Aidan O’Neill KC

Q: What was the history of the Daly case prior to getting to the Supreme Court?

The road to the Supreme Court in this case was not easy. It started off as an appeal against conviction to the High Court of Justiciary Appeal Court (“the Appeal Court”) on the grounds that the prosecution was oppressive, his conviction amounted to a miscarriage of justice, and his trial breached his rights to a fair trial under Article 6 ECHR.

Specifically the grounds of appeal asserted that the manner in which the trial had been conducted was made fundamentally unfair by the fact that the accused counsel had been unable to raise with – or cross-examine the complainer about – what the accused claimed was a demonstrably false allegation of rape against him which the complainer had made to the police, but which the Crown had chosen not to include on the indictment or in a docket.

The grounds of appeal did not pass the first sift (a single judge decision by Lord Mulholland on the papers) on the basis that none of the grounds of appeal was considered to be arguable.

The appellant applied for a second sift decision. This was considered (again on the papers) by the second sifting bench made up by Lord Pentland, Lady Wise, and Lord Summers. They confirmed the refusal of leave to appeal, on the basis that they considered the reasoning of the first sift judge to be soundly based and that the evidence relating to the allegation of rape which did not make it on the indictment “was indubitably collateral and a section 275 application seeking authority to introduce such evidence would have been bound to fail”.

The possibility of the review by the UKSC of the Convention compatibility of the decisions of the Appeal Court was made more difficult by the practice of that court to refuse to allow any Convention based challenges to its approach to pass the sist, and thereafter to refuse permission for their decision to be appealed to the UKSC . In Mirza v HM Advocate [2015] HCJAC 87, 2016 JC 66 – a three-judge bench made up of the then Lord Justice Clerk (and subsequently Lord Justice General) Lord Carloway, Lady Smith and Lady Clark of Calton – stated at § 25:

Consistently with this approach, in Daly the same court (Lord Pentland, Lady Wise and Lord Summers) which had refused leave at second sift then refused the applicant’s application for its permission to appeal to the Supreme Court. They said that proposed appeal raised “no point of law of general public importance” and instead “the case involves the application of well-established principles and has no exceptional aspects”. Indeed the second sift bench decision refusing Daly permission to appeal to the Supreme Court concluded as follows (at paras 8-10):

Accordingly, in order to get the Supreme Court to take this case, that court had to be persuaded that it was competent for it to hear the appeal, notwithstanding that the application below had been dealt with only on the papers at the stages of the first and second sift, and had never reached the stage of a full hearing by the Appeal Court, and the Appeal Court had refused to consider the ECHR points which had been attempted to be raised before it.

Q: How did this case get to Supreme Court?

After Lord Reed, in February 2012, filled the place left vacant by the untimely death of Lord Rodger of Earlsferry and Lord Hodge succeeded Lord Hope of Craighead as the second Scottish judge in October 2013, there was a policy shift in the Supreme Court towards a more hands-off approach in relation to Scottish criminal proceedings following the high-water mark seen in Cadder v HM Advocate [2010] UKSC 43, 2011 SC (UKSC) 13 and its immediate progeny.

In Macklin v HM Advocate [2015] UKSC 77 2016 SC (UKSC) 47 a seven-judge bench of the Supreme Court (on which the two Scottish judges were Lord Reed and Lord Gill) marked a line in the sand by stating that the question whether the High Court of Justiciary had applied the correct ECHR mandated test in law required as a matter was a proper question for the Supreme Court. But whether the High Court then correctly applied that test in any particular case was not a matter for the UKSC, as this would undermine the finality of the High Court’s decisions in criminal matters as afforded and affirmed by section 124(2) of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”). The UKSC decision in Macklin effectively reduced Scottish criminal (i.e. not extradition) appeals to the UKSC to a trickle: AB v Her Majesty’s Advocate [2017] UKSC 25, 2017 SC (UKSC) 101 which was effectively a judicial review arising within a Scottish criminal appeal of legislation passed by the Scottish Parliament; and Sutherland v Her Majesty’s Advocate [2020] UKSC 32, 2020 SC (UKSC) 66 on whether the police, prosecutor and court could rely upon evidence of improper online communications ingathered by a self-styled “paedophile hunters group” formed by members of the public.

In the Daly application to the UKSC for permission to appeal, it was highlighted that the case raised, among other things, legal arguments concerning the Convention compatibility of a continuing line of case law of the High Court of Justiciary Appeal court which had increasingly tightened – whether under avowed reference to the common law or to the wording of the statutory rape shield legislation – the rules on inadmissibility of evidence in sexual offence cases. It was said in the application that it had become impossible even to air these arguments properly before the criminal courts in Scotland because their practice of refusing to allow any such challenges to its case law even to pass the sift meant that there was simply no possibility for the Convention compatibility of this developing line of case law to be considered let alone challenged and determined.

It was also pointed out to the UKSC that it was better placed than the Appeal Court to consider and determine the issues around the justifiability, from a Convention rights perspective, of any significant differences in treatment of persons on trial for sexual offences as between Scotland and the rest of the United Kingdom, whether as regards the admissibility of evidence going to the credibility of complainers in sexual offences trials, or as to the reviewability before the court of prosecutorial decisions in criminal trials.

In the event the Supreme Court granted its permission to appeal to Daly (and subsequently to Keir) and “invite[d] the parties to address the jurisprudence of the High Court relating to sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 and to compare it with jurisprudence on similar provisions in England and Wales and Northern Ireland”.

Q: What was the outcome of the Daly appeal for the appellant?

Formally the Supreme Court dismissed the appeals taken by both Daly and Keir. But in Daly’s case it did so on the basis of “the material available to the court” (para 185). But immediately before the UKSC hearing commenced in Daly’s case, the Crown formally conceded before that court that the Crown had failed in its duties of disclosure in Daly’s case such as to amount to a breach of his Article 6 ECHR rights. The Crown’s failure in disclosure only came to light after the UKSC had granted Daly its permission to appeal to it. The matter was then remitted by the UKSC back down to the Appeal Court for it to make the appropriate determination in light of this Crown concession. Extensive further disclosure of previously undisclosed material which ought to have been disclosed prior to trial was then made by the Crown following this remit back down to the Appeal Court.

Perhaps the most worrying thing about this late disclosure is that none of it would have come about had the UKSC not granted its permission to appeal to Daly. His appeal would not have passed the sift and the Crown would not have carried out the further disclosure inquiries which were clearly prompted when it was called upon to defend the Daly conviction before the UKSC.

The Crown has since conceded before the Appeal Court that it should uphold the Daly appeal against conviction and has stated in open court that the Court would not be seeking warrant from the court to allow for his re-trial. All this notwithstanding, the Appeal Court has decided that it wishes to determine for itself whether to allow the appeal. This matter was still, at the time of writing under advisement.

Q: What was outcome of the UKSC decision in relation to the general approach of the Scottish criminal courts on the admissibility of evidence in sexual offences trial?

In disposing of the Daly and Keir appeals, the UKSC said this (at paragraph 192):

Objection has already been heard from judges in the Appeal Court to the effect that the UKSC has no jurisdiction to change the common law of Scotland, whether on the admissibility of evidence in criminal trials or other procedural matters. But this is to miss the point. Section 6 of the Human Rights Act 1998 imposes a statutory duty on the Scottish courts always to act in a manner which is Convention compatible. The UKSC has held that the current Scottish approach – which is generally to exclude as inadmissible any evidence (sought to be led by the accused in exculpation) which concerns the complainer’s prior or subsequent (sexual) behaviour, or evidence otherwise bearing on the credibility of her allegations against the accused – is liable to violate Article 6 ECHR.

It is therefore now incumbent on – because statutorily required of – the courts in Scotland to modify their approach (whether that is in their interpretation of and application statutory provisions such as Sections 274 and 275 of the 1995 Act, or in the Appeal Court’s “development” of the common law) to ensure that decisions on the (in)admissibility of evidence in sexual offences trials do henceforth conform to the requirements of the ECHR.

Q: What is impact of the Daly appeal more generally?

It is hard to over-state the importance of the Daly decision and the impact it will have on past convictions, and on current and future trials for sexual offences in Scotland. The decision is even more momentous than that of Cadder (which called into question the Convention compatibility of convictions which had been based on replies made in the course of police interviews under caution but without a solicitor being present by legally unrepresented individuals).

The UKSC has held that there is a systemic and Convention incompatible imbalance against the accused in the approach taken by the Scottish courts in cases alleging sexual assault. The Scottish courts appear to have confused the Strasbourg Court’s insistence on there being “equality of arms” between the prosecution and defence in criminal trials with the wholly erroneous notion that the Crown, when prosecuting the complainer’s case, has “fair trial rights” just as much as the accused. The UKSC referred in this regard (at para 123) to the Appeal Court’s “repeated admonitions to judges to give less weight to considerations of fairness to the accused (e.g. RN v HM Advocate [2020] HCJAC 3, 2020 JC 132 at para 22; and CH v HM Advocate [2020] HCJAC 43, 2021 JC 45 at para 6).”

The result is that Scottish courts’ approach to date has, in many cases, resulted in the accused being deprived of the opportunity to put obviously relevant evidence before the jury. This material, if accepted by the jury, would have significantly strengthened the accused’s defence. This means that the trial which the accused received was unfair because in contravention of standards required by and under Article 6 ECHR and the resulting convictions Convention-incompatible. This means that the Appeal Court must now admit and hear appeals against conviction (even if made out of time) to remedy this Convention incompatibility. And the Scottish Criminal Cases Review Commission – as a public authority similarly bound by Section 6 of the Human Rights Act 1998 to exercise its powers in a Convention compatible manner – will require to reconsider convictions which have been upheld by the Appeal Court on the basis of its application of Convention-incompatible common law doctrines developed by it. The resulting mess and complexity is of the Scottish courts’ own making.

Q: What lessons might be drawn from the decision in Daly?

The first lesson for practitioners is that if at first you don’t succeed, try, and try again. You owe it to the accused. The criminal defence bar must re-familiarise itself with the ECHR case law and insist on raising points in Convention law terms, even in the face of judicial hostility.

The second lesson is one that has to be learned by the judges. What appears to have developed among Scotland’s senior judiciary over the past 10 to 15 years is a form of “policy capture” in matters concerning sexual offences and the need to combat “rape myths”. Senior judges wrongly considered that – even after the Scottish Parliament had passed and amended what are now Section 274 and 275 of the 1995 Act – it was the Appeal Court’s proper constitutional role to continue to “develop” the common law in a manner intended to increase the conviction rate in sexual offences trials. Yet in Lord Advocate’s Reference (No. 1 of 2001), 2002 SLT 466, 2002 SCCR 435 Lord McCluskey (dissenting) warned (at para 4) that:

This principle was well expressed by Lord Eldon in Sheddon v Goodrich (1803) 8 Ves Jun 497, 32 ER 441:

Lord McCluskey was here reiterating the constitutional fundamental that no court (however many judges on its bench) has a constitutional or democratic mandate to purport to change or reform or “update” the law because, in the court’s view, the (democratically accountable) legislature has failed timeously or sufficiently to act. Lord McCluskey seems, alas, to have been an (albeit prophetic) voice crying in the wilderness in this regard for what developed subsequent to his warning was the convening of ever larger benches of the Appeal Court to confer greater apparent authority on – and to discourage dissent from – its changes to the common law. This culminated, most recently, in the nine-judge bench Appeal Court decision in Lord Advocate’s Reference (Nos. 2 and 3 of 2023) [2024 HCJAC 43 2025 JC 242 in which the views of the sole dissenter, Lady Paton, were singled out and subject to explicit criticism in the judgment of Lord Boyd of Duncansby.

In stark contrast, the judgment of the UKSC in Daly names and vindicates those few judges – Lord Clarke in CJM v HM Advocate [2013] HCJAC 22 2013 SCCR 215, Lord Malcolm in SJ v HM Advocate [2020] HCJAC 18 2020 SCCR 227, and Lord Glennie in CH v HM Advocate [2020] HCJAC 43 2021 JC 45 – who publicly dissented from the Appeal Court majorities’ development of the common law on the inadmissibility of evidence concerning the credibility of complainers in sexual offences cases.

The need to foster a culture of dissent is important from the point of view of the Strasbourg court’s requirement for respect for “internal judicial independence”, which is described as follows in Parlov-Tkalčić v Croatia (24810/06) 22 December 2009 at §86, 91:

Ultimately the lesson from the Daly decision is that what needs to be re-learned is a form of judicial humility, and a recognition that even for judges, the adage “be you never so high, the law is above you” continues to apply.