“Re-Drawing the Boundaries of Section 275: Specificity, Relevance and Equality of Arms in CH v HMA”

Introduction

The Scottish High Court of Justiciary’s decision in Appeal Under Section 74(1) of the Criminal Procedure (Scotland) Act 1995 by CH ([2025] HCJAC 29) addresses, yet again, the fraught territory that surrounds applications under sections 274 and 275 of the 1995 Act—Scotland’s so-called “rape shield” provisions governing evidence of a complainer’s character or sexual history.

Unlike earlier cases that typically concerned sexual conduct evidence, CH attempted to deploy these provisions in a domestic-abuse prosecution to paint the complainer as “the real abuser”. The Court, comprised of the Lord Justice General (Pentland), Lord Matthews and Lady Wise, rejected the appeal and, in doing so, distilled a series of principles that now sharpen the practice around section 275 motions.

Key parties:

• Appellant (CH) – Accused of a course of abusive behaviour towards his partner under section 1 of the Domestic Abuse (Scotland) Act 2018 and an aggravated breach of the peace under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010.
• Respondent – His Majesty’s Advocate (the Crown).
• CPH Judge – The preliminary-hearing judge who refused the s 275 application, but granted leave to appeal.

Summary of the Judgment

The Court dismissed the appeal, holding that the defence application:

1. Was manifestly deficient in specification; it failed to identify particular incidents, tie those incidents to facts in issue, or engage with the statutory tests in section 275(1)(a)–(c).
2. Sought to lead evidence that was irrelevant and collateral; the complained-of conduct by the complainer bore no temporal or substantive link to the libelled charges.
3. Did not raise a valid Convention compatibility issue; no Rule 40.2 minute had been lodged and, in any event, sections 274–275 are ECHR-compliant.
4. Illustrated that equality of arms cuts both ways: the same evidential hurdles apply to Crown and defence alike.

The appeal was therefore refused and the prior order preventing the defence from leading the disputed evidence stands.

Analysis

1. Precedents Cited

• RN v HM Advocate 2020 JC 132 – Re-affirmed need for “full explanation” and proscribed “bald assertions” in s 275 motions. CH extends RN by stressing that a judge may refuse even to consider an under-specified application.
• HM Advocate v MA 2008 SCCR 84 & HMA v JG [2019] HCJ 71 – Authority for refusing to entertain manifestly non-compliant motions; explicitly relied on in CH at [26].
• CJM v HM Advocate 2013 SCCR 215 – Clarified “relevance” as increasing or decreasing the probability of a fact in issue; cited to show the proposed evidence failed that test.
• P(M) v HM Advocate 2022 SCCR 1 – Warned against “fishing expeditions”; quoted at length to reject CH’s generalised attack on the complainer’s character.
• DS v HM Advocate 2007 SC (PC) 1 – Confirmed that s 274–275 are ECHR-compatible; rebuts the appellant’s Article 6 claim.
• Kennedy v PF, Aberdeen 2024 SLT 1375 – Authority that compatibility issues must be raised by proper minute; underscored procedural default in CH.

2. Legal Reasoning

The Court’s reasoning unfolds in three overlapping dimensions: procedural, substantive, and constitutional.

a. Procedural Dimension – Specification as a Gatekeeper

Sections 274–275 institute a two-stage gatekeeping process. First, the evidence must survive ordinary relevance and collateral filters; second, it must pass the statutory hurdles of s 275(1). CH fortifies the threshold by holding that a judge may summarily refuse to consider an application that is facially non-compliant. This approach both conserves court resources and protects complainers from expansive, ill-defined trawls through historic allegations.

b. Substantive Dimension – Relevance and Collateral Attacks

The Court distinguished between:

• Specific conduct temporally or causally linked to the libelled events (potentially admissible).
• Generalised conduct offered only to impugn character or credibility (inadmissible collateral).

Because CH could not tie the complainer’s alleged abuse to any particular charge, all proposed evidence remained collateral and therefore inadmissible.

c. Constitutional Dimension – Equality of Arms & Article 6

The appellant argued that excluding the evidence tilted the scales in the Crown’s favour. The Court countered that s 274–275 operate “blind to the badge” of the party tendering the evidence, thereby upholding equality of arms. DS v HM Advocate confirms that this statutory regime comports with Article 6 ECHR, and CH echoes that position.

3. Impact of the Decision

Operational Impact: Defence practitioners must now prepare s 275 motions with granular precision—dates, events, linkage to indictment, Article 6 arguments and a line-by-line engagement with s 275(1). Failure to do so can result in the motion’s outright rejection without substantive hearing.

Doctrinal Impact: CH clarifies that domestic-abuse course-of-conduct charges do not open a free-floating door to historic behaviour by a complainer. Relevance remains circumscribed by the specific events libelled.

Policy Impact: The decision furthers the protective ethos of the Domestic Abuse (Scotland) Act 2018 by preventing accused persons from deploying scatter-gun allegations to “blacken” complainers, thereby ensuring trials remain focussed on the conduct actually charged.

Complex Concepts Simplified

• Collateral Evidence – Material that does not directly prove or disprove an issue in the case but instead invites the court to decide side-questions (e.g., a witness’s general bad behaviour). Courts typically exclude such evidence because it confuses the jury and extends trials unnecessarily.
• Section 274/275 Regime – Scottish rules limiting evidence about a complainer’s sexual history or character (274) but allowing exceptions (275) where: (a) specific, (b) relevant to a fact in issue, and (c) probative value outweighs prejudice.
• Compatibility Issue (Rule 40.2) – A formal procedure for alleging that a statutory provision breaches ECHR rights. A specialised minute must be lodged; failure to do so bars the point on appeal.

Conclusion

CH v HMA draws a bright line: specificity is the price of admission for any evidence caught by section 274. The Court’s message is unambiguous—generalisations, fishing expeditions and character-assassination tactics will be shut out at the preliminary-hearing stage. The decision buttresses prior authority, underscores the equality-of-arms principle, and ensures that domestic-abuse prosecutions remain centred on the accused’s conduct rather than the complainer’s history. Going forward, defence teams must rigorously connect the dots between the evidence they seek to adduce and the charges on the indictment, or risk the door being closed before trial ever begins.