When two tribes go to war: Scottish sexual history evidence in the UK Supreme Court

whether the current rules governing the admission of sexual history evidence in Scotland were compliant with an accused's right to a fair trial under article 6(3)(b) of the European Convention on Human Rights in the conjoined appeals of Daly v HM Advocate and Keir v HM Advocate. 1The conclusion was that the current approach of the appeal court in Scotland, developed over the last decade, could lead to a breach of article 6 on the basis that collaterality should not be equated with irrelevancy.Long awaited, this case raises interesting questions about the use of legal doctrine to legitimise underlying factual interpretations, assumptions and normative judgements, as well as the appropriate scope of the SC's remit to act as a court of final appeal for devolution issues in Scottish criminal cases. A. BACKGROUNDCharacter evidence in Scotland is generally treated as a collateral matter. 2 A collateral issue is one which runs parallel to the facts at issue -it does not render such facts more or less probable -and as a result is held to be insufficiently relevant and hence inadmissible. 3 Witness credibility predictably intersects with the admissibility of collateral evidence.Witnesses may be challenged on their credibility, but this has typically been "carefully kept within very limited bounds" under the common law. 4 Thus, while parties can attack witness accounts of events in cross-examination, 5 they cannot lead independent character evidence