Daly & Keir in Action: Has Anything Really Changed?

A recent High Court appeal has returned to an issue first argued in an earlier appeal: whether defence evidence about the dynamics of a sexual relationship was wrongly excluded under Section 275.

By comparing the original appeal judgment with the most recent hearing, we can see more clearly what has, and has not, shifted in Scottish appellate reasoning following the UK Supreme Court’s decision in Daly & Keir.

The original appeal: what was argued

In the earlier appeal, the defence challenged the exclusion of evidence relating to the nature of the relationship between the accused and the complainer.
The defence position, in substance, was that the jury did not hear the full context needed to assess consent and credibility fairly.

The appeal court refused that challenge. The reasoning followed familiar lines:

• The excluded material was treated as collateral rather than central
• Its potential value to the jury was assessed as limited
• Consent was treated as something that must be judged at the relevant time
• The court considered the Section 275 test had been properly applied

Original appeal judgment (primary source): Scottish Courts: (2025) HCJAC 9 (PDF)

What changed after Daly & Keir

After that earlier decision, the UK Supreme Court in Daly & Keir criticised overly narrow approaches to “relevance” and warned against treating uncomfortable context as automatically inadmissible.

The Supreme Court emphasised that courts must properly carry out the statutory balancing exercise and keep fair trial rights in view.

The recent appeal: what was argued this time

In the newer hearing (HCA/2025/143/XC), the defence returned to the same broad issue but framed it more sharply.
The argument was that the jury were left with an incomplete picture because the court’s approach to admissibility was too restrictive, and that Daly & Keir required a more realistic, common-sense view of relevance.

Official livestream page (primary source): Scottish Courts: Criminal Appeal Court livestream (HCA/2025/143/XC)

What seemed to change in the courtroom

The most noticeable change was not necessarily the facts being argued, but the framework being discussed.
The court engaged more directly with:

• Whether the Section 275 balancing exercise was genuinely carried out
• Whether “collateral” was being used too broadly as a reason to exclude material
• Whether Daly & Keir should shift how Scottish courts decide these applications

That reflects a post-Daly landscape: more explicit attention to process, fairness, and the logic of relevance.

What did not change

Even with that shift in language, the core appeal question remained very familiar:

Appellate courts rarely overturn convictions because evidence might have added “context”.
They look for material prejudice: a real risk the verdict is unsafe without the missing evidence.

The pattern emerging

Comparing the earlier judgment with the recent hearing suggests a cautious shift:

• The vocabulary has changed: more emphasis on fairness and balancing
• The method is being scrutinised more openly: what exactly was weighed, and how
• The practical hurdle remains high: the appellant still has to show the exclusion mattered to outcome

In other words, Daly & Keir appears to be influencing how courts explain and test these decisions.
Whether it changes outcomes, rather than only reasoning, will become clearer as more cases are decided under the post-Daly approach.

Sources and further reading

• Official livestream page (HCA/2025/143/XC): Scottish Courts livestream listing

• Earlier appeal judgment: Scottish Courts: (2025) HCJAC 9 (PDF)

• UK Supreme Court: Daly & Keir: UKSC case page

28-02-2026