Summary of Court Opinion
Factual and Procedural Background
The Appellant was tried and, on 5 February 2025, convicted by a jury at the High Court of Justiciary of multiple sexual and domestic-abuse offences concerning two former partners (referred to in the trial material as the first complainer and the second complainer). The trial resulted in conviction on four charges and, on 26 March 2025, the trial judge imposed an extended sentence of six years (four years custody plus a two-year extension). The Appellant advanced a single ground of appeal against conviction composed of two parts: (a) that the preliminary hearing judge erred in refusing permission to lead general evidence of a BDSM-style relationship between the Appellant and the second complainer; and (b) that the judge erred specifically in refusing permission to adduce evidence of a prior agreed "safe word". The Appellant also raised a Convention-compatibility issue under the Criminal Procedure (Scotland) Act 1995, section 288ZA(2), alleging an Article 6 breach. He separately appealed the severity of sentence.
Legal Issues Presented
- Whether the preliminary hearing judge erred in refusing part 1(b) of the section 275(3) application to admit evidence of a prior agreed safe word and broader BDSM-style relationship, such that relevant evidence was excluded.
- Whether exclusion of that evidence gave rise to unfairness under Article 6 of the European Convention on Human Rights (compatibility issue under section 288ZA(2) of the 1995 Act).
- Whether the sentence imposed (extended sentence of six years) was excessive or otherwise a miscarriage of justice.
Arguments of the Parties
Appellant's Arguments
- The preliminary hearing judge's refusal to admit evidence of a BDSM-style relationship and a pre-agreed safe word deprived the Appellant of relevant evidence central to his defence of consent and of reasonable belief in consent.
- The subsequent Supreme Court decision in Daly & Keir undermined the preliminary judge's approach and supported admission of prior BDSM activity and safe-word evidence as relevant to consent and reasonable belief.
- The exclusion of that evidence rendered the trial unfair in Convention terms and warrants quashing convictions and granting authority to prosecute afresh; alternatively, the sentence imposed was excessive given the Appellant's background and limited record.
Appellee's Arguments
- The Appellant could have sought a fresh section 275(3) application after the indictment was amended to refer to the whip and paddle but chose not to; that was a tactical decision.
- The statutory scheme under sections 274–275 must be applied with caution (as guided by Daly & Keir) and, even under that approach, the safe-word evidence had insufficient probative value and was properly excluded because consent cannot be given in advance.
- There was no miscarriage of justice; the defence had ample opportunity to challenge credibility and the trial as a whole was fair. The sentence was within proper range given the seriousness and assessed risk.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| HM Advocate v Kirkup No 1 [2025] HCJAC 9; 2025 JC 135 |
Consent unavailable as a defence for averments having the potential to cause serious harm; limits on consent admissibility. |
The court applied it to confirm that consent was not available for averments capable of causing serious harm and to frame which parts of the charge remained in issue on appeal. |
| Stallard v HM Advocate 1989 SCCR 248 |
The law does not treat a relationship as a binding contract fixing consent in advance. |
Used to support the preliminary hearing judge's view that consent must be contemporaneous and cannot be "pre-booked". |
| GW v HM Advocate [2019] HCJAC 23, 2019 JC 109 |
Consent must be present at the time of sexual activity; requirement of contemporaneous consent. |
Relied upon in assessing that prior relationship conduct could not fix consent for later incidents. |
| R v Cooper [2009] UKHL 42; [2009] WLR 1786 |
Consent must be continuous and specific to each element of sexual activity; contemporaneous requirement. |
Cited to reinforce that evidence of prior agreement could not substitute for contemporaneous consent. |
| Daly & Keir v HM Advocate [2025] UKSC 38; 2025 SLT 1253 |
Supreme Court guidance on admissibility: prior sexual practices may be relevant but must meet the statutory admissibility test; evidence that is "obviously relevant" and would significantly strengthen the defence. |
The court considered the decision and applied its guidance on relevance and probative value, rejecting the submission that safe-word evidence was per se admissible. |
| HM Advocate v MacGregor [2025] HCJAC 28; 2025 JC 358 |
Consent cannot lawfully be given in advance; no standing consent. |
Relied on by the Appellee and accepted by the court as supporting exclusion of evidence of pre-given consent or standing consent. |
| DS v HM Advocate [2007] UKPC D1; 2007 SC (PC) 1 |
Sections 274–275 balance complainer protection with accused's fair-trial rights; evidence inadmissible under s274 may be admitted if it passes the three tests in s275(1). |
Quoted to explain statutory purpose and to confirm that exclusion under s275(1)(c) does not necessarily violate Article 6 if the statutory test is correctly applied. |
| Judge v United Kingdom 2011 SCCR 241 |
ECtHR recognition that admissibility of evidence is for domestic courts; statutory scheme can be Convention compatible. |
Used to confirm that sections 274–275 are a permissible legislative response and are compatible with Article 6. |
| M (M) v HM Advocate 2004 SCCR 658; 2005 JC 102 |
Guidance on judicial discretion under the s274/275 scheme; presiding judge's margin of discretion. |
Applied to underline that the preliminary hearing judge had an appropriate discretion in assessing admissibility under s275(1). |
| J v HM Advocate [2020] HCJAC 18; 2020 SLT 642 |
Warning against admitting prior sexual-history evidence whose sole purpose is to suggest increased likelihood of consent or to impugn complainer's credibility. |
Relied upon to caution that safe-word evidence could be prejudicial and of limited probative value if its only effect was to identify the complainer as a participant in BDSM activities. |
| R v A (No 2) [2001] UKHL 25; 2002 1 AC 45 |
Principles on sexual-history evidence and the risks of prejudice; limits on admissibility. |
Referenced as part of the legal framework limiting admission of prior sexual-history evidence. |
| SC v HM Advocate (currently unpublished and embargoed, 4 March 2026 per Lord Justice General (Pentland) at [30]) |
Affirms the tripartite test in section 275(1) as the correct approach to admissibility of evidence declared inadmissible by s274(1). |
The court stated agreement with this approach and proceeded to assess the preliminary hearing judge's decision by reference to s275(1)(c). |
| Ubach Mortes v Andorra |
Principle that domestic courts decide evidence and witnesses; Article 6 does not guarantee unlimited rights to call or question witnesses. |
Quoted within the ECtHR discussion to support the domestic courts' control over admissibility and questioning. |
| Beveridge v HM Advocate [2025] HCJAC 23 |
Principle that an appeal against sentence succeeds only if the sentence was excessive or inappropriate. |
Applied to frame the test for the Appellant's challenge to sentence. |
| Barnes v HM Advocate [2024] HCJAC 23; 2024 JC 364 |
Errors in process do not alone require sentence interference if the ultimate sentence is not excessive. |
Invoked to support refusal of sentence appeal where the court finds the sentence not excessive. |
| Murray v HM Advocate [2013] HCJAC 3; 2013 SCCR 88 |
Authorities on sentence review and appellate evaluation of sentence. |
Referenced among authorities on sentence appeal principles. |
| McGill v HM Advocate [2013] HCJAC 150; 2014 SCCR 46 |
Authorities on appellate review of sentence. |
Referenced in assessing the sentence appeal standard. |
| Miller v HM Advocate [2024] HCJAC 3; 2024 JC 253 |
Authorities on appellate review of sentence. |
Referenced in the sentencing analysis. |
| HM Advocate v Fergusson [2024] HCJAC 22; 2024 JC 376 |
Guidance on assessing headline sentences and totality in sentencing. |
Relied upon as the sentencing judge used the approach approved in Fergusson when selecting headline sentences and applying totality. |
Court's Reasoning and Analysis
The court examined the entirety of the trial material (procedural history, evidence led, speeches and directions) because the issue raised was one of fairness. It accepted that admissibility of evidence barred by section 274(1) is governed by the cumulative tripartite test in section 275(1) and confirmed (with reference to an unpublished authority) that that is the correct approach.
The court framed the issues narrowly: because consent is unavailable for averments with the potential to cause serious harm, the appeal concerned only those parts of the conviction related to non-serious-harm averments (seizing, pushing, pulling hair, punching and slapping on the body, and striking the body with a whip and paddle).
On admissibility the court proceeded on the basis that the preliminary hearing judge had accepted the evidence would be relevant under section 275(1)(b) and refused admission on the basis of insufficient probative value under section 275(1)(c). The court assessed whether exclusion of the safe-word and broader BDSM evidence produced an unfair trial under Article 6 and whether there was a miscarriage of justice.
On the general evidence of a BDSM relationship, the court found no unfairness in refusal: the trial already contained evidence that the second complainer sometimes consented to spanking and to use of the whip and paddle; the central dispute at trial concerned whether, on the occasions in question, she cried, begged the Appellant to stop and thereby withdrew consent, or remained an active willing participant. Further prior BDSM evidence would not have meaningfully assisted the jury in resolving that contested factual question.
On the safe-word evidence, the court held that even if relevant it was not of sufficient probative value to outweigh the risk of prejudice under section 275(1)(c). The court reiterated the settled rule that consent cannot be given in advance; the safe word could not be treated as evidence of prior given consent. For the Appellant's safe-word argument to have supported a reasonable-belief defence, he would have had to accept that the complainer had cried and begged him to stop but nevertheless believed she was consenting because she did not deploy the safe word—an account different from the defence he ran at trial. Admission of safe-word evidence would mainly have identified the complainer as someone who engaged in BDSM activities and risked unfairly prejudicing the jury. The court also noted that any initial omission concerning the whip and paddle was cured when the Crown amended the indictment later to include those implements; had the Appellant wished to lead further s274(1)-barred evidence on that topic he should have made a fresh s275(3) application, which he did not do.
Taking the foregoing together, the court concluded that exclusion of the safe-word and additional BDSM evidence did not render the trial unfair and did not produce a miscarriage of justice. The jury's verdicts (including acquittal on a separate rape charge and reductions/deletions elsewhere) showed careful assessment by the jury and their acceptance of parts of testimony and rejection of other parts in line with directions.
On sentence, the court reviewed the sentencing judge's approach against applicable guidelines and precedent, noting the seriousness of the offences (including strangulation) and the Appellant's assessed high risk of reoffending. The court concluded the sentence was not excessive.
Holding and Implications
HOLDING: The court refused the appeal against conviction and refused the appeal against sentence. The Appellant's convictions and the extended sentence of six years were upheld.
Implications: The decision affirms the application of the section 275(1) tripartite test, confirms that evidence of a prior agreed safe word is not automatically admissible and may be excluded where its probative value is insufficient or where admission would risk unfair prejudice, and reiterates that consent to sexual activity cannot be given in advance for the purposes of criminal liability. The opinion records no novel legal principle intended to displace existing authorities; its effect is to uphold the convictions and sentence in this case.