The long-awaited judgment of the Supreme Court in Daly and Keir v HMA [2025] UKSC 38 has finally been released. To say that it will have profound consequences for the conduct of sexual offences trials in Scotland is perhaps an understatement.

At issue was the compatibility of the Scottish courts’ approach to the admissibility of evidence covered by ss. 274 and 275 of the Criminal Procedure (Scotland) Act 1995 with the accused’s right to a fair trial under article 6 of the European Convention on Human Rights. Sections 274 and 275 govern the admissibility of broad categories of evidence, including all sexual behaviour not forming part of the charge, all character evidence, and most non-sexual behaviour bearing on credibility in all sexual offences trials. The sections operate by way of a blanket prohibition (s. 274) on the admissibility of such evidence, subject to a judicially controlled exception (s. 275). In recent years, the Scottish courts have developed an ever more restrictive approach to the admissibility of such evidence largely by requiring that it meet an evolving and exacting standard of common law relevance.

The Supreme Court is highly critical of the Scottish development of the concept of relevance at common law, observing, for example, that it is an obvious matter of common sense that a complainer expressing a willingness to engage in certain sexual activities shortly before the incident, or continuing to meet the accused regularly for consensual sex after the incident might well be relevant to the issues before the jury in a rape trial. (para. 132)

This, of course, does not mean that any and all such evidence will automatically be admissible. The admissibility of all evidence caught by the s. 274 prohibition must still meet the three-part test enumerated in s. 275. On the facts of both Mr Daly and Mr Keir’s cases the Supreme Court concluded that there was no violation of Article 6, demonstrating that this remains a robust standard well capable of protecting the dignity and privacy rights of complainers. The key takeaway is that this protection cannot come at the expense of the accused person’s right to a fair trial.

This judgment is a must read for anyone practicing in the area of criminal law. It marks a wholesale change in the approach to admissibility under ss. 274 and 275 and it is incumbent upon practitioners to absorb this change as quickly as possible to ensure that accused persons’ fair trial rights are fully protected. The Supreme Court notes that this recalibration “will cause an inevitable degree of disruption and delay in cases concerned with sexual offences which have not yet gone to trial, cases where the trial is still in progress, and appeals that have not yet been decided.”

Ultimately, the Supreme Court concludes in no uncertain terms that “the approach which is currently adopted by the Scottish courts to the admissibility of evidence in cases of rape and other sexual offences is liable to result in violations of article 6.” (para. 169) and that it therefore “follows that the Scottish courts are under a duty to modify their current approach so as to ensure that decisions on the admissibility of evidence are in conformity with the Convention, by virtue of section 6(1) of the Human Rights Act.” (para. 181)

Arnot Manderson Practice Manager Andrew Sutherland commented:

“With stable members Sarah Loosemore instructed as junior counsel for the appellant Keir and Wojciech Jajdelski and Paul Harvey acting for the Crown, this case has been of special interest to our stable, particularly the members of the Criminal Law group, and those agents who instruct us in Criminal cases and their clients.  To have stable members so heavily involved in this landmark case and ruling highlights our considerable strength in this area.

I am particularly pleased to note that we will shortly be repeating our well attended Criminal Law Seminar, in Glasgow, following the success of the CPD event last month in Edinburgh.  I’m especially thankful to Sarah Loosemore (pictured below) who will give those attending an unrivalled insight into the case and a detailed breakdown and understanding of the significant implications for those solicitors working in this branch of Criminal Law.”

Details of the next Arnot Manderson Criminal Law Event to be held in Glasgow in December will appear shortly in the News and Events section of the Arnot Manderson website.