Daly v His Majesty’s Advocate [2025] UKSC 38

Mr Daly was convicted of child sexual offences including rape. He appealed arguing his trial was unfair because he could not cross-examine the complainer about an uncharged allegation he claimed was false, which would have challenged her credibility under Article 6 ECHR.

Facts

On 13 December 2022, Mr Daly was convicted of charges including the rape of the first complainer when she was between five and seven years old, and sexual abuse of the second complainer when she was between six and 12 years old.

The first complainer had made a further allegation that Mr Daly had raped her when she was 13 years old and that she had become pregnant as a result, giving birth at her grandmother’s house. The Crown did not charge Mr Daly with this allegation. A doctor who examined the first complainer concluded it was highly unlikely she had given birth to a full-term baby, though an earlier miscarriage was possible.

Mr Daly argued that because he was unable to discuss this allegation at trial, he was prevented from demonstrating to the jury that the first complainer was not credible or reliable. He also claimed his defence counsel should have made an application under section 275 of the Criminal Procedure (Scotland) Act 1995 for permission to cross-examine the first complainer on this allegation, and that counsel’s failure constituted defective representation.

Issues

Issue 1

Is the Scottish courts’ current approach to the admission of evidence concerning the complainer’s credibility or reliability in trials for sexual offences liable to infringe defendants’ rights to a fair trial under Article 6 of the European Convention on Human Rights?

Issue 2

Were Mr Daly’s rights under Article 6 infringed at his trial?

Procedural History

In April and May 2023, the High Court of Justiciary rejected Mr Daly’s appeal at the first and second sift stages. Mr Daly subsequently appealed to the Supreme Court.

Judgment

The case was heard by Lord Reed, Lord Hodge, Lord Hamblen, Lady Rose, and Lady Simler over three days in October 2024. Judgment was delivered on 12 November 2025 with neutral citation [2025] UKSC 38.

The case was linked with Keir v His Majesty’s Advocate (UKSC/2023/0123) as both raised the same legal issue regarding the Scottish courts’ approach to admitting evidence under section 275 of the Criminal Procedure (Scotland) Act 1995.

Interveners

The case attracted significant interest with interventions from the Council of the Law Society of Scotland and The Faculty of Advocates, as well as Rape Crisis Scotland.

Implications

This case addresses the balance between protecting complainers in sexual offence trials from intrusive questioning about their past sexual history or behaviour, whilst ensuring defendants retain their Article 6 right to a fair trial including the ability to challenge the credibility of witnesses against them. The judgment has significant implications for how Scottish courts apply section 275 applications and the extent to which defendants can lead evidence to undermine a complainer’s credibility.

Source: Daly v His Majesty’s Advocate (UKSC/2023/0107)