Posted by ccld201
29 July 2026[2025] UKSC 38 – 12 November 2025
UKSC/2023/0123 Keir (Appellant) v His Majesty’s Advocate (Respondent) (Scotland)
Key words
Criminal Law; Criminal Procedure; Human Rights; Art.6 European Convention on Human Rights (ECHR) right to fair trial
Overview
Conjoined appeals relating to the fairness of sexual offences (including rape) trials. Both defendants sought to appeal convictions on the basis that relevant information was blocked from introduction at trial.
Daly’s appeal concerned information regarding an accusation by the victim that was not pursued due to a lack of evidence.
Keir’s appeal regarded the exclusion of earlier sexual conduct with the victim that was not the subject to a charge.
The court dismissed the appeal of Daly because of previously agreed separate Article 6 ECHR breaches. It found no breach of the rights of Keir in this case. Nevertheless, the court found that the approach of Scottish courts was liable to lead to breaches of Article 6 ECHR.
Key Issues
Whether the Scottish common law approach and s.275 applications under the Criminal Procedure (Scotland) Act 1995 were liable to breach the rights of defendants under Article 6 of the ECHR.
Whether s.275 applications which are not made because they would fail can still form the basis of an appeal.
The appropriate balance between respecting the right of the complainant and the proper administration of an adversarial trial, especially considering CJM v HM Advocate.
Human dignity in the UKSC reasoning
[86] Section 275(2) [of Criminal Procedure (Scotland) Act 1995] provides that “the proper administration of justice”, as that phrase is used in section 275(1)(c), includes:
“(i) appropriate protection of a complainer’s dignity and privacy; and
(ii) ensuring that the facts and circumstances of which a jury is made aware are, in cases of offences to which section 288C of this Act applies, relevant to an issue which is to be put before the jury and commensurate to the importance of that issue to the jury’s verdict”. [emphasis added]
[99] Lord Hope [in DS v HM Advocate] began by emphasising the fundamental nature of the right a fair trial. The purpose of section 275 was to ensure that the accused would receive a fair trial, notwithstanding the restrictions imposed by section 274. The three tests set out in section 275(1) were designed to achieve that purpose consistently with the proper administration of justice, which included the appropriate protection of the complainer’s dignity and privacy. Lord Hope also explained how a number of words and phrases in sections 274 and 275 were to be interpreted so as to ensure the compatibility of the legislation with article 6 of the Convention. [emphasis added]
[118] […] The proper administration of justice is defined as including, in addition to appropriate protection of a complainer’s dignity and privacy, “ensuring that the facts and circumstances of which a jury is made aware are, in cases of offences to which section 288C… of this Act applies … relevant to an issue which is to be put before the jury and commensurate to the importance of that issue to the jury’s verdict”. […]
[120] In relation to the first of these points [that the statutory scheme of admissibility should be narrowed if the common law scope was narrowed], although the statutory scheme was (ex hypothesi) intended to be more restrictive than the common law as it was understood and applied at the time when sections 274 and 275 were enacted, as a result in particular of directing the courts to treat the proper administration of justice as including appropriate protection of a complainer’s dignity and privacy, it does not follow that the scope of the statutory scheme was intended to fluctuate in response to changing judicial approaches to the common law. [emphasis added]
[140] In deciding whether such evidence [of a prior sexual relationship with the accused] should be admitted or excluded as collateral, Lord Malcolm [in the minority opinion of SJ v HM Advocate] considered that “the signposts are provided in section 275(1) of the Act, and in particular the requirement in [subsection] (c) that ‘the probative value of the evidence sought to be admitted or elicited is significant and is likely to outweigh any risk of prejudice to the proper administration of justice arising from its being admitted or elicited’, keeping in mind that the proper administration of justice includes ‘appropriate protection of a complainer’s dignity and privacy’” (para 25) [emphasis added]
Follow-up reading:
Sanna Elfving, “Towards More Coherent Gender Justice in Strasbourg through the Principle of Human Dignity?”, Dignity&Democracy Blog, 24.07.2025
Brian Brewis and Paul Dargue, “Sexual Behaviour Evidence in the Court of Appeal (Criminal Division): Presenting the Need for Reform”, (2025) The Journal of Criminal Law 89(5-6), 28. (Open Access)
Jonathan Hall is a second-year Law (LLB) undergraduate at the University of Exeter with an interest in the human rights jurisprudence, especially concerning human dignity.