Updated December 2025

When “Trauma-Informed” Risks Becoming “Trial-Limited”

What This Review Gets Wrong About Fairness

Scotland says it wants a justice system that is modern, humane, and trauma-informed. Fine. Nobody sensible wants complainers treated badly, or evidence taken in a way that needlessly harms people.

The Act also aims to reduce re-traumatisation, address attrition, and improve confidence in reporting and prosecution in sexual offence cases. Those are legitimate aims.

But there’s a line. Once you start redesigning trials to reduce distress by reducing scrutiny, you stop improving justice and start managing outcomes.

This Sexual Offences Review report led to proposals and recommendations, many now being implemented in law and practice. If you care about Article 6 fairness, open justice, and the basic idea that innocence should be protected as fiercely as guilt is pursued, these are the warning signs.

The Language of Guilt: Defining the Verdict Before the Trial

Perhaps the most concerning aspect of the report is its persistent use of the word “Victim” to describe those making allegations. The term is common in policy documents, but in a contested trial it can pre-load assumptions. Until conviction, the neutral terms are complainer and accused.

A drift away from live, open court testing of evidence

The report sets out a future where the centre of gravity moves from live evidence at trial to pre-recorded processes and “prior statement” evidence. (Page 172)

It describes specialist courts where evidence “must be given in advance” and normalises “evidence by prior statement” as the whole, or part, of evidence in chief. (Page 173)

This direction is now advancing through the creation of a national Sexual Offences Court and the wider embedding of trauma-informed procedure, including greater reliance on pre-recorded evidence.

Anyone who has watched a jury trial knows how much weight jurors put on presence, timing, and flow. When the process becomes fragmented and rehearsed, you change the trial itself. That is not a neutral change.

A presumption that the accused should not be in the room

Regarding Evidence on Commission, the report says there is “a presumption that the accused will not be in the room”. (Page 321)

This is a fundamental philosophical statement. It treats the participation of the accused, a cornerstone of Article 6, as something to be managed rather than protected. Article 6 fairness depends on meaningful participation, including the ability to observe evidence properly, instruct counsel in real time, and challenge testimony effectively.

A push towards closed courts, by default

Open justice is a safeguard, not a decoration. Recommendation 46 says staff should apply “a presumption in favour” of applying for a closed court.
(Page 60, Page 331)

A presumption flips the starting point. It makes openness something that has to be justified, instead of closure having to be justified.

A Notable Under-Representation: The Wrongly Accused

This review includes views from government and prosecutors, and it clearly prioritises the experience of complainers, which aligns with its victim-focused mandate.

But there is a notable under-representation of the lived experience of people who say they were wrongly accused or wrongly convicted, and the families who live with the consequences. The review highlights engagement with complainers, yet there is no clear, comparable engagement set out with those voices.

As described by families of the wrongly accused: “Families torn apart, men imprisoned following trials where context was excluded and evidence restricted, are treated as if they do not exist.”

Normalising “corrections” to initial statements

The report acknowledges that early accounts are often messy, yet it builds a system that relies more heavily on them. It suggests complainers be told they are entitled to “correct” or add to statements later. (Page 57)

If you care about safe convictions, you should be nervous about any model that strengthens early statements while also smoothing the path for later revisions. If corrections happen, the timing, content, and reasons must be fully disclosed and capable of being tested.

“Equality of arms” pressure in Section 275 battles

Section 275 is already one of the most sensitive areas in Scots criminal procedure. The report discusses extending independent legal representation (ILR) to these applications. (Page 179)

As the Sexual Offences Court model develops, this becomes even more significant. Adding another represented party can make it easier for courts to default to excluding context. The “trial” becomes more like a curated presentation, the exact environment where miscarriages of justice thrive.

Jury reforms and conviction risk (updated)

In its own words, the report cited research warning that reducing jury size might increase conformity pressures, and that abolishing Not Proven could push jurors toward guilty verdicts in marginal cases. (Pages 1080–1081)

Jury size remains 15, after the proposed reduction to 12 was dropped. But Not Proven will be abolished from 1 January 2026, leaving only guilty and not guilty. At the same time, the jury majority required for conviction will move from a simple majority to at least two-thirds (10 of 15 jurors). (Scottish Government update; Scottish Government factsheet)

For legal certainty, the commencement regulations define when a trial is takn to have started: (a) in summary proceedings, when the oath is administered to the first witness; and (b) in solemn proceedings, when the oath is administered to the jury. (Commencement Regulations (SSI 2025/393))

A separate proposal for a juryless (single-judge) rape trial pilot was abandoned after significant opposition. (Context)

7. A culture signal that frames the defence as “fabricating”

The report quotes a contributor claiming the defence had time to “fabricate lines” and “make up lies”. (Page 328)

It matters that this is one stakeholder view within a consultation process. But it still signals a culture problem. Cross-examination and challenge are not “tricks”. They are safeguards. When defence challenge is framed as inherently suspect, the system risks becoming more outcome-focused than adversarial. That is poison to a fair trial.

The Five Pillars of Trial Fairness

To protect the integrity of Scots law, we call for:

A system that can convict the innocent is not a system that protects anyone.