Clarifying the Non-Liveness of Reasonable Belief in Consent under the 2009 Sexual Offences Act

Introduction

This commentary examines the appellate decision delivered on 25 March 2025 by the Scottish High Court of Justiciary in the case of David Little v HMA ([2025] HCJAC 18). The judgment represents a critical assessment of the application of the concept of “reasonable belief in consent” under the Sexual Offences (Scotland) Act 2009. The appellant, David Little, challenged his conviction for a charge of sexual assault, contending that the trial judge (the sheriff) erred by effectively removing the issue of his reasonable belief in the complainant’s consent from the jury’s deliberations. The parties in the case were the appellant, represented by Shand; Burnett Criminal Defence from Aberdeen, and the respondent, HMA’s legal team represented by Harvey AD, Crown Agent.

At the heart of the dispute was whether, in circumstances where direct evidence from both parties starkly contrasted – with the complainant maintaining that she did not consent and the appellant contending that the encounter was consensual – the issue of the appellant’s reasonable belief in consent should have been considered by the jury. The implications of this decision are significant in defining the evidential framework for assessing sexual offences under current Scottish law.

Summary of the Judgment

The court, delivering its opinion through LORD BECKETT, the LORD JUSTICE CLERK, ultimately refused the appeal against conviction. The central point of the appeal was the contention that the appellants’ evidence suggesting that the encounter was “totally consensual” and that any reasonable belief that the complainer consented should have been a live issue for the jury.

However, the court clarified that since the complainant consistently communicated her lack of consent – verbally telling the appellant that she was uncomfortable, and through her actions of moving away – there was no evidentiary basis for a “reasonable belief” exception. The jury’s verdict, based on the complainant’s clear account and supported by independent witness evidence, reaffirmed that there was no room for a speculative “middle ground.” The judgment confirmed that under section 3 of the 2009 Act, once a complainant communicates non-consent, the defense of a reasonable belief in consent does not arise unless exceptional circumstances are present.

A minor administrative error was noted regarding the record of the community payback order, which was corrected and remitted back to the Sheriff Court for amendment.

Analysis

Precedents Cited

The judgment relied on a series of precedents which together form the backbone of the court's conclusions:

Winton v HM Advocate (2017 SCCR 320): This case was cited to affirm that a reasonable belief in consent is not, by itself, evidence sufficient to negate the required mens rea for a sexual offence. The court in Winton clarified that only a reasonable belief could exculpate an accused when the evidence plainly indicated consent.
Maqsood v HM Advocate (2019 JC 45): The court reiterated that the issue of reasonable belief in consent is an inference drawn from the evidence, and does not require separate jury direction unless the evidence suggests it is a live issue. This case was important in reinforcing that the absence of such a live issue meant no special jury instructions were necessary.
Nyiam v HM Advocate (2022 JC 57) and AW v HM Advocate (2022 JC 164): These recent decisions underscored the limited circumstances in which a reasonable belief in consent may be considered. The emphasis across these cases is on clarity of evidence from the complainant’s account.
Thompson v HM Advocate (2024 SCCR 294): This decision was noted for having rejected the idea that a middle ground – where an accused might have an honest but unreasonable belief in consent – could be accepted by the jury.

The effect of these cited precedents was to consolidate the rationale that unless there is a distinct live issue backed by the evidence, the jury need not consider reasonable belief in consent as a factor in sexual assault cases under the current statutory regime.

Legal Reasoning

The legal reasoning of the court predominantly turned on a nuanced reading of section 3 of the Sexual Offences (Scotland) Act 2009. The law provides that an offence is constituted when an act is committed “without any reasonable belief that B consents.” Importantly, the court stressed that for a belief in consent to be deemed “reasonable,” the accused must take affirmative steps to verify consent, as set out in section 16 of the Act.

In the present case, the court held that the appellant did not undertake any such steps. While the appellant testified that the conduct was consensual – and even claimed that the complainant had reciprocated his advances – the complainant’s account, corroborated by the evidence of independent witnesses, was devoid of any ambiguity about her lack of consent.

The sheriff’s jury directions, which excluded discussion of the appellant's belief in consent based on the clear discrepancy in the parties’ testimonies, were thus upheld. The court found that when a complainant explicitly communicates non-consent, any speculation about the accused’s state of mind, even if asserted by him, cannot convert the factual record into one where a reasonable belief could be inferred. This legal reasoning is deeply rooted in the understanding that sexual consent must be unequivocal and that post hoc rationalizations cannot overcome a clear communication of non-consent.

Impact on Future Cases and Legal Practice

This judgment reinforces a strict interpretation of the principles of sexual consent under the Sexual Offences (Scotland) Act 2009. Future cases will likely cite this decision as a definitive interpretation that once a complainant explicitly communicates non-consent, the defense cannot rely on any deduction of reasonable belief based solely on conflicting evidence.

Practitioners will need to be acutely mindful of the evidentiary threshold required to establish a defense based on reasonable belief. The emphasis on the necessity for an accused to take proactive steps to ascertain consent, rather than relying on hindsight or speculative interpretations, sets a precedent that will narrow the scope of defenses in similar sexual offence cases.

Complex Legal Concepts Simplified

Several complex legal notions emerge in this judgment. Below is an attempt to simplify them:

Reasonable Belief in Consent: Under the Act, for the defense to succeed, the accused must show that he had a belief that the other party consented – and that this belief was one that a reasonable person might also have held given the circumstances.
Live Issue: A “live issue” is one that is genuinely in dispute based on the evidence presented. In this case, because the complainant’s non-consent was clear, the issue of whether the appellant’s belief was reasonable was not considered “live.”
Jury Directions: These are instructions given by the trial judge to the jury about the legal standards they must apply when evaluating the evidence. The decision underlines that the jury need not consider a defense theory that does not arise from the actual evidence, even if it is argued by the defense counsel.

Conclusion

In conclusion, the judgment in David Little v HMA ([2025] HCJAC 18) is pivotal in reaffirming that, under the 2009 Sexual Offences Act, the concept of a “reasonable belief in consent” is not a live issue when a complainant has explicitly communicated non-consent. The court’s methodical approach—grounded in a careful application of established precedents and statutory provisions – provides robust guidance for both trial courts and practitioners.

This decision emphasizes that a valid defense cannot be constructed on speculative grounds when the evidence clearly undermines the accused’s claim. By reinforcing that an accused must take vigilant steps to ascertain consent, the ruling contributes significantly to the precise interpretation and application of sexual offences legislation in Scotland.

The commentary underscores that while the appellant’s argument centered on a supposed misdirection relating to his belief in consent, the court’s insistence on evidence-based determinations has now firmly settled this aspect of the law. Hence, this judgment will serve as an influential reference for future cases dealing with issues of consent and evidentiary thresholds.