Fresh Evidence, Alleged Collusion and the “Reasonable Jury” Test in Sexual Offence Appeals:
Commentary on Kyle Kernachan v HM Advocate [2025] HCJAC 54

1. Introduction

This decision of the Appeal Court of the High Court of Justiciary, delivered by the Lord Justice Clerk (Lord Beckett) with Lord Doherty and Lord Armstrong concurring, addresses an appeal against conviction in a sexual offences case on the ground of “new evidence” under section 106(3)(a) of the Criminal Procedure (Scotland) Act 1995.

The appellant, Kyle Kernachan, had been convicted after trial of two sexual offences:

Charge 1 – sexual assault by penetration with a crowbar (s 2, Sexual Offences (Scotland) Act 2009) of his then partner, AA, between 2015 and 2016.
Charge 4 – rape (s 1, 2009 Act) of BB in January 2017 while she was asleep, intoxicated and incapable of consent.

The appeal did not challenge directions, admissibility decisions, or trial management. Instead, it rested entirely on alleged fresh evidence that, if accepted, would suggest that the two complainers, AA and BB, had previously conspired with a third party to fabricate allegations of sexual offending against the appellant.

The proposed new evidence came primarily from a witness, Sophie Allan‑Fowler, supported by two others, CC (also referred to as CD) and the appellant’s sister, Lisa Kernachan. The core of their account was that at a soft-play centre (Clambers at the Royal Commonwealth Pool, after the second Covid lockdown in 2021), AA and BB – together with the now deceased Dana Fowley – allegedly asked Ms Allan‑Fowler to lie to the police and falsely accuse the appellant of rape, and indicated that they too would make false complaints.

The Crown, in turn, led AA, BB and the lead investigating officer, Sergeant Mark Hayton, to rebut this narrative. The key legal issue was whether this new material was of such quality and significance that the verdict of the jury, reached without it, “must be regarded as a miscarriage of justice” within the meaning of section 106(3)(a) as interpreted in Al Megrahi v HM Advocate 2002 JC 99.

The case does not introduce a new doctrinal test, but it is an important and detailed application and reaffirmation of the existing law on:

how appellate courts assess “fresh evidence” in sexual offence appeals,
the weight to be given to alleged collusion/fabrication narratives, and
the emphasis on whether a reasonable jury could regard such new evidence as credible, reliable and materially significant.

2. Summary of the Judgment

2.1 The trial outcome

At trial the appellant faced several charges. The appeal concerns only:

Charge 1 – sexual assault with a crowbar on AA at Silverknowes beach.
Charge 4 – rape of BB at the appellant’s home in January 2017.

AA’s evidence on commission, supported by her sister and potentially by mutual corroboration from BB’s evidence on charge 4, led to a conviction on charge 1. BB’s account of being raped while intoxicated and asleep, corroborated by timing evidence (taxi booking) and again potentially by mutual corroboration from AA’s account, led to a conviction on charge 4.

A separate charge (charge 3) of rape of AA in a different incident was returned as “not proven” after the trial judge directed that the jury could not convict on concert (joint enterprise) where the indictment charged the appellant as the principal actor.

2.2 The fresh evidence appeal

The appellant invoked section 106(3)(a) of the 1995 Act, arguing that:

There was a reasonable explanation for the new evidence not being led at the original trial (s 106(3A)).
The new evidence, primarily from Sophie Allan‑Fowler (supported by CC and Lisa Kernachan), showed that AA and BB had previously proposed lying to the police about being raped by the appellant, thus fatally undermining their credibility.
Had the jury heard this evidence, a conviction would represent a miscarriage of justice.

The Crown argued that the new evidence bore “all the hallmarks of concoction” and was incapable of being accepted as credible and reliable by any reasonable jury, especially when viewed in the light of:

the history of the investigation,
the timing and content of the complainers’ text and social media messages (2017 and 2022), and
the behaviour of, and inconsistencies within, the appellant’s new witnesses’ accounts.

2.3 The decision

Applying the well-established framework from Al Megrahi v HM Advocate, Kidd v HM Advocate, GC v HM Advocate and related authorities, the Appeal Court held that:

The “fresh” evidence, particularly that of Sophie Allan‑Fowler, was not capable of being regarded by a reasonable jury as both credible and reliable.
When placed in the context of all the trial evidence and the surrounding factual matrix (notably the way in which AA and BB came to the attention of the police and their historical messaging), the new material lacked the significance required to establish a miscarriage of justice.

The court therefore refused the appeal, affirming the convictions on charges 1 and 4.

3. Factual and Procedural Background

3.1 Charge 1: AA and the crowbar assault

AA was in a sexual relationship with the appellant in 2015–2016 when, she said, he took her by car to Silverknowes (Marine Drive) in Edinburgh. After consensual kissing in the car, the appellant allegedly produced a crowbar from the back seat, expressed a desire to insert it into her vagina, and – despite her repeated refusals – proceeded to penetrate her with it. She experienced internal bleeding for days.

Evidence supporting AA included:

Res gestae / distress evidence from her sister, who recalled AA reporting the matter soon afterwards and becoming withdrawn, spending a lot of time in her room.
Later digital communications between AA and BB in 2017 and 2022, which the Crown primarily used on charge 4 but which the Appeal Court saw as important background to assess the new evidence.

The appellant denied the incident entirely, stating that he had never been alone with AA in a car at Silverknowes and had never penetrated her with a crowbar.

3.2 Charge 4: BB and the rape allegation

BB, not in a relationship with the appellant, was invited to his home in the early hours by mutual friend Ryan Reynolds. She arrived intoxicated but not incapacitated, was given neat vodka and Jägermeister, and played drinking games with the appellant and others. She said:

She felt “strange” and told the appellant in the bathroom she did not want to sleep with him.
Later, drunk and exhausted in the appellant’s bed, she fell asleep.
She awoke to find the appellant having non‑consensual vaginal intercourse with her while her tights had been pulled down; she then passed out again.
Upon waking later, her tights were pulled up and the appellant was sleeping beside her. She left the address by taxi around 7:10am (proved by joint minute).

The appellant admitted sexualised behaviour but maintained that BB consented to intimate contact, saying that:

She voluntarily removed her own clothing during a “spin the bottle” game.
She agreed to kissing and digital penetration in the bathroom.
They then engaged in “dry humping” on the bed until he suggested she go home and arranged a taxi.

3.3 Digital messaging and mutual corroboration

AA and BB exchanged messages in:

2017 – BB hinted at an “incident” with the appellant which she regretted, leading AA to comment that BB appeared to be suggesting she had been taken advantage of.
2022 – further messages in which BB disclosed more explicitly that the appellant had raped her and explained why she had previously kept quiet.

These messages:

were used at trial mainly to support BB’s credibility and to explain delay;
also had potential to provide mutual corroboration between AA’s and BB’s allegations, as both spoke to sexual exploitation by the same accused in similar time frames.

3.4 How the police investigation unfolded

The investigation into the appellant did not begin with complaints by AA or BB. Instead, as the Appeal Court emphasised, it arose from a separate historical sexual abuse investigation:

2022: Police, led by Sgt Mark Hayton, were investigating serious allegations made by the late Dana Fowley against members of the appellant’s wider family.
In that context, Sophie Allan‑Fowler was interviewed on 24 August 2022 to explore allegations that she herself had been abused. She denied that she was abused and, crucially, did not mention any soft-play conspiracy conversation.
During that interview, she introduced the name AA, leading police to identify AA as a former partner of the appellant.
AA was then interviewed in September and October 2022. She gave a detailed account of the crowbar assault and other conduct by the appellant.
Only after AA had been contacted by police, and after she informed BB, did BB then approach the police in December 2022 and disclose the rape.

This chronological sequence – initiated by a wholly separate investigation, and not by any complaint by AA or BB – was central to the Crown’s answer to the alleged conspiracy and to the Appeal Court’s reasoning.

3.5 The proposed new evidence

The appellant’s fresh evidence comprised:

His own affidavit and oral evidence explaining that he had no knowledge of the alleged soft‑play conversation prior to trial and confirming estrangement from certain family members since 2018.
Sophie Allan‑Fowler, who said:
- She had been in a relationship (2009–2019) with the appellant’s cousin, Paul Kernachan junior.
- At Clambers soft play after the second Covid lockdown (2021), she met Dana Fowley, AA and BB, who allegedly urged her to falsely claim that the appellant and his family had raped her; BB allegedly said “nah, but they don’t have to know that” when asked if the allegation was true.
- She was “shocked and upset” but did not go to the police despite CC urging her to do so.
- She had been interviewed by police in 2019 and 2022 about alleged abuse involving the appellant’s family, but she did not then mention the soft-play conversation.
- She only came forward after seeing online media coverage of BB speaking publicly about being raped by the appellant following his conviction in May 2025.
CC (also known as CD), who said:
- Sophie phoned her “around lockdown” and told her that Dana and two other women had tried to pressurise her at soft play into lying that a man named “Kyle” had raped her and that they (the three women) would also lie.
- She advised Sophie to go to the police, but Sophie did not do so.
- She believed the man was “Kyle Kernachan” because Dana was connected to the Kernachan family.
Lisa Kernachan, the appellant’s sister, who:
- Confirmed past knowledge of AA, but said she did not know BB.
- Confirmed long‑standing (though variable) acquaintance with CC/CD.
- Said that, in June 2025 after the appellant’s conviction, Sophie told her about the Clambers incident and reported that AA and BB had said “it doesn’t need to be true” when asked about their intended complaints.

The Crown’s response included:

AA – denying ever being at Clambers with BB and Dana, or ever asking anyone to lie about being raped by the appellant.
BB – denying that she knew Sophie or Dana, denying ever going to Clambers with them, and stating she had not attended the Commonwealth Pool soft play as an adult.
Sgt Hayton – confirming:
- He interviewed Sophie in August and October 2022 about allegations made by Dana Fowley against the Kernachan family.
- Sophie then discussed Dana, the appellant and AA, but said nothing about any alleged soft-play conspiracy or about BB.
- AA and, later, BB came into the investigation in a way wholly inconsistent with a prior joint plan to fabricate allegations.

4. Legal Framework and Precedents

4.1 Statutory basis: section 106(3)(a) and (3A)

Section 106(3) of the Criminal Procedure (Scotland) Act 1995 permits an appeal against conviction on indictment based on an alleged miscarriage of justice, which may include (s 106(3)(a)):

“the existence and significance of evidence which was not heard at the original proceedings…”

Section 106(3A) restricts such appeals:

“Evidence such as is mentioned in subsection (3)(a)… may found an appeal only where there is a reasonable explanation of why it was not so heard.”

Accordingly, there are two statutory thresholds:

Reasonable explanation for non‑presentation at trial;
Existence and significance of the new evidence such that its absence may have resulted in a miscarriage of justice.

The core of the modern test comes from Al Megrahi v HM Advocate 2002 JC 99, para 219, which the court quoted and applied.

4.2 The Megrahi test

In Megrahi, the court summarised the proper approach in six key propositions, which the Appeal Court repeated:

The court may allow an appeal only if satisfied that there has been a miscarriage of justice.
In a fresh evidence appeal, the court must quash the conviction if satisfied that, had the jury heard the new evidence, it would have been bound to acquit.
Even if that high threshold is not met, the court may still find a miscarriage of justice if, in light of all the evidence (old and new), it is so satisfied.
The new evidence must be not just relevant but of such significance that a verdict reached in ignorance of it must be regarded as a miscarriage of justice.
The evidence must be of such kind and quality that a reasonable, properly directed jury would have found it of material assistance on a critical issue.
The appellate court must be persuaded that the new evidence is:
1. capable of being regarded as credible and reliable by a reasonable jury; and
2. likely to have had a material bearing on the determination of a critical issue.

The appellate court therefore engages in its own evaluative judgment: it is not enough that the new evidence could conceivably have been believed by someone; it must be such that a reasonable jury could regard it as credible and reliable, and that – if so – it would matter in a substantial way.

4.3 Gallacher, Fraser, WB and Marshall: context and avoiding overvaluation

In Gallacher v HM Advocate 1951 JC 38, and later in Fraser v HM Advocate 2008 SCCR 407 and WB v HM Advocate 2014 SCCR 376, the court emphasised that fresh evidence must not be considered in a vacuum. Rather:

It must be assessed in the context of the whole body of evidence led at trial.
There is a danger of over‑valuing new evidence simply because of its novelty or the dramatic way it is presented at an appeal hearing.

In WB, the Lord Justice Clerk (Carloway) stressed that, although focus inevitably turns to the new witness, the court’s task is to compare that with the complainer’s evidence and the trial judge’s assessment of its quality. This same warning is repeated in Marshall v HM Advocate [2025] HCJAC 20 (cited by the court), which again cautions against allowing new material to assume “undue importance” if it is inconsistent with a strong body of trial evidence.

4.4 Kidd, Cameron, Church and GC: quality and cogency

The court in Kidd v HM Advocate 2000 JC 509 explained that, in assessing the “significance” of fresh evidence, the court must look at:

its credibility,
its reliability, and
its plausibility and consistency with other evidence.

None of these, individually, is decisive; what matters is the overall impression. In Kidd, the court ultimately rejected the new evidence because it was not capable of being regarded as credible and reliable by a reasonable jury.

Earlier decisions, such as Cameron v HM Advocate 1991 JC 251 and Church v HM Advocate (No 2) 1996 SLT 383, similarly reinforce there must be a realistic possibility that, had the jury heard the evidence, the verdict would now be regarded as a miscarriage of justice.

In GC v HM Advocate [2022] HCJAC 20, another sexual offences case, the Appeal Court applied Megrahi and Kidd and addressed an additional dimension: rape-shield rules under sections 274–275 of the 1995 Act. There, as here, the defence sought to rely on material otherwise prohibited by section 274 (evidence about sexual history or character) which, it was argued, would be admitted via section 275 because of its probative value on the issue of credibility. The court in GC highlighted:

The critical importance of the cogency and quality of such evidence.
The need to consider both the favourable and unfavourable aspects of the new material.

In the present case, the appellant likewise argued (by analogy with GC) that the alleged soft‑play conversation, even though it relates to sexual history/character, would be admissible under section 275 due to its high probative value in showing a conspiracy to fabricate allegations.

4.5 Rape-shield provisions: sections 274 and 275

Although the judgment does not turn on the admissibility decision (the focus is on significance), both parties accept in argument that:

Evidence that complainers previously discussed making false rape allegations would normally be caught by section 274 as sexual character evidence.
However, if it genuinely showed collusion to fabricate, it might well be admissible under section 275, given its powerful relevance to credibility and the fairness of the trial.

The court therefore approached the issue on the basis that, if the new evidence were of appropriate quality, it would be admissible. The key question remained: is it sufficiently credible, reliable and significant to affect the safety of the convictions?

5. The Court’s Legal Reasoning

5.1 The reasonable explanation requirement

The Crown did not seriously contest that the appellant himself had a reasonable explanation for not calling this evidence at trial. He had not been in contact with Sophie Allan‑Fowler since 2018, did not know about the alleged soft‑play episode, and only became aware of her evidence after his conviction, when she contacted his sister.

On the approach in Campbell v HM Advocate 1998 JC 130, this sufficed for the section 106(3A) threshold. The core of the case therefore turned on significance – i.e. on the quality and effect of the fresh evidence.

5.2 Assessing the “fresh” evidence: credibility, reliability, plausibility

The court subjected the new witnesses to rigorous scrutiny and expressly invoked the principles from Megrahi, Kidd, GC and WB. Several strands of reasoning led to rejection of their evidence.

5.2.1 The court’s impression of the defence witnesses

The court placed significant weight on its own observation of the witnesses’ demeanour and conduct in the witness box:

CC:
- The court found that she “prevaricated and was plainly lying” about her association with Lisa Kernachan.
- When confronted with a 2024 police interview in which she had described Lisa as a “friend” whom she had told about an assault by her husband, she twice fled the courtroom in distress.
- She ultimately accepted that she had described Lisa as her friend, but tried to retreat from or minimise that relationship.
Lisa Kernachan:
- The court found her evidence “glib and unconvincing”, with “truculent” body language.
- She also appeared to downplay the extent of her friendship with CC, despite contemporaneous material (including an affidavit from a Principal Procurator Fiscal Depute) suggesting that CC had described Lisa as her “best friend” in May 2025.
Sophie Allan‑Fowler:
- The court considered that she “gave every impression of having practised an account that of itself made little sense”.
- Taken at face value, her story about being present at the hatching of a conspiracy to fabricate rape allegations, yet never mentioning it to police during relevant 2022 interviews about sexual allegations involving the same people, was found to be implausible.

While demeanour alone is never decisive, it is part of the overall picture when combined with contradictions and implausibilities.

5.2.2 Failure to mention the alleged conspiracy to police in 2019 and 2022

A critical, objective difficulty with Sophie’s narrative was her silence about it when it would have been natural, indeed obvious, to mention it:

She said Dana and the two complainers had urged her at Clambers to falsely accuse the appellant of rape; she was “shocked and upset”.
She accepted she was interviewed in 2019 and again in August and October 2022 about allegations made by Dana against the appellant’s family – and she denied that any such abuse had occurred.
She nevertheless failed to tell police that she had allegedly witnessed Dana, AA and BB discussing fabricated rape allegations against the very same man.

The court regarded this omission as profoundly damaging to her credibility. If she truly believed a serious conspiracy was being hatched to make false sexual allegations against her former partner’s family, including the appellant, it made “no sense” that she would remain silent on multiple occasions when speaking to police about sexual allegations in that very context.

5.2.3 The relationships and non-disclosure between CC, Lisa and Sophie

The Crown maintained that CC was a close friend of Lisa, the appellant’s sister, and that the proximity of their relationships was inconsistent with CC not alerting Lisa to the purported soft‑play conspiracy, particularly once it was clear the appellant was under investigation and later awaiting trial.

The court accepted:

CC did, in fact, have contact with Lisa (texts, face‑to‑face contact about personal matters, including marital assault).
On CC’s own evidence, she had sufficient confidence in Lisa to confide serious personal issues.
Yet she claimed never to have told Lisa about the alleged soft‑play conversation, even though Lisa’s brother was later prosecuted for rape of AA and BB – the very persons said to have engineered the plan.

The court found it “highly improbable” that, if the soft‑play episode had actually occurred and if CC had been told of it by Sophie at the time, she would not have said anything to Lisa once the appellant was charged or awaiting trial. This improbability was heightened by the Crown’s affidavit evidence that CC called Lisa her “best friend”.

5.2.4 Contradiction by AA and BB and the objective history of the case

The alleged conspiracy was flatly denied by AA and BB, whom the court described as “sincere, straightforward and truthful witnesses”. Beyond demeanour, their accounts were consistent with:

The way police first came to learn of them – through Sophie naming AA as a former partner in 2022 (ironically via the very witness on whom the appellant relies).
The timing of their disclosures – neither went to police in 2017; their complaints emerged only years later after being contacted by police (AA) or by AA’s mother / AA (BB).
Their contemporaneous digital communications in 2017 and 2022, which showed:
- AA initially defending the appellant in 2017, and being angry/hurt about what she had “heard happened” between BB and the appellant.
- BB gradually disclosing more about her assault and expressing fear that she would not be believed, explaining her earlier silence.

As the court noted, if Sophie’s evidence were true, one would have to accept the existence not only of a conspiracy by AA and BB to perjure themselves, but also (on the appellant’s logic) of a conspiracy or delusion extending to AA’s sister (who gave distress evidence), all without a cogent motive. The court found no “intelligible explanation” for such a large‑scale fabrication.

5.2.5 The messaging evidence: 2017 and 2022

The text and Facebook messages between AA and BB, partly explored at trial and further at appeal, were central to the Appeal Court’s contextual analysis. They showed:

2017 messages:
- AA rebuking BB for apparently suggesting that the appellant had taken advantage of her.
- AA asserting “Kyle never done anything; you can't say that about him. He never did anything without consent…” – inconsistent with a prior agreement among AA and BB to fabricate sexual allegations against him.
- BB’s comments about being taken advantage of when drunk, but not yet describing events in fully explicit rape terms.
2022 messages:
- BB describing in much more detail what had happened in 2017, including being “that drunk and away with it I passed out” and waking to find her underwear missing and clothing ripped, with bruising and soreness.
- BB apologising for not having disclosed it earlier, fearing she would not be believed.
- No sign of an orchestrated plan; rather, a gradual, emotionally charged disclosure between two now‑reconciled former friends, reflecting remorse, fear and mutual support.

For the Appeal Court, these communications were wholly inconsistent with the idea that by 2021, at Clambers, AA and BB had agreed to manufacture accusations. If that were so, one would expect earlier messages to show some coordinated narrative or, at least, something more than the messy, hesitant and at times contradictory communications which emerged over five years.

5.3 Application of the “reasonable jury” test

Having weighed the new evidence against the trial record and the wider context, the court concluded:

“there is no prospect of any reasonable jury finding the evidence of Ms Allan‑Fowler to be credible and reliable about what she claims to have witnessed…”

This conclusion is a direct application of proposition (6)(a) in Megrahi: if the new evidence is not even capable of being accepted as credible and reliable by a reasonable jury, it cannot be “significant” in the statutory sense.

Once the court reached that view, the remaining components of the Megrahi test fell away:

If no reasonable jury would accept the new evidence, there is no realistic prospect it would have had a “material bearing” on a critical issue.
Consequently, the convictions cannot be said to represent a miscarriage of justice arising from the absence of that evidence.

On this basis alone, the appeal required to be refused.

6. Impact and Significance

6.1 Reaffirmation rather than innovation

Doctrinally, the case does not create a new legal test. It is a robust reaffirmation and concrete application of existing principles governing fresh evidence appeals, especially in the context of sexual offences:

The Megrahi framework is confirmed as the correct approach.
The quality and plausibility of new evidence – not merely its potential impact if believed – is central.
The court emphatically endorses the need to situate fresh evidence within the totality of the case, as stressed in Fraser, WB, Marshall and GC.

6.2 Guidance for future sexual offence appeals based on alleged collusion

The judgment is particularly instructive where appellants seek to introduce fresh evidence of alleged collusion or conspiracy by complainers:

Courts will be slow to accept late‑emerging allegations that complainers fabricated their allegations, especially where:
- The new account contradicts the objective investigative history (how complainers came to the police’s attention).
- The complainers’ own digital communications show a different, more organic pattern of disclosure and delay.
- The new witnesses cannot plausibly explain past silence when natural opportunities to report the supposed collusion arose (e.g. earlier police interviews).
The court will scrutinise the motives and relationships of new witnesses, particularly where they are connected to the accused’s family or to ongoing disputes.
Rape-shield provisions (s 274–275) do not bar the use of genuinely probative evidence of collusion, but admissibility is only half the battle; the fresh evidence must still meet the Megrahi/Kidd standard of significance.

6.3 The role of digital communications

The case illustrates the increasing centrality of digital evidence (texts, Facebook messages) in:

corroborating complainers’ accounts,
explaining delay in reporting, and
rebutting later claims of conspiracy, where the communications show genuine uncertainty, fear or denial inconsistent with pre‑planned fabrication.

Future appeals will likely see courts continue to rely heavily on such material in assessing the credibility of new narratives.

6.4 Practitioner implications

For defence practitioners, the case underscores that:

Fresh evidence based on alleged conspiracies must be supported by objective anchors (e.g. contemporaneous documents, consistent prior statements), not merely late‑breaking oral testimony.
Where a witness previously failed to mention crucial information in police statements about the same people and subject-matter, that omission will be a major obstacle to satisfying the Megrahi test.
The court will actively consider whether there is a plausible motive for complainers to fabricate allegations on the scale alleged.

7. Complex Concepts Simplified

7.1 “Fresh evidence” appeals under section 106(3)(a)

In simple terms, a “fresh evidence” appeal asks:

Why wasn’t this evidence heard at trial?
The appellant must show a reasonable explanation – it is not enough that the evidence would have been useful; the court will not normally excuse tactical or negligent omissions.
How important is it really?
Even if the explanation is accepted, the new evidence must be:
- believable (credible),
- trustworthy (reliable), and
- serious enough that its absence may have led to a wrongful conviction.

The court does not simply say: “a jury could have believed this, therefore we must quash”. It asks whether a reasonable jury, given all the evidence, could sensibly do so and whether that would realistically have affected the outcome.

7.2 “Miscarriage of justice” and “bound to acquit”

Two levels operate in fresh evidence cases:

Bound to acquit: if the new evidence is so powerful that any reasonable jury, hearing everything, would have had no option but to acquit, the conviction must be quashed.
General miscarriage of justice: even if the jury would not be “bound” to acquit, the conviction may still be unsafe if, taking the whole picture, the verdict in ignorance of the evidence must be regarded as a miscarriage of justice.

In Kernachan, the court did not reach that second stage because it held that the new evidence fell at the earlier hurdle: it was not capable of being accepted as credible and reliable by a reasonable jury.

7.3 Corroboration and mutual corroboration

Scottish criminal law requires corroboration – evidence from two independent sources that supports each essential element of the crime (that the crime occurred, and that the accused was the perpetrator).

In sexual offence cases involving multiple complainers, the doctrine of mutual corroboration (also known as the Moorov doctrine) allows one complainer’s account to corroborate another, if:

the offences are similar in character,
against the same accused, and
occur within a sufficiently close timeframe and under similar circumstances.

Here, the Crown invited the jury to find mutual corroboration between AA’s and BB’s allegations (crowbar assault and rape while intoxicated/asleep) to support each other. The Appeal Court implicitly accepted that the jury’s verdicts (guilty on charges 1 and 4, not proven on charge 3) reflected a careful application of these principles.

7.4 Section 274/275: sexual history and character

Scottish law generally prohibits evidence or questioning about a complainer’s sexual history or character (section 274 of the 1995 Act) to prevent unfair attacks and discourage victims from coming forward.

However, section 275 allows such evidence to be admitted if:

it is relevant to a specific issue (e.g. consent, identity, credibility);
its probative value outweighs any prejudice to the complainer’s dignity and privacy and to the proper administration of justice; and
the court grants leave, usually following an application in writing.

Evidence that complainers previously plotted to fabricate rape allegations would, if genuinely established, clearly have high probative value on credibility and might well pass the section 275 test – but only if the court is satisfied that the evidence itself is of sufficient quality. In Kernachan, the Appeal Court did not need to decide admissibility because it held the evidence was, in substance, not credible or reliable.

7.5 “Not proven” verdict

Scotland has three verdicts: guilty, not guilty and not proven. “Not proven” is an acquittal identical in legal effect to “not guilty”, but it often reflects that the jury was not positively convinced of innocence so much as unconvinced beyond reasonable doubt of guilt.

In this case, the “not proven” verdict on charge 3 (an alleged separate rape of AA) demonstrates that the jury did not simply accept everything alleged; they applied a more exacting factual scrutiny than the defence might suggest, which the Appeal Court implicitly treated as a sign that the jury’s guilty verdicts on charges 1 and 4 were carefully reasoned.

8. Conclusion

Kyle Kernachan v HM Advocate [2025] HCJAC 54 stands as a strong example of the Scottish Appeal Court’s approach to fresh evidence appeals in sexual offence cases. The court:

Reaffirmed the Megrahi test – focusing on the credibility, reliability and significance of new evidence, and the “reasonable jury” standard.
Emphasised, following Gallacher, Fraser, WB, Marshall and GC, that fresh evidence must be assessed in context, not in isolation.
Demonstrated rigorous scrutiny of alleged conspiracies to fabricate complaints, highlighting the importance of:
- previous omissions in police interviews,
- objective investigative chronology,
- digital communications between complainers, and
- the plausibility of any alleged large‑scale conspiracy.

The court ultimately held that the new evidence, particularly that of Sophie Allan‑Fowler, fell well short of the necessary quality and significance. It was not capable of being accepted by a reasonable jury as credible and reliable, and so could not undermine the safety of the convictions.

In broader terms, the judgment sends a clear message: while appellate courts will robustly review fresh evidence in the interests of justice, they will not allow speculative, implausible or belated allegations of collusion, unsupported by objective foundations, to unsettle verdicts properly reached on credible, corroborated evidence.

The appeal was therefore refused, and the convictions on charges 1 and 4 stand.

Fresh Evidence, Alleged Collusion and the “Reasonable Jury” Test in Sexual Offence Appeals: Commentary on Kyle Kernachan v HM Advocate [2025] HCJAC 54