Article 6 and Fair Trial Rights

What the right to a fair trial requires and where it has been tested in Scotland

The right to a fair trial is not an abstract principle. It is a concrete legal right enforceable in Scottish courts and it has direct practical consequences for how criminal proceedings must be conducted. Understanding what it requires, where it has been tested, and where the courts have found it has not been met is essential to understanding some of the most significant developments in Scottish criminal law in recent years.

This page explains what Article 6 of the European Convention on Human Rights requires, how it applies in Scottish criminal proceedings, and where tensions between fair trial rights and other considerations have arisen and been resolved, or left unresolved, in practice.

What Article 6 says

Article 6 of the European Convention on Human Rights guarantees the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

In criminal cases Article 6 provides specific additional guarantees.

These rights are not absolute. The Convention allows for limitations and qualifications in specific circumstances. But any limitation must be proportionate, must pursue a legitimate aim, and must not impair the very essence of the right to a fair trial.

How Article 6 applies in Scotland

The Human Rights Act 1998 incorporated the European Convention on Human Rights into domestic law. In Scotland the Scotland Act 1998 goes further. It makes it unlawful for the Scottish Parliament to legislate incompatibly with Convention rights and unlawful for members of the Scottish Government to act incompatibly with them.

This means that Scottish criminal law and procedure must be compatible with Article 6. Legislation that is incompatible with Convention rights can be challenged in the courts. Actions by prosecutors, police or other public authorities that are incompatible with Convention rights can be challenged. And the conduct of criminal proceedings in a way that violates Article 6 can found a ground of appeal.

The right to legal assistance, including the right to have a solicitor present during police questioning, has been the subject of significant case law in Scotland. The Supreme Court's ruling in Cadder v HM Advocate in 2010 established that the previous practice of questioning suspects without access to a solicitor was incompatible with Article 6. That ruling prompted immediate legislative change.

The right to examine witnesses, including the right to challenge the evidence of a complainer in a sexual offence case, has been the subject of ongoing tension with the protections afforded to complainers under sections 274 and 275. Where those protections prevent genuinely relevant defence evidence from reaching the jury a fair trial argument arises.

The right to disclosure of the prosecution's evidence is another area where Article 6 is directly engaged. A defendant who is not given access to the material the Crown holds cannot properly prepare their defence. Disclosure failures can therefore constitute fair trial violations in their own right.

The tension between fair trial rights and complainer protection

The most sustained and significant tension in Scottish criminal law between Article 6 and other considerations has arisen in the context of sexual offence cases and specifically in the operation of sections 274 and 275.

The protection those provisions afford to complainers is genuine and the interests they serve are legitimate. Parliament was right to address the history of degrading and irrelevant intrusion into complainers' private lives that characterised sexual offence trials before the provisions were introduced.

But the right of an accused person to present a full and effective defence is also genuine and the interests it serves are also legitimate. A system that prevents relevant defence evidence from reaching the jury in the name of protecting complainers is a system that risks convicting people on an incomplete and partial account of what happened.

The question Article 6 asks is not which of these interests is more important in the abstract. It asks whether in the specific case before the court the balance struck between them is compatible with the requirements of a fair trial. That is a case by case assessment and it does not always produce the same answer.

What the Supreme Court found in Daly and Keir

The most significant recent articulation of where the balance must be struck came in November 2025 when the UK Supreme Court decided the conjoined cases of Daly v HM Advocate and Keir v HM Advocate.

The court addressed cases in which section 275 applications had been refused and in which the excluded evidence had potentially significant bearing on the fairness of the proceedings. The central question was whether the approach taken by Scottish courts to those applications had been compatible with Article 6.

The court found that it had not. In the specific cases before it the exclusion of potentially relevant defence evidence had gone beyond what the proper balance between the interests of complainers and the rights of the accused could justify. The right to a fair trial had been violated.

The court was careful to emphasise that it was not saying section 274 was incompatible with Article 6. The general prohibition on irrelevant sexual history evidence is compatible with the Convention. What the court found incompatible was the way the exception in section 275 had been applied in these cases, producing an outcome in which evidence that a defendant had a right to have heard was kept from the jury.

The implications for concluded cases

The Supreme Court's ruling has implications beyond the specific cases before it.

Cases decided under the same restrictive approach to section 275 that the court found to be incompatible with Article 6 may have been affected in the same way. Where a section 275 application was refused in circumstances similar to those in Daly and Keir, and where the excluded evidence was potentially relevant to a matter in issue at the trial, the fairness of those proceedings is open to question.

The appropriate mechanism for raising such questions depends on the stage the case has reached. Where an appeal has not yet been pursued the implications of Daly and Keir should be considered carefully with legal advice. Where the normal appeal routes have been exhausted a referral to the Scottish Criminal Cases Review Commission may be the appropriate avenue, particularly where the SCCRC's assessment is that the section 275 application was refused in a way that is now known to be incompatible with Article 6.

This is not a guarantee of any particular outcome. The appeal court will make its own assessment of whether the specific circumstances of each case give rise to a fair trial violation and whether the conviction is unsafe as a result. But the legal foundation for raising the argument now exists in a way that it did not before November 2025.

Disclosure and Article 6

A separate but equally significant area where Article 6 is engaged in Scottish criminal proceedings is disclosure.

The right to a fair trial includes the right of a defendant to have access to the material held by the prosecution that is relevant to their case. This includes not just the material the Crown intends to use at trial but material that might undermine the Crown's case or assist the defence.

Disclosure failures, where material that should have been provided to the defence was not provided, are one of the most significant categories of potential miscarriage of justice. They can take many forms. Material may simply not be disclosed because it was not recognised as relevant. It may be disclosed late, after decisions have been made that cannot easily be reversed. It may be disclosed in a form that makes it difficult to use effectively. Or it may not be disclosed at all.

In each of these situations the defendant's ability to prepare and present their defence is compromised. The extent to which that compromise affects the fairness of the trial and the safety of any resulting conviction depends on the specific material involved and the specific circumstances of the case.

Disclosure failures are a recognised ground of appeal and a category of potential miscarriage of justice that the SCCRC takes seriously. Where there are concerns that material was not disclosed that should have been, identifying what that material was and why it should have been disclosed is an important part of any post-conviction review.

The presumption of innocence

The presumption of innocence is the cornerstone of Article 6 in criminal proceedings. It means that the burden of proving guilt lies with the Crown throughout. It means that the accused does not have to prove anything. It means that doubt resolves in favour of the accused. And it means that any measure, whether legislative, procedural or practical, that effectively shifts that burden or undermines its operation is incompatible with the right to a fair trial.

In Scotland the presumption of innocence is formally preserved. The standard directions given to juries emphasise it. The rules of evidence are built around it. But the practical operation of the criminal justice system does not always reflect the formal commitment to the principle.

Public discourse around serious allegations can create a presumption of guilt before any trial takes place. Media coverage can build a picture of the accused that is difficult for a jury to disregard. Procedural rules that prevent relevant defence evidence from reaching the jury can create a structural imbalance that affects the jury's ability to properly apply the presumption of innocence to the facts before them.

None of these practical pressures on the presumption of innocence is unique to Scotland. They are features of criminal justice systems everywhere. But recognising them matters because it is only by recognising where the presumption of innocence is under pressure that its protection can be properly maintained.

What to take from this page

Article 6 of the European Convention on Human Rights guarantees the right to a fair trial in criminal proceedings and is directly enforceable in Scottish courts. It has been engaged in a number of significant ways in Scottish criminal law including through the Cadder ruling on the right to a solicitor, through the ongoing tension between complainer protection and defence rights in sections 274 and 275, and through disclosure obligations. The Supreme Court's ruling in Daly and Keir in November 2025 found that the approach taken to section 275 applications in Scotland had in some cases violated Article 6. The implications of that ruling for concluded cases are still being worked through and anyone with a potentially affected case should take legal advice. The presumption of innocence remains the foundation of fair criminal proceedings and its protection in practice as well as in principle matters to everyone in the system.