Section 275 Evidence Is Confined to the Purpose Specified in the Application

1. Introduction

The appellant was convicted of rape contrary to section 1 of the Sexual Offences (Scotland) Act 2009 and sentenced to six years’ imprisonment. The jury deleted several averments of violence and an allegation that the offence endangered the complainer’s life, but convicted on the remaining terms of the charge.

The conviction appeal concerned the refusal of part of an application under section 275 of the Criminal Procedure (Scotland) Act 1995. The excluded evidence consisted of a pre-incident message containing the words “punish me daddy” and allegations that the complainer had made jokes about rape. The application stated that this material was required to explain why the appellant referred to a “rapey fantasy” during his emergency call after hearing the complainer report that she had been raped.

The Appeal Court held that the evidence had little or no probative value for that stated purpose. It also ruled that the appellant could not recast the evidence on appeal as relevant to consent when the section 275 application had not identified consent as the issue. In any event, the appellant’s own trial evidence contradicted the proposed explanation, so no miscarriage of justice had occurred.

2. The Governing Principle

Evidence sought under section 275 must be assessed by reference to the specific issue, purpose and reasoning stated in the application. An accused cannot later rely upon the same evidence for a materially different purpose, particularly where that purpose was not properly notified and is inconsistent with the accused’s own evidence at trial.

The decision also confirms that even an arguable error in excluding evidence will not justify quashing a conviction unless it resulted in a miscarriage of justice.

3. Factual and Procedural Background

The parties met through a dating application and had not met previously. The complainer’s evidence was that she initially consented to limited touching but repeatedly resisted further sexual activity by moving the appellant’s hand and telling him to stop. The appellant maintained that the sexual activity was consensual and that the complainer had presented herself as sexually submissive.

Most of the appellant’s section 275 application was granted. He was permitted to give evidence that the complainer had spoken of submission, being tied up and being dominated, and that they had discussed the safe word “lemons”. He was also allowed to present evidence intended to challenge whether her later distress and fear were genuine.

Only paragraph 24 was refused. It sought admission of:

• a message sent approximately three hours before the incident containing “punish me daddy”;
• an associated heart-shaped emoji, although the court found these were separate messages; and
• alleged jokes about rape, including a joke involving the appellant’s sister.

The application expressly linked this evidence to explaining the phrase “rapey fantasy” in the appellant’s emergency call. It did not state that the evidence was relied upon to prove the complainer’s consent or the appellant’s reasonable belief in consent.

4. Summary of the Judgment

The Appeal Court, in an opinion delivered by Lord Matthews, refused the appeal. Its principal findings were:

1. The appeal had to be determined by reference to the purpose actually stated in the section 275 application.
2. The appellant could not rely on the message and alleged jokes as evidence of consent because the application had not identified consent as their purpose.
3. The alleged rape jokes revealed virtually nothing about why the appellant used the phrase “rapey fantasy” and would have introduced collateral disputes.
4. In context, “punish me daddy” concerned the complainer’s breach of Covid restrictions, rather than sexual activity. It therefore had no significant probative connection to the disputed phrase.
5. The appellant was nevertheless able to explain the phrase through the extensive evidence admitted about submission, domination and the safe word.
6. His own testimony was that “rapey fantasy” was a poor choice of words made while panicking, and that the encounter did not resemble such a fantasy. That evidence contradicted the argument that the excluded material explained a deliberately chosen description.
7. Even if the evidence ought to have been admitted, its exclusion did not cause a miscarriage of justice or breach Article 6 of the European Convention on Human Rights.

5. Analysis

5.1 The statutory function of sections 274 and 275

Section 274 generally restricts evidence and questioning about a complainer’s sexual history or behaviour. Section 275 creates a controlled exception, requiring advance judicial permission. Among other requirements, the proposed evidence must relate to a specified issue, possess significant probative value and satisfy the statutory balancing exercise concerning the proper administration of justice.

The procedural detail required by section 275(3) is substantive, not merely technical. It identifies what evidence is sought, the issue to which it relates and why it is said to be relevant. This enables the court to assess admissibility and allows the Crown to consider whether responsive evidence is necessary.

5.2 The application could not be reformulated on appeal

At the preliminary hearing, paragraph 24 was justified only as an explanation for the appellant’s emergency-call language. On appeal, counsel also attempted to connect the material with whether the complainer consented. The court rejected that change of position.

If evidence is to be used to establish consent, the application must say so and comply with section 275(3)(b)–(e). The appellate court will not assess an application on a basis that was neither presented to the preliminary hearing judge nor properly notified to the opposing party.

5.3 The excluded evidence lacked significant probative value

The alleged jokes were disputed and did not logically explain the appellant’s particular words. Exploring them would have risked diverting the jury into a collateral inquiry with little bearing on the central issue.

The message was even weaker. When read with the surrounding communication, it concerned Covid-rule compliance rather than sex. The appellant himself accepted that, before he arrived, he understood the complainer did not intend to have sex. He had not brought contraception for that reason. This undermined any claim that he had interpreted “punish me daddy” as referring to a sexual or rape fantasy.

Nor did the appellant maintain that the alleged violence was consensual “punishment”. He denied causing the injuries and denied most of the alleged assaults. The message therefore did not materially support his actual defence.

5.4 The appellant’s testimony defeated the proposed explanation

At trial, the appellant was directly questioned about “rapey fantasy”. He described it as a panicked and inaccurate choice of words. He said that “submissive fantasy” would have been a better expression and expressly denied that the sexual activity had resembled a rape fantasy.

This was decisive to the miscarriage-of-justice analysis. The appellant could not argue after conviction that the excluded material would have explained his deliberate use of “rapey fantasy” when his sworn evidence was that the phrase was not deliberate or accurate. The proposed appellate explanation would have contradicted, rather than supplemented, his evidence.

5.5 Article 6 and presentation of the defence

The court rejected the contention that exclusion prevented the appellant from presenting his defence effectively. He had been allowed to lead substantial evidence concerning submission, domination and the safe word, and he was questioned fully about the emergency call. Article 6 does not confer an unrestricted right to introduce evidence that lacks sufficient relevance or falls outside the properly notified basis of a statutory application.

6. Precedents Cited

Daly and Keir v HM Advocate [2025] UKSC 38; [2026] SCCR 18

The appellant relied on this authority as supporting a more generous assessment of the context in which section 275 evidence is sought. The Appeal Court held that it did not permit the court to disregard the express wording of an application or treat evidence as admissible for a purpose contradicting the one stated.

The preliminary hearing judge also reported that the outcome would have been the same had this authority already been available. Its contextual approach did not remove the requirements of relevance, significant probative value and procedural specificity.

RN v HM Advocate [2020] HCJAC 3

This authority supported the requirement that a section 275 application identify the issue to which the proposed evidence relates and explain its relevance in accordance with section 275(3). The court relied upon it in holding that evidence intended to demonstrate consent had to be presented expressly on that basis.

7. Complex Concepts Simplified

Libel

The formal wording of the criminal charge, not civil defamation.

Section 275 application

A request for judicial permission to introduce evidence about a complainer’s sexual behaviour or related matters that would otherwise be restricted by section 274.

Probative value

The degree to which evidence genuinely helps prove or disprove a disputed issue.

Collateral issue

A side dispute that does not materially resolve the main question and may distract the jury.

De recenti statement

A complaint or statement made shortly after an alleged offence, capable in appropriate circumstances of supporting the complainer’s account.

Miscarriage of justice

The governing appellate test. A procedural or evidential error does not by itself overturn a conviction; the error must have caused material injustice.

8. Impact

The judgment reinforces strict discipline in drafting section 275 applications. Defence practitioners must identify every intended evidential purpose, especially where material may be said to bear upon consent, reasonable belief, credibility or the interpretation of an alleged admission.

The decision also demonstrates that admissibility and appellate prejudice are separate questions. Even where exclusion might be debatable, an appeal will fail if the accused was otherwise able to address the issue or if the accused’s own testimony makes the excluded evidence immaterial.

More broadly, apparently sexual language in electronic messages must be examined in its full conversational context. Isolated words cannot acquire significant probative value merely because they can be given a sexual interpretation when detached from that context.

9. Conclusion

[2026] HCJAC 41 confirms that section 275 applications are confined to the issues and purposes they expressly specify. Evidence cannot be repurposed on appeal to support consent when the original application advanced it only as an explanation for an accused’s statement. The excluded messages and alleged jokes were weak, collateral and inconsistent with the appellant’s own account. As he was able to explain the emergency call fully at trial, their exclusion caused neither an Article 6 violation nor a miscarriage of justice. The conviction appeal was therefore refused.