High Court dismisses appeal against sexual offences conviction after finding refusal of s.275 application did not engender miscarriage of justice

About this case:

• Citation:
  [2026] HCJAC 25
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Beckett

The appellant was convicted of rape, including the rape of a young child, and sexual assault after a trial at the High Court in Edinburgh in 2025. On appeal, he submitted that the preliminary hearing judge had erred in refusing to admit an application under section 275 of the Criminal Procedure (Scotland) Act 1995 and had thereby caused a miscarriage of justice.

The appeal against conviction was heard by the Lord Justice Clerk, Lord Matthews and Lord Armstrong, with Ann Ogg appearing for the appellant and Paul Harvey, advocate depute, for the Crown.

Social media messages

In 2023, the appellant was charged with rape and sexual assault in relation to two girls. One, known as AA, was under 13 years old; the other, BB, was 13. The conduct in question was accepted to have taken place in a wooded area in Dundee and followed social media communication, the precise nature of which was in dispute, between the appellant and AA.

At a preliminary hearing in October 2024, the appellant lodged two applications under section 275 of the Criminal Procedure (Scotland) Act 1995. Each application sought to elicit evidence, in relation to both AA and BB, that their meeting the appellant at the locus had been arranged, by exchange of social media messages, for the purpose of engaging in sexual activity. The application claimed further that AA had told the appellant that she was 15, and that BB had ran towards the appellant and kissed him before leaving the locus.

Various aspects of the application were refused as irrelevant at common law, including the suggestion that the meeting was pre-arranged, that AA had told the appellant she was 15 and that BB’s purpose in attending the locus was to engage in sexual activity with the appellant. Although social media chat exchanges between the appellant and accounts potentially attributable to AA and BB respectively were subsequently recovered, showing messages sent shortly before and after the incident, the appellant made no further section 275 application.

At trial, the appellant was convicted of rape and sexual assault and was subsequently sentenced to five years’ imprisonment. Appealing against conviction, the appellant argued that the judge at the preliminary hearing had erred in refusing to allow certain of the evidence put forward in his initial section 275 application. That refusal, he submitted, had prevented him from presenting a full defence to the charges against him and had resulted in a miscarriage of justice.

No miscarriage of justice

Beginning his decision, the Lord Justice Clerk (Beckett) noted that: “Unlike other recent cases heard by this court following the UK Supreme Court’s judgement in Daly & Keir v HM Advocate (2025), the appellant has not raised a compatibility issue within the meaning of section 288ZB of the 1995 Act. The appellant does not, therefore, complain of an unfair trial within the meaning of Article 6 of the European Convention on Human Rights and Fundamental Freedoms. While acknowledging the court’s duty under section 6 of the Human Rights Act 1998 to act in a Convention compatible manner, it follows that the question for this court is whether the omission of the evidence in question resulted in a miscarriage of justice under the principles of Scots law.”

Rejecting the appellant’s complaints of a miscarriage of justice in respect of the charge concerning AA, he continued: “So far as AA is concerned, since consent was not a defence to charge 1, evidence from the appellant that there was an arrangement to meet for sexual activity lacked cogency on the question of what sexual activity occurred … The appellant accepted some criminal responsibility for sexually touching [AA] and invited conviction on that limited basis … The jury convicted him of sexual touching and penetration but acquitted him of rape … In light of the whole evidence, including that of the appellant, and where the narrow issue before the jury related only to the extent of his admittedly criminal conduct, and the jury found in his favour on the most serious part of charge 1, we are not persuaded that there was a miscarriage of justice on charge 1 (or that the trial was unfair.)”

Turning to consider the second charge, regarding BB, the Lord Justice Clerk reasoned: “If, as the appellant contends, in responding to his message, ‘U wanting it after or?’, the complainer’s response, ‘Idm,’ and the following exchange of messages that the appellant was ‘game’ and the complainer responded ‘Okay’, mean that she was signalling that she would consent to some form of sexual activity with him on their meeting, it constitutes sexual behaviour. The PH judge was correct about that, and we reject counsel’s argument to the contrary. It was not the subject matter of the charge which related to events in the woods.”

Although the Lord Justice Clerk regarded the procedural hearing judge as having erred in refusing to admit evidence that the parties had met by arrangement, he added: “The question then arises what effect it had when considered in light of the totality of the evidence and the whole circumstances of the trial. The messages, if they could be interpreted as an indication of future agreement to some sexual activity, could relate to any sexual activity. This was a girl of 13 who may have had some romantic interest in the appellant, but it would be something of a leap to conclude that she had in mind what actually happened to her.”

Concluding that “there was no miscarriage of justice”, he noted: “[B]oth complainers disclosed shortly afterwards to other witnesses what had happened and both were observed to be in a distressed condition. There was forensic evidence supporting parts of both AA’s and BB’s account and some evidence of injury on both of them. The appellant had lied by telling the police he had been with his girlfriend at the material time. His attempts to wipe and wash blood from his hands in police custody, and his accusation that the police officers who spoke to his actions were lying, were materially incriminating items of evidence. Each complainer gave at least some direct evidence supporting the account of the other. It was also open to the jury to find mutual corroboration.”

The appeal was accordingly refused.