Defective Representation Requires Non‑Presentation of the Defence; Section 275 Applications Must Identify Specific Occurrences and Material

A) Precedents Cited and Their Role

i) Defective representation: the Anderson/Guthrie/Woodside line (reaffirmed)

• Anderson v HM Advocate 1996 JC 29: the foundation. The right is to have the defence presented; strategy and presentation are generally matters for counsel’s professional judgement. A miscarriage arises only where the accused is denied a fair trial because the defence was not presented (e.g., counsel acts contrary to instructions on what the defence is, or other conduct results in non-presentation).
• Woodside v HM Advocate [2009] HCJAC 19, 2009 SLT 371: emphasises the narrow scope—defective representation is not a “performance appraisal”; the appellant must show a complete failure to present the defence.
• Guthrie v HM Advocate [2022] HCJAC 21, 2022 SLT 938: clarifies that later case law sometimes distorted Anderson by importing “properly presented defence” language; the correct test is non-presentation of the defence, not whether counsel could have done better.
• Grant v HM Advocate [2026] HCJAC 42, 2006 JC 205 and Burzala v HM Advocate [2007] HCJAC 67, 2008 SLT 61: articulate the “no competent counsel could reasonably have conducted it” strand as an alternative route to non-presentation.
• Dada v HM Advocate [2025] HCJAC 21, 2025 JC 329 and Ditta v HM Advocate 2002 SCCR 891: reassert that dissatisfaction with tactical choices or a claim that another strategy might have improved prospects is not enough.

ii) K(B) treated as not governing (important clarification)

• The appellant relied on K(B) v HM Advocate [2017] HCJAC 68, 2017 SCL 990 as allowing an appeal where a “factual matrix” making allegations improbable was not adequately advanced, even if a general denial was before the jury.
• The court declined to apply K(B), noting that it did not consider Woodside v HM Advocate [2009] HCJAC 19, 2009 SLT 371 and lacked the benefit of Guthrie v HM Advocate [2022] HCJAC 21, 2022 SLT 938. Any apparent inconsistency among three-judge decisions is resolved by returning to the Full Bench authority in Anderson.
• The court stated expressly that Anderson is not met by failing to advance the defence “properly”, nor by merely failing to advance “a line of defence”.

iii) Section 274/275 relevance, collateral inquiry, privacy and consent

• Daly & Keir v HM Advocate [2025] UKSC 38, 2025 SLT 1253 was referenced for: (a) the meaning of relevance; (b) exclusion of collateral matters that provoke disproportionate inquiry; and (c) the balancing of probative value against prejudice to the proper administration of justice, including dignity and privacy.
• W Alexander & Sons Ltd v Dundee Corporation 1950 SC 123 was cited for the general concept of relevance (“reasonably direct bearing” on the matter under investigation).
• Y v Slovenia (2016) 62 EHRR 3 was used to emphasise that the right of defence is not unlimited.
• Kirkup v HM Advocate [2026] HCJAC 11, 2026 SCCR 240 and HM Advocate v MacGregor [2025] HCJAC 28, 2025 JC 358 were cited (alongside Daly & Keir) for the proposition that consent to sexual activity cannot be given in advance.
• Brodie v HM Advocate [2012] HCJAC 147, 2013 JC 142 and TH v HM Advocate [2025] HCJAC 46, 2026 JC 58 were cited for the “overall view” approach to whether any irregularity produced a miscarriage of justice.

B) Legal Reasoning

i) Ground 1: why the phimosis/medical line did not establish defective representation

The court’s refusal of ground 1 turned on two connected findings:

1. Instructions as to the defence materially changed. The court accepted counsel’s evidence (supported by the December 2024 consultation note and the solicitor’s evidence) that the appellant confirmed he could engage in penetrative anal sex and had done so with some partners. That meant that, at trial, an “impossibility” defence was not the appellant’s position in the relevant sense. Once counsel clarified the factual premise with the client, not pursuing an “impossible/highly improbable” medical defence was treated as a legitimate professional judgement.
2. The defence was presented. The appellant’s trial position—denial of key allegations and consent to others—was put to the jury through cross-examination and the appellant’s own evidence. That is the core Anderson requirement. The appeal therefore resembled an attempt to argue “the defence would have been stronger if…”, which Guthrie/Woodside/Grant/Ditta treat as outwith the scope of defective representation.

The court also addressed professional ethics: given what the appellant told counsel, counsel could not properly invite (or facilitate) testimony that penetration was impossible. Notably, the appellant still mentioned an operation and inability to have anal sex in cross-examination, so the jury did hear something of the point—without the uncertainty that would have attended expert evidence (Mr Dunn could not be certain whether penetration was possible).

ii) Ground 2: section 275 demands specification; “in hoc statu” matters

The court’s reasoning on DP 1 had three strands:

1. Statutory specificity is not optional. Section 275(1)(a) requires the evidence/questioning to relate only to “a specific occurrence or occurrences” or “specific facts”. Section 275(3) requires the application to set out (among other things) the evidence, proposed questioning, issues, reasons, and intended inferences. A compilation of 442 messages, not edited and not tied to specific lines of questioning or disputed propositions, failed that statutory design and “ought to have been refused” for lack of specification.
2. Proportionality and privacy are built into “proper administration of justice”. The trial judge’s concern (adopted by the appeal court) was that leading DP 1 wholesale would be a disproportionate “rake over” private material.
3. The limitation was “in hoc statu” and could have been revisited. The trial judge’s ruling left open a renewed, focused application after BB’s evidence, if a contradiction or a concrete need arose. The defence did not take that step, and the appeal court inferred that counsel considered the already-admitted evidence sufficient to advance the consent/credibility position.

Finally, the court assessed materiality: BB had already accepted (and the jury had heard) that there were communications arranging sexual activity for money. The texts therefore added little, were temporally narrow compared to the libel period, and did not directly affect the separate September 2015 charge which the appellant denied. Taken overall, exclusion/limitation did not cause a miscarriage of justice.

C) Impact

i) Defective representation appeals: consolidation and narrowing

• The decision reinforces that Scottish defective representation appeals are anchored in non-presentation of the defence, not in whether counsel omitted a potentially helpful “line”, “factual matrix”, or “better” evidential strategy.
• By expressly declining to apply K(B) v HM Advocate [2017] HCJAC 68, 2017 SCL 990 and reaffirming Anderson/Guthrie/Woodside, the court signals a stricter approach to attempts to recast tactical disagreements as fair trial violations.
• The judgment highlights the practical importance of contemporaneous consultation notes in resolving disputes over instructions.

ii) Section 275 practice: drafting discipline and targeted use of digital communications

• The judgment underscores that applications must identify particular messages (or defined groups) and connect them to concrete issues, proposed questions, and intended inferences—especially where communications are voluminous and contain mixed content.
• Trial judges may properly limit an application in hoc statu and expect the defence to return with a refined application once the complainer’s evidence shows what is truly in dispute.
• Where a complainer already accepts the key proposition (here, communications about money for sexual activity), attempting to admit large volumes of corroborative texts may struggle on probative value and proportionality.