Blind Spots in the System

Freedom of Information requests reveal that Scotland's courts cannot measure their own most consequential trial procedures. Nobody appears to be asking why.

Scotland's criminal case management system logs one entry for Section 275 applications regardless of how many are actually made during a trial. The Moorov doctrine, which can turn a weak single allegation into part of a case that convicts, leaves no administrative trace in the court record whatsoever. And the Crown Office holds no formal guidance on the risk of witness contamination in cases where Moorov is likely to be used.

These are not minor administrative oversights. Section 275 and Moorov are two of the most consequential procedures in Scottish sexual offence trials. They determine what a jury is permitted to hear and how separate allegations are allowed to reinforce each other. Together they can be the difference between acquittal and conviction. And according to Freedom of Information responses from the Scottish Courts and Tribunals Service and the Crown Office and Procurator Fiscal Service, the system that administers them cannot tell you how often they are used, in what circumstances, or with what results.

What follows draws on FOI responses including FOI 2026-065, FOI 2026-067, and R-17242-26.

Section 275: one marker, many applications

In a Scottish sexual offence trial, the defence may apply to introduce evidence about a complainer's sexual history or behaviour. These applications, made under Section 275 of the Criminal Procedure (Scotland) Act 1995, are routinely contested. They sit at the fault line between the accused's right to challenge the case against them and the complainer's right not to have their private life put on trial. How often they are made, and how often they succeed, is not a trivial question.

So what does the court system actually record?

The answer, confirmed by FOI response, is almost nothing useful. The criminal case management system logs a single Section 275 event per case. One entry, regardless of how many applications are made during proceedings. The system can confirm that a Section 275 event occurred. It cannot say how many applications were made, at what stage of the trial, or what became of them. In cases where applications are revisited multiple times, that single marker captures almost nothing of what actually happened.

For a procedure that directly determines what evidence a jury is permitted to hear, that is a significant gap in the record.

Moorov: the doctrine that leaves no trace

The Moorov doctrine is peculiar to Scots law. Where an accused faces multiple allegations from different complainers, the doctrine allows each allegation to corroborate the others, provided the similarities are sufficiently connected to suggest a single course of conduct. The threshold is genuine similarity, not mere repetition. Moorov is not designed as a mechanism for bolstering weak cases by grouping them together.

In practice though, its effect can be decisive. An allegation that might struggle to sustain a prosecution on its own can become part of a case that holds when combined with others under Moorov. In trials involving multiple complainers, the Moorov direction to the jury is often the point on which everything turns.

Given that, you might expect the courts to maintain some record of how often such directions are given. A Freedom of Information request asked exactly that question.

There is no electronic marker or field within the case management system to identify and extract that information. To find out how often Moorov directions are given across Scotland's courts, you would need to work through trial transcripts and audio recordings case by case, by hand.

A doctrine this consequential, and it leaves no administrative trace. That is not misconduct on anyone's part. It is, however, a gap that anyone seeking to scrutinise the operation of these proceedings needs to understand.

The contamination question

Where several complainers give evidence in the same case and their accounts may later be used to corroborate each other under Moorov, there is a straightforward question about what those witnesses knew, and when. If complainers become aware of each other's allegations during the investigation, that knowledge can shape how they remember and describe events. Legal and academic literature has addressed this for years: suggestion, confirmation bias, the gradual convergence of separate accounts into something that sounds more consistent than it was at the outset. Legal scholarship on the Moorov doctrine has long acknowledged the risks that arise when witnesses in connected cases become aware of each other's accounts before giving evidence.

A Freedom of Information request asked the Crown Office and Procurator Fiscal Service whether it holds any guidance addressing these risks in potential Moorov cases.

No such guidance is held. There is no formal framework for managing a risk that legal scholarship has been discussing for decades.

The oversight problem

None of this is an argument against Section 275 or Moorov as legal doctrines. Both are established features of Scots criminal law, applied by experienced judges who understand the territory. The question here is not whether individual cases are handled properly by the people involved. The question is whether the system can examine what it is doing in aggregate.

The courts have been candid in their FOI responses about the limits of their systems. Case management software was built to process cases, not generate statistics. That is an understandable position. Not every judicial decision can or should be reduced to a database entry.

But Section 275 and Moorov are not peripheral procedures. They shape, in concrete and measurable terms, what evidence reaches a jury and how allegations are allowed to interact with each other. When these procedures attract policy debate, legal challenge or calls for reform, the absence of reliable data on how they are actually being used is not merely inconvenient. It means that anyone proposing change is doing so without knowing the scale, frequency or pattern of what they are trying to change.

The UK Supreme Court's ruling in Daly and Keir v HM Advocate [2025] UKSC 38 found that Scottish courts had been applying Section 275 in ways incompatible with the right to a fair trial for over a decade. Reform is now not optional. It is required. And it will need to be built on an accurate understanding of what has actually been happening inside these trials.

The FOI responses published here suggest that understanding does not yet exist.

Sources

• Scottish Courts and Tribunals Service — FOI 2026-065
• Scottish Courts and Tribunals Service — FOI 2026-067
• Crown Office and Procurator Fiscal Service — R-17242-26

The Scottish Courts and Tribunals Service and the Crown Office and Procurator Fiscal Service were invited to comment. No responses were received before publication.