In Pa Samba Saye v HM Advocate, the appellant was charged with raping the complainer, RM, while she was under the influence of alcohol. He lodged two special defences: consent and incrimination, naming two other individuals, SKOD and AS, as potential perpetrators. The court admitted evidence under section 275 of the Criminal Procedure (Scotland) Act 1995, but later limited questioning on certain paragraphs relating to DNA evidence linking the complainer and the named individuals. The appellant argued that this restriction confused the case, as the evidence pertained to his incrimination defence, which was distinct from his consent defence.

Lord Carloway, delivering the opinion of the court, emphasised that the case hinged solely on whether RM consented to intercourse with the appellant. The incrimination defence was irrelevant because the intercourse at issue was admitted by the appellant and could not have been committed by a third party. Evidence concerning sexual activity involving others was deemed inadmissible, as it was irrelevant and risked prejudicing the jury by diverting attention from the key issue. The appeal was therefore refused.