Section 263(4) Impeachment vs Section 274 “Sexual Behaviour”: Pre‑incident Sexual Messages, Section 275 Error, and No Miscarriage of Justice

Court: High Court of Justiciary (Appeal Court)
Citation: [2026] HCJAC 25
Date: 7 July 2026
Judges: Lord Justice Clerk (Lord Beckett), Lord Matthews, Lord Armstrong

1. Introduction

The appellant (JH) was convicted after jury trial in the High Court at Edinburgh of two sexual offences committed in a wooded area near East Scotscraig Lane, Dundee, on 10 February 2023. The convictions were for:

• Charge 1 (AA, a child under 13): sexual assault including digital penetration (the jury deleted the rape allegation).
• Charge 2 (BB, aged 13): rape.

The appeal challenged conviction on a single basis: alleged error at the preliminary hearing in refusing parts of defence applications under Criminal Procedure (Scotland) Act 1995 s 275 (the statutory mechanism to admit otherwise prohibited “sexual history/character” material captured by s 274). The defence sought to lead evidence of social media messaging said to show a prior arrangement to meet for sexual activity, relevant to credibility and—regarding BB—consent.

Unlike post-Daly & Keir v HM Advocate [2025] UKSC 38, 2025 SLT 1253 litigation in this area, the appellant did not raise an ECHR “compatibility issue” (s 288ZB of the 1995 Act). The appeal therefore proceeded on orthodox Scots appeal principles: whether any error produced a miscarriage of justice, assessed in light of the trial as a whole.

2. Summary of the Judgment

• The court held that, as to AA (charge 1), the excluded material (including an alleged message that she said she was “15”) had limited probative value because consent was irrelevant (AA being under 13), and the trial already permitted the “arranged meeting” point to be advanced. No miscarriage of justice arose.
• As to BB (charge 2), the preliminary hearing judge erred in refusing the part of the s 275 application that sought to elicit that the meeting was for sexual activity, especially given the proximity in time (about 20 minutes) and the later-recovered message exchange.
• However, despite that error, there was no miscarriage of justice. The jury effectively proceeded on the basis that the meeting was arranged; credibility was attacked; the recovered messages were of limited additional exculpatory value; and the overall evidential case (including forensics, distress, and incriminating conduct) was strong.
• The appeal was refused.

3. Analysis

3.1 Precedents Cited and Their Role

3.2 Legal Reasoning

(A) The appeal framework: no compatibility issue, so “miscarriage of justice” controls

The court emphasised that the appellant did not plead a s 288ZB compatibility issue (and therefore did not frame the appeal as an Article 6 unfair trial complaint). That mattered procedurally and substantively:

• Procedurally, an Article 6 complaint raised for the first time on appeal ordinarily requires proper notice (the Crown cited the Act of Adjournal (Criminal Procedure Rules) 1996 Rule 40.2(4) and Rule 40.6(1)).
• Substantively, even if a judge errs on s 275 admissibility, the appeal court still asks whether the omission caused a miscarriage of justice when the trial is viewed as a whole.

(B) Section 263(4) vs section 274: the “purpose” of the evidence matters

A central clarification (and practically significant) was the court’s treatment of s 263(4):

• If the defence seeks to show a complainer made a prior inconsistent statement on a matter “pertinent to the issue”, that is permitted by s 263(4).
• For that impeachment purpose, the court stated that s 274 would not prevent its use (para [88]).

This does not eliminate s 274/s 275. The court immediately cautioned (drawing on DS v HM Advocate) that statements can also amount to “sexual behaviour” depending on their nature and use. In other words:

• Same message, different legal route: as impeachment it may be put under s 263(4); as substantive “sexual behaviour” evidence (e.g., to suggest willingness to engage in sexual activity) it engages s 274 and requires s 275 permission.

(C) Messages indicating willingness to “want it” can be “sexual behaviour” under s 274

The court rejected the appellant’s categorical submission that the relevant communications were “mere statements” falling outside s 274. Applying DS v HM Advocate (especially Lord Rodger’s recognition that flirtatious/seductive statements can form part of sexual behaviour), the court held that a text exchange which—on the appellant’s interpretation—signalled willingness to engage in sexual activity constitutes sexual behaviour (para [90]).

(D) Error at the preliminary hearing on BB: relevance and probative value were satisfied

The court nonetheless found that the preliminary hearing judge erred in refusing the “meet for sexual activity” part of BB’s s 275 application:

• The proposed evidence was not “too remote”: it was said to occur about 20 minutes before the alleged rape.
• Even under pre-Daly & Keir understandings of relevance, it had some probative value not outweighed by “proper administration of justice” considerations (s 275(1)(b) and (c)).
• The preliminary hearing judge’s “no evidential basis” approach was wrong: the accused’s testimony can supply foundation (Falconer v Brown 1893 21 R (J) 1; RN v HM Advocate [2020] HCJAC 3, 2020 JC 132).

(E) No miscarriage of justice: why the error was “harmless” on these facts

Having found error, the court undertook the decisive step: assessing trial impact. It held the error did not undermine the safety of the convictions because:

• The jury effectively knew the meeting was arranged: the Crown speech said “so what” about messaging and argued the complainers were not willing participants; the trial judge noted the complainers were plainly untruthful about prior contact.
• The recovered messages were equivocal as to what was being agreed; it would be “a leap” to treat them as consent to what the jury accepted occurred (forceful intercourse from behind, internal ejaculation, etc.).
• The appellant’s own evidence was stronger than the recovered messages: he asserted unrecovered messages “confirmed” consent to intercourse. The trial judge did not neutralise that by giving an “advance consent is impossible” direction, leaving the defence position before the jury.
• The corroborated case was strong: distress disclosures, injuries consistent with assault, semen/DNA findings, the appellant’s false account to police about being with his girlfriend, and incriminating conduct relating to washing/wiping his hands.

The court also rejected an oral submission that cross-examination was “unfair” because the Advocate Depute questioned the appellant about “unrecovered” consent texts despite knowledge of the recovered messages; the court considered both parties understood the appellant was referring to other messages, not the recovered exchange (para [98]).

3.3 Impact

• Operational guidance on framing evidence: Practitioners should distinguish (i) deploying communications as prior inconsistent statements under s 263(4) to attack credibility, from (ii) relying on them to show flirtation/willingness/sexual intent, which will likely be treated as “sexual behaviour” requiring s 275 permission.
• Post-Daly & Keir relevance is contextual: Pre-incident sexual communications are not automatically “irrelevant” merely because consent must exist at the time of the act; proximity in time and the issues in the case can confer probative value.
• Appellate emphasis on outcome, not error alone: Even where a s 275 ruling is wrong, conviction will stand if the trial record shows the jury effectively had the substance of the defence and the missing material would not have created a real possibility of a different verdict.
• Procedure matters: If an appellant wishes to argue Article 6 unfairness, it should be properly pled as a compatibility issue. Otherwise, the appeal will be determined by the miscarriage-of-justice test.

4. Complex Concepts Simplified

• Section 274 (the “rape shield” rule): Generally blocks evidence or questioning about a complainer’s sexual history/character/behaviour unless the court grants permission.
• Section 275 (permission gateway): Allows otherwise barred evidence if it is relevant, has significant probative value, and that value is not outweighed by risk of prejudice to the proper administration of justice (among other statutory constraints).
• “Statement” vs “behaviour”: A message can be both. If used simply to show “the witness previously said X” (impeachment), it may be advanced under s 263(4). If used to imply sexual willingness/intent (substantive sexual-behaviour reasoning), it can be treated as sexual behaviour engaging s 274 and requiring s 275 permission.
• Consent cannot be “banked” in advance: Scots law focuses on “free agreement” at the time of the sexual act. Prior communications may still be relevant context, but they are not, by themselves, conclusive proof of consent at the moment of penetration.
• Miscarriage of justice: Not every legal error leads to a successful appeal. The appellate court asks whether the error mattered to the outcome when looking at the whole trial.

5. Conclusion

[2026] HCJAC 25 confirms that pre-incident sexualised messaging can constitute “sexual behaviour” for s 274 purposes, while also highlighting a distinct route for credibility impeachment via s 263(4). The court found a s 275 error in excluding the “sexual activity” arrangement evidence in relation to BB, but held the convictions safe because the jury already understood the meeting was arranged, the excluded messages were equivocal, and the corroborated Crown case was strong. The decision reinforces that s 274/s 275 disputes are ultimately evaluated through the lens of trial fairness and practical impact—yet, where Article 6 is to be relied upon, it should be pled expressly as a compatibility issue.