Appeal court rejects rape conviction challenge over exclusion of evidence of earlier messages

About this case:

• Citation:
  [2026] HCJAC 41
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Matthews

The appeal court held that the disputed evidence had little relevance to the purpose for which its admission had been sought, namely to explain the appellant’s description of the incident during a telephone call to the emergency services.

Nairn Sharp was convicted after trial of raping a woman at an address in Glasgow on 8 December 2020 and was sentenced to six years’ imprisonment. The jury deleted several allegations of violence from the charge, together with an aggravation that the rape had been committed to the danger of the complainer’s life. Leave to appeal against sentence was refused, but Sharp was granted leave to appeal against his conviction on the basis that the preliminary hearing judge had wrongly excluded certain evidence under section 275 of the Criminal Procedure (Scotland) Act 1995.

The appeal was heard by the Lord Justice General, Lord Pentland; Lord Matthews and Lord Clark, with Ogg, solicitor advocate, instructed by Paterson Bell for John Kilcoyne & Co, appearing for the appellant and K Harper KC, advocate depute, appearing for the Crown.

Evidence excluded at preliminary hearing

Sharp and the complainer had arranged to meet through a dating application. They had not previously met, and he visited her flat on her birthday, where they had planned to watch a film. The parties gave differing accounts of the sexual activity that followed. Sharp maintained that the encounter had been consensual, while the complainer’s evidence was that she had repeatedly told him to stop or attempted to move away when he sought to initiate further sexual activity.

Before trial, Sharp lodged an application under section 275 seeking permission to introduce evidence concerning sexual activity and conversations outside the terms of the charge. The preliminary hearing judge allowed most of that application, including evidence that the complainer had allegedly expressed an interest in sexual submission and domination. Sharp was also permitted to give evidence concerning their discussion of a proposed safe word, “lemons.”

The disputed portion concerned a message sent by the complainer approximately three hours before the incident containing the words “punish me daddy,” which the application associated with a heart-shaped emoji. Sharp also sought to introduce evidence of alleged jokes about rape made by the complainer shortly before the incident. The application specified that this evidence was relevant to explaining why Sharp had referred to a “rape fantasy” during a telephone call to the emergency services. He had made the call shortly after hearing the complainer crying and reporting that she had been raped.

The preliminary hearing judge refused that part of the application, finding that the evidence lacked significant probative value. Its proposed relevance was peripheral to the issues at trial, while the disputed allegations concerning the jokes risked distracting the jury.

Consent not an issue in appeal

In his appeal, Sharp sought to argue that the excluded evidence was also relevant to whether the complainer had consented to the sexual activity. However, delivering the opinion of the court, Lord Matthews rejected that approach, observing that the section 275 application had expressly identified a different purpose for introducing the evidence.

He explained that if Sharp had wished to rely upon the messages and alleged jokes as evidence of consent, his application would have needed to say so, in accordance with the statutory requirements. The court stated: “The question of consent does not arise in this appeal and we say no more about it.”

Instead, the appeal concerned whether the preliminary hearing judge had been wrong to exclude evidence intended to explain Sharp’s remarks during his emergency call. For Sharp, it was submitted that the messages and alleged jokes provided important context for those remarks. Although he had been permitted to give evidence concerning submission and domination, it was argued that the additional material would have supported his explanation of why he had described the incident as a “rapey fantasy.”

Its exclusion, he maintained, had prevented him from fully presenting his defence and amounted to a breach of his right to a fair trial under Article 6 of the European Convention on Human Rights. The Crown submitted that the preliminary hearing judge had correctly assessed the material. It argued that the disputed message arose in the context of a discussion about the complainer having broken Covid regulations and had nothing to do with sexual activity. The Crown also maintained that Sharp had been able to explain his remarks through the substantial evidence already admitted at trial.

Message unrelated to sexual activity

The appeal court agreed that the evidence excluded by the preliminary hearing judge had little bearing on the specific issue identified in Sharp’s application. Lord Matthews observed that the alleged jokes would have revealed nothing about why Sharp had used the expression “rapey fantasy” during his telephone call, and that any evidential weight they might have possessed would have been minimal.

Regarding the disputed message, the court accepted the Crown’s submission that the heart-shaped emoji and the relevant words had appeared in separate messages. Lord Matthews said: “As to ‘punish me daddy’ we agree with the Crown that there was no heart-shaped emoji linked to this comment. It says nothing about sexual activity.” He continued: “When it is put into the context of the discussion about Covid, as can be seen from production 33, it is plain that it had no bearing on sex at all.”

The court also examined the explanation Sharp had actually given at trial. He had been questioned by both his own counsel and the Crown about his emergency call and had characterised his remarks as a poor choice of words made while panicking. He explained that he believed the complainer had wanted him to take the lead during sex, but expressly denied that the encounter itself had involved what he described in the call as a “rapey fantasy.” During cross-examination, he accepted that “submissive fantasy” would have been a more appropriate expression for what he had intended to convey.

Lord Matthews considered that evidence inconsistent with the suggestion that Sharp’s earlier conversations with the complainer had caused him to use the disputed phrase. He observed: “In other words, the appellant gave evidence that the words ‘rapey fantasy’ were a poor choice. A better description would have been a ‘submissive fantasy’.” The court also noted that Sharp had accepted the complainer had told him before their meeting that she did not want to have sex. His evidence concerning when he formed his impression of her intentions therefore did not support the proposed connection with the earlier message.

No miscarriage of justice

Lord Matthews concluded that Sharp could not rely upon the excluded evidence to advance an explanation inconsistent with the account he had provided under questioning at trial. He said: “The appellant cannot now seek to pray in aid the messages or the jokes to explain his use of the words ‘rapey fantasy’. That would fly in the teeth of his evidence, where he said that those words were not really a proper description of what was going on.”

Even if the section 275 application ought to have been granted in full, the court held that the exclusion had not caused a miscarriage of justice.

Concluding that no miscarriage of justice had occurred, the court refused the appeal.