Appeal dismissed

Defence held to the stated purpose of its section 275 application: rape appeal refused with no miscarriage of justice

Scotland's appeal court held that excluding a message and alleged jokes caused no miscarriage of justice. The defence had sought that evidence only to explain a remark the appellant made in his own call to the emergency services, and his own trial evidence gave a different explanation for it.

Nairn Sharp v His Majesty's Advocate, [2026] HCJAC 41

5 min read

Court: Appeal Court, High Court of Justiciary (Scotland)
Decided: Sep 3, 2026
Sentence: 6 years' imprisonment

Appeal against conviction refused The court refused to set the conviction aside. Other routes may remain.

What happened

The appellant and the complainer had never met before. They arranged online to meet at her flat to watch a film. During the evening there was some touching over clothing, which she consented to. Her evidence was that when he tried to go further she moved his hand, told him to stop, or tried to push him away, and that this continued until he raped her. The appellant accepted she had said before they met that nothing would happen, and that she said "no" and "stop it" during the encounter. His position was that she then effectively came on to him, as if it were a game, and that a safe word was agreed. His special defence was consent; it did not include any claim of reasonable belief in consent. Afterwards the complainer went to the bathroom, was heard crying, and made a call saying she had been raped. The appellant went outside and phoned the emergency services himself. In that call he said he thought it was "somewhat of a slightly kind of rapey fantasy she was going for". The Crown's case was supported by the complainer's distress on her own 999 call, statements she made soon afterwards, bruising to her buttocks, and the appellant's DNA found there. Before trial the defence applied under section 275 of the Criminal Procedure (Scotland) Act 1995 to lead evidence about the complainer's sexual history and behaviour. Most was allowed. The judge refused paragraph 24: a message sent about three hours before, and alleged jokes about rape. The application said this evidence was needed only to explain the "rapey fantasy" remark.

Procedural history

Dec 8, 2020
Alleged offence at the complainer's flat in Glasgow
Mar 26, 2021
Complainer gives a police statement in which she accepts sending a message of the kind later referred to in paragraph 24 of the defence application
Undated
Defence section 275 application: paragraphs 1 to 23 allowed, paragraph 24 (the message and alleged jokes) refused; a Crown counter-application not movedHigh Court of Justiciary (preliminary hearing)
Undated
Trial; jury convicts of rape but deletes several averments of violence and the danger-to-life aggravationHigh Court of Justiciary
Undated
After a Justice Social Work Report, sentence of 6 years' imprisonmentHigh Court of Justiciary
Undated
Leave to appeal against sentence refused; leave to appeal against conviction grantedHigh Court of Justiciary
Sep 3, 2026
Appeal against conviction refused; opinion delivered by Lord MatthewsAppeal Court, High Court of Justiciary

The offence and its elements

Rape

Section 1 of the Sexual Offences (Scotland) Act 2009

What the prosecution had to prove:

The accused penetrated the complainer's vagina, anus or mouth with his penisnot addressedFrom the reasons
The complainer did not consentdisputedFrom the reasons
The accused had no reasonable belief that the complainer consentednot addressedFrom the reasons
The penetration was intentional or recklessnot addressedGeneral law: check the current text

The questions on appeal

Was the preliminary hearing judge wrong to refuse paragraph 24 of the section 275 application?: No. The judge was entitled to find that the evidence had no significant probative value for the one purpose stated in the application, which was to explain the "rapey fantasy" remark. The jokes were disputed and would have distracted the jury. The message, read in its proper context of a discussion about Covid rules, had nothing to do with sex.
Could the appellant argue on appeal that the evidence bore on whether the complainer consented?: No. The application never said that. Section 275(3) requires an application to state the issue the evidence goes to and why. The court would not let the appellant proceed on a basis that contradicted his own application. The question of consent did not arise in the appeal.
Even if the evidence should have been allowed, was there a miscarriage of justice?: No. The appellant was asked directly at trial what he meant by "rapey fantasy". He said it was a poor choice of words in a panic and that "submissive fantasy" would have been better. On his own account the message and jokes could not have explained the remark. He had also been able to explain himself using the parts of the application that were allowed. The appellant had framed part of his complaint as a breach of Article 6, and the Crown submitted there was no breach. The court expressed its conclusion as no miscarriage of justice and did not give a separate ruling on Article 6.

The law the court applied

Admission of sexual history or character evidence under section 275

Evidence that section 274 would normally exclude can be admitted only if it relates to a specific occurrence or occurrences of sexual or other behaviour, or to specific facts showing the complainer's character or a condition or predisposition; it must be relevant to whether the accused is guilty; and its probative value must be significant and likely to outweigh any risk of prejudice to the proper administration of justice, which includes the complainer's dignity and privacy. The written application must state the issue the evidence goes to and the reasons it is relevant. In this case the court focused on the significance of the probative value and on the stated purpose of the application.

Criminal Procedure (Scotland) Act 1995, sections 274 and 275, including section 275(1)(c) and section 275(3)(b), (c), (d) and (e); RN v HM Advocate [2020] HCJAC 3; Daly and Keir v HM Advocate [2025] UKSC 38; [2026] SCCR 18

Miscarriage of justice

An appeal against conviction in Scotland succeeds only if there has been a miscarriage of justice. The court did not set out a general definition. Its reasoning was specific to this case: it asked whether the excluded material could have served the single purpose stated in the application, given what the appellant actually said in the witness box about the phrase. Because he described the words as a panicked poor choice, the court held that he could not now say they were deliberately chosen because of the message or the jokes, so there was no miscarriage of justice even if the evidence should have been admitted.

Criminal Procedure (Scotland) Act 1995; [2026] HCJAC 41, paragraphs 30 to 32

What the court decided

The Appeal Court (Lord Justice General, Lord Matthews and Lord Clark) unanimously refused the appeal. The preliminary hearing judge was entitled to refuse paragraph 24 of the section 275 application because the message sent about three hours before and the alleged rape jokes had no significant probative value for the only purpose stated, explaining the "rapey fantasy" remark. The court agreed that the message, read in the context of a discussion about Covid rules, had no bearing on sex at all. The appellant could not reframe the application on appeal as going to consent. In any event, there was no miscarriage of justice: the appellant gave his own explanation at trial that the words were a panicked poor choice and that "submissive fantasy" would have been more accurate, so the excluded material could not have been the explanation. The appellant had argued a breach of Article 6 fair trial requirements; the court's stated conclusion was that there was no miscarriage of justice, and it did not articulate a separate Article 6 finding. The opinion is a published decision of the court. The packet does not give the dates of the preliminary hearing, trial or sentence.

Analysis

This is our commentary, separate from the court’s reasons.

The application set the trap

This appeal was lost largely on paper before the trial started. Section 275 is a gatekeeping rule. It lets a judge admit evidence about a complainer's sexual behaviour or character only for a stated purpose, and the defence must say in writing what that purpose is. Here the defence tied the message and the jokes to one narrow job: explaining a single phrase in a 999 call. When the appellant later wanted to use the same material to suggest the complainer had consented, the court held him to his own words. Daly and Keir, the recent UK Supreme Court decision on these rules, was argued as a reason to read the context more generously, but the court said it does not let an appellant contradict the application itself. The lesson in the law is that the stated purpose in a section 275 application is not a formality. It fixes the ground on which any later appeal will be fought.

The appellant's own evidence closed the door

The court's second reason is the one that would have defeated the appeal on any view. The appellant was asked, by his own counsel and in cross-examination, what he meant by "rapey fantasy". He answered that it was a poor choice of words made in panic and that "submissive fantasy" fitted better. That answer may well have been honest, but it removed the only use the excluded evidence could have had. Once he said the phrase was a slip, the message and the jokes could not be the reason he chose it. The court also noted that he had been allowed to lead a good deal of similar material, including what he said about submission, domination and a safe word, and that he explained his remark using that material. The court did not lay down any general definition of miscarriage of justice. It simply measured the excluded evidence against the stated purpose and the transcript, and found nothing the evidence could have added. The Article 6 complaint was absorbed into that answer rather than decided separately.

What the Crown's counter-application showed

One detail deserves attention. The Crown had prepared its own application to put the message into context: a joking exchange about the complainer breaking Covid rules, alongside messages where she said there would be "no sexy time". That cut both ways for the defence. Had paragraph 24 been allowed, the jury would likely have heard that context too, and it would have weakened rather than strengthened the appellant's position. The Crown also submitted that exploring the message would have exposed the complainer to questioning about an unrelated breach of the law, which it argued would be a significant intrusion into her dignity and privacy. The court did not expressly adopt that submission, but it did agree that the message, read in context, had no bearing on sex at all. The episode illustrates why the section 275 regime asks for significant probative value before a complainer's private life is opened up.

If this feels close to home

A section 275 application must state exactly what issue the evidence goes to. An appeal court will generally hold the defence to that stated purpose and will not let it be rewritten later.
Showing that evidence was wrongly excluded is not enough on its own. The appeal court asks whether the error caused a miscarriage of justice. In this case it answered that by reading the trial transcript closely to see whether the excluded material could have served the purpose the defence gave for it.
Evidence the accused gives at trial can limit what can be argued on appeal. If an explanation is given in the witness box, it is very hard later to say a different explanation would have been offered if more evidence had been allowed.
In this appeal the appellant argued that excluding the evidence breached his fair trial rights under Article 6, and the Crown argued there was no breach. The court answered the appeal through the miscarriage of justice question and gave no separate ruling on Article 6. This decision says nothing about whether other human rights procedures may be available in other cases.
Leave to appeal against sentence was refused in this case, and the opinion does not discuss any further route. Where an appeal fails, the published opinion records precisely what the court needed and did not find. Here that was evidence capable of serving the stated purpose of the application, measured against what the appellant himself said at trial. Understanding that gap is the honest starting point for anyone thinking about what, if anything, might come next.

What other routes exist Find legal aid

What went wrong

Trial judge error

How this was checked

Written by Claude Fable 5.1 (Anthropic AI) from the source below, then independently audited against it by GPT-6-Astra (OpenAI AI) on Oct 31, 2026. Every citation here was confirmed by software to appear in the decision or an official text. No lawyer has reviewed this brief. Our standards

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Citations

[2026] HCJAC 41 The present decision
Daly and Keir v HM Advocate [2025] UKSC 38; [2026] SCCR 18Recent UK Supreme Court authority on the section 274 and 275 regime; the preliminary hearing judge said he would have reached the same result after it, and the appeal court rejected the argument that it allowed the application to be read contrary to its terms
RN v HM Advocate [2020] HCJAC 3Authority that a section 275 application must state the issue and reasons the evidence is said to go to
Criminal Procedure (Scotland) Act 1995, section 274(1)(b)The restriction on evidence of a complainer's sexual behaviour that the defence sought to get around
Criminal Procedure (Scotland) Act 1995, section 275(1)(c)The requirement that the probative value of the evidence be significant and outweigh prejudice to the proper administration of justice
Criminal Procedure (Scotland) Act 1995, section 275(3)(b), (c), (d) and (e)The requirement that the application set out the issue and reasons for relevance
Sexual Offences (Scotland) Act 2009, section 1The offence of rape of which the appellant was convicted
Article 6The fair trial right the appellant argued was breached; the Crown submitted there was no breach; the court expressed its conclusion as no miscarriage of justice without a separate Article 6 ruling

Sources

Appeal against Conviction by Nairn Sharp against His Majesty’s Advocate

This brief is general information about one case. It is not legal advice, and it may not reflect later developments. Read the full reasons and speak to a lawyer about your own situation.