Summary of Opinion — Appeal Court, High Court of Justiciary ([2026] HCJAC 17)

Factual and Procedural Background

The Applicant was convicted after trial of a breach of section 1 of the Domestic Abuse (Scotland) Act 2018. The alleged abusive behaviour occurred between 1 November 2022 and 9 May 2023, the complainer being the Applicant's partner or ex‑partner. The charge contained multiple paragraphs of abusive conduct, including an allegation of non‑consensual sexual conduct set out in paragraph (c).

At trial the complainer gave evidence consistent with the libel but also admitted there were occasions when sexual intercourse was consensual. Defence counsel sought to put certain text messages sent by the complainer on 24 March 2023 to challenge her account; the Crown objected. The trial judge upheld the Crown objection and excluded the messages, holding that an application under section 275 of the Criminal Procedure (Scotland) Act 1995 was required and that the evidence was collateral.

The Applicant sought leave to appeal the conviction; leave was refused at sift stages. The Applicant then applied to this court for permission to appeal to the Supreme Court. Judge Matthews delivered the Statement of Reasons for a panel including Judge Ericht and Judge Carmichael.

Legal Issues Presented

1. Whether the trial judge erred in excluding the complainer's text messages on the basis that sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 applied, and whether exclusion infringed the Applicant's Article 6 rights.
2. Whether sections 274 and 275 apply to prosecutions under section 1 of the Domestic Abuse (Scotland) Act 2018, including the question whether those provisions applied automatically or only if an order under section 288C(4) was made.
3. Whether exclusion of the messages resulted in an unfair trial or miscarriage of justice given the other evidence of consensual sexual relations.

Arguments of the Parties

Applicant's Arguments

• The excluded texts were central to the defence case because they undermined the complainer's account and showed inconsistency between her police statements and trial evidence.
• The texts fell within the subject matter of the libel (being within the period of the whole libel and shortly after alleged non‑consensual episodes) so sections 274 and 275 did not bar them.
• Exclusion was incompatible with the Applicant's right to a fair trial under Article 6; reliance was placed on criticism in Daly & Keir v HM Advocate.
• The matter raised an issue of general public importance about applying sections 274 and 275 to prosecutions under section 1 of the 2018 Act.

Respondent's Arguments

• The texts were excluded correctly as sexual conduct evidence outside the libel and/or collateral; a section 275 application was required.
• Even if the texts were admissible, they had little probative value given the time elapsed and the clear evidence of a consensual sexual relationship.
• Sections 274 and 275 were engaged, and their exclusion did not produce an unfair trial or miscarriage of justice.

Table of Precedents Cited

Court's Reasoning and Analysis

The court refused the application for permission to appeal. Its analysis proceeded principally as follows:

• The court concluded that sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 had no application in this case because prosecutions under section 1 of the 2018 Act are not listed in section 288C(2) of the 1995 Act; those sections would only apply if an order under section 288C(4) had been made. This point had been overlooked by the parties and the trial judge, making the detailed discussion of those sections a red herring.
• The court accepted the Crown's characterisation that the texts were being used to challenge the complainer's account about events three days earlier and found the messages irrelevant to that specific enquiry; they did not bear on the particular time period under cross‑examination.
• Even if the texts had been admissible, there was ample other evidence that the complainer engaged in consensual sexual activity with the Applicant both before and after the alleged non‑consensual episodes. The defence was able to advance that line of questioning to the jury.
• Accordingly, exclusion of the specific messages, viewed in the context of the other evidence, did not render the trial unfair or produce a miscarriage of justice.
• Because sections 274 and 275 were not engaged on the facts, wider questions about their applicability to prosecutions under section 1 of the 2018 Act and any associated Article 6 issues did not arise in a meaningful sense and were unsuitable for determination on this record.

Holding and Implications

Application refused.

Direct effect: The Applicant's application for permission to appeal to the Supreme Court was refused; the court held there was no miscarriage of justice from the exclusion of the text messages and the conviction remains unaffected.

No broader precedent was established: the decision was made on its own facts and the court declined to determine the wider question of the applicability of sections 274 and 275 to prosecutions under section 1 of the 2018 Act.