Introduction

In the case of Application by David Little against HMA ([2025] HCJAC 17), the Scottish High Court of Justiciary faced a contentious issue regarding the role of a defendant’s reasonableness of belief in consent. The appellant, David Griffiths Little, contested aspects of jury directions in a sexual assault trial, particularly the instruction to disregard the question of reasonable belief where it allegedly did not arise from the evidence. At the heart of the matter was whether, under section 3(1) of the Sexual Offences (Scotland) Act 2009, the absence of a reasonable belief that the complainer consented is a core element of the offence or merely an evidential matter.

The case involves two main parties: the appellant, represented by N Shand, and his defence team (Burnett Criminal Defence, Aberdeen); and the respondent, represented by His Majesty's Advocate alongside the Crown Agent, Harvey AD. The legal debate concentrated on whether the direction given to the jury compromised the presumption of innocence and how fundamental rights under Article 6 of the European Convention on Human Rights should be applied in this context.

Summary of the Judgment

The Court, with Lord Matthews delivering the opinion, ultimately refused the application to reinstate a broader ground of appeal. The appellant argued that excluding the consideration of reasonable belief contravened both common law principles, including the presumption of innocence, and Article 6.2 of the ECHR. However, the Court held that:

• The evidential burden imposed on the accused did not amount to a breach of Article 6.2, as it only required that an issue be raised on the evidence.
• The direction given to the jury was consistent with settled case law, emphasizing that further directions on reasonable belief are only necessary where that issue is live at trial.
• Existing authorities from Meek v HM Advocate (1982) through to Thomson v HM Advocate (2024) reaffirm that reasonable belief is an essential consideration where appropriate, but it does not require the establishment of an additional burden beyond raising an evidential issue.
• The application was refused based on the conclusion that the second sift judgment correctly addressed the appellant's arguments and that the point was unarguable under current legal standards.

Analysis

Precedents Cited

The Judgment references several key precedents that have shaped the interpretation of evidential burdens in sexual offence cases:

• Maqsood v HM Advocate (2019 JC 45): This case was fundamental in establishing that no additional direction on reasonable belief is required unless it is raised by the evidence. The appellant’s contentions suggest that this case overlooked the presumption of innocence; however, the Court maintained the reasoning that reasonable belief remains an evidential matter.
• LW v HM Advocate (2023 JC 184): It further highlighted that the absence of a requirement to prove honest belief, by way of enforcing a reasonable belief standard, follows a consistent judicial trend where sexual autonomy is at the core of the 2009 Act.
• Meek v HM Advocate (1982 SCCR 613): This very early case established the principle that while an absence of an honest belief was critical in determining rape at common law, the need for a direction on reasonable belief was limited to circumstances raised by evidence.
• Doris v HM Advocate (1996 SCCR 854): Used to emphasize that the trial judge's directions must be driven by the state of the evidence. It reiterates that a general direction on the issue of belief is unnecessary unless specifically raised.
• Thomson v HM Advocate (2024 SCCR 294): This recent discussion confirmed that the trial judge was correct in not directing further on reasonable belief in instances where the evidence doesn’t indicate it as a live issue. It reinforces that a reasonable person’s interpretation of consent is central to the application of the 2009 Act.

Legal Reasoning

The Court’s legal reasoning rested on several core principles:

• Evidential Burden vs. Burden of Proof: The distinction between an evidential burden and a burden of proof was key. Citing Lord Bingham’s observations in Sheldrake v DPP, the Judgment clarified that the evidential burden merely requires raising an issue, not proof in itself, with the ultimate burden remaining on the prosecution.
• Role of Jury Direction: The Court stressed that the trial judge’s direction to the jury — that there was no need to consider the issue of honest or reasonable belief unless it was substantiated in evidence — was entirely in line with established legal principles. The narrow circumstances, where a reasonable belief might be a live issue, validate the direction given.
• Legislative Intent and Statutory Framework: The analysis placed considerable weight on the statutory provisions of the Sexual Offences (Scotland) Act 2009, particularly sections 3 and 16. These sections embed the concept of reasonable belief into the definition of sexual assault, making it clear that the absence of reasonable belief is an element of the offence only where it emerges on the evidence.
• Separation of Powers and Constitutional Rights: While the appellant argued that excluding wider questions infringed upon the presumption of innocence and violated Article 6, the Court argued that allowing the Crown to address the issue did not violate constitutional rights. Instead, it maintained the historical balance between defendant rights and prosecutorial responsibilities.

Impact on Future Cases and the Relevant Area of Law

This Judgment solidifies the position that issues concerning the accused’s reasonable belief in sexual offence cases are tightly confined to the evidence presented. Its implications include:

• Clarification on Jury Instructions: Future trials will likely continue to see precise jury directions that exclude general directions on reasonable belief unless explicitly raised by the evidence. This minimizes the risk of infringing on a defendant’s rights unnecessarily.
• Consistency in Court Rulings: The reliance on a consistent line of authority from Meek through to Thomson ensures uniformity in handling evidential burdens and reinforces that a broader reappraisal of defence standards is not warranted absent a clear change in circumstances.
• Framework for Defence Strategies: Defense counsel must now be particularly mindful of the necessity to adduce evidence regarding reasonable belief to trigger any meaningful debate on this issue. The ruling underlines that any assertion of reasonable belief must be supported by evidence during the trial.

Complex Concepts Simplified

Several technical legal concepts featured prominently in this Judgment:

• Evidential Burden: This refers to the requirement that the defence merely raises an issue on the evidence, rather than having to prove the issue outright. In the context of sexual assault cases, it compels the prosecution to disprove any raised defence regarding reasonable belief beyond the evidence presented.
• Presumption of Innocence: A cardinal legal principle that an accused should not have to prove their innocence; rather, the prosecution must establish guilt beyond reasonable doubt. The appeal argued that removing the jury’s consideration of reasonable belief undermined this presumption, but the Court found that the evidential burden did not reverse this principle.
• Live Issue at Trial: An issue is considered “live” if there is sufficient factual basis or evidence to warrant its consideration by the jury. The Court maintained that additional directions on reasonable belief are only needed when such an issue is substantiated by the evidence.

Conclusion

In summary, the Scottish High Court of Justiciary has reaffirmed the approach that the issue of an accused person’s reasonable belief in sexual offence cases remains an evidential matter. The decision emphasizes that, unless the evidence explicitly raises the question of reasonable belief, no additional jury direction is warranted. This Judgment underscores the importance of:

• Maintaining the clear distinction between an evidential burden and a burden of proof;
• Ensuring that jury directions remain strictly tethered to the evidence presented;
• Adhering to established statutory definitions under the Sexual Offences (Scotland) Act 2009;
• Protecting the balance between prosecutorial responsibilities and constitutional rights, particularly the presumption of innocence.

The ruling not only echoes century-long judicial interpretations but also provides a stable foundation for how future sexual offence cases will be managed, ensuring both clarity and fairness in the administration of justice.