Section 275 After Daly & Keir: Post‑Allegation Intimacy Evidence, Dignity/Privacy Limits, and No Miscarriage Where the Jury Already Heard the Essence

1) Introduction

In CS v His Majesty’s Advocate [2026] HCJAC 40 (Appeal Court, High Court of Justiciary, opinion delivered by the Lord Justice Clerk), the appellant appealed convictions for multiple sexual offences against two former partners (“AA” and “BB”) and appealed an 11‑year custodial sentence. The conviction appeal focussed on a single ground: senior counsel at trial was said to have been deterred from making an application under Criminal Procedure (Scotland) Act 1995, section 275, because of the then-prevailing understanding of the common law of evidence. Following the UK Supreme Court’s decision in Daly & Keir v HM Advocate [2025] UKSC 38, 2026 SC (UKSC) 1, the appellant argued he should have been allowed to adduce evidence of post-offence interactions with each complainer (including alleged post-separation consensual sexual activity with BB), said to undermine credibility and create reasonable doubt.

The appeal court refused both the conviction appeal and the sentence appeal. The judgment is significant for how it (i) situates Daly & Keir within the statutory scheme of sections 274–275, (ii) emphasises the section 275(1)(c) balancing exercise (probative value versus prejudice to the proper administration of justice, including dignity/privacy), and (iii) addresses “miscarriage of justice” arguments based on evidence said to have been excluded by tactical or perceived legal constraints—especially where the jury already heard material of similar import.

2) Summary of the Judgment

Conviction

  • AA-related charges (2–4): The court held there was no miscarriage of justice because “almost all” of the credibility material said to have been excluded (texts/letter/contact) was in fact explored at trial through cross-examination and the appellant’s evidence. Any additional, unvouched claims (telephone call(s)) added little. Given mutual corroboration (and independent corroboration on one charge), there was no unfairness and no real possibility of a different verdict.
  • BB-related charges (7 & 9): The jury already knew the parties continued living together for years after the last rape found by the jury (by January 2015), had two children thereafter, and remained in amicable contact post-separation. The proposed additional evidence (post-separation sexual activity with detailed sexual content) would likely have been restricted as unnecessary and unduly invasive. Its probative value was negligible in context. No unfairness and no miscarriage of justice were established.

Sentence

Applying the approach to cumulation and proportionality described in HM Advocate v Fergusson [2024] HCJAC 22, 2024 JC 376, the sentencing judge identified notional sentences and adjusted to an aggregate of 11 years. The appeal court upheld that outcome: youth at the time of earlier offending was considered, but later offending was committed as an adult; aggravations included pregnancy (AA) and the day of a funeral (BB), repetition, breach of trust, and serious harm. The sentence was not excessive.

3) Analysis

A) Precedents Cited and Their Influence

Daly & Keir v HM Advocate [2025] UKSC 38, 2026 SC (UKSC) 1

The appellant relied on Daly & Keir as resetting the legal landscape: the UK Supreme Court warned that a Scottish evidential common-law tendency to exclude certain sexual-history or sexual-behaviour evidence could, in practice, block access to the statutory relief in section 275 and risk unfairness. The appeal court in [2026] HCJAC 40 accepts that signal of risk, but emphasises that post-Daly & Keir the correct approach is to assess relevance and admissibility by faithfully applying the sections 274–275 scheme—rather than treating Daly & Keir as creating an unqualified entitlement to lead any post-allegation consensual sexual behaviour evidence.

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

The court uses CJM chiefly as a marker of the earlier era in which counsel might have perceived the common law as restrictive. However, the court rejects the narrative that section 275 relief was effectively unavailable in the intervening years: it notes first instance judges did allow section 275 applications when statutory criteria were met.

RR v HM Advocate [2021] HCJAC 21, 2021 JC 167

RR is treated as the key domestic authority illustrating modern section 275 procedure and complainer participation. The court highlights (i) that an application was allowed at first instance (undercutting claims that allowance was impossible), and (ii) the procedural requirement—central to fairness and the “proper administration of justice”—that complainers receive notice and have an opportunity to comment, with their position communicated to the judge. The court describes post-RR practice as “standard”: the prosecution puts the substance of a section 275 application to the complainer, records the response, and shares it.

TH v HM Advocate [2025] HCJAC 46, 2026 JC 58

TH is cited for the appeal court’s method of assessing alleged trial unfairness/miscarriage of justice under Scots law: the court draws on collective judicial experience and the totality of circumstances, rather than treating the issue as a mechanical exercise. This frames the court’s conclusion that the trial remained fair even if some further questioning could, in theory, have been sought.

McInnes v HM Advocate [2010] UKSC 7, 2010 SC (UKSC) 28

Although the appellant did not advance an Article 6 ECHR ground, the court references McInnes for the “real possibility of a different verdict” test used where evidence is missing due to disclosure failures. The court indicates that even if that test were applied by analogy, it would not assist the appellant: the additional material would not create a real possibility of a different verdict.

HM Advocate v Fergusson [2024] HCJAC 22, 2024 JC 376

On sentence, Fergusson anchors the judge’s structured approach: identifying notional sentences per charge (and cumulatively where appropriate) and then adjusting for overall proportionality. The appeal court endorses both the method and the ultimate aggregate.

B) Legal Reasoning

(i) The statutory gatekeeping function of section 275(1)(c)

Central to the decision is the court’s insistence that relevance is not enough. Even where evidence of post-allegation contact or sexual intimacy may have some bearing on credibility, it must still satisfy section 275(1)(c): it must have significant probative value and that value must be likely to outweigh the risk of prejudice to the proper administration of justice. The judgment expressly treats “proper administration of justice” as including protection of dignity and privacy and the need for the proposed facts to be commensurate with the importance of the issue for the jury (section 275(2)).

(ii) “Artificiality” on appeal where no section 275 application was made

The court underscores the practical difficulty of reconstructing, on appeal, what a preliminary hearing judge would have decided on a hypothetical section 275 application. Without a contemporaneous application, the court lacks:

  • the precise framing of the proposed evidence and lines of questioning;
  • the trial context as anticipated at the preliminary stage;
  • the complainers’ recorded responses to the specific averments (now standard after RR); and
  • the ability to assess how far the trial judge might have restricted questioning under section 275(9) as the evidence unfolded.

This “missing procedural record” matters because the appellant’s argument depended on the premise that the evidence would have been admitted broadly and deployed in a way capable of materially shifting the jury’s assessment.

(iii) No miscarriage where the “essence” was already before the jury

For AA, the court’s reasoning is evidential and contextual: the jury heard about the letter expressing love, friendly texts years later, and AA’s inability (or unwillingness) to explain why she contacted the appellant long after the alleged offending. The defence used that material to attack credibility in closing. In that setting, further evidence of similar flavour—especially where not supported by objective records—could not plausibly convert the trial into an unfair one or create a real possibility of acquittal.

For BB, the court reasons that the jury already had powerful “incongruity” material: continued cohabitation and sexual relationship after the last rape found by the jury, two children born thereafter, and continued amicable dealings. Against that background, the proposed additions largely supplied detail, not a materially different picture. The court characterises some proposed detail as “prurient” and therefore unlikely to pass section 275(1)(c), because it would be a disproportionate intrusion on privacy/dignity with negligible probative gain.

(iv) Corroboration and the court’s view of jury discernment

The Crown relied on mutual corroboration. The appeal court also notes independent corroboration on one charge via AA’s mother. It further infers careful jury assessment from the pattern of verdicts (including a majority verdict on one charge and the deletion of part of the libel on another). This supports the conclusion that the jury had the tools to evaluate credibility and was not deprived of a fair opportunity to test the complainers’ accounts.

(v) Sentencing: proportionality, youth, and aggravations

The appeal court accepts that youth at the time of earlier offending is relevant to culpability, but holds it was already reflected in the notional/cumulative approach. For later offending, the appellant was an adult and the court finds no basis for material mitigation on age. The court treats pregnancy and funeral-day circumstances as aggravating, and repetition/breach of trust as justifying substantial custody. The refusal of the sentence appeal reinforces deference to structured first-instance reasoning where the Fergusson exercise is properly performed and the final aggregate is proportionate.

C) Impact

  • Clarifies the post-Daly & Keir landscape: Daly & Keir is not a licence to admit wide-ranging sexual material; the statutory filters—especially section 275(1)(c)—remain decisive.
  • Appeal strategy and evidential reconstruction: The judgment demonstrates the difficulty of succeeding on appeal where no section 275 application was made. Without the procedural record (including complainer comments post-RR), appellate courts may be reluctant to find unfairness based on speculation about what would have been allowed.
  • Limits on “detail”: Even if some general evidence of post-allegation intimacy might be admitted, courts will likely restrict intrusive particulars (e.g., explicit acts, devices, explicit video-call conduct) unless clearly necessary to a live issue and of significant probative value.
  • Sentencing appeals: Where a judge follows Fergusson and gives rational weight to aggravations/mitigations, appellate interference will remain uncommon absent clear excess or error.

4) Complex Concepts Simplified

Section 274 and Section 275 (in brief)

Section 274 generally restricts evidence or questioning about a complainer’s sexual history/character. Section 275 provides a mechanism to ask the court for permission to lead otherwise prohibited material, but only if strict criteria are met.

What does “significant probative value” mean?

It means the evidence must be meaningfully useful in proving or disproving something important at trial—more than marginally relevant. If the jury already has the gist (e.g., ongoing contact/intimacy), additional explicit detail may add little probative value.

“Proper administration of justice” includes dignity and privacy

The court treats fairness as two-sided: the accused’s right to test evidence and the justice system’s duty to prevent unnecessary, humiliating, or irrelevant intrusions into a complainer’s private life. Section 275 requires the judge to balance these considerations.

“Mutual corroboration”

In Scots criminal law, some offences require corroboration. “Mutual corroboration” means two separate complainers’ accounts can corroborate each other if they show a sufficiently connected course of conduct (similarity in time, character, and circumstance), allowing each to support the other.

5) Conclusion

[2026] HCJAC 40 confirms that, after Daly & Keir v HM Advocate, Scottish courts must apply sections 274–275 as the primary framework: relevance alone does not justify admission of sexual-behaviour evidence. The decisive filter remains section 275(1)(c), including respect for complainer dignity and privacy. Where the jury already heard substantial material going to alleged “incongruity” (continued contact, affection, cohabitation, and sexual relations after the alleged offending), the absence of more explicit detail will rarely amount to an unfair trial or miscarriage of justice. On sentence, the case also illustrates the continued strength of the structured cumulation/proportionality approach under HM Advocate v Fergusson and the high threshold for appellate intervention in well-reasoned sentencing decisions.