Section 275

The exception, how it works, and why it matters

Section 275 of the Criminal Procedure (Scotland) Act 1995 is the exception to the general prohibition created by section 274. It is the mechanism through which a court decides whether evidence that would otherwise be excluded can be placed before the jury. It is one of the most consequential and most contested provisions in Scottish criminal law and one that has been the subject of scrutiny at the highest judicial level.

This page explains what section 275 requires, how applications work in practice, what the courts have said about how it should be applied, and why it matters so profoundly to the fairness of serious sexual offence trials in Scotland.

What section 275 does

Section 275 allows a court to permit evidence or questioning that would otherwise be prohibited under section 274 — but only where specific conditions are met and only after an application has been made, considered and decided before the trial begins.

It is not a general discretion to admit whatever evidence a court considers relevant. It is a structured exception with defined criteria that must be satisfied before prohibited evidence can be admitted.

The existence of the exception reflects a recognition that the general prohibition in section 274, however well-founded in principle, will in some cases prevent genuinely relevant evidence from reaching the jury. Section 275 is Parliament's attempt to identify the circumstances in which that outcome is unjustifiable and to provide a mechanism for addressing it.

The conditions for admission

For evidence to be admitted under section 275 a number of conditions must be satisfied.

How applications are made

A section 275 application is a formal document lodged with the court before the trial begins. It must set out in detail the evidence or questioning that is sought to be admitted, the specific occurrence or occurrences it relates to, why the evidence is relevant to a matter in issue, and why its probative value outweighs any risk of prejudice to the complainer.

The application is considered by the court at a hearing at which both the Crown and the defence make submissions. The complainer has a right to be represented at this hearing and to make submissions about whether the application should be granted.

The court then decides whether to grant or refuse the application, either in whole or in part. That decision is made before the trial begins and determines the evidential landscape within which the trial will take place.

This advance determination is significant for several reasons. It means that defence agents must identify at an early stage what evidence they consider necessary and must present a coherent legal argument for its admission. It means that the decision is made without the full context of how the trial will unfold. And it means that if the application is refused the excluded evidence is gone from the trial entirely, regardless of how significant it might have been in practice.

The consequences of a refused application

When a section 275 application is refused the evidence to which it relates cannot be led at trial. This is not a discretionary matter. The prohibition is absolute once the application has been determined.

That outcome may be entirely justified in cases where the excluded evidence was genuinely irrelevant or its admission would have caused unjustified harm to the complainer. The concern arises in cases where the excluded evidence was genuinely relevant to a matter in issue and its exclusion prevented the jury from assessing the full picture.

What the Supreme Court said

In November 2025 the UK Supreme Court decided the conjoined cases of Daly v HM Advocate and Keir v HM Advocate. These were cases in which section 275 applications had been refused and the excluded evidence had potentially significant bearing on the fairness of the proceedings.

The Supreme Court addressed the question of whether the approach taken by Scottish courts to section 275 applications had in some cases been incompatible with the right to a fair trial under Article 6 of the European Convention on Human Rights.

The court concluded that it had. In the specific cases before it, and by implication in cases decided under the same restrictive approach, the exclusion of potentially relevant defence evidence had gone further than the proper balance between the interests of complainers and the rights of the accused could justify. The approach had been too restrictive.

The court did not say that section 274 was wrong in principle or that the protection it affords to complainers is unjustified. It said that the way the exception in section 275 had been applied in these cases had tipped the balance too far and that the result was a fair trial violation.

The implications for other cases

The Supreme Court's ruling in Daly and Keir has potential implications for cases decided under the same restrictive approach to section 275 that the court found to be incompatible with Article 6.

Where a section 275 application was refused in circumstances similar to those considered by the Supreme Court, and where the excluded evidence was potentially relevant to a matter in issue at the trial, there may be grounds to argue that the conviction is unsafe.

The appropriate route for raising such an argument depends on the stage the case has reached. Where an appeal has not yet been pursued, or where an appeal is pending, the implications of Daly and Keir should be considered carefully with legal advice. Where the normal appeal routes have been exhausted a referral to the Scottish Criminal Cases Review Commission may be the appropriate avenue.

This is a developing area of law. The full implications of the ruling are still being worked through by practitioners and the courts. Anyone with a case potentially affected by it should take legal advice as a matter of priority.

The practical challenge for defence agents

Preparing a section 275 application is one of the most demanding tasks in a serious sexual offence case. It requires identifying at an early stage what evidence is necessary, articulating a coherent legal argument for why it meets the statutory tests, and presenting that argument persuasively in a contested hearing before the trial begins.

Getting it wrong has serious consequences. An application that fails to identify the relevant evidence, fails to articulate why it meets the statutory tests, or fails to make the argument clearly enough may result in evidence being excluded that should have been admitted. An application that is not made at all for evidence that should have been the subject of one may result in that evidence being permanently unavailable.

The quality of the section 275 application in any given case can therefore be determinative of the fairness of the trial that follows. It is one of the most significant contributions a defence agent makes in a serious sexual offence case and one of the areas where the consequences of inadequate preparation are most severe.

Where there are concerns about whether section 275 applications were properly prepared and presented in a concluded case those concerns may themselves be relevant to an appeal or SCCRC application.

The bench book rewrite

Following the Supreme Court's ruling in Daly and Keir the Scottish Bench Book, which provides guidance to judges on how to direct juries in various types of case, was revised. The revision addressed how judges should approach section 275 applications and how juries should be directed in cases where such applications have been made.

The rewrite reflected the Supreme Court's findings and represented an acknowledgement at an institutional level that the previous approach required correction. Whether the revised guidance will produce the change in practice that the Supreme Court's ruling requires is a question that will be answered over time as cases proceed through the courts under the new approach.

What to take from this page

Section 275 is the mechanism through which potentially relevant defence evidence that would otherwise be prohibited under section 274 can be admitted at trial. It requires a formal application meeting specific legal tests, decided before the trial begins. Where applications are refused the excluded evidence is gone from the trial entirely. The UK Supreme Court found in November 2025 that the approach taken to section 275 applications in Scotland had in some cases been too restrictive and incompatible with the right to a fair trial. The implications of that ruling are still being worked through and may be relevant to cases decided under the more restrictive approach. Anyone with a case potentially affected should take legal advice.