Statement on the Supreme Court decision in Keir & Daly

Today the UK Supreme Court issued its long awaited decision in the cases of Keir and Daly. The judgment, running to some 62 pages, will have major ramifications for the way in which sexual offence cases are dealt with in Scotland.

The Supreme Court had been asked to consider whether the recent practice of the Scottish courts to treat certain categories of evidence as inadmissible, instead of leaving such matters under the control of trial judges, undermined the right of those accused of sexual crimes to a fair trial. After very careful consideration, it concluded that it did.

Countries across the world have long recognised the need to protect complainers in sexual offence cases from needlessly intrusive and humiliating questioning.

Forty years ago, Parliament introduced changes to the Scottish criminal justice system designed to protect complainers while at the same time safeguarding the rights of those accused to a fair trial. That statutory scheme, updated in 2002, was designed to place questioning on sensitive topics under strict judicial control. It was approved by the country’s highest courts and by the European Court of Human Rights.

In recent years, many in the legal profession have become concerned that Scottish courts were not applying the statutory scheme, but were instead simply refusing to allow certain categories of obviously relevant evidence to be presented at trial. The Law Society of Scotland and the Faculty of Advocates, the bodies representing solicitors and advocates respectively, took the unusual step of intervening in the Keir and Daly appeals so those concerns could be articulated.

Today, the Supreme Court has found those concerns to be justified. It has determined that the current Scottish approach – which has been in place since 2013 – is liable to deprive an accused person of the right to put obviously relevant evidence before a jury, in breach of the right to a fair trial guaranteed by article 6 of the European Convention.

The effect of today’s decision is to require the Scottish courts to change the way in which they deal with such cases. In practice, that should result in the meaningful reinstatement of the statutory scheme, with questioning being returned to the control of trial judges.

There is no doubt that our system should do all it can to support complainers through the criminal justice system. But that cannot come at the price of undermining the right to a fair trial. As the court found, ‘no society governed in accordance with the rule of law can tolerate the conviction and punishment of the innocent.’ Unfair trials, where accused persons are unable to put obviously relevant evidence before the jury, create just that risk.

Livingstone Brown acted for the Law Society of Scotland and the Faculty of Advocates in the joint intervention. The legal team comprised Roddy Dunlop KC, Claire Mitchell KC, David Welsh and Stuart Munro. They were supported by Dr Sarah Munro.