A jury cannot judge what it is forbidden to see

When relevant context is withheld from juries, trials stop looking like a search for truth and start looking like managed outcomes.

Scotland is sliding toward a justice system where juries in sexual offence trials are asked to deliver life-changing verdicts while peering through a keyhole.

The recent interview between Leo Kearse and Stuart Waiton puts the problem into plain language. It gives voice to what many defence lawyers have warned for years: that in the rush to “protect” complainers, the system has become increasingly willing to restrict what a jury is permitted to hear.

The premise behind this slide is dangerous. It treats protection and fairness as a trade-off, as if you can only have one at the expense of the other. In reality, you can have both, but only if you trust juries with the full narrative.

The context trap

Rape shield rules, Sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 were created for a necessary purpose. They exist to prevent degrading, irrelevant lines of questioning about a complainer’s past sexual history.

That is not the dispute.

The dispute begins when rules designed to exclude irrelevant history end up excluding relevant narrative: the connected facts that help a jury understand what was happening between two people in the same chain of events, within the timeframe of the allegation.

In Scots law, this often overlaps with what lawyers call res gestae, the surrounding facts that form part of the live story. Call it context, call it the narrative, call it the sequence; a jury cannot do its job without it. When that material is cut away, jurors are not weighing the whole picture. They are weighing a curated edit.

The lesson of the Keir case

The interview returns to Andrew Keir because it shows the problem in one place.

Earlier intimacy does not prove later consent. Stuart is clear on that, and so are we. Consent can be withdrawn, and people can be assaulted regardless of earlier consensual behaviour.

But earlier context can still be vital when a jury is assessing credibility, capacity, and competing accounts. If jurors are presented with a narrative that begins arbitrarily at a pub exit, or are shown only a later segment of CCTV, they are being asked to judge a complex dynamic based on a fragment of time. A conviction might still be possible on that fragment, but the process starts to feel less like an open assessment and more like a narrowing exercise.

That should worry anyone who believes juries are there to determine facts.

The tunnel vision of “victim-centred” justice

This is the terrain Accused.Scot navigates every day.

We speak to families living through allegations that are false, exaggerated, or weaponised. This is not a claim about most complainers; but it is a reality that exists, and it ruins lives.

The cruelty is often in the process. Long before a verdict, investigations can drift into tunnel vision. Once a “victim-centred” narrative forms, contradictions are treated as side issues and context is dismissed as noise.

If the defence cannot properly test the story because the court deems surrounding facts “collateral” or “prejudicial”, an innocent person can end up trapped. They are no longer just fighting an allegation. They are fighting a procedural straitjacket that prevents the full story being told.

A culture of silence

Why does this trend persist? One reason is the social cost of speaking out.

There is a strain of activism in Scotland that treats “believe women” as a moral command rather than a starting point for investigation. Under that mindset, the allegation is not something to be tested; it is something to be affirmed.

Stuart describes the backlash he faced at Abertay University, campaigns for his removal, graffiti branding him a “rapist sympathiser”, and protests, all because he invited voices that challenged the prevailing narrative. This intimidation works. It scares academics, journalists, and politicians into silence. It creates a climate where questioning procedure is treated as hostility toward women.

The Supreme Court’s warning

This is not theoretical. The UK Supreme Court has already issued a warning about the direction of Scottish practice in the cases of Daly and Keir, even though the convictions stood.

Since then, the public response has followed a familiar pattern: reassurance that protections remain, followed by immediate pressure from advocacy organisations warning about the impact on survivors.

That pressure is understandable at a human level. But it also helps explain why politicians avoid the hard operational question: Will Scottish courts actually ensure that juries are allowed to hear the full narrative, case by case, courtroom by courtroom?

Justice, not management

We need to stop managing outcomes and start delivering justice.

• Rapists belong in prison.

• The accused must have a fair trial.

If Scotland cannot hold both truths at once, the system is broken. We do not need more slogans about being “trauma-informed”. We need to be evidence-informed.

• Transparency: Courts must give clear, appealable reasons when defence evidence is excluded.

• Context: Relevant narrative within the timeframe of an allegation must not be treated as automatically suspect.

• Trust the jury: Jurors should be properly directed on how to use evidence, not “protected” from the facts by deletion and redaction.

If we prioritise the comfort of the process over the rigour of proof, we are accepting wrongful convictions as collateral damage. A jury cannot judge what it never gets to see. It is time we stopped blindfolding them.