Silenced by Law: The Bias of Section 275 Against the Accused

A Hurdle Too High: How Section 275 Fails the Falsely Accused

If you’re accused of a historical sexual offence or coercive control in Scotland, you may believe the truth will protect you. But here’s what you may not know: the law doesn’t make it easy to present your side of the story. Even though Section 274 blocks much of your defence, its supposed remedy, Section 275, offers little comfort. In practice, it often serves as a second barrier instead of a lifeline.

What is Section 275?

Section 275 allows the court to permit evidence or questioning otherwise prohibited by Section 274—but only under strict conditions. To succeed, your legal team must prove:

1. The evidence is relevant to the case.

2. It’s necessary for the proper administration of justice.

3. It outweighs the risk of prejudice to the complainer’s dignity and privacy.

Sounds reasonable? On paper, yes. But in practice, these rules create an almost insurmountable hurdle for the accused—especially when the stakes are highest, as in historical or coercive control cases.

How Does Section 275 Bias the System?

1. The Accused Must Prove Their Defence is Worth Hearing

Section 275 flips the burden of proof. You, the accused, must convince the court that your evidence deserves to be heard. This adds a layer of bureaucracy and places the onus on you to justify evidence that should be part of a fair trial.

For example, if you have evidence showing a pattern of false accusations by the complainer, you must first ask the court’s permission to present it. That’s not an easy fight, as judges often view these applications sceptically, fearing they may distress the complainer or derail the trial.

2. Relevance and Necessity Are Strictly Interpreted

Courts frequently take a narrow view of what is “necessary” or “relevant.” Even evidence central to disproving the allegations may be excluded if the judge decides it could embarrass or prejudice the complainer. This means that critical parts of your defence can be ruled inadmissible before the jury even hears them.

3. The Shadow of Prejudice Against the Accused

Because sexual offences carry such strong stigma, courts are often reluctant to allow anything that might look like “victim-blaming” or “character attacks” on the complainer. This risks the scales tipping too far the other way, silencing your defence even when the evidence is legitimate and crucial to your case.

Why This Matters Most in Historical Cases

In historical allegations, where there’s rarely physical evidence or eyewitness testimony, your defence often depends on undermining the credibility of the complainer. This might involve evidence of prior false claims, patterns of consent, or ulterior motives. But with Section 275, even presenting this evidence becomes an uphill battle.

For example:

• If the complainer has made similar allegations against others that were proven false, you might need to persuade the court that this is relevant before the jury ever hears it.

• If the complainer had a consensual relationship with you that contradicts the allegations, you’d still have to seek special permission to raise this.

In a system designed to protect complainers, the accused can be left fighting for a fair chance to defend themselves.

The Myth of Balance

Supporters of Section 275 argue that it creates balance by giving judges discretion to admit evidence when appropriate. But discretion isn’t always applied fairly. Judges may deny applications for fear of being perceived as unsympathetic to victims, leaving the accused without key tools to challenge the case against them.

Meanwhile, the prosecution faces no such restrictions when building its case. Evidence from decades ago, unrelated accusations, and the Moorov doctrine can all be used to paint a picture of guilt, even if the picture is misleading or incomplete.

The Path Forward

The Scottish legal system needs to ask itself some hard questions:

Does Section 275 genuinely protect justice, or does it silence the falsely accused?

How can the system better balance the rights of complainers with the rights of the accused?

Reform is overdue. The current rules make it far too easy for the prosecution to build a case while the defence struggles to present key evidence.
A fair trial means both sides should have an equal voice. For now, under Section 275, that voice is too often drowned out.