Scrutiny After Permission

There is a basic assumption in any criminal justice system. If a conviction is going to be challenged, the record of what happened in court has to be available for scrutiny.

In practice, that is not always how the system works.

In a recent attempt to obtain access to the trial record in a High Court case, a request was made for the digital audio recordings of the proceedings. The case, heard at the High Court of Justiciary in Glasgow, involved multiple complainers and relied on extended timelines and linked allegations.

The request was not speculative. It was made specifically to review the safety of the conviction and assess whether viable grounds of appeal existed.

For someone maintaining innocence and facing a lengthy prison sentence, the trial record is not a matter of curiosity. It is often the only practical way to work out whether something went wrong in how the case was presented, tested, or directed.

The court’s response was clear. The court does not provide audio recordings of trials. Only transcripts are available. Under section 94 of the Criminal Procedure (Scotland) Act 1995, transcripts cannot be provided to a person convicted at trial, or to someone acting on that person’s behalf, unless leave to appeal has already been granted.

This creates a real practical difficulty. To obtain leave to appeal, it is often necessary to identify what went wrong at trial, whether in the evidence, the cross-examination, the judge’s directions, or the way the case was presented to the jury. Those details sit in the trial record. Yet access to that record is restricted until after leave to appeal has already been granted.

In cases involving multiple complainers, convictions may rely in part on the Moorov doctrine, which allows separate allegations to support one another. At the same time, sections 274 and 275 can limit the scope of evidence and questioning available to the defence. In cases shaped by those rules, the ability to review exactly what was said, what was excluded, and how the jury was directed becomes especially important when assessing whether the conviction is safe.

The material needed to assess whether an appeal is justified is the same material that cannot be accessed until an appeal has already passed its first threshold. The restriction does not distinguish between cases where grounds are already obvious and cases where they can only be identified by carefully reviewing what was said and how the trial was conducted. In both situations, the position is the same.

Even when the request was framed as a third-party review, the court confirmed in writing that it treats such applications as falling under the same restriction if they are connected to a convicted person and are intended for appeal purposes. No alternative mechanism was offered.

In 2024, the Scottish Government introduced a pilot scheme allowing complainers in High Court sexual offence cases to obtain transcripts at public expense. That scheme became permanent on 1 April 2026. It does not extend to the convicted.

The contrast is not theoretical. A person whose evidence contributed to a conviction can obtain the full trial record at public expense once the verdict is secured and sentence imposed. A person seeking to challenge the safety of that same conviction, often while serving that sentence, may be denied access to the same material at the point it is most needed to identify potential grounds of appeal.

This difference in access goes to the heart of how the system allocates practical support. The side that has already secured the conviction can obtain the record at public expense, while the side seeking to challenge the safety of that conviction may be unable to access it at all. Accused.scot has examined that scheme separately in Who Gets the Transcript?.

The Scottish Criminal Cases Review Commission has separate powers to investigate conviction safety and may obtain court records in that context. But that route has its own threshold and its own timescale, and it does not remove the difficulty faced by those trying to assess grounds before any formal referral has been made.

The point here is not the outcome in any one case. It is the process. If the safety of a conviction is to be tested properly, there has to be a meaningful way to examine the proceedings that led to it.

Open justice depends not only on hearings being held in public, but on being able to review what was said, how evidence was presented, and how decisions were reached.

How is someone supposed to argue that a conviction may be unsafe if they cannot access the very record needed to identify what went wrong?

This is not just a technical issue. It is a structural barrier. The material needed to test a conviction is withheld until the system says that threshold for testing has already been met.