complainer of having it placed before the jury.
The application must be made before the trial and considered at a preliminary hearing or first diet. Evidence cannot be introduced during the trial without prior authorisation.
How applications are made
A section 275 application is a formal document lodged with the court before the trial begins. It must set out in detail the evidence or questioning that is sought to be admitted, the specific occurrence or occurrences it relates to, why the evidence is relevant to a matter in issue, and why its probative value outweighs any risk of prejudice to the complainer.
The application is considered by the court at a hearing at which both the Crown and the defence make submissions. The complainer has a right to be represented at this hearing and to make submissions about whether the application should be granted.
The court then decides whether to grant or refuse the application, either in whole or in part. That decision is made before the trial begins and determines the evidential landscape within which the trial will take place.
This advance determination is significant for several reasons. It means that defence agents must identify at an early stage what evidence they consider necessary and must present a coherent legal argument for its admission. It means that the decision is made without the full context of how the trial will unfold. And it means that if the application is refused the excluded evidence is gone from the trial entirely, regardless of how significant it might have been in practice.
The consequences of a refused application
When a section 275 application is refused the evidence to which it relates cannot be led at trial. This is not a discretionary matter. The prohibition is absolute once the application has been determined.
When an application is refused the evidence cannot be led at trial. Once the application has been determined the exclusion is final.
The jury may never hear context that bears directly on credibility, reliability, or matters that would allow a fair assessment of what actually happened.
Where the defence case depends significantly on excluded evidence the trial proceeds on a fundamentally uneven evidential basis.
That outcome may be entirely justified in cases where the excluded evidence was genuinely irrelevant or its admission would have caused unjustified harm to the complainer. The concern arises in cases where the excluded evidence was genuinely relevant to a matter in issue and its exclusion prevented the jury from assessing the full picture.
What the Supreme Court said
In November 2025 the UK Supreme Court decided the conjoined appeals of Daly v HM Advocate and Keir v HM Advocate [2025] UKSC 38.
The Court held that the approach developed by Scottish courts to questions of relevance and admissibility in sexual offence trials was liable to exclude evidence which an accused might need in order to present an effective defence. Because that approach was capable of producing violations of Article 6, the Court held that it had to be modified.
The Court did not find that either Daly or Keir had themselves received an unfair trial. Having considered the particular evidence excluded in each case, it concluded that their Article 6 rights had not been infringed, and both appeals were dismissed.
The judgment did not declare section 274 or the protection of complainers incompatible with Article 6. Its significance lies in the need to apply the law of relevance and the statutory exceptions in a way that preserves the accused’s right to present an effective defence.
That conclusion is significant. The highest court in the United Kingdom held that the approach developed by Scottish courts was liable to exclude evidence an accused might need for an effective defence and was therefore liable to produce Article 6 violations. It did not, however, establish that this had occurred in Daly or Keir themselves or in an identified class of earlier cases.
The implications for other cases
The judgment may be relevant to other cases decided under the approach criticised by the Supreme Court. Whether any particular conviction was affected depends on the evidence excluded, its potential significance to the defence and the fairness of the proceedings as a whole.
Where a section 275 application was refused and potentially important defence evidence was excluded, there may be grounds to examine whether the conviction is unsafe. The judgment does not establish that conclusion automatically; it requires case-specific analysis.
The appropriate route for raising such an argument depends on the stage the case has reached. Where an appeal has not yet been pursued, or where an appeal is pending, the implications of Daly and Keir should be considered carefully with legal advice. Where the normal appeal routes have been exhausted, a referral to the Scottish Criminal Cases Review Commission may be an appropriate avenue.
This is a developing area of law. Anyone with a potentially affected case should take advice from a qualified Scottish solicitor.
The practical challenge for defence agents
Preparing a section 275 application is one of the most demanding tasks in a serious sexual offence case. It requires identifying at an early stage what evidence is necessary, articulating a coherent legal argument for why it meets the statutory tests, and presenting that argument persuasively in a contested hearing before the trial begins.
Getting it wrong has serious consequences. An application that fails to identify the relevant evidence, fails to articulate why it meets the statutory tests, or fails to make the argument clearly enough may result in evidence being excluded that should have been admitted. An application that is not made at all for evidence that should have been the subject of one may result in that evidence being permanently unavailable.
The quality of the section 275 application in any given case can therefore be determinative of the fairness of the trial that follows. It is one of the most significant contributions a defence agent makes in a serious sexual offence case and one of the areas where the consequences of inadequate preparation are most severe.
Where there are concerns about whether section 275 applications were properly prepared and presented in a concluded case those concerns may themselves be relevant to an appeal or SCCRC application.
The bench book rewrite
Following the Supreme Court's ruling in Daly and Keir the Scottish Bench Book, which provides guidance to judges on how to direct juries in various types of case, was revised. The revision addressed how judges should approach section 275 applications and how juries should be directed in cases where such applications have been made.
The rewrite reflected the Supreme Court's findings and represented an acknowledgement at an institutional level that the previous approach required correction. Whether the revised guidance will produce the change in practice that the Supreme Court's ruling requires is a question that will be answered over time as cases proceed through the courts under the new approach.
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What to take from this page
Section 275 is the mechanism through which potentially relevant defence evidence that would otherwise be prohibited under section 274 can be admitted at trial. It requires a formal application meeting specific legal tests, decided before the trial begins. Where applications are refused the excluded evidence is gone from the trial entirely. In November 2025 the UK Supreme Court held that the approach developed by Scottish courts was liable to exclude evidence an accused might need for an effective defence, was therefore liable to result in Article 6 violations, and had to be modified. It found no Article 6 violation in Daly or Keir themselves. The judgment may nevertheless be relevant to other cases, but its effect on any conviction requires case-specific analysis. Anyone with a case potentially affected should take legal advice.
Information only. This page does not constitute legal advice. Law changes and individual cases vary. Anyone facing criminal proceedings in Scotland should seek advice from a qualified Scottish solicitor at the earliest opportunity. If your case may be affected by the Daly & Keir ruling, seek legal advice urgently.
Support exists for families going through this, not just for the person accused. Family Support and Legal Support and Representation cover finding a solicitor, legal aid, and organisations that work directly with families in this position.
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Important
Daly & Keir (November 2025)
The UK Supreme Court held that the approach developed by Scottish courts to the admission of evidence in sexual offence trials was liable to result in Article 6 violations and had to be modified.
The Court found no Article 6 violation in Daly or Keir themselves, and both appeals were dismissed.
The judgment may nevertheless be relevant to other cases in which potentially important defence evidence was excluded. Whether an individual conviction was affected requires examination of the particular evidence and the fairness of the proceedings as a whole.