The UK Supreme Court decision in Keir & Daly: a synopsis

‘…the common law of Scotland in relation to the admission of evidence in trials for sexual offences, as currently applied, is liable to result in violations of the rights of the accused under article 6.’

On 12 November 2025, the UK Supreme Court handed down a judgment in the cases of Keir & Daly. This judgment concluded that the current application of the common law in Scotland, in relation to the admission of evidence in trials for sexual offences, is liable to result in violations of an accused’s rights under article 6.

What is article 6?

Article 6 of the European Convention on Human Rights [ECHR] is an individual’s right to a fair trial. In a determination of a person’s civil rights, obligations, or any criminal charge, an individual ‘is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’

The right to a fair trial in Scotland is enshrined by multi-layered protections, by virtue of the Human Rights Act 1998 and the Scotland Act 1998.

It is this right that the UK Supreme Court has warned is at risk of being violated.

How has the Scots law of evidence been applied in a way that would violate article 6?

The law in Scotland has developed with the aim of balancing the rights of complainers with those accused of sexual offences. This was ultimately incorporated into legislation, to restrict the presentation of evidence in a trial that is irrelevant to the crime alleged and/or lends itself to attacking the complainer’s character.

The legal framework while restricting this, allows for an accused to apply to the court to allow relevant evidence, in connection with their defence, to be admitted. A judge upon receipt of such an application requires to make the decision on whether such evidence is indeed relevant and should be admitted.

The UK Supreme Court has decided in its judgment that the current approach, taken by Scottish judges when making decisions on such applications has been too restrictive and that relevant evidence has not been admitted in support of an accused’s defence, when it had ought to have been.

This has created the circumstances in which the UK Supreme Court has laid down its judgment.

Why is this important?

The judgment is particularly important as Scottish courts will now require to change their approach in dealing with the issues outlined.

Implications for those convicted of a sexual offence since 2013

The judgment will be relevant to cases where an accused has been convicted of a sexual offence since 2013, following the rejection of the admission of relevant evidence in their case. Further, it may be that due to the restrictive approach that has been taken by the Scottish courts, defence lawyers have not presented applications for the admission of evidence, due to concerns of poor prospects of success.

If you, or a family member, have been convicted of a sexual offence since 2013, in the circumstances outlined above, please contact Livingstone Brown for confidential advice.

Please contact our Laura Millar on 0141 429 8166.

Livingstone Brown acted for the Law Society of Scotland and the Faculty of Advocates in the joint intervention in this case. The legal team comprised Roddy Dunlop KC, Claire Mitchell KC, David Welsh and Stuart Munro. They were supported by Dr Sarah Munro. Please see our Stuart Munro’s statement on the judgment: STATEMENT ON THE SUPREME COURT DECISION IN KEIR & DALY

Please also find a link to the relevant judgment here: Daly (Appellant) v His Majesty’s Advocate (Respondent) (Scotland); Keir (Appellant) v His Majesty’s Advocate (Respondent) (Scotland).