Section 274

The general prohibition on sexual history evidence in Scotland

Section 274 of the Criminal Procedure (Scotland) Act 1995 is one of the most significant and most contested provisions in Scottish criminal law. It governs what evidence can be placed before a jury in sexual offence cases about the complainer's background, history and character. Understanding what it does, why it exists, and where its limits lie is essential to understanding how serious sexual offence trials in Scotland actually work.

This page covers section 274 itself. The exception to the prohibition it creates — section 275 — is covered in detail on the next page.

What section 274 does

Section 274 creates a general prohibition on two categories of evidence in sexual offence cases.

The prohibition applies to both direct evidence and to questioning of witnesses. A defence agent cannot ask a complainer about their sexual history or introduce evidence about their past relationships or conduct without the court's permission. The prohibition operates as a default — it applies unless an application under section 275 has been made and granted.

Why section 274 exists

The prohibition was introduced because of a well-documented and serious problem with how sexual offence trials had historically been conducted in Scotland and elsewhere.

For many decades complainers in sexual offence cases were routinely subjected to questioning about their sexual history, their previous relationships, their behaviour on the night in question and their general sexual reputation. This questioning was often irrelevant to the actual issues in the case. It was frequently degrading. And it was designed not to establish any truth about what happened but to undermine the complainer's credibility by painting a picture of them as someone whose account should not be trusted.

The consequences were significant and well documented. Complainers were deterred from reporting. Those who did report faced a process that felt like a second assault. Juries were invited to draw inferences from sexual history that had no rational bearing on whether the alleged offence had taken place.

Section 274 was Parliament's response to that history. Its purpose is to prevent irrelevant and degrading intrusion into a complainer's private life and to ensure that the trial focuses on what actually happened rather than on character assassination.

That purpose is legitimate and the history that gave rise to it is real. Any honest discussion of section 274 must begin by acknowledging both of those things.

What section 274 does not do

Section 274 does not make all evidence about the complainer's background or history inadmissible. It is important to understand both what the prohibition covers and what it leaves available to the defence.

The scope of the prohibition in practice

The prohibition in section 274 is broadly drafted. The categories of evidence it covers are wide. In practice this means that evidence which a defence agent considers relevant and important to the proper presentation of the defence case may fall within the prohibition and require a section 275 application before it can be led.

This creates a significant practical challenge. The decision about what evidence falls within the section 274 prohibition and therefore requires a section 275 application is not always straightforward. Evidence about the complainer's mental health, their use of substances, their financial circumstances, the dynamics of their relationship with the accused, and many other matters may or may not fall within the prohibition depending on the purpose for which it is being led and the specific circumstances of the case.

Where there is doubt about whether evidence requires a section 275 application the prudent course is to make the application. Failing to make an application for evidence that should have been the subject of one can result in that evidence being excluded at trial. Failing to make an application where one should have been made can itself be a ground of appeal if the omission caused prejudice to the accused.

The relationship between section 274 and fair trial rights

The existence of a prohibition on certain categories of evidence inevitably creates tension with the right of an accused person to present a full and effective defence. An accused person who is prevented from leading evidence that they consider relevant to their defence may argue that their right to a fair trial under Article 6 of the European Convention on Human Rights has been infringed.

That tension is acknowledged in the legislation itself. Section 275 exists precisely because Parliament recognised that there would be cases where the interests of the accused in leading otherwise prohibited evidence would outweigh the interests of the complainer in being protected from it. The section 275 exception is the mechanism through which that balance is struck in individual cases.

The question of whether the balance has been struck correctly — both in the legislation as drafted and in how it has been applied by the courts — has been the subject of significant debate and ultimately of intervention by the UK Supreme Court.

In Daly v HM Advocate and Keir v HM Advocate, decided in November 2025, the Supreme Court addressed cases in which section 275 applications had been refused in circumstances where the excluded evidence was potentially relevant to the fairness of the trial. The court concluded that the approach taken had in some respects been too restrictive and incompatible with Article 6.

The implications of that ruling are still being worked through in practice. They are addressed in more detail in the section 275 page that follows and in the Article 6 page later in this section.

The purpose and the problem

Section 274 exists for good reasons. The history of sexual offence trials before its introduction is a history of injustice toward complainers that the law was right to address.

But a provision that prevents relevant defence evidence from reaching the jury is a provision that carries its own risk of injustice. The question is not whether the prohibition is justified in principle — it plainly is. The question is whether the line it draws, and the way that line has been applied in practice, has always been drawn and applied in a way that preserves the fundamental fairness of the proceedings.

That is the question that section 275 attempts to answer. It is also the question that the Supreme Court found had not always been answered correctly.

What to take from this page

Section 274 creates a general prohibition on evidence about a complainer's sexual history or character in sexual offence cases. It exists because of a well-documented history of irrelevant and degrading intrusion into complainers' private lives and its purpose is legitimate. It does not make all background evidence inadmissible but it creates a default prohibition that can only be displaced by a successful application under section 275.

Where the prohibition prevents relevant defence evidence from reaching the jury it creates tension with the right to a fair trial that section 275 is designed to resolve. Whether it has always resolved that tension correctly is the subject of the next page.