Behind Bars: What Scotland’s Courts Have Forgotten About Justice
I am writing this from prison. Not because I have been proven guilty of a crime, but because Scotland’s justice system has drifted so far from the presumption of innocence that a guilty verdict can now rest on silence, distortion, and omission.
Most people assume that when a man is accused of a sexual offence, he will be judged fairly. That evidence for and against him will be weighed. That if proof of his innocence exists, a jury will see it. But this is not how the law is functioning in Scotland. The truth is often kept from juries, and the rules that were meant to safeguard fairness are being rewritten in ways that consistently tilt against the accused.
This isn’t simply my view. Scotland’s own legal establishment has said as much. Both the Faculty of Advocates and the Law Society of Scotland have intervened in cases now before the UK Supreme Court, warning that innocent men are being convicted under an unfair system.
What are these warnings about? They are about evidence that cannot be shown, beliefs that cannot be considered, and laws that are being reshaped in ways Parliament never intended.
Take evidence itself. A trial is supposed to be an inquiry into what happened. Yet the courts now exclude key material: messages, prior interactions, even testimony of earlier consensual sex. Juries are, as the Law Society put it, invited to consider an act “shorn of context.” And what is hidden can be decisive. A message that shows prior consent. A statement that contradicts the charge. None of it is seen.
The same distortion arises around the question of consent. Under law, a man cannot be convicted unless the Crown proves not only that the complainer did not consent, but also that he lacked a reasonable belief that she did. Yet, in practice, this second safeguard is often ignored. Men are convicted as though belief were irrelevant. But it is not irrelevant. It is, by law, essential.
Even Parliament’s voice has been set aside. Safeguards deliberately written into the Sexual Offences Act have been eroded by judicial “innovation,” narrowing what can be heard and broadening what can be silenced. In effect, judges are not applying the law as enacted, but adjusting it in ways that consistently diminish the rights of the accused.
And the double standards are stark. Distress shown weeks or months after an alleged event is admitted as corroboration. Yet proof of consensual intimacy in the same period is dismissed as collateral. The system accepts one half of reality and excludes the other.
The consequences of these asymmetries are not abstract. They are lived. I see them daily. Men in cells, weeping not because they have been justly punished, but because they never had a fair hearing. Men whose families and careers have collapsed under the weight of allegations they could not properly answer. Men who are guilty of nothing except having trusted a system that told them they would be heard.
One could argue that the law must err on the side of protecting complainers. That to make testimony harder to challenge is to shield the vulnerable. But as the Faculty of Advocates has warned, measures designed to protect one group cannot come at the cost of systemic unfairness to another. To pretend otherwise is to redefine justice itself.
The Supreme Court now faces this reality in the appeals of David Daly and Andrew Keir. But the deeper question will remain whatever its judgment: how long can Scotland claim to uphold the rule of law when it permits trials where crucial evidence is withheld, reasonable belief is ignored, and guilt is manufactured by omission?
If it can happen to me, it can happen to anyone. And that should trouble us all.