Section 274: A Gag Order on the Defence?

The Deck is Stacked: Why Section 274 Fails the Falsely Accused in Scotland

Imagine this: you’re an ordinary man in Scotland. Out of the blue, you’re accused of a crime you didn’t commit—perhaps something from decades ago, or allegations involving coercive control. The court date looms, but you soon discover that, under Scottish law, your hands are tied in a way you could never have imagined. This is because of Section 274 of the Criminal Procedure (Scotland) Act 1995.

Let’s break it down. Section 274 places severe limits on what evidence can be introduced in your defence if you’re accused of a sexual crime. The law specifically prohibits questioning or evidence about:

• The complainer’s sexual history (e.g., prior sexual behaviour with you or others).

• The complainer’s sexual character (e.g., their reputation for promiscuity or honesty in such matters).

• Any behaviour of the complainer that might suggest consent unless narrowly relevant to the specific charges.

On the surface, this sounds fair. Nobody wants victims of genuine sexual crimes to be unfairly scrutinised or humiliated in court. But here’s the problem: these restrictions often prevent the jury from hearing evidence that could cast serious doubt on the complainer’s credibility or motives—evidence that could exonerate you.

A Fair System or a Stacked Deck?

Supporters of Section 274 argue it protects complainers from intrusive and irrelevant questioning. But what about the falsely accused? Shouldn’t they also be protected from biased processes that restrict their ability to present a full defence?

Here’s the truth: Section 274 doesn’t balance the scales—it tips them against the accused. It assumes certain lines of questioning are irrelevant or prejudicial without considering their importance in a specific case. This is particularly harmful when dealing with crimes that rely heavily on testimony, where every piece of context matters.

The Path Forward

No one is suggesting we return to a time where victims of sexual crimes were unfairly grilled in court, but reform is needed. Section 275, the counterpart to Section 274, allows courts to permit restricted evidence if it’s deemed “relevant and necessary” to the defence. However, in practice, applications under Section 275 are often denied, leaving accused individuals without crucial tools to challenge the case against them.

If Scotland is serious about justice, it’s time to rethink how these rules apply in practice. Justice must be blind—not deaf to evidence that could save an innocent person’s life.