DS v. Her Majesty's Advocate (The High Court of Justiciary Scotland )

Factual and Procedural Background

The appellant was indicted in The Sheriff Court on a charge of indecent assault involving a 17-year-old complainer and on a separate charge of failure to appear. A previous conviction for a sexual offence had been libelled on the indictment. In order to pursue a defence based on consent and credibility, the appellant lodged an application under section 275 of the Criminal Procedure (Scotland) Act 1995 seeking leave to lead evidence about the complainer’s character and behaviour. Because disclosure of such evidence might trigger section 275A—permitting the jury to learn of an accused’s earlier sexual convictions—the appellant also lodged a “devolution minute” alleging that sections 274, 275 and 275A were outside the legislative competence of the Scottish Parliament as they infringed his article 6 right to a fair trial.

The sheriff referred the issue to the High Court of Justiciary, which rejected the challenge. The appellant then obtained special leave to appeal to the Judicial Committee of the Privy Council under Schedule 6 to the Scotland Act 1998.

Legal Issues Presented

1. Whether section 275A of the 1995 Act, read together with sections 274 and 275, is incompatible with the accused’s right to a fair trial under article 6 of the European Convention on Human Rights.
2. If incompatible, whether section 10 of the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002— which inserted section 275A—was outside the legislative competence of the Scottish Parliament and therefore “not law” by virtue of section 29 of the Scotland Act 1998.

Arguments of the Parties

Appellant’s Arguments

• Section 275A imposes an impermissible “penalty” on an accused who exercises the statutory right under section 275 to adduce relevant evidence; the threat of jury disclosure of prior sexual convictions chills the defence and undermines trial fairness.
• The cumulative effect of sections 274-275A exerts illegitimate pressure on an accused to forgo a legitimate line of defence, contrary to article 6.
• Any public-interest objective could be achieved by sections 274 and 275 alone; section 275A is unnecessary and disproportionate.

Respondent’s (Crown and Advocate General) Arguments

• Section 275A pursues a legitimate aim of restoring balance between complainer and accused by permitting limited disclosure of relevant convictions when the complainer’s privacy is intruded upon.
• The provision contains safeguards: disclosure is subject to judicial control, an objection may be taken, and the court must consider the “interests of justice.”
• Article 6 does not forbid admission of previous-conviction evidence; fairness is assessed on the proceedings as a whole.

Table of Precedents Cited

Court's Reasoning and Analysis

The Board adopted a three-stage enquiry: (1) ascertain the meaning of section 275A in its statutory context; (2) determine how it is intended to operate procedurally; (3) assess compatibility with article 6.

Key findings included:

• Sections 274 and 275 legitimately restrict questioning about a complainer’s sexual history but preserve fairness by allowing such evidence where three explicit tests are met.
• Section 275A’s purpose is to restore parity: if the complainer’s past is probed, the jury may also learn of the accused’s relevant sexual convictions, which speak to propensity as well as credibility.
• The presumption in section 275A(7) is merely a default; once an objection is lodged, the judge must evaluate it on the merits, focusing on whether disclosure would jeopardise trial fairness.
• Courts retain ample procedural control: disclosure occurs only if and when the defence actually leads the approved evidence; judges may request further details of the earlier conviction and must give careful jury directions modelled on English guidance in Hanson.
• Applying section 101 of the Scotland Act, the provision can—and must—be read narrowly to avoid unfairness; for example, “behaviour” in section 274 does not cover everyday statements, and the “invisible comma” construction of section 275(1) ensures specificity.
• Comparative and Strasbourg jurisprudence shows no absolute bar on prior-conviction evidence; fairness is evaluated holistically, and national systems enjoy a wide margin of appreciation on evidential matters.

Holding and Implications

APPEAL DISMISSED. Section 275A, when construed and applied in the manner set out by the Board, is compatible with article 6 ECHR. Consequently, section 10 of the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 was within the legislative competence of the Scottish Parliament and remains valid law.

Immediate effect: the appellant’s trial may proceed under the statutory regime, with potential disclosure of relevant prior sexual convictions if judicially approved. Broader implications: the decision affirms the Scottish Parliament’s authority to calibrate evidential rules in sexual-offence cases, provided courts retain sufficient flexibility to safeguard fairness; no new constitutional doctrine was created.