“Safe Word” and BDSM Evidence after Kirkup: Section 275(1)(c) Probative Value, No Standing Consent, and Article 6 Fairness

1. Introduction

Sean Kirkup v His Majesty’s Advocate ([2026] HCJAC 11) is an appeal to the Scottish High Court of Justiciary (Appeal Court) against (i) conviction and (ii) an extended sentence. The appellant had been convicted by a jury of four offences involving sexual assault and domestic abuse against two former partners, HR and LM, including a sexual assault against LM which (as returned by the jury) encompassed violent and non-consensual conduct.

The appeal against conviction focused narrowly on the trial court’s refusal (at preliminary hearing) of a section 275(3) application to lead evidence of (a) a “BDSM style” relationship with LM and, in particular, (b) an alleged prior agreement on a “safe word”. The appellant framed the refusal as denying a fair trial under Article 6 ECHR, raising a compatibility issue under section 288ZA(2) of the Criminal Procedure (Scotland) Act 1995.

The key issues were:

• How the tripartite test in section 275(1) governs admissibility of evidence barred by section 274(1).
• Whether “safe word” evidence was of sufficient probative value under section 275(1)(c) in this case.
• Whether exclusion of that evidence rendered the trial unfair (Article 6) and caused a miscarriage of justice.

2. Summary of the Judgment

The court refused both the appeal against conviction and the appeal against sentence.

On conviction, the court held:

• The correct approach to admissibility is the cumulative section 275(1) test (as confirmed by SC v HM Advocate (unpublished and embargoed, 4 March 2026)).
• The preliminary hearing judge refused the “BDSM/safe word” evidence on section 275(1)(c) (insufficient probative value outweighing prejudice/administration of justice concerns).
• There was no Article 6 unfairness: the excluded “safe word” evidence would not have significantly strengthened the defence on the facts as presented at trial.
• Evidence of a general BDSM relationship caused no unfairness because the jury already heard that LM had sometimes consented to spanking and initially to whip/paddle use; the live dispute was whether she withdrew consent by crying/begging (which the appellant denied occurred).
• “Safe word” evidence did not raise a reasonable belief defence because, to be relevant on the appellant’s theory, it would have required him to accept LM’s distress signals occurred but to say he nonetheless believed consent persisted—an account he did not give.
• The court reiterated that consent cannot be given in advance and rejected any suggestion that “safe word” evidence is always relevant.

On sentence, the court held the extended sentence of 6 years (4 years custody + 2 years extension) was not excessive, given the seriousness, pattern of abuse, risk assessment, and application of sentencing guidelines.

3. Analysis

3.1 Precedents Cited

(a) The statutory scheme, Article 6, and judicial control

The court’s starting point was that the sections 274–275 regime is Convention-compatible and intended to balance the accused’s fair trial rights with the complainer’s dignity and privacy.

• DS v HM Advocate [2007] UKPC D1; 2007 SC (PC) 1: Lord Hope’s formulation is central—section 275 exists to preserve fairness despite wide exclusions in section 274, and excluding evidence that satisfies all three tests risks unfairness. The Appeal Court in Kirkup uses this to emphasise that unfairness typically arises only where evidence that meets the tests is nonetheless excluded.
• Judge v United Kingdom 2011 SCCR 241: The Strasbourg court upheld the scheme as “careful and nuanced”, allowing admission where evidence is relevant and probative, with a margin of discretion to the trial judge. Kirkup treats this as closing off any general attack on the statutory structure.

(b) Consent must be contemporaneous; no “pre-booking”

• R v Cooper [2009] UKHL 42; [2009] WLR 1786: Cited for the proposition that consent requires to be present at the time of the sexual activity, supporting rejection of any contract-like “standing consent”.
• Stallard v HM Advocate 1989 SCCR 248 and GW v HM Advocate [2019] HCJAC 23, 2019 JC 109: Used to reinforce that relationships do not fix consent in advance and that lawful consent must be assessed at the time.
• HM Advocate v MacGregor [2025] HCJAC 28; 2025 JC 358: Reiterated at [39] (per the Lord Justice Clerk (Beckett)) for the rule against standing consent. Kirkup deploys this to blunt the appellant’s attempt to treat a safe word arrangement as evidencing advance consent.

(c) Relevancy/probative value after Daly & Keir; avoiding “smearing” reasoning

• Daly & Keir v HM Advocate [2025] UKSC 38; 2025 SLT 1253: The appellant relied on this to argue that prior BDSM and safe word evidence is “intimately linked” to consent assessment. The Appeal Court accepts the Supreme Court’s fair-trial framing (opportunity to put obviously relevant evidence that would significantly strengthen the defence), but distinguishes this case on its facts: the safe word evidence would not significantly strengthen the defence given the appellant’s own evidence posture.
• R v A (No 2) [2001] UKHL 25; 2002 1 AC 45: Cited (via Daly & Keir and J v HM Advocate) for the principle that prior sexual history should not be used merely to imply the complainer is more likely to have consented, or that her denial is less credible.
• J v HM Advocate [2020] HCJAC 18; 2020 SLT 642: Relied on to emphasise that evidence whose sole/main purpose is to suggest consent “because of past behaviour” is inadmissible; this supports the court’s concern that safe word evidence (as deployed here) risked impermissible character prejudice.
• Y v Slovenia (2016) 62 EHRR 3: Used to underline that Article 6 does not provide an unlimited right to run any defence argument or adduce any desired evidence.

(d) The appellant’s prior litigation on consent-to-harm limits

• HM Advocate v Kirkup No 1 [2025] HCJAC 9; 2025 JC 135: This earlier decision in the appellant’s own case established that consent (and reasonable belief in it) is not available for deliberate acts with the potential to cause serious harm (notably choking/neck compression, slapping to the face/head). In the present appeal, the court repeatedly uses that boundary to narrow what aspects of charge (5) could even theoretically be consented to.

(e) Sentence appeal authorities

• Beveridge v HM Advocate [2025] HCJAC 23: appeal test—miscarriage of justice where sentence is excessive or inappropriate.
• Barnes v HM Advocate [2024] HCJAC 23; 2024 JC 364 (with Murray v HM Advocate [2013] HCJAC 3; 2013 SCCR 88, McGill v HM Advocate [2013] HCJAC 150; 2014 SCCR 46, Miller v HM Advocate [2024] HCJAC 3; 2024 JC 253): focus is the end sentence, not process errors that do not affect outcome.
• HM Advocate v Fergusson [2024] HCJAC 22, 2024 JC 376: approving “headline sentence” methodology and structuring.

3.2 Legal Reasoning

(a) The court’s framing: what mattered, and what did not

The court stresses that the appeal related only to the sexual assault conviction in charge (5), and—critically—that after Kirkup No 1 consent and reasonable belief were legally irrelevant to conduct with potential for serious harm. This means the debate about BDSM context and safe words could only affect the “consent-capable” components (eg non-serious-harm striking with whip/paddle; certain physical handling), not choking/neck compression.

(b) Section 275(1) as the decisive filter (and section 275(1)(c) as the battleground)

The court treats the statutory test as cumulative and controlling: the evidence may be relevant (section 275(1)(b)) yet still excluded if its probative value is not “significant” and does not outweigh prejudice/administration of justice concerns (section 275(1)(c)).

Importantly, the court notes it is not dealing with relevancy because the preliminary hearing judge necessarily treated the evidence as relevant before excluding it on probative value grounds. The appeal therefore turns on whether exclusion under section 275(1)(c) deprived the appellant of a fair trial under Article 6.

(c) Why “general BDSM relationship” evidence did not create unfairness

The court’s analysis is highly fact-sensitive:

• The jury already heard evidence that LM did not mind spanking and initially consented to whip/paddle use.
• The decisive dispute was whether LM withdrew consent by crying, begging, and trying to push him off, or whether she remained a willing participant.
• Further “general BDSM” background did not materially help resolve that dispute; it risked becoming collateral or a vehicle for prejudice.

The court suggests a different case might have arisen if the defence had been that the complainer’s distress signals were part of agreed role-play and the appellant accepted they occurred but (mistakenly) treated them as in-character—ie, a coherent reasonable belief in consent theory grounded in the facts of the incident. But that was not the appellant’s evidence: he denied the distress signals occurred at all.

(d) The “safe word” point: no automatic relevance; no rescue for an inconsistent defence

The court refuses the proposition that safe word evidence will “always” be relevant. It must be evaluated under section 275(1) like any other section 274-barred material. On the facts, the court’s reasoning has two linked strands:

1. Mismatch with the defence actually run: A safe word would only become probatively significant to reasonable belief if the appellant accepted there were strong signals of non-consent (crying/begging) but said he nonetheless believed consent continued because the safe word was not used. Since the appellant’s evidence was the opposite (no crying, no begging, full consent throughout), the court views the safe word line as trying to introduce a fundamentally different defence theory post hoc.
2. Standing consent is impermissible: Because “consent cannot be given in advance” (R v Cooper; Daly & Keir v HM Advocate; GW v HM Advocate; HM Advocate v MacGregor), a prior safe word arrangement could not operate as evidence of pre-given consent. In this case, therefore, its residual effect risked being merely to portray the complainer as someone who engages in BDSM—precisely the kind of prejudicial “smearing” reasoning section 274 aims to prevent (J v HM Advocate; R v A (No 2)).

(e) Fair trial analysis: Daly & Keir applied, not ignored

The court explicitly adopts the Daly & Keir touchstone: Article 6 is threatened where exclusion deprives the accused of the opportunity to put before the jury evidence that is obviously relevant and that, if accepted, would significantly strengthen the defence. The court concludes those conditions are not met: given the appellant’s stance and the issues the jury actually had to decide, the safe word evidence did not materially enhance a coherent defence.

(f) Procedural discipline: indictment amendment and the need for a fresh section 275 application

A practical doctrinal point emerges: when the Crown amended charge (5) to include whip and paddle averments, evidence about those acts as part of the charge was no longer barred by section 274(1), and could be explored without section 275 permission. If further related material still fell within section 274(1), the appellant should have lodged a fresh section 275(3) application—he did not. The court treats that as weakening any complaint about being unable to put the “full picture” before the jury.

3.3 Impact

The judgment’s practical and legal impacts are likely to be felt in three areas:

• No “safe word exception” to section 274/275: The court signals that safe word evidence is not presumptively admissible, nor presumptively relevant, and must pass the full section 275(1) test.
• Coherence between proposed evidence and defence theory: Courts assessing probative value under section 275(1)(c) will scrutinise whether the proposed evidence truly advances the defence as actually pled and led, rather than offering a speculative alternative narrative inconsistent with the accused’s own account.
• Reinforced boundary: no advance consent; serious-harm conduct remains non-consentable: Even within BDSM contexts, the court reaffirms two limiting principles: (i) consent must be contemporaneous; and (ii) consent/reasonable belief is unavailable for deliberate serious-harm-potential conduct (per Kirkup No 1).

The court also injects an explicit public-policy caution: it is “very troubling” to expect a victim to signal withdrawal of consent through a code word rather than ordinary distress cues, and “even less satisfactory” for distress to be ignored. While framed carefully (and without deciding broader policy), this language may influence future section 275(1)(c) balancing where “safe word” arguments are advanced to neutralise evident withdrawal signals.

4. Complex Concepts Simplified

Section 274 / Section 275 (Criminal Procedure (Scotland) Act 1995)

Section 274 broadly excludes evidence/questions about a complainer’s sexual history or certain conduct. Section 275 allows it only if the court is satisfied of three cumulative conditions: the evidence is specific, relevant, and of significant probative value that outweighs prejudice/justice concerns.

Probative value (section 275(1)(c))

How much the evidence really helps decide the issue in dispute. Evidence can be “relevant” but still too weak, too collateral, or too prejudicial to justify admission.

Reasonable belief in consent

A defence that even if the complainer did not consent, the accused reasonably believed they did. Its availability depends on the evidence led and the factual scenario advanced.

“Consent cannot be given in advance”

Scottish (and wider UK) law treats consent as needing to exist at the time of the sexual act and capable of being withdrawn; a prior arrangement does not fix consent “once and for all”.

Miscarriage of justice

The standard for allowing many criminal appeals in Scotland: the appellant must show an error leading to unfairness or that the verdict/sentence cannot stand.

5. Conclusion

[2026] HCJAC 11 does not create a new substantive rule about BDSM, but it delivers a clear procedural and evidential message: “safe word” evidence is not automatically admissible or even automatically relevant, and where it is barred by section 274(1), it must satisfy the full section 275(1) test—particularly the probative value balancing in section 275(1)(c).

Applying Daly & Keir v HM Advocate, the court held that excluding the evidence did not deprive the appellant of the opportunity to lead obviously relevant material that would significantly strengthen his defence, especially given the defence actually advanced (full consent throughout; denial of withdrawal indicators). The appeal against conviction and sentence was therefore refused, reinforcing both (i) the contemporaneous nature of consent and (ii) the court’s gatekeeping role to prevent sexual-history-style evidence being used as character prejudice rather than true exculpatory proof.