Appeal against Conviction by Nairn Sharp against His Majesty's Advocate (High Court of Justiciary)

Factual and Procedural Background

The Appellant was convicted after trial of rape contrary to section 1 of the Sexual Offences (Scotland) Act 2009. The jury deleted several averments of violence and an aggravation that the offence endangered the Complainer’s life. The Appellant was sentenced to six years’ imprisonment; leave to appeal sentence was refused, but leave to appeal conviction was granted. [1][2][3][4][5][6][7][8][9]

The conviction appeal concerned the preliminary hearing judge’s refusal to admit evidence under section 275 of the Criminal Procedure (Scotland) Act 1995. The disputed evidence concerned a message sent by the Complainer roughly three hours before the offence and alleged jokes about rape made within the preceding hours. [10][11][12][13][14]

The Appellant and the Complainer had met through a dating app and had not previously met in person. At trial, the Appellant maintained that the sexual activity was consensual, while acknowledging that the Complainer had said “no” and “stop” during the encounter; the Complainer’s account was that she resisted his advances. The Appellant gave evidence about the parties’ discussion of sexual submission and a safe word, and was permitted to rely on other parts of his section 275 application. [15][16][17][18]

Legal Issues Presented

1. Did the preliminary hearing judge err by refusing to admit the disputed message and alleged jokes under section 275, where the stated purpose was to explain the Appellant’s “rapey fantasy” remark in a call to emergency services? [10][12][19][20]
2. Did excluding that evidence prevent the Appellant from presenting his defence fairly, contrary to Article 6, or otherwise cause a miscarriage of justice? [21][22][23][24]

Arguments of the Parties

Appellant’s Arguments

• The excluded evidence would have helped explain the Appellant’s reference to a “rapey fantasy” in his call and would have supported his account that he was confused about what was happening. The message and alleged jokes were said to add to other admitted evidence about the Complainer’s interest in submission and domination. [25][26][27][21]
• The Appellant argued that the Complainer’s complaint could have been understood as part of a fantasy involving submission and domination, and that excluding the evidence left him unable to present his defence fully, breaching Article 6. [21][22]
• In submissions, the Appellant also sought to argue that the evidence bore on consent and that Daly and Keir required a more generous approach to the context of the evidence. [28][29]

Respondent’s Arguments

• The Respondent submitted that the preliminary hearing judge applied the proper tests and reached the correct result. The evidence had no significant probative value and the alleged jokes were collateral and potentially distracting. [30][31][32]
• The Respondent said the messages, considered in their context, concerned the Complainer’s breach of Covid regulations rather than sex. It also argued that exploring the matter would intrude significantly on the Complainer’s dignity and privacy. [30][33]
• The Respondent submitted that the Appellant had already been able to explain his “rapey fantasy” remark through evidence admitted under the section 275 application; accordingly, there was no Article 6 breach or miscarriage of justice. [18][34][23][24]

Table of Precedents Cited

Court’s Reasoning and Analysis

The Court confined the proposed use of the disputed evidence to the purpose stated in the application: explaining why the Appellant used the phrase “rapey fantasy” in his call to emergency services. The application had not sought to use the evidence to establish consent. The Court therefore rejected the attempt to recast the evidence as relevant to consent, observing that the statutory application had to state that purpose. [19][20][29][36]

The alleged jokes about the Appellant raping his sister would not explain his choice of words in the call; any evidential weight on that question would have been minimal. As for the “punish me daddy” message, the Court accepted the Respondent’s submission that it was not linked to a heart-shaped emoji and, read in the context of the discussion about Covid, did not concern sexual activity. The Appellant had not claimed that the physical assaults were part of a fantasy. [37][38][39]

The Court also considered that the Appellant had been able to explain the remark through evidence that was admitted. In his testimony, he described “rapey fantasy” as a poor choice of words and said that “submissive fantasy” would have been a better description. He also accepted that he had not understood the “punish me daddy” message as referring to sex or a “rapey fantasy.” On his own account, therefore, that message could not explain the phrase used in the call. [40][41][42][43][44][45][46]

In light of that testimony, the Appellant could not rely on the message or alleged jokes as the explanation for his words: doing so would contradict his evidence. Even if the evidence should have been admitted, the Court concluded that its exclusion caused no miscarriage of justice because the Appellant had already given an explanation for the remark. [47][48]

Holding and Implications

The appeal against conviction was refused. The Court found no miscarriage of justice and rejected the contention that the excluded evidence required the conviction to be set aside. [47][48]

The direct effect was that the conviction remained undisturbed; leave to appeal sentence had previously been refused. The opinion discusses no broader implications and states no new precedent. [8][9][48]