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Appeal against Conviction by KB against His Majesty's Advocate (High Court of Justiciary)
Factual and Procedural Background
The Appellant was tried over seven days at the High Court, convicted by a jury of a charge under section 1 of the Domestic Abuse (Scotland) Act 2018 (Charge 1) and acquitted of a separate charge (Charge 2). The indictment listed multiple sub‑paragraphs describing alleged abusive conduct occurring between 7 October 2019 and 30 November 2022 at several locations (Address 1, Address 2, Address 3 and a newsagent). The Appellant denied the sexual acts in parts (s) and (t) and ultimately gave evidence denying those incidents occurred. The Crown amended the indictment during trial and the jury deleted various averments before returning a guilty verdict on parts of Charge 1. At a preliminary hearing the court ordered that Charge 1 be treated as within the scope of section 274 of the Criminal Procedure (Scotland) Act 1995; no application under section 275 was made by the defence. Sentence imposed was an extended sentence of imprisonment (7 years plus a 3‑year extension) and ancillary orders.
Legal Issues Presented
- Whether the trial judge erred in excluding a line of cross‑examination aimed at suggesting the Complainer's sexual allegations were motivated by a dispute about custody/contact for the parties' child.
- Whether any such exclusion amounted to a miscarriage of justice or unfair trial in breach of Article 6 ECHR.
Arguments of the Parties
Appellant's Arguments
- The defence sought to elicit evidence that the timing of the Complainer's report of sexual misconduct to the police coincided with the beginning of a custody/contact dispute; that motive was circumstantial evidence for the jury to assess credibility.
- The judge erroneously relied on decisions such as MP and wrongly excluded admissible evidence; if required, the statutory scheme (sections 274/275) was being applied incompatibly with Article 6.
- Excluding this evidence prevented the Appellant from advancing a potential explanation for false allegations and thus occasioned a miscarriage of justice.
Respondent's (Crown) Arguments
- The proposed evidence was irrelevant or collateral at common law and, in any event, struck at by section 274(1)(c) unless the court granted a section 275 application (which was not made).
- If considered under section 275, the material would have failed the statutory tests; the line of inquiry risked disproportionate inquiry and distraction from real issues and could amount to an impermissible attack on character.
- The defence presented its central case (denials and reliance on the Appellant's affair) to the jury and no miscarriage of justice arose.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| MP v HM Advocate [2021] HCJAC 48, 2022 SLT 194 | Supports the proposition that intended evidence may be irrelevant, collateral and inadmissible absent an evidential basis linking the alleged motive to fabrication. | The judge referred to MP to justify intervention and exclusion; the court treated MP as supporting the need for an evidential foundation for the proposed inference. |
| RN v HM Advocate [2020] HCJAC 3, 2020 JC 132 | Requires an evidential basis for propositions that a complainer fabricated allegations; condemns speculation and supposition without admissible material. | The court relied on RN's statement that a legitimate inference must be grounded in admissible evidence and applied that standard to refuse the proposed questioning. |
| Daly and Keir v HM Advocate [2025] UKSC 38, 2025 SLT 1253 | UK Supreme Court signalled the risk that a strict common‑law approach could deprive an accused of a fair trial and favoured a balanced use of the statutory scheme (sections 274/275); relevance falls to be considered under section 275. | The court acknowledged Daly's concerns but concluded Daly did not show unfairness in this case; it emphasised the statutory route (section 275) was available and had not been used. |
| CJM v HM Advocate [2013] HCJAC 22, 2013 SLT 380 | Represents the common‑law approach to relevance critiqued in Daly; invoked for contrast with the statutory scheme. | The court noted Daly's critique of CJM and reiterated that section 274/275 provide the appropriate statutory mechanism. |
| Falconer v Brown 1893 21 R (J) 1 | Long‑standing common‑law distinction: refuse vague, insulting or speculative questions aimed to "throw dirt" unless supported by evidence. | The court cited Falconer to support the proposition that questions lacking evidential foundation are properly excluded to protect witnesses from speculative character‑assassination. |
| MacPherson v HM Advocate [2019] HCJAC 21, 2019 SCCR 129 | Affirms that whether an inference from proved facts is legitimate is, first, a matter for the judge to determine. | The court relied on MacPherson to justify the trial judge's gatekeeping role in determining admissibility and the legitimacy of inferences. |
| Leggate v HM Advocate 1988 JC 127 | Reference for character‑attack and relevance under section 274(1)(a). | The Crown relied on Leggate to argue the proposed questioning risked falling within prohibited character‑evidence under section 274. |
| HM Advocate v Flanders 1962 JC 25 | Context for requirement on the Crown to give notice of averments of malice or ill‑will in certain indictments. | The court referenced Flanders in noting the context in which allegations of malice or motive are handled and notified. |
Court's Reasoning and Analysis
The appeal court analysed the exchange in cross‑examination where defence counsel sought to suggest that the Complainer's report to police on 13 November 2022 coincided with a developing dispute about contact with the child and so might supply a reason to fabricate. The trial judge intervened, asked counsel for evidential foundation, and, relying on authorities (MP; RN) and the statutory scheme, ruled the proposed questioning was irrelevant or collateral and struck at by section 274(1)(c) of the Criminal Procedure (Scotland) Act 1995 unless a section 275 application were granted. No section 275 application (or late application under section 275B) was made.
On appeal the court examined the trial record and concluded the jury were aware of the timing of police calls (5 June, 20 July and 13 November 2022), the dates of formal statements (18 and 22 November 2022), periods when the child was with the Appellant and subsequent loss of contact, and that the Complainer had engaged with Women's Aid. The court found the defence had pursued the central argument (the Appellant's affair) before the jury and that additional material sought would not have materially affected the verdict. The court noted Daly's observations about the need for a balanced approach under the statutory scheme but held that, in this case, the exclusion under section 274(1)(c) (in absence of a section 275 application) was correct and that Falconer and RN support excluding speculative, unsubstantiated questioning. The court therefore found no miscarriage of justice or Article 6 unfairness.
Holding and Implications
APPEAL REFUSED
Holding: The court refused the appeal against conviction and upheld the trial judge's exclusion of the challenged line of questioning. The conviction and sentence stand.
Implications: The decision confirms the application of section 274(1)(c) to exclude evidence or questioning about non‑sexual behaviour bearing on credibility in the absence of a section 275 application or admissible evidential foundation. The court found no material impact on fairness or outcome in this case and did not treat the ruling as creating new precedent beyond the observations made about the interaction between common law and the statutory scheme.
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