On November 12, 2025, the UK Supreme Court delivered a verdict that is already sending ripples through Scotland’s legal community and beyond. In a landmark ruling, five of the country’s top judges declared that the way Scottish courts have handled evidence in sexual offence cases risks depriving defendants of their right to a fair trial, as guaranteed by Article 6 of the European Convention on Human Rights. This decision, rooted in the appeals of two men convicted of rape, has ignited a passionate debate about justice, privacy, and the future of sexual offence prosecutions in Scotland.
The case at the heart of this legal storm involved David Daly and Andrew Keir, both convicted of rape and other sexual offences. They argued that their trials were unfair because they were prevented from presenting evidence or questioning the complainers (the term used in Scotland for alleged victims) about their credibility or previous sexual behaviour. Though the Supreme Court ultimately dismissed their appeals—finding that both men had received fair trials—the judges did not shy away from criticizing the current Scottish approach to evidence in such cases.
According to the BBC, the Supreme Court found that Scottish courts have almost always excluded evidence about a complainer’s credibility or sexual history from sexual offence trials. The judges ruled this practice "is liable to result in violations of defendants’ rights to a fair trial under Article 6 of the Convention." They elaborated, "Excessive restrictions on the evidence or questioning which may be led at trial can therefore be incompatible with the right to a fair trial." In other words, while the intention has been to protect alleged victims from humiliating or irrelevant questioning, the pendulum may have swung too far, possibly at the expense of the accused’s right to mount a full defense.
In a particularly striking section of the judgment, the court acknowledged that, in order to ensure fairness, it may be "inevitable" that a complainer would have to be asked some intrusive questions. The justices explained, "In our adversarial criminal justice system, by pleading not guilty, the defendant is necessarily challenging the complainer’s version of events. The defence should consequently be able to seek to undermine the credibility of the complainer’s testimony, and to rely on evidence of her behaviour, sexual or non-sexual, before or after the events in question if it is relevant to the question of consent."
But the Supreme Court was also careful to note that the interests of complainers remain "important and must be given proper weight." They cautioned, "The law must therefore ensure that any intrusion into a complainer’s privacy is no more than is necessary to ensure that the defendant receives a fair trial." In effect, the judgment calls for a delicate balancing act—one that gives trial judges more discretion to decide what questions are appropriate, while ensuring that neither the rights of defendants nor the privacy of alleged victims are unduly compromised.
The implications of this ruling are potentially enormous. Legal experts expect that it could trigger a wave of appeals from men convicted of sexual offences in Scotland since 2017, with claims that their trials were miscarriages of justice due to the exclusion of relevant evidence. However, as reported by BBC News, it remains impossible to predict exactly how many cases will be brought to the appeal courts, or how many will ultimately succeed.
The Law Society of Scotland, which represents the legal profession north of the border, welcomed the Supreme Court’s decision. President Patricia Thom remarked, "Scotland has worked hard to ensure complainers in sex offence cases were protected from unjustified intrusive questioning while also upholding the accused’s right to present a full and proper defence." She acknowledged, however, that recent legal changes in Scotland had left many lawyers concerned that "accused persons [were] being denied the right to present potentially relevant evidence at trial." Thom concluded, "It is now clear that Scottish courts will need to revise their approach in these cases and return to the system agreed by the UK and Scottish Parliaments, giving trial judges greater discretion to decide what questions may or may not be asked."
Not everyone is reassured by the ruling. Rape Crisis Scotland, a leading advocacy group for survivors of sexual violence, described the judgment as "a real step backwards." Chief executive Sandy Brindley voiced relief that Daly and Keir’s appeals were rejected but raised alarm about the broader implications. "There is a real worry that this could lead to more appeals happening, and that can be really frightening and anxiety-provoking for survivors," she said. "The possibility of having your sexual history dragged up in court really could put women off reporting." Brindley emphasized the need to protect complainers from irrelevant and humiliating questioning, warning against a return to practices where women were routinely subjected to invasive cross-examination about their clothing or sexual past.
The Scottish government has taken note of the Supreme Court’s ruling and is working with criminal justice partners to assess its impact. A government spokesperson stated, "The law, rightly, has provisions in place to protect complainers in sexual offences cases from irrelevant, intrusive questioning about their sexual history or character within the context of ensuring a fair trial to the accused." The message is clear: while changes are coming, the government remains committed to balancing the rights of the accused with the protection of those who come forward to report sexual offences.
Legal practitioners are also weighing in on what the ruling means in practice. Tony Lenehan KC, vice dean of the Faculty of Advocates, argued that the decision is not a "seismic change" but rather an adjustment that restores trust in juries and gives judges greater freedom. "Juries were not being trusted to use their common sense. The judgement today allows judges greater freedom to say to the jury, you are trusted now to look at these facts but we’ll give you guidance on how you can use them, and how you must not abuse those facts," he told BBC News.
For many, the ruling marks a pivotal moment in the ongoing struggle to reconcile the rights of the accused with the need to protect survivors of sexual violence. As Patricia Thom pointed out, "This is a profoundly important judgment and one that goes to the very core of the right to a fair trial." Yet as Sandy Brindley and others have cautioned, the changes must not come at the expense of survivors’ willingness to report crimes or their confidence in the justice system.
In the coming months and years, Scottish courts will be forced to re-examine their procedures, and the impact of this ruling will play out in courtrooms and communities across the country. For now, the Supreme Court’s decision stands as a powerful reminder of the complexities—and the stakes—involved when justice, privacy, and public confidence are all on the line.
