Section 274(1)(c) Bars “Custody-Dispute Motive” Questioning Without a Section 275 Application and an Evidential Basis

Case: Appeal against Conviction by KB against His Majesty's Advocate
Court: High Court of Justiciary (Appeal Court), Scotland
Citation: [2026] HCJAC 18
Date: 3 June 2026
Judges: Lord Justice Clerk (Lord Beckett), Lord Matthews, Lord Armstrong

1) Introduction

The appellant was convicted after a 7-day jury trial of a charge under section 1 of the Domestic Abuse (Scotland) Act 2018 involving (as ultimately left standing on conviction) repeated verbal abuse, physical assaults causing injury (including permanent disfigurement), and two non-consensual penile-vaginal penetrations, with a section 5 child aggravation. He was acquitted of a separate charge alleging a single assault of a child.

A preliminary hearing order under section 288(C)4 of the Criminal Procedure (Scotland) Act 1995 required the section 1 domestic abuse charge to be treated “in the same way as” a sexual offence listed in section 288C(2), bringing it within the scope of the section 274 restrictions and the section 275 gateway.

The appeal focused on one evidential ruling during cross-examination of the complainer (AA). Defence counsel sought to ask whether, by 13 November 2022 (a police call complaining of domestic abuse), it was “clear” there would be a child-custody dispute, in order to suggest a motive for false allegations. The trial judge stopped that line on the basis that it invited inadmissible material. No section 275 application had been made (nor a late application under section 275B sought). The appellant argued that exclusion undermined his ability to present a defence and raised an Article 6 ECHR fairness issue.

2) Summary of the Judgment

The Appeal Court refused the appeal. Its key conclusions were:

  • No miscarriage of justice: the “desiderated facts” (timing of police contacts, timing of statements, the period when the child stayed with the appellant, subsequent lack of contact, and communications about contact) were already before the jury. The defence in fact advanced, in evidence and speech, the contention that the complainer’s allegations were driven by relationship conflict (notably the appellant’s affair).
  • Section 274 applied: the proposed questioning sought to elicit non-sexual behaviour (instructing/consulting a solicitor about child contact) to found an inference that the complainer was not credible as to sexual offending. That collided with section 274(1)(c). Without a section 275 application, the court could not permit it.
  • Evidential-basis requirement reaffirmed (as an observation): the Court endorsed the longstanding Scottish approach that speculative “character assassination” is not permitted; an accused needs a proper evidential foundation to advance an inference-laden line of attack (Falconer v Brown 1893 21 R (J) 1; RN v HM Advocate [2020] HCJAC 3; MP v HM Advocate [2021] HCJAC 48).
  • Compatibility with Daly: although Daly and Keir v HM Advocate [2025] UKSC 38 cautioned against an overly rigid common-law “relevance” barrier that bypasses the statutory balancing in sections 274/275, nothing in Daly required the admission of speculative motive theories unsupported by admissible fact; and on the facts, the disputed material was either already in evidence or properly excluded.

3) Analysis

3.1 The statutory context: why a domestic abuse charge engaged section 274

A notable procedural feature was the unopposed order under section 288(C)4 of the 1995 Act: it treated the Domestic Abuse (Scotland) Act 2018 section 1 charge as if it were a listed sexual offence for evidential purposes. That step was decisive because it triggered:

  • Section 274 (mandatory exclusion of specified categories of evidence/questioning), and
  • Section 275 (the only route by which such evidence can be admitted, subject to judicial control).

The defence did not lodge a section 275 application at any stage. The Appeal Court treated that as fundamental once it concluded the questioning fell within section 274(1)(c).

3.2 What the defence was trying to do, and why the judge intervened

The challenged question asserted (or sought agreement) that, by 13 November 2022, it was “clear” there would be “issues” about custody. The defence rationale was to invite the jury to infer: custody/contact dispute → complaint to police → invented (or exaggerated) allegations (including sexual allegations).

The trial judge asked two classic admissibility questions:

  • Relevance/foundation: what evidential basis existed beyond timing and assertion?
  • Statutory competence: if the inference attacked credibility via prior behaviour, did section 274 prohibit it absent section 275?

The judge referenced MP v HM Advocate [2021] HCJAC 48 and RN v HM Advocate [2020] HCJAC 3 as authority for the proposition that speculative insinuations, without an evidential foundation linking the suggested “motive” to fabrication, are impermissible.

3.3 Precedents cited and their role

Daly and Keir v HM Advocate [2025] UKSC 38, 2025 SLT 1253

Daly is the post-trial backdrop. The Appeal Court accepted Daly’s warning that an “unyielding” common-law approach to relevance (associated with the majority in CJM v HM Advocate [2013] HCJAC 22) should not operate as a blunt instrument to defeat the statutory, balancing scheme in sections 274/275.

But Daly was not read as a charter for admitting any and all credibility attacks. The Appeal Court highlighted Daly’s insistence on balance (Daly at [48]) and the importance of a “positive explanation” only where “grounds for such a challenge exist” (Daly at [48])—language the Court treated as inconsistent with mere speculation.

The Court also observed that Daly’s discussion at [174] was made in a context where intercourse occurred and consent was the sole issue; here, by contrast, the defence position was that neither penetrative incident occurred at all. That contextual distinction mattered to the Court’s assessment of what “motive” evidence could properly add.

CJM v HM Advocate [2013] HCJAC 22, 2013 SLT 380

CJM featured chiefly as the prior authority whose common-law approach Daly criticised. The Appeal Court did not treat CJM as decisive on the facts, but used it to frame why courts must be careful not to let “common-law relevance” short-circuit the statutory mechanism. In this appeal, however, the statutory bar (section 274) was front and centre, and the absence of a section 275 application was dispositive.

RN v HM Advocate [2020] HCJAC 3, 2020 JC 132

RN was used for the proposition that (i) cross-examination inviting serious inferences must be grounded in material from which the inference “may legitimately be drawn”; and (ii) absent such a foundation, the exercise becomes “supposition, speculation and character assassination” (RN at [21], quoted extensively).

The Appeal Court in the present case did not definitively decide the outer limits of RN’s “evidential basis” requirement under section 274 (because the appeal failed on no-miscarriage and section 274/275 grounds). Nonetheless, it expressed continued confidence in RN’s core principle, reinforced by older authority (Falconer v Brown).

MP v HM Advocate [2021] HCJAC 48, 2022 SLT 194

MP was referenced as another example where a supposed “child history/custody” theme lacked an evidential link to fabrication. The Appeal Court noted that MP was not considered in Daly, but treated MP as consistent with the need for a factual nexus before permitting a line of attack that risks collateral distraction and unfair prejudice.

Falconer v Brown 1893 21 R (J) 1

Falconer supplied the deeper common-law pedigree: Scottish courts distinguish between proper questioning on relevant personal history and “questions put to throw dirt”. The Appeal Court deployed Falconer to justify a protective stance against vague insinuations not backed by evidence—portraying it as compatible with, not contradicted by, Daly’s balancing approach.

MacPherson v HM Advocate [2019] HCJAC 21, 2019 SCCR 129

MacPherson supported the proposition that while juries draw inferences, whether an inference is legitimately open on the evidence is initially a matter for the judge. This underpinned the view that courts may (and should) prevent speculative inference-building that lacks an evidential base.

Leggate v HM Advocate 1988 JC 127

Leggate was mentioned by the Crown to characterise the proposed line as potentially an “attack on character” (section 274(1)(a)), though the Appeal Court ultimately focused on section 274(1)(c) as the clearest statutory fit.

HM Advocate v Flanders 1962 JC 25

Flanders was used to answer the appellant’s “malice and ill-will” analogy: the Crown’s ability to lead motive evidence in some contexts operates within a notice-based procedural framework; it does not imply a symmetry that would compel admission of speculative defence motive theories in the face of section 274.

3.4 The Court’s legal reasoning

(a) No prejudice: the facts were already before the jury

The Appeal Court’s primary, case-dispositive move was forensic: it reviewed the transcripts and concluded the jury already heard the substance of what the defence claimed to have been prevented from eliciting—timelines, police calls, statements, the child’s temporary residence with the appellant, and later absence of contact. The appeal narrative (that “admissible evidence” was excluded) therefore “had no foundation”.

The Court also rejected an attempted reframing: that the judge’s intervention inhibited counsel from making submissions about custody/contact as a motive. That was treated as a matter of advocacy judgment, not judicial suppression—especially since counsel did make submissions about contact difficulties and repeatedly advanced the “affair” motive theory.

(b) Section 274(1)(c) captured the proposed questioning

In its “Observations”, the Court articulated a clear categorisation analysis. The defence sought to ask about instructing a solicitor regarding child access and to build from that “behaviour” an inference that the complainer was not credible about sexual offending. The Court held that is precisely the mischief of section 274(1)(c): non-sexual behaviour, remote from the charged acts, used to attack credibility.

Key point: once evidence/questioning falls within section 274(1)(c), the judge has no free-standing discretion to permit it. The only lawful route is a successful section 275 application (or a late application under section 275B).

(c) A “custody dispute” theory required admissible grounds, not timing alone

While not strictly necessary to dispose of the appeal, the Court indicated that a motive-to-lie theory of this type requires an evidential nexus. The appellant’s position at trial was that there was no direct statement by the complainer linking allegations to contact disputes; the proposed inference was built on coincidence of timing and supposition. The Court viewed that as insufficient, aligning RN/MP/Falconer with Daly’s insistence on balanced admissibility rather than unfiltered credibility skirmishing.

3.5 Impact

The decision is likely to be practically important in three recurring scenarios:

  • Domestic abuse indictments containing sexual conduct: where section 288(C)4 orders (or other routes) bring domestic abuse charges within section 274/275, practitioners must treat “credibility via behaviour” lines as potentially requiring section 275—especially where the line relies on non-sexual conduct such as seeking legal advice, child contact arrangements, or post-separation disputes.
  • “Motive to fabricate” cross-examination: this case reinforces that courts will scrutinise whether the defence has an admissible factual basis for a suggested motive, beyond chronology and assertion, before allowing questioning that risks collateral distraction and reputational harm.
  • Post-Daly practice: Daly encourages use of the statutory balancing exercise rather than a rigid common-law relevance veto. This judgment shows that, equally, Daly does not displace section 274’s mandatory structure nor legitimise speculative attacks; it encourages properly framed section 275 applications where a legitimate foundation exists.

4) Complex Concepts Simplified

  • Section 274 / Section 275 (1995 Act): section 274 is a default “do not ask / do not admit” rule for certain types of evidence in sexual-offence trials; section 275 is the permission mechanism—evidence can come in only if the court grants an application after weighing relevance, fairness, and safeguards.
  • Section 274(1)(c): targets use of a complainer’s non-sexual behaviour (outside the immediate timeframe of the alleged offence) to suggest they are not credible/reliable. It is not limited to “sexual history”; it also captures certain non-sexual conduct used as a credibility wedge.
  • Section 275B: allows for late applications. This case illustrates a tactical lesson: if an evidential issue arises mid-trial, counsel may need to seek leave to lodge a late section 275 application rather than attempt to proceed without one.
  • Collateral evidence: evidence that spawns side-issues (mini-trials) distracting from the core question (did the charged conduct occur?). Courts may exclude it even if it has some relevance, because it is disproportionate.
  • Evidential basis vs speculation: Scottish practice (Falconer; RN) requires that serious insinuations in cross-examination be anchored in material capable of supporting the inference. Timing alone may be insufficient.
  • Article 6 ECHR (fair trial): the accused must have a fair opportunity to challenge the Crown case, but that does not equate to an entitlement to run speculative credibility attacks; fairness is mediated through structured rules (here, sections 274/275) that aim to balance competing trial rights.

5) Conclusion

[2026] HCJAC 18 confirms that where a charge is brought within the sexual-offence evidential regime, defence questioning that seeks to use a complainer’s non-sexual post-incident behaviour (such as pursuing legal advice about child contact) to undermine credibility will generally fall within section 274(1)(c) and is incompetent without a section 275 (or 275B) application. The Court also underscores that “motive to fabricate” theories must be grounded in admissible fact, not merely coincidence of timing, and that Daly’s fair-trial emphasis does not require courts to permit speculative, collateral credibility attacks—particularly where the jury has already heard the material facts said to support the defence theory.