Appeal against Conviction by David Little against HMA (High Court of Justiciary)

Factual and Procedural Background

On 22 April 2024, a jury at Aberdeen Sheriff Court convicted the Appellant of a single charge of sexual assault contrary to section 3 of the Sexual Offences (Scotland) Act 2009. The Appellant had lodged a special defence of consent and reasonable belief in consent in advance of trial. The Crown withdrew a drugs offence charge at the close of its case, and the sheriff acquitted the Appellant on that charge. The jury found the first charge of sexual assault by penetration not proven by majority, while the charge at issue involved sexual assault by touching. The sole ground of appeal concerned whether the sheriff erred in directing the jury that the issue of reasonable belief in consent did not arise on the charge if, as the Appellant contended, it was a question of fact for the jury.

The Appellant and the complainer were university students and close friends. On 26 November 2021, they attended a social gathering involving alcohol and ketamine. The complainer testified that the Appellant’s conduct during the evening made her uncomfortable despite her verbal and physical efforts to distance herself. The Appellant denied some of the conduct and maintained that the interactions were consensual. The sheriff directed the jury that the reasonable belief in consent was not a live issue, based on the Appellant’s position. The Appellant appealed this direction.

Legal Issues Presented

1. Whether the sheriff erred in concluding and directing the jury that the issue of the Appellant having a reasonable belief that the complainer consented did not arise on the relevant charge.

Arguments of the Parties

Appellant's Arguments

• The sheriff erred by removing the question of reasonable belief in consent from the jury’s consideration.
• The Appellant’s evidence was that the behaviour was consensual and that the complainer had initiated and reciprocated intimacy.
• The jury could reasonably find that the Appellant held a reasonable, albeit mistaken, belief in consent, even if ultimately wrong.
• There was no violence or force, and the complainer’s verbal communication of discomfort was ambiguous given the intoxication and inconsistencies in witness testimony.
• The settled law on reasonable belief was challenged as contrary to the presumption of innocence and European Convention on Human Rights Article 6(2), though leave to appeal on this was refused.

Crown's Arguments

• The case was straightforward with the complainer testifying she did not consent and the Appellant claiming she did, leaving no room for misunderstanding.
• The law on reasonable belief is settled: it is an inference from proven facts and only requires jury direction if it is a live issue on the evidence.
• Reasonable belief in consent does not arise where the complainer clearly communicates non-consent.
• The complainer’s evidence showed she communicated lack of consent by moving away and verbally expressing discomfort.
• The Appellant’s evidence was rejected by the jury, who accepted the complainer’s account, leaving no basis for reasonable belief in consent.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the evidence and legal principles concerning reasonable belief in consent under the Sexual Offences (Scotland) Act 2009. The statute requires absence of reasonable belief in consent as an essential element of the offence. The court noted that the Appellant presented evidence that the complainer consented and initiated contact, while the complainer testified to non-consent and efforts to resist. The jury accepted the complainer’s evidence.

The court reaffirmed the settled legal position that a direction on reasonable belief is only necessary if it is a live issue on the evidence. A live issue arises only when there is a plausible basis that a reasonable person could believe consent existed despite the complainer’s denial. The court found no such basis here, as the complainer communicated non-consent clearly and the Appellant’s denial of the conduct removed any middle ground for reasonable belief.

Precedents such as Meek, Maqsood, Nyiam, and Thomson were applied to confirm that the sheriff’s direction excluding reasonable belief from jury consideration was correct. The court rejected the Appellant’s contention that the law was contrary to the presumption of innocence or ECHR rights, noting that leave to appeal on those grounds was refused.

The court also addressed a minor correction regarding the record of the community payback order’s legal basis, remitting the matter to the Sheriff Court for correction.

Holding and Implications

The appeal is refused.

The court held that the sheriff did not err in directing the jury that reasonable belief in consent was not a live issue on the evidence. The jury was entitled to accept the complainer’s evidence of non-consent and reject the Appellant’s contrary account, leaving no room for a reasonable belief defence. The decision confirms and applies settled Scots law on the evidential threshold for reasonable belief in sexual offence cases under the 2009 Act.

The direct effect is the affirmation of the conviction and sentencing. No new precedent was established beyond reaffirming existing authority. A procedural correction regarding the sentencing record was ordered, with no impact on the substantive appeal outcome.