Anonymized Summary of Opinion

Factual and Procedural Background

This set of joined appeals came to the Supreme Court under section 288AA of the Criminal Procedure (Scotland) Act 1995 to determine “compatibility issues” concerning Article 6 of the European Convention on Human Rights (right to a fair trial) arising from criminal proceedings for sexual offences. The core controversy concerned the admissibility of evidence relating to the credibility and prior sexual behaviour of complainers, and whether recent developments in Scots law on relevance and collateral matters, together with the statutory regime in sections 274–275 of the 1995 Act, are compatible with Article 6.

Two cases were before the Court:

• Appellant 1 (Case 1): Appellant 1 was convicted of serious sexual offences against two complainers whose evidence was mutually corroborative. The defence theory was fabrication. Post-trial appeal grounds included that the prosecution had not added or “docketed” a further allegation the first complainer made years later (which medical opinion undermined), and that the resulting inability to explore that alleged falsity deprived Appellant 1 of a fair trial under Article 6. Leave to appeal was refused by the appellate court, which treated the proffered material as collateral and inadmissible at common law and not a basis to show unfairness.
• Appellant 2 (Case 2): Appellant 2 was initially indicted on multiple sexual charges said to have occurred across an evening and into the next morning. Before trial, the prosecution deserted two earlier charges pro loco et tempore, and the defence’s section 275 application to admit evidence of consensual and intimate conduct earlier that evening (including CCTV-supported conduct) was largely refused as irrelevant/collateral. The sole remaining charge proceeded to trial and Appellant 2 was convicted. On appeal, he argued that desertion was oppressive and that exclusion of the earlier-evening evidence rendered the trial unfair under Article 6. Leave to appeal was refused.

Interveners included professional bodies and a charity seeking to address the broader implications for complainers and for fair-trial rights. The Supreme Court addressed: (i) whether decisions about charging/docketing/desertion by the prosecution affected trial fairness; (ii) whether the common law relevance/collateral rules as applied to sexual offence trials, and their interaction with sections 274–275, are compatible with Article 6; and (iii) whether, on the specific facts of each case, there was an Article 6 breach.

Legal Issues Presented

1. Whether, and in what circumstances, excluding evidence bearing on a complainer’s credibility and/or prior sexual behaviour in sexual offence trials is compatible with the accused’s right to a fair trial under Article 6(1) and 6(3)(d) ECHR.
2. Whether recent appellate developments treating such evidence as “irrelevant and collateral” (save for narrow exceptions) and requiring “instant verificability” are compatible with Article 6, given the statutory scheme under sections 274–275 of the 1995 Act.
3. Whether prosecution decisions on charging, docketing, and desertion (in Case 1 and Case 2) themselves infringed Article 6 fairness, or whether any unfairness lay instead in evidential rulings under sections 274–275 and common law.
4. On the specific facts: whether non-inclusion/docketing (Case 1) and desertion/refusal of section 275 evidence (Case 2) resulted in unfair trials contrary to Article 6.

Arguments of the Parties

Appellants’ Arguments

• Case 1: The absence of a charge or docket concerning a later allegation by the first complainer (said to be demonstrably false or at least undermined) prevented exploration of crucial credibility material; given the appellate court’s stance that such evidence was collateral and struck at by section 274, the trial was unfair under Article 6. Alternatively, trial counsel’s failure to seek section 275 leave was defective but inevitable given the prevailing case law excluding such evidence as collateral.
• Case 2: The prosecution’s desertion of two charges was oppressive; the defence wanted the jury to hear earlier-evening conduct that bore on consent and/or reasonable belief. Refusal of most of the section 275 application wrongly treated probative background as irrelevant/collateral, undermining Article 6 fairness. Evidence was supported by CCTV and went to the central credibility and context the jury required.

Respondent’s Position (The Crown)

• Prosecutorial charging/docketing and desertion decisions do not preclude the defence from seeking admissible evidence via section 275; no unfairness arose merely from those decisions, and pleas in bar of trial were available but not pursued.
• The contested evidence in both cases was properly excluded as irrelevant/collateral under the modern common law approach, and in any event lacked significant probative value relative to risks to the proper administration of justice under section 275.

Table of Precedents Cited

Court’s Reasoning and Analysis

Judge Reed (with whom other Justices agreed) framed the Supreme Court’s role under section 288AA as confined to determining the “compatibility issue” and remitting thereafter. The Court methodically separated two strands: prosecutorial decisions about charging/docketing/desertion and the evidential admissibility framework, especially the interaction between common law “relevance/collateral” rules and sections 274–275.

First, the Court held that prosecutorial choices (not charging/docketing in Case 1; deserting charges in Case 2) did not, of themselves, render the trials unfair. Accused persons can move pleas in bar of trial alleging oppression/Article 6 breaches; more fundamentally, what matters is whether the defence could, subject to the law of evidence, seek admission of the material via section 275. Thus, the fairness inquiry properly centres on admissibility rules rather than the Crown’s charging strategy.

Secondly, the Court scrutinised the historical and modern Scots law approach to relevance and collateral issues, particularly the post-CJM line that tends to:

• Define relevance narrowly as bearing “directly or indirectly” on the facts in issue as stated in the libel, treating credibility-only material as irrelevant or collateral; and
• Impose a categorical rule excluding collateral evidence unless instantly verifiable (e.g., by extract conviction), thereby largely bypassing the statutory balancing under section 275.

The Court contrasted this with the statutory scheme enacted in 2002 (sections 274–275), intended as a unified, careful, and nuanced framework permitting admission—where relevant and significantly probative—of evidence otherwise caught by section 274, subject to protection of dignity, privacy, and the proper administration of justice. Earlier domestic authority and ECtHR jurisprudence (notably Judge v UK, Murtazaliyeva, and Poropat) reinforce that Article 6 requires flexibility: the defence must be able to lead evidence that could reasonably be expected to strengthen its position, even if it primarily bears on credibility; blanket or categorical exclusions risk unfair trials.

The Court emphasized the particular dynamics of sexual offence trials: consent and state of mind are frequently central; corroboration can be by distress/de recenti, but the complainer’s credibility often remains decisive. In that context, the line between credibility and issue can “all but vanish.” Relying on CJM’s approach (excluding most credibility/sexual-behaviour evidence as irrelevant/collateral) deprives fact-finders of probative context and risks infringing Article 6. A just approach asks whether, in the specific circumstances, such evidence has significant probative value and whether any risk to the proper administration of justice can be addressed (through procedural controls, directions, recording evidence in advance, etc.), rather than excluded categorically.

Applying these principles to the two appeals:

• Case 1 (Appellant 1): Although no section 275 application was made, that was because, under prevailing authority, it would inevitably have failed. The Court therefore considered whether the exclusion would have rendered the trial unfair. The proffered material concerned a later allegation of rape by the same complainer, undermined by medical opinion but not demonstrably false without a large collateral inquiry unconnected to the charges. On the available material, its probative value (as deliberate falsity) was uncertain and would have generated a separate mini-trial likely to distract the jury. The defence otherwise had a full opportunity to challenge credibility, and corroboration in the case turned on mutual corroboration between complainers. In these circumstances, excluding the material did not violate Article 6.
• Case 2 (Appellant 2): The sole live charge alleged sexual assault and rape while the complainer was asleep/just awaking; the defence case was that this account was untrue and that sexual activity at the house was consensual and active. The earlier-evening conduct (in public venues/taxi) could not materially assist the jury in resolving whether penetration began while the complainer was asleep and, when awake, not consenting. Given the agreed very high blood alcohol later, and CCTV showing unsteadiness, any inference from earlier behaviour had very limited probative value and risked prejudicing the jury against the complainer. The overall trial record—distress evidence (999 call), officer’s observations, intoxication evidence, and the accused’s police interview—provided a sufficient basis for a fair trial. Exclusion of most earlier-evening material did not breach Article 6.

Notwithstanding these case-specific conclusions, the Court expressly held that the current Scottish common law approach, as applied in recent authorities, is liable to result in Article 6 violations because it unduly narrows relevance, conflates collateral with irrelevance, and effectively disables the statutory balancing Parliament enacted. Courts must therefore modify their approach to bring decisions on admissibility into conformity with Article 6, recognizing the statutory framework’s balancing exercise and the need, in appropriate cases, to admit defence evidence that can reasonably strengthen the defence while safeguarding dignity, privacy, and the integrity of the fact-finding process.

Holding and Implications

DISMISSED

Implications:

• The Supreme Court concluded that although the present Scottish common law approach to admissibility in sexual offence trials is liable to cause Article 6 violations, no violation occurred on the particular facts of either appeal. Both appeals are dismissed and the proceedings are to be remitted as required by statute.
• Prospectively, Scottish courts must modify their approach: sections 274–275 constitute a careful, nuanced, unified scheme that requires case-specific balancing. Categorical exclusion of credibility/sexual-behaviour evidence as “irrelevant and collateral” (save for instantly verifiable instances) is incompatible with Article 6 when it prevents the defence from adducing evidence reasonably expected to strengthen its position. Trial courts should apply the statutory tests, consider probative value versus prejudice to the administration of justice (including complainer dignity and privacy), and employ procedural safeguards and directions rather than default to exclusion.
• The decision signals significant practical effects in pending trials and appeals involving sexual offences. It does not establish new statutory rights but clarifies how existing domestic rules must be applied to comply with Article 6, thereby shaping future admissibility rulings and judicial directions in Scotland.