When protection becomes a firewall: the evidence Scottish juries didn’t hear in sexual trials
There is a reason Thomas Leonard Ross KC’s talk has struck such a nerve. It is not polemic, and it is not social media commentary. It is a senior advocate, speaking calmly, pointing to reported cases, and explaining why the UK Supreme Court has now said that Scottish courts must change their approach to evidence in sexual offence trials.
This matters for everyone. It matters for complainers, because convictions that appear procedurally unsafe invite endless challenge. It matters for the public, because confidence in verdicts depends on visible fairness. And it matters for the accused, because if you cannot test evidence, you do not truly have a trial.
Ross is careful throughout. He is firmly against aggressive, unnecessary or humiliating questioning. The issue he identifies is different: Rules designed to prevent bad questioning have, in practice, sometimes been used to prevent necessary questioning.
The Supreme Court Reset
The context for Ross’s talk is the UK Supreme Court’s decision in Daly v HM Advocate and Keir v HM Advocate. Although the individual appeals were refused on their facts, the Court made a wider and far more important finding.
Lord Reed stated that Scottish courts are under a duty to modify their current approach to admissibility decisions in sexual offence trials to ensure compliance with Article 6 of the European Convention on Human Rights, the right to a fair trial.
That is not casual language. It is a judicial acknowledgement that the existing approach had become too restrictive and risked unfairness.
What Ross KC is actually saying
Ross does not argue that rape-shield protections should be abolished. He does not suggest that a complainer’s sexual history should become "open season." He explicitly rejects questioning designed simply to upset or intimidate.
His concern is narrower and more serious: Over time, Scottish courts developed a pattern of excluding evidence that went directly to credibility and reliability, even where it was central to the defence case.
What Scottish juries were not allowed to hear
Prior false allegations
In most areas of law, admitted dishonesty is relevant when assessing whether someone is telling the truth. In Scottish sexual offence trials, that has often not been the case. Ross discusses cases where a complainer had previously made a detailed allegation that was later admitted to be false, yet the jury was never told.
Inducing others to fabricate allegations
Ross describes cases where the defence sought to show that a complainer had attempted to persuade others to make false allegations. Despite this, appeal courts often refused to allow the jury to hear it. The effect is to insulate credibility from scrutiny.
Medical evidence of pathological lying
In one case, a psychologist’s report referred to a diagnosis involving persistent lying. The court refused to let the jury hear it, reasoning that habitual lying is "character evidence" and therefore inadmissible. This prevents juries from hearing professional evidence that would assist their assessment of the truth.
The complainer’s own communications
Ross discusses prior communications, including sexual messages exchanged shortly before the alleged offence. In one case, the accused was not permitted to rely on messages disclosed by the complainer herself. The Supreme Court cited this specific restrictive approach as a primary reason why Scottish rules must change.
"Many wrongful convictions do not rest on dramatic errors. They rest on juries never being allowed to see the full picture."
Why this harms everyone
Ross makes a point that is often overlooked: this situation is damaging to complainers as well. If convictions are secured under a framework criticized by the Supreme Court, those convictions remain "unsafe." This leads to more appeals, more uncertainty, and more re-traumatisation for everyone involved.
If a Section 275 refusal affected your case
This is not legal advice, but if a Section 275 application was refused in your case, or never made because it was thought to be futile, consider these questions:
- Was evidence dismissed as "collateral" or "character evidence" rather than being linked to credibility?
- Did the material go to a live issue such as consent or narrative plausibility?
- Does the Supreme Court’s analysis in Daly suggest the approach taken was overly restrictive?
Watch the full talk by Thomas Leonard Ross KC:
A fair trial is not a courtesy. It is the condition that makes punishment lawful. When protection becomes automatic exclusion, the system stops testing evidence and starts demanding trust. The Supreme Court has now said that is not good enough.