Mr Daly appealed his conviction for sexual offences against two complainers, arguing his Article 6 fair trial rights were infringed because he could not cross-examine a complainer on an uncharged allegation to challenge her credibility, and that his defence counsel’s failure to apply under section 275 of the Criminal Procedure (Scotland) Act 1995 constituted defective representation.
Background
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 and had given birth at her grandmother’s house. The Crown did not charge Mr Daly with this further allegation. A doctor who examined the first complainer concluded that it was highly unlikely she had given birth to a full-term baby, though an earlier miscarriage was possible.
Mr Daly appealed against his conviction to the High Court of Justiciary, arguing that his trial was unfair because the Crown’s decision not to charge him with the further allegation meant he was unable to discuss it at trial, thereby preventing him from demonstrating to the jury that the first complainer was not credible or reliable. He also claimed that 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 to do so amounted to defective representation.
In April and May 2023, the High Court of Justiciary rejected Mr Daly’s appeal at both the first and second sift stages. Mr Daly then appealed to the United Kingdom Supreme Court.
The Issue(s)
The Supreme Court identified two key issues:
1. The systemic question
Whether the Scottish courts’ current approach to the admission of evidence concerning the complainer’s credibility or reliability in trials for sexual offences is liable to infringe defendants’ rights to a fair trial under Article 6 of the European Convention on Human Rights.
2. The case-specific question
Whether Mr Daly’s own rights under Article 6 were infringed at his trial, having regard to the inability to cross-examine the first complainer on the uncharged allegation and the alleged defective representation by defence counsel.
This case was heard alongside the linked case of Keir v His Majesty’s Advocate (UKSC/2023/0123), which raised related legal issues.
The Parties’ Arguments
The Appellant (Mr Daly)
Mr Daly argued that the Crown’s decision not to prosecute the further allegation, combined with the restrictions on cross-examining complainers in sexual offence cases under Scottish law (specifically section 275 of the Criminal Procedure (Scotland) Act 1995), effectively prevented him from putting before the jury evidence that would have undermined the first complainer’s credibility. He contended that this rendered his trial unfair contrary to Article 6 ECHR. He further argued that his defence counsel’s failure to make a section 275 application constituted defective representation.
The Respondent (His Majesty’s Advocate)
The respondent defended the conviction and the approach taken under Scottish law regarding the admission of evidence in sexual offence trials.
Interveners
The Council of the Law Society of Scotland and the Faculty of Advocates intervened, as did Rape Crisis Scotland, reflecting the broader significance of the case for the Scottish criminal justice system.
The Court’s Reasoning
The judgment was delivered on 12 November 2025 by a panel of five Justices: Lord Reed, Lord Hodge, Lord Hamblen, Lady Rose, and Lady Simler. The full reasoning of the Court is contained in the judgment delivered on that date. The case required the Court to consider the balance between the protection of complainers in sexual offence cases and the defendant’s right to a fair trial under Article 6 ECHR, including the right to examine witnesses and to challenge evidence going to credibility.
Practical Significance
This case is of considerable importance for the operation of Scottish criminal procedure in sexual offence cases, particularly the interaction between the protective provisions of section 275 of the Criminal Procedure (Scotland) Act 1995 and the Article 6 ECHR fair trial rights of defendants. The intervention of the Law Society of Scotland, the Faculty of Advocates, and Rape Crisis Scotland underscores the broader systemic implications of the decision for both the rights of accused persons and the protection of complainers in the Scottish legal system.
