Counsel’s Discretion and the Narrow Scope of Defective Representation Appeals in Sexual Offence Trials

Introduction

This commentary examines the Scottish High Court of Justiciary’s decision in Oluwatayo Dada v HM Advocate ([2025] HCJAC 21), delivered on 29 April 2025 by Lord Justice Clerk Lord Becket. The appellant, Mr. Dada, was convicted by a jury on two charges of sexual offences under the Sexual Offences (Scotland) Act 2009, including repeated acts of rape. He appealed the conviction on charge 2, contending defective representation for failing to present mobile-phone footage that he argued would have supported his defence of consent. The court refused his appeal, clarifying the narrow grounds for defective representation and the rules on admissibility of “sexual behaviour” evidence under sections 274–275 of the Criminal Procedure (Scotland) Act 1995. This case reinforces existing precedent on the limits of counsel’s obligation and the handling of private recording evidence.

Summary of the Judgment

The appellant’s conviction on charge 2 (rape of YY on 19/20 October 2021) was unanimously affirmed. At trial, the jury accepted the complainer’s account of non-consensual intercourse, corroborated by contemporaneous reports and supportive evidence from friends and a church minister. Mr. Dada’s appeal argued that trial counsel’s decision not to lodge a video clip of the complainer—in which she appeared calm and posing—amounted to defective representation and a miscarriage of justice. The court:

Viewed the footage and found it of minimal relevance to consent at the times of the alleged rape.
Reaffirmed that counsel’s decisions on presentation of evidence are matters of professional judgment, not subject to appellate second-guessing unless counsel acted contrary to instructions or in a manner no competent advocate could reasonably adopt.
Held that evidence of private recording depicting “sexual behaviour” required a section 275 application and that, even if admissible, the footage would have marginal probative value weighed against privacy and dignity concerns.
Confirmed that the appeal failed because the defence of consent was fully before the jury and properly directed by the judge.

Analysis

1. Precedents Cited

Anderson v HM Advocate (1996 JC 29): Established that counsel’s conduct in presenting a defence is generally binding on the accused unless counsel acts contrary to instructions or conducts the defence in a way no competent practitioner could reasonably have done.
Guthrie v HM Advocate (2022 JC 201): Reaffirmed Anderson’s narrow test for defective representation appeals, disapproving broader “properly presented defence” language and emphasizing the limited scope of appellate review.
Grant v HM Advocate (2006 JC 205): Confirmed that an appeal for defective representation cannot succeed merely because a different strategy might have yielded a better result.
Woodside v HM Advocate (2009 SCCR 350): Defined that a complete failure to present the defence, by ignoring instructions or by an unreasonable defence strategy, is required to establish defective representation.
Lord Advocate’s Reference No 1 of 2023 (2024 JC 140): Clarified that corroboration is required only for the crime’s occurrence and the accused’s identity, not each constituent element.
P v HM Advocate (2022 SLT 194): Interpreted the definition of “sexual behaviour” in section 274 of the 1995 Act and the limited relevance of private recordings of a complainer’s demeanour to issues of consent.

2. Legal Reasoning

The court’s reasoning unfolded in three key strands:

Defective Representation Test: Relying on Anderson and Guthrie, the court held that counsel’s tactical decision not to seek admission of the footage was a reasonable exercise of professional judgment. Mr. Dada’s complaint did not allege counsel acted contrary to his instructions or in an utterly irresponsible manner. The defence of consent was actively pursued—witnesses were cross-examined, and the appellant himself testified.
Admissibility at Common Law: Evidence must directly bear on a fact in issue. The footage showing the complainer posing at a moment between alleged rapes did not speak directly to her contemporaneous consent or lack thereof and thus was collateral and inadmissible at common law.
Statutory Prohibition (s274–275 1995 Act): Even if relevant, the clip recorded “sexual behaviour not forming part of the subject-matter of the charge” and was therefore covered by section 274(1)(b). It required a formal application under section 275, where the probative value must significantly outweigh risks to privacy, dignity and fair trial administration. Counsel properly advised against such an application.

3. Impact

This decision:

Reinforces the high threshold for successful appeals based on defective representation—defence counsel’s choices within professional bounds are not open to hindsight critique.
Confirms prosecutorial and defence practices on private recordings in sexual offence trials: practitioners must consider sections 274–275 before lodging intimate footage and judge its real probative worth against privacy concerns.
Reminds trial judges to adopt up-to-date corroboration directions, reflecting Lord Advocate’s Reference No 1 of 2023, lest misdirections arise (though harmless errors may not vitiate convictions).
Warns that footage of a complainer’s calm demeanour post-assault does not undermine evidence of non-consent during the crime, given varied trauma responses and the dangers of “rape myths.”

Complex Concepts Simplified

Defective Representation Appeal: An appeal ground alleging counsel’s conduct deprived the accused of a fair trial. It succeeds only if counsel ignored instructions or acted as no reasonable advocate would.
Corroboration: In Scots law, key elements of certain crimes—here rape—require evidence from two independent sources, but only for (a) the crime’s occurrence and (b) the identity of the accused, not each detail.
“Sexual Behaviour” Evidence (s274 1995 Act): Private depictions of sexual conduct or states (e.g., nudity) unrelated to charged acts are presumptively inadmissible unless section 275 criteria (relevance, probative value vs prejudice, dignity) are met.
De Recenti Statements: Immediate complaints or statements made by a victim soon after an event, used to corroborate the victim’s testimony about a violent or sexual offence.

Conclusion

The High Court’s decision in Dada crystallizes two enduring principles: (1) counsel’s tactical decisions, made within the realm of professional judgment, do not constitute defective representation merely because an alternative strategy existed; and (2) recordings of private, intimate behaviour are subject to stringent admissibility rules under sections 274–275 of the Criminal Procedure (Scotland) Act 1995 and cannot be deployed lightly. This judgment serves as a touchstone for defence and prosecution teams navigating evidentiary strategy in sexual offence trials and reaffirms the narrow grounds on which counsel’s performance can be challenged on appeal.