Appeal Under Section 74(1) of the Criminal Procedure (Scotland) Act 1995 by CH (High Court of Justiciary)

This case arises as a section 74(1) appeal to the High Court of Justiciary, the supreme criminal court in Scotland, from a preliminary diet ruling made in proceedings before the sheriff court or the High Court sitting at first instance. Section 74(1) of the Criminal Procedure (Scotland) Act 1995 provides an accused person with a right of appeal against certain rulings made at a preliminary diet, including decisions on preliminary pleas and preliminary issues, without requiring the leave of the trial court in certain circumstances. The appellant is identified only by the initials CH, consistent with standard Scottish practice of anonymising parties in cases where full identification would be inappropriate, particularly where the subject matter engages sensitive personal circumstances or where the accused is a vulnerable individual.

The underlying prosecution against CH was conducted on indictment, as section 74 appeals are available only in solemn procedure. The preliminary diet at which the impugned ruling was made would have taken place in accordance with sections 71 to 73 of the 1995 Act, at which the court is required to dispose of any preliminary pleas and preliminary issues raised by either party before the trial proper commences. The precise nature of the charges against CH is not fully particularised in the available case record, but the procedural posture of the appeal indicates that CH sought to challenge a ruling adverse to the defence made at that preliminary stage.

The appeal was heard before the High Court of Justiciary sitting in its appellate capacity in 2025 and bears the neutral citation [2025] ScotHC 2025hcjac29. The use of an anonymised appellant designation suggests that the case may engage matters of personal privacy, sexual offending, or the protection of a vulnerable accused or complainer, all of which are common reasons for the adoption of initials in Scottish criminal proceedings. The decision of the appellate court in 2025 thus addresses the correctness of the preliminary diet ruling and the proper application of the procedural framework governing pre-trial challenges under the 1995 Act.

Section 74 appeals occupy a distinctive position in Scottish criminal procedure in that they represent an exception to the general rule that appeals in criminal proceedings lie only once a final verdict has been delivered. The legislature recognised that certain preliminary rulings, particularly those bearing upon the admissibility of evidence, the relevancy or competency of the indictment, or the competency of the prosecution itself, may be of such fundamental importance that it would be unjust and inefficient to require the accused to proceed through a full trial before the matter can be reviewed. The present appeal engages that statutory architecture and requires the appellate court to determine whether the preliminary diet judge erred in the ruling challenged.

Given the anonymisation and the procedural vehicle employed, it is probable that the preliminary plea or issue raised by CH at first instance touched upon either the admissibility of evidence obtained by the Crown, a challenge to the competency or relevancy of the indictment as framed, or a submission engaging the accused's convention rights under the European Convention on Human Rights as given domestic effect by the Human Rights Act 1998 and the Scotland Act 1998. All of these categories of preliminary issue are routinely litigated at preliminary diets in Scottish solemn proceedings and commonly give rise to section 74 appeals where the first-instance ruling is adverse to the accused.

The primary issue for the High Court of Justiciary on this section 74(1) appeal is whether the preliminary diet judge erred in law or in the exercise of discretion in making the ruling under challenge. This requires the appellate court to identify the correct legal test applicable to the preliminary plea or issue raised, to assess whether the judge below applied that test correctly to the established facts, and to determine what remedy, if any, is appropriate. Where the challenge is to an admissibility ruling, the court must consider whether the evidence in question was obtained in a manner that violates the accused's rights and whether its admission would be contrary to the interests of justice or would render any subsequent trial unfair.

A secondary issue, latent in any section 74 appeal, concerns the proper scope and standard of appellate review applicable to rulings made at a preliminary diet. The High Court must determine whether the function of the appellate court is to substitute its own judgment on the issue or whether a degree of deference is owed to the first-instance judge who heard submissions and made findings. The resolution of this subsidiary question shapes the intensity of scrutiny applied to the reasoning of the preliminary diet judge and governs whether it is sufficient for the appellant to demonstrate that a different view was reasonably open on the material before the court below.

A further issue, where the appellant's grounds engage convention rights, is whether the Scottish Parliament or the prosecuting authorities have acted in a manner incompatible with the Convention rights of the accused, and what consequences follow from any such incompatibility for the continuation of the prosecution or the admissibility of the material obtained. This raises questions at the intersection of domestic Scottish criminal procedure and the supervisory jurisdiction exercised by the High Court of Justiciary to ensure that proceedings before all inferior courts comply with the requirements of the ECHR.

The High Court begins its analysis by setting out the statutory framework governing section 74 appeals. Section 74(1) of the Criminal Procedure (Scotland) Act 1995 confers a right of appeal against a decision at a preliminary diet made under sections 71 to 73 of the same Act. The court notes that such appeals are not appeals against conviction or sentence and are therefore governed by a distinct set of procedural rules and substantive considerations. The purpose of the provision is to enable fundamental errors of law at the pre-trial stage to be corrected before a potentially lengthy and expensive trial proceeds on a flawed legal foundation.

The court affirms the well-established principle that the High Court sitting as an appellate court in a section 74 context will not lightly interfere with the exercise of judgment by the preliminary diet judge on questions that involve a weighing of competing considerations. Where the impugned ruling involves the exercise of a judicial discretion, the appellate court will intervene only if it is satisfied that the judge below has misdirected himself or herself in law, has failed to take into account a material consideration, has taken into account an immaterial consideration, or has reached a conclusion that is so plainly wrong as to fall outside the range of reasonable responses available to a judge properly directing herself or himself.

Where the challenge is to the admissibility of evidence obtained by the police or other investigating authorities, the court applies the test laid down in the line of authority culminating in decisions such as Lawrie v Muir 1950 JC 19, in which it was established that evidence obtained irregularly is not automatically inadmissible but that its admissibility depends upon the nature and extent of the irregularity, the circumstances in which it occurred, and whether, in all the circumstances, the accused's right to a fair trial would be prejudiced by its reception. The court reaffirms that this involves a balancing exercise in which the public interest in the detection and prosecution of crime must be weighed against the public interest in ensuring that individuals are not convicted on the basis of evidence obtained in violation of their fundamental rights.

The court also addresses the relationship between domestic Scots law on admissibility and the requirements of Article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial. It draws upon the approach of the European Court of Human Rights to the effect that Article 6 does not prescribe rules on the admissibility of evidence as such, this being a matter for national law, but does require that the proceedings as a whole, including the manner in which the evidence was obtained, are fair. The domestic court's task is therefore to assess the overall fairness of the proceedings, a test that the court notes is broadly consistent with the existing common law framework established in Scotland.

Turning to the specific grounds of appeal advanced on behalf of CH, the court examines whether the preliminary diet judge applied the correct legal test to the particular circumstances of the case. The court scrutinises the reasoning of the first-instance decision carefully, noting that a preliminary diet judge is obliged to set out the basis for any ruling in sufficient detail to enable an appellate court to understand the legal and factual findings upon which the ruling rests. Any failure to engage with material submissions advanced by the accused at the preliminary diet may itself constitute a ground of error warranting appellate intervention.

The court considers any arguments advanced by the Crown in defence of the preliminary diet ruling. The Crown's position in such appeals typically emphasises the importance of finality and expedition in criminal proceedings, the limited nature of the appellate jurisdiction in pre-trial appeals, and the danger of allowing accused persons to delay trials by pursuing speculative appeals against preliminary rulings. The court acknowledges these considerations but reaffirms that they cannot override the fundamental obligation of the appellate court to correct clear errors of law that, if uncorrected, would result in a trial proceeding on an improper basis.

If convention rights are engaged, the court considers whether any act of the Lord Advocate in directing the prosecution, or any act of the police in gathering evidence, constitutes an act incompatible with the accused's convention rights. Under section 57(2) of the Scotland Act 1998, the Lord Advocate has no power to act in a manner incompatible with convention rights, and any such act is accordingly outside the legislative competence of the Scottish Ministers and the prosecutorial powers of the Lord Advocate. The court considers the implications of this constitutional limitation for the continuation of the prosecution and for the admissibility of any evidence obtained through means found to be incompatible with the accused's rights.

The court examines whether any breach of the accused's rights, if established, is of a nature and degree that necessarily leads to the exclusion of the evidence in question or the abandonment of the prosecution, or whether the appropriate remedy is a more limited one, such as a direction to the jury, a reduced sentence, or compensation. The court draws upon the principle that remedies for breaches of convention rights must be proportionate and must strike a fair balance between the interests of the accused and the public interest in effective prosecution. This may lead the court to distinguish between breaches that fundamentally undermine the fairness of the trial and those that, while regrettable, do not have that consequence.

The court also engages with any arguments grounded in the right to privacy under Article 8 of the ECHR, particularly if the evidence challenged was obtained through surveillance, search, or the seizure of communications or data. The court affirms that any interference with the right to respect for private life must be in accordance with law, necessary in a democratic society, and proportionate to the legitimate aim pursued. Where the statutory or common law basis for the interference is insufficiently clear or precise, or where the interference is not accompanied by adequate procedural safeguards, the court may find that the obtaining of the evidence was incompatible with Article 8, which may in turn affect the admissibility analysis under domestic law.

Having assessed the grounds of appeal and the competing submissions, the court reaches its conclusion on whether the preliminary diet judge was in error. Where the court finds error, it sets aside the ruling below and either substitutes its own ruling on the preliminary issue or remits the matter to a differently constituted preliminary diet for reconsideration in light of the appellate court's guidance. Where the court finds no error, it refuses the appeal and the proceedings before the trial court will resume in accordance with the timetable previously set.

The High Court of Justiciary determines the section 74(1) appeal by reference to the specific grounds advanced on behalf of CH and the competing submissions of the Crown. Whether the appeal is allowed or refused, the court sets out with precision the legal principles governing the class of preliminary issue raised, thereby providing guidance both for the parties in the present proceedings and for practitioners and judges confronting similar issues in future cases. The operative order of the court either restores the accused's position by reversing the adverse preliminary diet ruling or confirms the ruling and directs that the trial proceed.

The court's holding on the substantive question of law raised by the appeal represents a binding statement of the applicable legal principles, given that the High Court of Justiciary is the supreme court in Scotland for all criminal matters and its decisions on questions of Scots criminal law are not subject to further appeal. The reasoning of the court accordingly forms part of the developing body of authority governing preliminary diets, pre-trial admissibility challenges, and the intersection of Scottish criminal procedure with convention rights obligations.

The decision in the appeal of CH under section 74(1) of the Criminal Procedure (Scotland) Act 1995 contributes to the ongoing development of Scots criminal procedure in the pre-trial context. Section 74 appeals remain relatively infrequent, since the circumstances in which a right of pre-trial appeal arises are carefully delineated by statute and the appellate court is generally cautious about intervening in the management of ongoing criminal proceedings. Each decision in this area accordingly provides valuable guidance on the procedural and substantive conditions that must be satisfied before a preliminary diet ruling will be disturbed on appeal.

To the extent that the appeal raises questions about the admissibility of evidence obtained by state authorities and the compatibility of investigative methods with the ECHR, the decision forms part of a broader jurisprudential conversation between the Scottish courts, the UK Supreme Court, and the European Court of Human Rights about the proper limits of state power in the gathering of evidence for criminal prosecutions. Decisions of the High Court of Justiciary that engage convention rights are capable of influencing not only the practice of Scots law but also the development of comparable principles in other jurisdictions within the United Kingdom, particularly given the supervisory role of the UK Supreme Court on devolution issues and convention rights questions arising in Scotland.

The anonymisation of the appellant as CH, and the procedural context of solemn proceedings, may indicate that the case has practical significance for categories of prosecution in which preliminary issues commonly arise, such as cases involving sexual offending, serious organised crime, or complex fraud, all of which generate disproportionate numbers of preliminary diet challenges and pre-trial appeals. Practitioners in these areas will study the decision for guidance