Scotland’s legal system is facing a moment of reckoning after a recent UK Supreme Court decision cast doubt on long-standing protections for alleged victims in sexual offence trials, while simultaneously affirming the need to uphold the rights of the accused. The verdict, handed down by five Supreme Court judges last week, has sparked heated debate among legal professionals, victims’ advocates, and those concerned about miscarriages of justice.
At the heart of the controversy is Scotland’s so-called ‘rape shield’ legislation, designed to shield alleged victims from intrusive questioning about their sexual history or character during court proceedings. For over two decades, these statutory protections—enshrined in sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995—have aimed to prevent the kind of public shaming that once deterred many from coming forward. But the Supreme Court’s ruling has put these laws under the microscope, suggesting they may be too restrictive and could, in some cases, breach the right to a fair trial as protected by Article 6 of the European Convention on Human Rights.
According to BBC News, Scotland’s Lord Advocate Dorothy Bain KC moved quickly to reassure victims that their rights remain protected. “The supreme court ruling does not alter the statutory protections for those giving evidence,” Bain said, emphasizing that “safeguards remain firmly in place to protect the dignity, privacy and wellbeing of victims.” She described sexual abuse inflicted on women and children as “the single greatest challenge our justice system faces,” adding, “It is unacceptable and victims should feel able to speak out without further fear.”
Yet the Supreme Court’s judgment was anything but straightforward. The case centered on two men, David Daly and Andrew Keir, both convicted of rape and appealing their sentences. The court dismissed their appeals, stating they had received fair trials. However, it also declared that Scottish courts must change their approach to admitting evidence about an accuser’s character or sexual history, warning that the current process is “liable to result in violations of defendants’ rights to a fair trial under article 6 of the convention.”
This apparent contradiction has left many puzzled. Stuart Waiton, writing for The Spectator, called it “a very confused ruling,” noting, “How can the cases they were looking at be fair trials, but at the same time the approach being taken in Scotland breach Article 6? It makes no sense.” He argued the court seemed to be “trying to protect the reputation of the Scottish courts while also sending them a warning.”
The specifics of Andrew Keir’s case have become a lightning rod for critics of the existing system. Keir was sentenced to five years in prison for raping a woman who was described as drunk and asleep at his home. However, due to the ‘rape shield’ laws, evidence about what happened earlier in the night—CCTV footage, witness statements, and pub workers’ reports indicating consensual interaction—was excluded from the trial. “Any ordinary person looking at the Andrew Keir case would conclude that the evidence that was excluded was outrageous,” Waiton wrote. He contended that while the exclusion of this evidence does not prove Keir’s innocence, “the jury should have had the right to hear this evidence and make up their mind accordingly.”
Legal experts and advocates are divided over the implications. Sandy Brindley, chief executive of Rape Crisis Scotland, warned that the Supreme Court’s decision “really could put women off reporting” sexual offences. “The possibility of having your sexual history dragged up in court really could put women off reporting,” Brindley told BBC Radio’s Good Morning Scotland. “It’s frequently fear of the justice process that puts women off reporting rape and often women say to us, ‘I could not bear the thought of my past sexual history being dragged up in court.’ It absolutely is a deterrent to people coming forward.”
Brindley stressed the importance of maintaining robust protections: “I don’t think any of us want to go back to the days where women are worrying that their private lives and their past history will be fair game in a rape trial.” She also emphasized the need for the Crown to “take a robust approach to defending convictions,” adding, “I think the lord advocate’s intervention is really important where she is setting out really clearly the crown’s approach.”
On the other side, lawyers and campaigners for the accused argue that the current system is deeply flawed. According to The Guardian, some legal professionals have voiced concerns that the narrowing of admissible evidence has created “absurdities in the courtroom and left accused men unable to properly defend themselves.” Leading defence lawyers, such as Thomas Ross KC, reportedly refuse to take rape cases due to concerns about fairness. A group called Justice for Innocent Men Scotland has also emerged, advocating for men they believe have been wrongfully convicted.
Katrina Parkes, legal director at the Crown Office and Procurator Fiscal Service, sought to reassure all parties, stating, “The ruling does not automatically render existing convictions unsafe. Any appeals would be considered on a case-by-case basis through established review processes.” Parkes added, “We have already delivered guidance and training across COPFS, and this has enabled those working on cases to respond. The Crown Office would be continuously assessing the impact of this judgement upon our work and would be providing necessary updates to those involved in ongoing cases.”
The potential consequences of the Supreme Court’s decision are far-reaching. Legal observers expect a wave of appeals from men convicted of sexual offences since 2017, though it remains unclear how many cases will actually reach the appeal court or succeed. Thomas Ross KC suggested that the Scottish Criminal Cases Review Commission could be “flooded with new cases,” potentially overwhelming the system for years to come. “What is more likely to happen, however, is that those who have already had appeals rejected will be referred to the Scottish Criminal Cases Review Commission, the SCCRC will be flooded with new cases, the process will take five years and the Scottish government will hope everyone forgets about [it],” Ross remarked during a debate organized by the Scottish Association for the Study of Offending.
The ruling comes at a time when the Scottish Parliament is enacting broader reforms to the justice system, including the recent abolition of the controversial ‘not proven’ verdict. Lawmakers hope these changes will “put victims and witnesses at the heart of a modern and fair justice system,” but the Supreme Court’s intervention has complicated the picture.
For now, Scotland’s legal establishment is walking a tightrope—balancing the rights of alleged victims to dignity and privacy with the fundamental right of the accused to a fair trial. As the dust settles, all eyes will be on how the courts, prosecutors, and lawmakers navigate these competing demands, and whether the justice system can deliver both protection for victims and fairness for the accused.