Speculation Is Not an Evidential Basis for Section 275 “Collusion/Conspiracy” Cross‑Examination; Excessive Consecutive Sentencing Corrected by a Cumulo Extended Sentence

1. Introduction

This appeal concerned (i) the fairness and legality of restricting defence questioning under the sexual history/character rules in the Criminal Procedure (Scotland) Act 1995, and (ii) whether the overall punishment imposed for multiple sexual offences was excessive.

The appellant—described in evidence as the founder and leader of a Pentecostal church—was convicted after trial of sexual offending against complainers A and B (historical charges) and further sexual offending against A (post‑2009 Act charge). Evidence from C and D was led under a docket (plainly in the style of section 288BA), though those docketed convictions had previously been quashed.

The key conviction issue was whether the defence should have been permitted, via a previously granted but later reviewed section 275 ruling, to cross‑examine in support of a theory that a former church associate (E) had orchestrated a campaign encouraging others to fabricate allegations, amounting to “conspiracy/collusion”.

2. Summary of the Judgment

Appeal against conviction

• The court held the trial judge was entitled to review an earlier unopposed grant of a section 275 application (competently: JW v HM Advocate [2021] HCJAC 41).
• The court refused the conviction appeal because the proposed “conspiracy/collusion” line had no evidential basis beyond the appellant’s supposition and would have invited speculation and character assassination (RN v HM Advocate [2020] HCJAC 3).

Appeal against sentence

• The court rejected most criticism of the sentencing judge’s remarks, holding she was entitled to form a view of the conduct from the evidence and was sentencing only on the indicted charges.
• However, the court held the overall consecutive structure (6 years + consecutive 4 years custodial with a 4‑year extension on an extended sentence) produced an excessive total.
• The court substituted a single cumulo extended sentence: 8 years custodial plus 4 years extension (from 2 July 2025), leaving ancillary orders undisturbed.

3. Analysis

3.1 Precedents cited and their influence

(A) Section 275 requires an evidential foundation (not speculation)

• RN v HM Advocate [2020] HCJAC 3 was treated as “directly in point”. The court reiterated RN’s core idea: where a defence seeks to suggest a complainer was “put up to” making allegations, the accused must be able to place material evidence before the court from which that inference may legitimately be drawn; otherwise it is “supposition, speculation and character assassination”. The present court also relied on RN’s explanation that section 275(3)(b) is designed to disclose “not only what is to be put but the evidential basis for doing so”.
• MP v HM Advocate [2021] HCJAC 48, 2022 SLT 194 was cited as supporting the same approach: speculative lines about third‑party influence or fabrication do not become admissible merely because the accused asserts innocence.
• KB v HM Advocate [2026] HCJAC 18 was used for pertinent observations (even though in KB the relevant material was before the jury). The court signalled continuity in the appellate approach to ensuring that cross‑examination suggesting improper influence/collusion is anchored in evidence rather than conjecture.

(B) Review of section 275 grants

• JW v HM Advocate [2021] HCJAC 41 confirmed that it was competent for the trial judge to review and rescind parts of an earlier section 275 ruling. This mattered because the earlier grant had been made without Crown opposition, and circumstances changed when E disengaged.

(C) The “evidential basis” requirement as established law (Scotland and beyond)

• The court emphasised this was “not new law”, citing: Falconer v Brown (1893) 21 R (J) 1; Leverage v HM Advocate [2009] HCJAC 20; 2009 JC 137 (at [16]); and Cook v HM Advocate [2019] HCJAC 24 (at [11]). These cases were invoked to show longstanding judicial control over speculative, collateral attacks on credibility.
• The Crown’s comparative authorities—R v Hurley [2025] EWCA Crim 642 and R v Miller [2010] EWCA Crim 1153, [2010] 2 Cr App R 19—reinforced the broader common-law principle: fairness in cross‑examination does not extend to presenting unsupported insinuations to the jury.

(D) The right to present a defence: Daly and Keir

• The appellant relied on Daly and Keir [2025] UKSC 38, 2026 SC (UKSC) 1 (at [180]–[181]) to argue he was entitled “meaningfully” to challenge complainers and was reduced to “bald denials”.
• The court accepted the general proposition but held it did not assist where the proposed line was evidentially baseless. In other words, Daly and Keir did not dilute the threshold requirement that section 275 questioning must be justified by evidence and not mere inference from innocence plus the existence of criticism/blogging by a non‑witness.

3.2 Legal reasoning

(A) What the court treated as the real issue

The court framed the “simple point” as whether there was any evidential basis for the defence theory that E and others had induced/organised false allegations. The court made an important clarification: if there had been evidence linking E’s threats or conduct to the making of complaints, then section 275 permission might properly stand even if (i) the linking evidence came only from the appellant, and (ii) E was not a witness to be confronted.

(B) Why the application failed on its own terms

The appellant could speak to his own interactions with E, including alleged threats and the existence of blogs. But the application went much further: it asserted that E, together with named individuals, had persuaded B to make false police reports; that E had influenced A’s husband; and that multiple persons had “conspired” over a decade. The court held the appellant could not know (and offered no admissible material showing) whether complainers had discussions with E at all, let alone that any such discussions involved agreements to give false evidence.

The court tested the pleaded theory against the trial evidence and found it contradicted it:

• B denied being told to fabricate allegations.
• A’s husband’s evidence did not support the alleged ultimatum/divorce pressure narrative.
• The suggested “persuasion” of A by her husband and others was inconsistent with the evidence.

(C) Section 274/275 structure and the court’s warning about “collusion” questioning

The court also observed that asking witnesses whether they interacted with each other is typically aimed at proving collusion—an attack on character/credibility or reliability—which engages the statutory restrictions in section 274 and requires a properly founded section 275 application. The court remarked that such questioning was explored at trial and the witnesses denied relevant interaction, but emphasised the need for a focused, evidence-based application if the defence seeks to pursue collusion implications.

3.3 Impact

(A) Practical consequences for section 275 practice

• The decision consolidates a strict gatekeeping approach: a defence narrative that “someone encouraged people to come forward” does not, without more, provide a basis to suggest “people were encouraged to lie”.
• It clarifies the boundary between (i) evidence an accused can competently give (their own interactions with an organiser figure), and (ii) speculative leaps about what other people must have agreed or discussed.
• It underlines that review of section 275 grants is not exceptional; where circumstances change or the court later appreciates the absence of an evidential foundation, the permission can be revisited (JW v HM Advocate [2021] HCJAC 41).

(B) Sentencing impact

• The case confirms the appellate court’s emphasis that the central question is whether the sentence is excessive (a miscarriage of justice), not whether individual remarks or notional starting points were imperfect.
• It illustrates the corrective mechanism where consecutive terms overshoot totality: substitution of a single cumulo extended sentence that preserves public protection (extension period) while moderating overall length.
• It also rejects “loss of standing/community shunning” as mitigation where the offender exploited that very community to offend.

4. Complex Concepts Simplified

• Section 274 (1995 Act): a general prohibition on certain lines of questioning/evidence about a complainer’s sexual history/character and related credibility attacks, unless an exception applies.
• Section 275 (1995 Act): the mechanism for asking the court’s permission to introduce otherwise prohibited material. The application must identify the proposed questioning/evidence and—critically—its evidential basis and relevance.
• Evidential basis vs inference from denial: an accused may deny allegations and suggest a complainer is lying; but alleging a third party “put them up to it” requires evidence pointing to that proposition, not simply the accused’s belief or the fact of public commentary/blogs.
• Docket (section 288BA-style): a procedural device allowing evidence of other misconduct to be led for limited, defined purposes. Such evidence does not permit sentencing as if those docketed matters were separate convictions (unless convicted), though it may be relevant to context depending on admissibility and direction.
• Extended sentence: a sentence comprising (i) a custodial term and (ii) an extension period of licence/supervision aimed at public protection.
• Totality principle: when sentencing for multiple offences, the overall punishment must be proportionate and “no more severe than necessary”; consecutive terms can become excessive even if each individual term is not.
• Cumulo sentence: a single global sentence covering multiple charges, often used to express totality more accurately than stacking consecutive terms.

5. Conclusion

[2026] HCJAC 27 reinforces that section 275 is not a vehicle for speculative “conspiracy/collusion” narratives: where the only foundation is the accused’s suspicion, the court will refuse (or rescind) permission to cross‑examine complainers in a way that invites jury speculation and collateral character attacks. At the same time, the decision provides a clear example of appellate sentencing control: even where an extended sentence is justified, consecutive custodial terms may breach totality and should be corrected—here by substituting a single cumulo extended sentence of 8 years’ imprisonment plus a 4‑year extension.