Scotland's courts, prosecutors, police service and lawyers have been told not to destroy files relating to sex offence cases in the wake of a Supreme Court ruling on the operation of the country's "rape shield" laws, The Herald can reveal.
The Scottish Criminal Cases Review Commission (SCCRC), the organisation responsible for investigating potential miscarriages of justice, made the request in anticipation of appeals by people convicted of rape or serious sexual assault going back 12 years.
Police sources told The Herald it is the first time senior officers are aware of such a request.
It followed a landmark judgment by the UK's highest court in November last year which found the way serious sex crimes had being prosecuted since 2013 had put at risk the accused right to a fair trial.
The intervention by the SCCRC's chief executive Michael Walker was made last year after the UKSC ruling and has come to light in correspondence obtained by freedom of information legislation which also appeared to suggest a possibility that a "class action" could be made such as that pursued by people wrongly convicted in the Post Office's Horizon scandal.
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Mr Walker wrote to senior civil servant Ann Donald, the Scottish Government's deputy director for the criminal justice division, to inform her of the request to the justice services in December last year.
The court judgment related to what evidence is allowed to be heard in trials for serious sex offences and what can be regarded as inadmissible under rape shield provisions.
It ruled that the law - set out under Sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 which is designed to protect complainers giving evidence from irrelevant, intrusive and distressing questioning - had been interpreted by the courts in a way that was "too restrictive" - and required to be less restrictive in order to ensure the defendant had a fair trial.
Sections 274 bars the defence from using evidence which is designed to question a complainer's character or sexual history, unless an exception is granted under Section 275.
In the judgment Lord Reed, the UK's most senior judge, said the current approach taken in Scotland, in place since 2013, risked depriving a defendant of their right to a fair trial which is enshrined in Article 6 of the European Convention on Human Rights.
Lord Reed, the President of the UK's Supreme Court, read out the judgment in November last year. (Image: Supreme Court)
Mr Walker wrote to Ms Donald on December 16 noting a small number of applications made to the SCCRC after the ruling the previous month and updating her on a plan to deal with the matter.
"I wanted to give you an update before Xmas about where we are with addressing 274/275 applications," he said.
"The Board considered this matter at its meeting on 28 November. Further to this, we are putting together an operational plan to deal with the expected applications. Here are some points that you may wish to note:
"As at today’s date, we have received a handful of applications and two or three of our current active cases contain points that will need to be addressed in light of the Supreme Court’s decision.
"It is still difficult to predict just how many applications that we’ll receive.
"In a letter to the Justice Committee, as quoted in a recent article in The Herald, the Lord Advocate raised the prospect of an influx of appeals being lodged by people convicted of rape and other sex offences from 2013, adding: "These are expected to arise from both recent and older convictions.
"The Scottish Criminal Case Review Commission may refer relevant convictions dating from 2013 onwards, when the Scottish court developed the recent common law rules on admissibility, to the appeal court'. The LA recognised, however, that '[i]t is not possible to assess the number of convictions that may be referred to the appeal court at this time'."
Mr Walker went on to say his staff were "putting together a resource-planning paper" which would be considered the following month when he believed the SCCRC would have "a better idea about the number of applications that we’ll receive, but it is possible that a surge of applications comes after this date because prospective applicants have not the opportunity to speak to their legal reps/instruct new reps before that date".
He went on: "We have written to the Crown Agent, the Chief Constable and the Chief Executives of SCTS and LSS asking each of them to put a moratorium on the destruction of papers in sexual offence cases."
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Minutes of a meeting between the SCCRC and the Scottish Government's criminal justice division, held on March 11 this year to discuss the impact of the UKSC ruling, were also released under FOI.
Attendees heard the number of applications had increased to 15 and discussed the experience of dealing with class actions against wrongful convictions such as the Post Office Horizon cases.
"Mr Walker provided an update on the SCCRC’s consideration of applications they have received relating to the Supreme Court decision on section 274/275," said the minutes.
"They currently have 15 applications and expect that 10 of these can go to Stage 2 review."
The document added: "Mr Walker said that previous experience of handling of ‘class’ cases such as Post Office Horizon will be helpful .'"
In a further letter, also released this month, under FOI and passed to The Herald, Mr Walker told Ms Donald on August 21 that 26 applications had been made to the SCCRC to review sex offence convictions.
The Crown Office's approved schedule for all papers of evidential value relating to sexual offence cases is that they are held for ten years and then they are sent to the National Records of Scotland for archiving.
A spokesperson for the Crown Office and Procurator Fiscal Service said: "Scotland's prosecutors act independently and fairly in the public interest. We remain in contact with the SCCRC about the issues raised in its letter."
A spokesperson for the Scottish Courts and Tribunals Service said: “SCCRC relies on access to court records in order to conduct reviews of relevant cases.
"SCTS received correspondence from the Chief Executive of the SCCRC on 15 December 2025. In line with legislative provisions, the retention and disposal policies of SCTS ensure that all High Court and Sheriff Court indictments are retained and periodically transmitted to the National Records of Scotland for permanent preservation.
"Summary complaints - which relate to lower-level offending where the maximum sentence level is 12 months – are retained for 10 years. In early 2026 SCCRC and SCTS discussed the retention of records in relation to sexual offence cases and SCTS confirmed the current legislative position.”
A Police Scotland spokesperson said: “We received correspondence and a response was provided in February 2026.”
Police Scotland’s current Retention Standard Operating Procedure for sexual offences means any paperwork dating back to 2013 in all sexual offence cases is retained until the youngest accused or complainer reaches 100 years of age, with a minimum of 20 years.
Law Society of Scotland Criminal Law Committee Convener Stuart Munro said: "We contacted members working in criminal practice earlier this year in relation to the SCCRC's requested moratorium on the destruction of papers and materials in all sexual offence cases. As the professional body for solicitors, the Law Society of Scotland does not itself hold any case notes or files in relation to such convictions.
"We have reminded our members of the Law Society's Code of Conduct for Criminal Work and its terms in relation to the retention of papers and fines, and otherwise advised members to exercise their professional judgement when considering whether any of their files may be relevant to the Commission's work."
The Law Society's Code of Conduct requires solicitors to retain papers relating murder cases and other cases involving life imprisonment indefinitely. It states that in other Solemn and in any Summary case, the papers should be retained for three years.
The SCCRC referred initial cases relating to the Post Office's Horizon scandal to the High Court leading to overturned convictions for individuals such as Susan Sinclair and William Quarm.
The Scottish Parliament passed the Post Office (Horizon System) Offences (Scotland) Act 2024, which automatically quashed eligible Horizon-related criminal convictions in Scotland without requiring individual court appeals.
The scandal related to the wrongful prosecution of former sub-postmasters (people who run independent Post Office branches on behalf of Post Office Limited) for theft, fraud and false accounting between 1999 and 2015.
The IT system was called Horizon and operated by Fujitsu on behalf of the Post Office.