Criminal appeals to the UK Supreme Court are rare due to the High Court of Justiciary’s status as the final court of appeal in Scots criminal law. Under the Scotland Act 1998, such appeals are only permitted to the Supreme Court where devolution or human rights issues are concerned, such as in Cadder v HM Advocate which addressed the denial of legal advice during police interviews. Daly (Appellant) v His Majesty’s Advocate (Respondent) (Scotland) UKSC 2023/0107 is one such case and notably, the Law Society of Scotland and the Faculty of Advocates jointly intervened.

Daly v HM Advocate concerns evidential restrictions under Scots law and their compatibility with Article 6, ECHR. The appellant, DD, was convicted in 2022 at the High Court in Stirling of serious sexual offences involving two complainers. During the trial, evidence relating to the character of one complainer was excluded under section 274 of the Criminal Procedure (Scotland) Act 1995, which prohibits evidence designed to question a complainer’s character or sexual history unless an exception is granted under s.275. The appellant argued that this exclusion violated his Article 6 rights, particularly the general right to a “fair and public” hearing under Article 6.1 and the right to “examine or have examined witnesses” under Article 6.3(d). The appellant also argued that his counsel had incompetently represented him, given counsel’s failure to apply to admit the April 2020 allegation under s.275.

Delivering the court’s live summary decision this week, Lord Reed found no breach of Article 6. However, while the court ruled that the exclusion of evidence did not breach the appellant’s Article 6 rights, it has remitted the case to the High Court of Justiciary due to a separate and acknowledged breach of Article 6 arising from the Crown’s failure to disclose relevant material (with Lord Reed emphasising the urgency of further procedure given that the appellant remains in custody).

Section 275 allows the accused to apply for permission to admit evidence otherwise restricted by s.274, provided it is relevant and necessary to the defence. Applications must be submitted within strict time limits: at least seven clear days before the preliminary hearing in High Court cases or 14 clear days before the trial diet in sheriff court cases. Late applications are heard in a closed court, with the jury, complainer, witnesses, and public excluded, to ensure fairness and to minimise the risk of prejudice.

When considering a s.275 application, the court applies a balancing test, weighing the probative value of the proposed evidence against the risk of prejudice to the administration of justice. The evidence must be highly relevant, particularly on issues such as credibility or consent, and its exclusion must risk rendering the trial unfair. If a s.275 application is granted, s.275A requires disclosure of the accused’s relevant previous convictions to the presiding judge. These convictions may be disclosed to the jury if deemed material and relevant.

The full written judgment, expected in the coming months, will establish the court’s reasoning and will also likely include interesting obiter dicta on broader issues raised during the case. One such issue is the reviewability of prosecutorial discretion in Scotland versus other parts of the United Kingdom. In England, Wales, and Northern Ireland, prosecutorial decisions are subject to judicial review in limited circumstances. However, in Scotland, prosecutorial discretion is considered non-justiciable.