Application by David Little against HMA (High Court of Justiciary)

Factual and Procedural Background

On 22 April 2024, the Appellant was convicted in the sheriff court of sexual assault contrary to section 3 of the Sexual Offences (Scotland) Act 2009. The Appellant appealed the conviction on the ground that the sheriff erred by directing the jury to disregard the question of reasonable belief, asserting it did not arise in the case. Initial leave to appeal was refused at first sift but granted at the second on arguability grounds. The Appellant sought to argue a broader point that the absence of reasonable belief is an essential element of the offence, requiring jury consideration in every case, and that excluding this issue violated the presumption of innocence under common law and Article 6.2 of the European Convention on Human Rights (ECHR). The court refused leave to argue this wider point, and the Appellant applied to reinstate it under section 107(8) of the 1995 Act. This opinion explains the court’s reasons for refusing that application.

Legal Issues Presented

1. Whether the absence of reasonable belief is an essential element of the offence under section 3 of the Sexual Offences (Scotland) Act 2009 that must always be considered by the jury before a guilty verdict can be returned.
2. Whether removing the issue of reasonable belief from jury consideration violates the presumption of innocence under common law and Article 6.2 ECHR.
3. Whether the evidential burden placed on the accused to raise the issue of reasonable belief is compatible with Article 6.2 ECHR and the separation of powers.
4. Whether there is good reason to reinstate the wider ground of appeal despite its refusal at the sift stages.

Arguments of the Parties

Appellant's Arguments

• The absence of reasonable belief is a constituent element of the offence and must be proved by the Crown in every case, not merely raised as an evidential burden by the accused.
• Excluding reasonable belief from jury consideration breaches the presumption of innocence and Article 6.2 ECHR.
• The evidential burden placed on the accused effectively shifts the burden of proof and allows conviction without evidence on this element.
• Existing authorities have not addressed the issue from the perspective of the presumption of innocence requiring the Crown to prove reasonable belief in every case.
• The point is of fundamental importance as it arises in nearly all cases under the 2009 Act and should not be excluded in the interests of justice.

Respondent's Arguments

• The evidential burden on the accused to raise the issue of reasonable belief is well-established and does not contravene Article 6.2 ECHR.
• The judges at second sift correctly found the broader ground unarguable.
• Reasonable belief is not always a live issue and only requires jury consideration when raised by evidence.
• Scots law, supported by statutory provisions and case law, appropriately balances the evidential burden and presumption of innocence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Meek v HM Advocate (1982 SCCR 613)	Common law principle that absence of honest belief in consent is an essential element in rape; jury direction on reasonable belief only needed if evidence raises the issue.	Confirmed that such directions are unnecessary where no evidential basis exists; foundational to approach under 2009 Act.
Doris v HM Advocate (1996 SCCR 854)	Jury directions on honest belief depend on evidence; no direction required if issue not raised.	Applied Meek's approach to sexual offences, reinforcing jury direction principles.
Sheldrake v DPP [2005] AC 264	Distinction between evidential burden and legal burden; evidential burden requires raising an issue for jury consideration without shifting the burden of proof.	Supported the view that evidential burdens on accused do not violate Article 6.2 ECHR.
Graham v HM Advocate (2017 SCCR 497)	Clarified that absence of reasonable belief replaces absence of honest belief; no further direction needed unless issue is live.	Confirmed statutory interpretation of 2009 Act and jury direction standards.
Maqsood v HM Advocate (2019 JC 45)	Confirmed no additional direction on reasonable belief needed unless live issue; rejected arguments that evidential burden breaches Article 6.2.	Reinforced settled position on reasonable belief and evidential burden.
Nyiam v HM Advocate (2022 JC 57)	Confirmed that reasonable belief is only a live issue if evidence raises it; corroborated evidence not always required.	Rejected argument that reasonable belief must always be proved by corroborated evidence.
Thomson v HM Advocate (2024 SCCR 294)	Reiterated that jury direction on reasonable belief is required only if the issue is live; approved trial judge's direction where no reasonable belief issue arose.	Affirmed that the absence of reasonable belief is not always a live issue and does not require jury consideration in every case.
Beggs v HM Advocate (2006 SCCR 25) and Birnie v HM Advocate (2015 SLT 460)	Set tests for reinstating grounds refused at sift, requiring good reason such as patent error or significance.	Applied to refuse reinstatement of the wider ground as no misunderstanding or overriding significance was found.

Court's Reasoning and Analysis

The court began by acknowledging the statutory framework under the Sexual Offences (Scotland) Act 2009, which includes the absence of reasonable belief as an element of the offence. However, the court emphasized that this does not automatically require jury consideration in every case. The evidential burden on the accused to raise reasonable belief is well-established and does not shift the legal burden of proof, consistent with Article 6.2 ECHR. The court relied on a consistent line of authority, including Meek, Doris, Graham, and Maqsood, which clarified that jury directions on reasonable belief are only necessary when the issue is "live" on the evidence. The court noted that evidence relevant to reasonable belief can come from any source and is often within the accused's knowledge, justifying an evidential burden to raise the issue.

The court rejected the argument that excluding reasonable belief from jury consideration in cases where it is not a live issue breaches the presumption of innocence or the separation of powers. It found that the judges at second sift had properly understood and addressed the point, correctly concluding it was unarguable. The court also applied the tests from Beggs and Birnie for reinstating refused grounds and found no good reason to do so, as there was no misunderstanding or exceptional significance warranting reopening the issue.

The court further discussed the policy underpinning the 2009 Act, emphasizing respect for sexual autonomy and the legislative intent to balance protecting victims and ensuring fair trial rights. It noted that the statutory notice requirements and evidential rules surrounding consent and belief in consent reflect this balance and reinforce the lawfulness of the evidential burden approach.

Holding and Implications

The court REFUSED the application to reinstate the wider ground of appeal concerning the jury's consideration of reasonable belief under section 3 of the Sexual Offences (Scotland) Act 2009.

This decision upholds the established legal framework that the absence of reasonable belief is an element of the offence but requires jury consideration only when the issue is live on the evidence. The court confirmed that the evidential burden on the accused to raise reasonable belief does not violate the presumption of innocence or Article 6.2 ECHR. No new precedent was set; rather, the court reaffirmed settled authority and statutory interpretation. The direct effect is that the Appellant’s conviction stands and the broader constitutional arguments regarding reasonable belief and jury directions remain unarguable in this context.