SUNDAY REFLECTIONS
The Bench Book Rewrite No One Is Talking About
Scotland’s criminal courts have quietly rewritten the guidance judges use when deciding what defence evidence a jury is allowed to hear in sexual offence trials. That rewrite follows a UK Supreme Court ruling that the prevailing approach was erroneous and liable to result in breaches of Article 6 fair trial rights.
For over a decade, the Scottish courts applied a common law framework to Sections 274 and 275 that the UK Supreme Court later held was erroneous and liable to result in breaches of Article 6 fair trial rights. That conclusion came in Daly & Keir v HM Advocate 2025 UKSC 38.
The consequence is not abstract. The judiciary has rewritten its own guidance on how judges must handle Section 275 applications. That revised guidance appears in the January 2026 edition of the Preliminary Hearings Bench Book.
This is not commentary. It is the judicial instruction manual now being used in Scotland’s criminal courts.
The Centrepiece Document
Preliminary Hearings Bench Book, January 2026, Judicial Institute for Scotland
What Changed
The Supreme Court did not weaken rape shield protections. It clarified that the approach operating since 2013 had drifted beyond the statutory wording and required modification. The Bench Book now resets judicial focus onto the statute itself and the mandatory balancing exercise between privacy and the accused’s right to a fair trial.
Section 275 is a structured statutory test. Evidence cannot be excluded merely because it relates to sexual history. Judges must identify the specific fact in issue and assess significant probative value against prejudice.
Evidence of specific conduct directed at a fact in issue must be examined under the statutory framework. In practice, such material was often characterised as “collateral” and excluded without full statutory reasoning. The Supreme Court’s correction makes that shortcut far harder to sustain.
Section 275 requires courts to record reasons, specify what evidence is permitted or refused, and explain how the balancing exercise was carried out. Without clear reasoning, meaningful appellate scrutiny becomes extremely difficult.
The Silence Problem
When a court corrects a constitutional error, implementation should not happen quietly. Yet there has been no sustained public explanation of what the Bench Book rewrite means in practice, and no clear public account of how consistent application is being monitored across courts.
That silence matters because Section 275 decisions determine what a jury is permitted to hear. If the Supreme Court required the prevailing approach to be modified to protect fair trial rights, then public confidence requires more than a quiet update to a training manual.
The Scale Question
Between 2013 and 2025, Section 275 rulings shaped the evidence juries were allowed to hear in serious sexual offence trials across Scotland. The Supreme Court has now required modification of the framework that governed that period. That does not mean convictions are automatically unsafe. It does mean evidential rulings made during that time warrant careful scrutiny.
Yet there has been little public explanation of how this recalibration is being monitored, audited, or communicated to those directly affected.
Questions that deserve clear answers
- Has any formal review mechanism been established for cases decided under the earlier interpretation?
- Will data be published showing how Section 275 applications are now handled?
- Has public implementation guidance been issued following the Supreme Court’s ruling?
- Why has the Bench Book rewrite itself received so little public attention?
The Press Question
Mainstream reporting has covered the Supreme Court ruling, but far less attention has been paid to the practical implementation document judges now use day to day. That is the gap. If fair trial rights required modification of the prevailing approach, the obvious follow-up is to ask how the change is being applied in courtrooms, and what safeguards exist for cases decided under the earlier framework.
This is not a partisan point. It is a transparency point. A justice system does not rebuild trust by correcting course quietly and leaving families to discover the change on their own.
For Those Reviewing Their Cases
Appeals remain case specific. Prejudice must be demonstrated. But anyone reviewing a conviction should examine how Section 275 was handled.
- Framework: Was the decision driven by the post-2013 interpretation criticised by the Supreme Court?
- Balancing: Did the judge clearly identify the fact in issue and weigh probative value against prejudice?
- Record: Were detailed reasons recorded in line with the statutory requirements?
Where to Look in the Bench Book
If you are a family member, or someone reviewing a conviction, you do not need to read the entire document.
The key material is concentrated in Chapter 9. Chapter 9 begins at PDF page 115 of the Bench Book.
Use these direct page links:
- PDF Page 115
Start of Chapter 9 covering Sections 274 and 275. - PDF Pages 117 to 121
Discussion of the Supreme Court ruling and explanation that the earlier approach was liable to breach Article 6. - PDF Page 123
Timing rules and procedural requirements for Section 275 applications. - PDF Page 129
Explanation of compliance with Section 275 subsection 3 and the court’s duty.
Tip. Use the search function in the PDF and enter the terms Chapter 9, CJM, Article 6, section 275, significant probative value. These will take you directly to the passages that matter most.
What the Bench Book Now Records
The January 2026 Bench Book does more than summarise UKSC 38. It formally instructs judges on what went wrong in the post-2013 approach and how that framework must now be modified in practice.
- Article 6 Risk Acknowledged:
The Bench Book records that the common law approach developed after 2013 was liable to result in breaches of fair trial rights and required modification following the Supreme Court ruling. - Statute Over Common Law:
It reflects the Supreme Court’s warning that once Parliament created a statutory regime in Section 275, constructing a parallel restrictive common law framework risked constitutional impropriety. - Earlier Authorities Re-qualified:
Certain post-2013 cases previously relied upon are no longer presented as authoritative examples without reference to the Supreme Court’s correction. - The Three-Stage Test Restored:
The statutory requirements are cumulative. Relevance, legitimate purpose, and significant probative value must each be analysed and balanced properly. - Reasons Are Mandatory:
Courts must record intelligible reasons for granting or refusing applications, even where the Crown does not oppose them. Silent or formulaic refusals undermine appellate scrutiny.
These are not campaign interpretations. They are drawn from the judiciary’s own training manual. The framework governing what juries were permitted to hear in serious trials has been formally recalibrated. That fact alone demands public scrutiny.
The Bottom Line
The Supreme Court required modification of a framework that governed Scottish sexual offence trials for over a decade. The judiciary has rewritten its manual.
If confidence in the justice system depends on transparency, the public deserves to know how this recalibration is being applied in practice, and what safeguards exist for cases decided under the earlier approach.
Editorial note: Accused.scot is an independent commentary site focused on justice process, evidence, and fair-trial principles in Scotland. Our work critiques systems, policy, and public discourse, not private individuals. We welcome reasoned challenge to our arguments. We do not engage in personal disputes or online pile-ons.