Factual and Procedural Background
Appellant was convicted after trial at the High Court of Justiciary in The City on five sexual offences against two former partners. The convictions concerned offences against AA and BB, including unlawful sexual intercourse with a person under 16, indecent assault, and rape. [1][2][3]
Appellant appealed against conviction on the basis that senior counsel had been deterred from making applications under section 275 of the Criminal Procedure (Scotland) Act 1995 by the prevailing law on evidence. Appellant argued, following Daly & Keir v HM Advocate, that evidence concerning post-offence interactions with the complainers should have been admitted. [4][5]
Appellant also appealed against his sentence of 11 years’ imprisonment, imposed on 11 October 2024. [6]
Legal Issues Presented
- Whether the absence of additional evidence concerning post-offence conduct and contact with the complainers caused an unfair trial under Scots law and resulted in a miscarriage of justice. [7][8]
- Whether Appellant’s sentence of 11 years’ imprisonment was excessive or constituted a miscarriage of justice. [9][10]
Arguments of the Parties
Appellant’s Arguments
- The additional evidence concerning the complainers’ continuing contact and consensual sexual activity with Appellant could have undermined their credibility and caused the jury to doubt their accounts. [11]
- For AA, much of the evidence was said to concern later messages, communications, and a birthday letter. For BB, the proposed evidence concerned post-separation sexual contact and other intimate conduct. [12][13]
- The conviction appeal should succeed because the missing evidence might have significantly strengthened Appellant’s defence. [11]
- The sentence was excessive in light of Appellant’s age at the time of some offences, low assessed risk, limited criminal record, stable personal circumstances, and business activities. [9][14]
Respondent’s Arguments
- Most of the proposed evidence concerning AA was already before the jury through messages, the birthday letter, cross-examination, and Appellant’s own evidence. [15]
- The proposed evidence concerning BB had little probative value and would have intruded unnecessarily into her dignity and privacy. [16]
- There had been no miscarriage of justice because the jury had heard effective challenges to the complainers’ credibility, and there was no real possibility of a different verdict. [17]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Daly & Keir v HM Advocate [2025] UKSC 38, 2026 SC (UKSC) 1 |
The development of the common law may improperly restrict statutory applications to admit evidence under section 275 and thereby risk an unfair trial. |
The Court applied the statutory scheme in sections 274 and 275, while requiring significant probative value and protection of complainers’ dignity and privacy. [5][18][19] |
| CJM v HM Advocate [2013] HCJAC 22, 2013 SLT 380 |
Referred to in relation to the period during which the prevailing common law approach affected section 275 applications. |
The Court observed that some first-instance judges nevertheless allowed applications where the statutory criteria were met. [20] |
| RR v HM Advocate [2021] HCJAC 21, 2021 JC 167 |
Section 275 applications should be reconsidered with the complainer given notice and an opportunity to comment. |
The Court described this as establishing the practice of obtaining and sharing the complainer’s response to such applications. [21][22] |
| TH v HM Advocate [2025] HCJAC 46, 2026 JC 58 |
The court may use collective judicial experience and the circumstances of the trial to assess unfairness and miscarriage of justice under Scots law. |
The Court used this approach, alongside the alternative real-possibility-of-a-different-verdict test, in rejecting the conviction appeal. [23] |
| McInnes v HM Advocate [2010] UKSC 7, 2010 SC (UKSC) 28 |
The real possibility of a different verdict test in an Article 6 case involving missing evidence. |
The Court stated that, even under this alternative test, the absence of further evidence would not have created a real possibility of a different verdict. [23] |
| HM Advocate v Fergusson [2024] HCJAC 22, 2024 JC 376 |
The approach to identifying notional sentences before determining an appropriate cumulative sentence. |
The sentencing judge applied that approach by identifying notional sentences for the different groups of charges before imposing 11 years’ imprisonment. [24][25] |
Court’s Reasoning and Analysis
The Court held that it could not know whether section 275 applications would have been granted at the preliminary hearing. Although the prevailing law may have discouraged such applications, some applications had been allowed where the statutory criteria were satisfied. [20][21]
The Court explained that any application would have been assessed under sections 274 and 275. Evidence had to possess significant probative value, outweigh prejudice to the proper administration of justice, and be compatible with protecting the complainer’s dignity and privacy. [18][26]
Regarding AA, the Court found that almost all the proposed material had already been explored through messages, the birthday letter, cross-examination, Appellant’s evidence, and submissions to the jury. The jury had therefore been able to assess AA’s credibility and had convicted on some charges while returning different verdicts on others, demonstrating a careful and discriminating assessment. [27][28]
The Court concluded that additional evidence of similar effect would not have created a real possibility of a different verdict or rendered the trial unfair. [23]
Regarding BB, the jury already knew that the parties had continued living together, had children, maintained contact after separation, and had an ongoing intimate relationship after the period of offending. The proposed additional details would have added little probative value while being highly invasive of BB’s privacy and dignity. [29][30]
The Court was therefore not persuaded that the proposed evidence concerning BB would have altered the verdict or caused a miscarriage of justice. [31]
On sentence, the Court considered Appellant’s relative youth for the earlier offences but found that the offending against AA involved serious breaches of sexual autonomy, including anal penetration without consent and rape during pregnancy. [10][32]
The offences against BB involved repeated rape while she was asleep and rape on the day of her mother’s funeral. Appellant was an adult when those offences occurred, and the circumstances justified substantial imprisonment. [32][33]
The Court found that the sentencing judge had properly considered culpability, harm, proportionality, Appellant’s circumstances, and the separate notional sentences. [34][35][25]
Holding and Implications
Appeal against conviction refused. The Court found no unfairness under Scots law, no miscarriage of justice, and no real possibility that the proposed additional evidence would have produced a different verdict. [36]
Appeal against sentence refused. The 11-year sentence was not excessive or a miscarriage of justice. [10]
The direct effect was that Appellant’s convictions and sentence remained in force. The opinion does not identify any broader implication beyond applying the statutory safeguards governing section 275 evidence and confirming the sentence imposed. [18][36][10]