Domestic Abuse Act s 1 trials: sections 274–275 sexual history regime applies only if extended by a section 288C(4) order

1. Introduction

This commentary concerns Application for permission to appeal to the Supreme Court of the United Kingdom by JM against His Majesty's Advocate [2026] HCJAC 17, a decision of the Appeal Court, High Court of Justiciary (Lord Matthews delivering the statement of reasons, sitting with Lord Ericht and Lady Carmichael) refusing permission to appeal to the UK Supreme Court.

The applicant (JM) sought to appeal following refusal of leave to appeal his conviction after trial for a breach of section 1 of the Domestic Abuse (Scotland) Act 2018. The charge narrated a course of abusive behaviour towards the complainer (identified by initials DCI), including (in one paragraph) allegations of non-consensual sexual activity.

The focal issue arose from the trial judge’s decision to exclude certain text messages sent by the complainer to the applicant during the libelled period, which the defence wished to deploy to undermine the complainer’s account of distress and non-consent. The Crown objected, contending the line was barred by section 274 of the Criminal Procedure (Scotland) Act 1995 and that a section 275 application was required.

On the permission application, JM argued (i) the exclusion was incompatible with Article 6 ECHR (fair trial), (ii) the trial judge and sifting judges erred in their understanding of the statutory regime and collateral evidence, and (iii) the case raised an issue of general public importance, particularly given Daly & Keir v HM Advocate [2025] UKSC 38; 2025 SLT 1253.

2. Summary of the Judgment

  • Permission refused. The court held there was no miscarriage of justice and no issue of general public importance arising on the facts.
  • Key holding: sections 274 and 275 were not engaged at all because a prosecution under section 1 of the Domestic Abuse (Scotland) Act 2018 is not among the offences listed in section 288C(2) of the 1995 Act. Accordingly, the sexual history regime would apply only if extended by an order under section 288C(4).
  • The proposed use of the texts was, in substance, to challenge the complainer’s account of events “3 days beforehand”; the court found the messages were not relevant to that issue.
  • In any event, the defence had ample other evidence of consensual sex before and after alleged rapes; exclusion of these particular texts did not render the trial unfair.

3. Analysis

3.1 Precedents Cited

The principal authority relied upon in argument (and referenced in the reasons) was Daly & Keir v HM Advocate [2025] UKSC 38; 2025 SLT 1253.

JM’s submissions invoked Daly in two connected ways:

  • Collateral/relevance critique: Daly was said to criticise overly restrictive approaches to “collateral” lines of evidence and the consequent risk to an accused’s ability to present a defence.
  • Sections 274–275 interpretation: JM argued for a broader conception of “forming part of the subject matter of the charge” in section 274(1)(b), especially in the context of a course-of-conduct charge under the 2018 Act, so as to avoid undue Article 6 restrictions.

The Appeal Court, however, treated Daly as ultimately beside the point in this case because the statutory sexual history regime was not engaged in the first place (see section 3.2 below). That meant the case did not provide an appropriate vehicle to “ventilate” broader Daly-driven questions about sections 274–275 in Domestic Abuse Act prosecutions.

3.2 Legal Reasoning

(a) The “red herring”: why sections 274 and 275 did not apply

The court’s central clarification is statutory and jurisdictional rather than evaluative. It held that:

  • Sections 274 and 275 apply automatically only in proceedings for offences listed in section 288C(2) of the 1995 Act.
  • A prosecution under section 1 of the Domestic Abuse (Scotland) Act 2018 is not on that list.
  • Therefore, sections 274–275 “could only have applied” if the court had made an order under section 288C(4).

Because no such section 288C(4) order featured (and the point had been overlooked by parties and trial judge), the earlier trial discussion premised on sections 274–275 was characterised as a “red herring”.

(b) Relevance and the use of the texts

Having removed sections 274–275 from the analysis, the court nevertheless addressed the defence’s intended use of the messages and found a straightforward evidential obstacle: the texts were being deployed to contradict the complainer’s account of distress relating to a period ending three days earlier, but the messages were “of no relevance to that.”

This is significant because it shows the court treating the exclusion as justified on ordinary relevancy grounds, independent of any sexual history statutory bar.

(c) Fair trial / miscarriage of justice

Even if the court was wrong on relevance, it held there was no unfairness because the jury heard ample evidence that consensual sex occurred before and after alleged rapes, and the defence could (and did) invite the jury to consider whether ongoing consensual sex was consistent with the complainer’s rape account. In that context, the inability to lead these particular texts did not produce an Article 6 breach and did not amount to a miscarriage of justice.

(d) General public importance

A further reason for refusal was procedural and constitutional: because sections 274–275 were not engaged “on no view”, the broader question about their application in Domestic Abuse Act prosecutions did not “arise in any meaningful sense”. The court therefore considered the decision fact-specific and not one raising an issue of general public importance suitable for Supreme Court consideration.

3.3 Impact

Although framed as a refusal of permission, the decision is practically important for three reasons.

  • Clarification for Domestic Abuse Act prosecutions: Practitioners should not assume that sections 274–275 automatically regulate sexual history/character evidence in Domestic Abuse (Scotland) Act 2018, section 1 prosecutions. Unless a section 288C(4) order is made, the statutory “rape shield” mechanism is not the operative gateway.
  • Renewed focus on common-law admissibility controls: Where sections 274–275 do not apply, questions of admissibility will turn on relevance, probative value, and fairness (including whether a line is merely collateral), rather than the section 275 permission framework.
  • Strategic implications: The Crown (or the court) may consider whether to seek/make a section 288C(4) order in suitable 2018 Act cases that contain sexual elements. Conversely, the defence should analyse early whether its proposed lines require a statutory application at all, or whether the dispute is properly framed as relevance and fair trial.

The court’s approach also signals that Supreme Court interventions (such as in Daly) will not be engaged where the statutory premise is absent; a clean statutory pathway must exist before broader compatibility questions can be authoritatively reached.

4. Complex Concepts Simplified

  • Section 274 (1995 Act): A statutory restriction (in certain types of cases) limiting evidence or questioning about a complainer’s sexual history/character, subject to specified exceptions.
  • Section 275 (1995 Act): The mechanism allowing a party to apply to admit evidence or pursue questioning that would otherwise be barred by section 274; it requires court permission and is designed to protect fairness while preventing improper sexual history reasoning.
  • Section 288C (1995 Act): The provision that determines when sections 274–275 apply automatically (via the offence list in section 288C(2)), and permits extension to other proceedings by order (section 288C(4)).
  • Relevance vs “collateral”: Evidence is relevant if it makes a fact in issue more or less likely. “Collateral” is often used to describe material that goes only to side issues (for example, a peripheral inconsistency) and risks distracting the jury without real probative value.
  • Article 6 ECHR (fair trial): A convention guarantee that includes the right to challenge and test prosecution evidence and present a defence. Excluding defence evidence can breach Article 6 if it prevents the accused from effectively putting their case; courts assess this in the context of the trial as a whole.
  • “General public importance”: A threshold concept for Supreme Court access from Scotland in criminal matters; it requires an issue that matters beyond the individual case and warrants authoritative resolution.

5. Conclusion

[2026] HCJAC 17 refuses permission to appeal, but in doing so provides a clear and operationally important point of statutory interpretation: sections 274 and 275 do not automatically apply to prosecutions under section 1 of the Domestic Abuse (Scotland) Act 2018 because such prosecutions are not within section 288C(2); the regime applies only if extended by a section 288C(4) order.

The case also illustrates that, even where sexual history provisions are not in play, proposed defence material can still be excluded on orthodox grounds of relevance and overall fairness—without necessarily creating an Article 6 incompatibility—especially where substantially similar points are available through other admitted evidence.