In a joint submission to the Supreme Court, the Faculty of Advocates and the Law Society of Scotland raised concerns that overly narrow interpretations of evidential rules in rape trials could undermine the right to a fair trial, as guaranteed by Article 6 of the Convention.

The intervention relates to the appeals of Andrew Keir and David Daly, both convicted of rape in October and December 2022 respectively. After losing their appeals against conviction at the Appeal Court of the High Court of Justiciary, the two men appealed to the Supreme Court, which heard arguments last year.

The Faculty’s input was provided by Roddy Dunlop KC and Claire Mitchell KC, and by David Welsh and Stuart Munro for the Law Society of Scotland. In their submission, the organisations said the rules governing admissible evidence – particularly those allowing only material deemed “relevant” to the charge – had been applied too restrictively, preventing the defence from presenting contextual material that could aid the jury in understanding the events.

The submission stated there was “a real risk of breach of Article 6” in both cases due to this imbalance. It argued that excluding potentially exculpatory evidence had compromised the defence’s ability to challenge the Crown’s case effectively.

While both organisations affirmed their support for the statutory protections designed to shield complainers from intrusive or irrelevant questioning – set out in Sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 – they expressed concern that the concept of relevance was being interpreted too narrowly.

“It is vital that complainers are able to give evidence free from intrusive or inappropriate questions which are not relevant to the issues relevant to the jury’s consideration, and are not put off from reporting crimes because of a fear that they will be subject to humiliation before a jury,” the submission states.

However, it added that overly strict applications of the rules risk tipping the balance away from fairness and could compromise the integrity of the trial process.

The submission adds: “The approach of the courts has been to infringe on an area into which Parliament has chosen to legislate. The overall effect of the foregoing creates a risk of the accused being denied a proper opportunity to present his defence at trial, with the consequence that the procedure is so unfair as to be incompatible with Article 6 ECHR.”

It adds: “The overarching conclusion that the interveners invite this court to reach in these appeals is that the interpretation by the Scottish courts of the statutory definition of rape – and therefore the scope of relevant evidence for a rape trial – has gone so wrong that it has upset the balance of fairness between a complainer and an accused.

“The interveners respectfully invite this court to determine that the balance has become so skewed as to involve a real risk of breach of Article 6.”

It concludes: “The interveners, for the reasons set out above, submit that the overly-restrictive interpretation of relevancy for the purposes of sexual offences has resulted in an undermining of the statutory scheme. The effect of that undermining is, in effect, to remove from an accused the ability properly to (i) test the case made against him, and (ii) place before the jury the full context in which the actions took place.

“The overall effect, therefore, is to create a situation in which the procedure is potentially (and dependent on the precise facts of the case) unfair as to amount to a breach of the accused’s Article 6 right to a fair trial. The State is under an obligation not only to protect the complainer (which is an important factor), but is also under an obligation to make sure those protections do not undermine the fairness of the proceedings in relation to the accused. The balance at the moment has not been struck fairly for the accused who is put at a distinct disadvantage in a trial when accused of a sexual offence.”

Stuart Munro, convener of the Law Society’s Criminal Law Committee said: “It is widely accepted that cases involving allegations of sexual violence require special rules to limit the admissibility of evidence about a complainer’s character or sexual history.

“It is vital that complainers are able to give evidence free from intrusive or inappropriate questions which are not relevant to the issues before the jury, and are not deterred from reporting crimes because of a fear that will happen. However, a very careful balance has to be struck to ensure that those accused of crime are able to advance their defence and have a fair trial.”