Daly v His Majesty’s Advocate (Scotland)

In trials for sexual offences, article 6 requires an accused to have an adequate and effective opportunity to present a full defence and challenge the complainer’s evidence. Evidence bearing on credibility, prior or subsequent sexual behaviour, or the parties’ relationship cannot be excluded categorically merely because it is described as collateral.

Relevance depends on whether the evidence can reasonably strengthen the defence. Where evidence falls within sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995, the court must assess its significance against risks to the proper administration of justice, including prejudice to the fact-finding process and intrusion into the complainer’s dignity and privacy. Necessary intrusions must be accepted, although questioning and evidence must remain no more extensive than fairness requires.

The appellants were separately convicted of rape or other sexual offences. In both trials, evidence concerning a complainer’s credibility or earlier sexual behaviour was absent or excluded under the common law and section 275 of the Criminal Procedure (Scotland) Act 1995.

In Daly’s case, the proposed evidence concerned a later allegation of rape whose falsity remained uncertain. In Keir’s case, the excluded evidence concerned consensual sexual activity between the parties earlier on the evening of the alleged offence. The High Court of Justiciary refused leave to appeal in both cases.

The appeals under section 288AA raised whether the Crown’s decisions concerning the indictments, the courts’ evidential rulings and the resulting proceedings were compatible with article 6(1), read with article 6(3)(d), of the Convention. They also raised the general compatibility of the restrictive approach recently developed by the Scottish courts.

1. The appeals were dismissed unanimously. Lord Reed gave the judgment, with which Lord Hodge, Lord Hamblen, Lady Rose and Lady Simler agreed. Although the current Scottish common-law approach is liable to violate article 6, neither appellant’s trial was unfair.

2. The Crown’s choice of charges or dockets does not determine what evidence the defence may introduce. Subject to relevance and the rules of admissibility, the defence may seek to lead evidence concerning matters outside the indictment. The appropriate focus was therefore the courts’ evidential rulings, not the Crown’s framing of the charges.

3. A fair trial protects the accused’s right to present a full answer and defence, including the ability to call evidence reasonably capable of strengthening the defence and effectively to challenge prosecution witnesses. Sexual-offence trials are not exempt. The complainer’s article 8 interests and the need to prevent intrusive, humiliating or prejudicial questioning are important, but measures protecting those interests must remain compatible with an adequate and effective defence.

4. The Scottish courts’ categorical treatment of evidence bearing on credibility as irrelevant or inadmissibly collateral, unless instantly verifiable, was incompatible with the nuanced inquiry required by article 6. Prior or subsequent sexual behaviour may be relevant where its circumstances support an inference about the complainer’s state of mind, credibility or the defence account. The rule that consent must be contemporaneous does not make earlier expressions or conduct logically irrelevant.

5. Sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 form a unified statutory scheme. Section 275 permits evidence within section 274 where it concerns specific matters, is relevant to guilt, and has significant probative value likely to outweigh prejudice to the proper administration of justice. That balancing exercise includes appropriate protection of the complainer’s dignity and privacy. Scottish courts must modify their current approach under section 6(1) of the Human Rights Act 1998.

6. In Daly’s case, investigating the disputed later allegation would have created a substantial collateral trial. Other means remained available to challenge credibility. In Keir’s case, the earlier activity had very limited probative value given the allegation that the complainer was asleep, her high intoxication, the CCTV evidence and the competing accounts. Its exclusion did not undermine the overall fairness of either trial. The proceedings were remitted to the High Court of Justiciary as required by section 288AA(3).

1. United Kingdom Supreme Court: The compatibility appeals were dismissed unanimously: [2025] UKSC 38. The Court nevertheless held that the current Scottish common-law approach was liable to violate article 6 and required modification.
2. High Court of Justiciary — Daly: The appeal court refused leave to appeal. It regarded the proposed evidence as collateral and inadmissible and held that the trial safeguards were sufficient.
3. High Court of Justiciary — Keir: The appeal court refused leave to appeal. It held that evidence of earlier sexual activity was collateral, of insignificant probative value and liable to distract the jury.
4. Trial courts: Daly was convicted and received an extended sentence of nine years. Keir was convicted and sentenced to five years’ imprisonment.