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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2025] HCJAC 17
HCA/2024/304/XC
Lord Matthews
Lord Beckett
Lord Clark
OPINION OF THE COURT
delivered by LORD MATTHEWS
in
an application under section 107(8) of the 1995 Act
by
DAVID GRIFFITHS LITTLE
Appellant
against
HIS MAJESTY'S ADVOCATE
Respondent
Appellant: N Shand, advocate; Burnett Criminal Defence, Aberdeen
Respondent: Harvey AD; Crown Agent.
17 January 2025
[1]
On 22 April 2024, the appellant was convicted in the sheriff court of a charge of
sexual assault, contrary to section 3 of the Sexual Offences (Scotland) Act 2009.
[2]
He appealed against his conviction on the basis that the sheriff was in error in
directing the jury that they should disregard the question of reasonable belief, since it did
not arise in the case
2
[3]
Leave to appeal was refused at first sift but granted at the second on the basis that it
was arguable that the matter did arise on the evidence. We say no more about it.
[4]
However, the appellant was refused leave to argue a wider point. It is to the effect
that in terms of section 3(1) of the Act, the absence of reasonable belief is an essential
element of the offence itself, and in every case the jury required to be satisfied of it before
they could return a verdict of guilt. Removing the issue from the jury's consideration
offended against the presumption of innocence, in breach of the common law and Article 6.2
ECHR. Further, it is contrary to the enactment and offends against the separation of powers.
[5]
In any case the jury could reject some parts of the evidence and accept others. It was
not all or nothing. An accused could have been wrong in saying that a complainer
consented but nonetheless he could still have a reasonable belief that she had.
[6]
It was submitted that none of the authorities, whose correctness was not conceded,
had approached the matter through this prism. Neither Maqsood v HM Advocate 2019 JC 45
nor LW v HM Advocate 2023 JC 184 had addressed the issue that the presumption of
innocence required the Crown to address reasonable belief in every case. The effect was that
an evidential burden had been placed on an accused. If there were no evidence the Crown
had in reality failed to prove a necessary element of the offence but the placing of an
evidential burden on the accused meant that a constituent part of the crime could be proved
with no evidence being led about it at all.
[7]
This differed from a defence such as self-defence where the absence of self-defence
was not a constituent part of the crime of assault. An evidential burden was justified in such
a case.
3
[8]
The judges at second sift dealt with this by saying that it is clear that there was only
an evidential onus on the appellant to raise the issue of reasonable belief and it is not
arguable that the existence of such an onus contravenes Article 6.2.
[9]
The appellant sought to reinstate this wider ground. We refused the application on
17 January 2024 and indicated that we would give our reasons in writing, which we now do.
[10]
The ground has, of course to be arguable and it is accepted that the appellant has to
pass the tests set out in Beggs v HM Advocate 2006 SCCR 25, and Birnie v HM Advocate 2015
SLT 460.
[11]
In the latter case, the Lord Justice Clerk (Carloway), at paragraph 8, explained the
position thus:
"An application under section 107(8) of the 1995 Act to argue a ground, for which not
only has leave not been granted but has actually been refused at sift, is not to be seen
as a form of appeal against the decision taken at sift. The sift decision is final at that
stage of the proceedings. It is not simply a matter of asking the court to reconsider
the question of the arguability of the ground of appeal. The appellant must show
that there is `good reason' for reinstating the ground, such as some change in
circumstances, or a patent error or misunderstanding of the grounds of appeal by the
sifting judge or court, or, indeed, that the point is of such significance that it would
not be in the interests of justice to exclude it".
[12]
It is argued that these tests have been met. The judges at second sift misunderstood
the point which was being made and the issue was important because it arose in just about
every case under the 2009' Act where the absence of reasonable belief was a constituent
element of the crime.
[13]
We do not agree that the judges at second sift misunderstood the point. They met it
head on and said it was unarguable.
[14]
We are not satisfied that the point is of such significance that it would not be in the
interests of justice to exclude it.
4
[15]
There is no doubt that a decision that the sort of direction complained of was a
breach of Article 6 would have considerable ramifications.
[16]
However, the point is unarguable.
[17]
There is a consistent line of authority since Meek v HM Advocate 1982 SCCR 613 to the
effect that whilst, at common law, the absence of an honest belief that the complainer
consented was an essential element in the crime of rape, in many cases there would be no
part for such a direction to play; Lord Justice General (Emslie), at p 618, in delivering the
opinion of the court. He noted the absence of any evidence to suggest it, that there was no
halfway-house between the complainer's account and that of the various accused, and
concluded that such a direction was not necessary. The appeal was refused.
[18]
Meek was applied in Doris v HM Advocate 1996 SCCR 854 where the Lord Justice
General (Hope) explained, at p 857, that the questions of fact which the jury will have to
resolve depend in rape cases, just as in any other case, on the state of the evidence and also
determine the directions a judge must give. He concluded that a direction about honest
belief in rape cases should only be given where it was raised in the evidence.
[19]
From 30 November 2010, the common law definitions of sexual offences no longer
applied, being replaced by provisions of the Sexual Offences (Scotland) Act 2009. The
2009 Act followed a report by the Scottish Law Commission, "SLC 209 Report on rape and
other sexual offences." The report identified respect for sexual autonomy as a fundamental
principle, explaining at paragraph 1.25:
"...Where a person participates in a sexual act in respect of which she has not freely
chosen to be involved, that person's autonomy has been infringed, and a wrong has
been done to her. This generates a fundamental principle for the law on sexual
offences, namely that any activity which breaches someone's sexual autonomy is a
wrong which the law should treat as a crime..."
5
[20]
This passage was noted in Buchan v Aziz 2023 JC 51 at paragraphs 22-23, where the
court confirmed that respecting sexual autonomy underpins the 2009 Act. Buchan followed
the court's approval in GW v HM Advocate 2019 JC 109, at paragraph 31, of a dictum by
Lady Hale in R v Cooper [2009] UKHL 42, where she linked the need for consent to any
sexual act to: "....the respect for autonomy in matters of private life which is guaranteed by
Article 8 of the European Convention."
[21]
The SLC had made the following observation on Convention rights at
paragraph 1.31:
"...The effect of Article 3 (prohibition of degrading treatment) and Article 8 (right to
respect for private life) is that a State must provide for the penalisation of non-
consensual sexual activity, including where there was no evidence of physical
resistance by the victim, in order to secure protection of the individual's sexual
autonomy."
[22]
Section 3 of the 2009 Act, provides:
"3
Sexual assault
(1)
If a person (`A')--
(a)
without another person (`B') consenting, and
(b)
without any reasonable belief that B consents,
does any of the things mentioned in subsection (2), then A commits an
offence, to be known as the offence of sexual assault.
(2)
Those things are, that A--
(a)
...
(b)
intentionally or recklessly touches B sexually,
(c)
...
(d)
...
(e)
...
..."
[23]
It can be seen that the absence of an accused person's reasonable belief is an
ingredient of the offence but matters do not stop there. Section 16 of the 2009 Act provides:
"16 Reasonable belief
In determining, ... whether a person's belief as to consent or knowledge was
reasonable, regard is to be had to whether the person took any steps to ascertain
6
whether there was consent or, as the case may be, knowledge; and if so, to what
those steps were."
[24]
Requirements for notice of a defence of consent or belief in consent are found in the
Criminal Procedure (Scotland) Act 1995, section 78 (2), (2A) inserted by the Sexual Offences
(Procedure and Evidence) (Scotland) Act 2002 section 6(1)(a) and (b). Accordingly, since
1 November 2002, an accused person who wishes to adduce evidence in a sexual offence
case that the complainer consented, or that he believed that she did, required to give notice
per section 78. Both the presence of consent and belief are treated as defences in section 78.
"(2) Subsection (1) above shall apply to a plea of diminished responsibility or to a
defence of automatism, coercion or, in a prosecution for an offence to which
section 288C of this Act applies, consent as if it were a special defence.
(2A) In subsection (2) above, the reference to a defence of consent is a reference to
the defence which is stated by reference to the complainer's consent to the act
which is the subject matter of the charge or the accused's belief as to that
consent."
[25]
In 2002, an accused charged with rape or indecent (sexual) assault at common law,
could secure acquittal on the basis of his honest belief that the complainer consented. This
changed from 1 December 2010 with the introduction of reasonable belief in the definition of
the offences in part 1 of the 2009 Act, including section 3.
[26]
In enacting the 2009 Act, Parliament did not remove the requirement for notice.
Accordingly, the question of an accused person's belief regarding consent as an element in
sexual offences under the 2009 Act is hedged in by section 78(2) and (2A) of the 1995 Act and
section 16 of the 2009 Act. Viewed in this light, it becomes impossible to conceive that there
is a breach of Article 6 rights, specifically the presumption of innocence, in taking the
approach which Scots law does. It is not difficult to understand why this should be so.
Borrowing the words of Lord Bingham in Sheldrake v DPP [2005} AC 264 at paragraph 37,
what a particular person believed, and on what basis he believed it, when he had sexual
7
contact with a woman who was not consenting appears to be particularly within his own
knowledge and difficult for the prosecution to counter unless there was at least some burden
on him to put forward his case.
[27]
A person being subjected to sexual conduct to which the person did not consent is a
breach of at least the Convention rights under Article 8. How easy or otherwise it should be
for a person to be relieved of criminal responsibility for doing so on the basis of his belief is a
matter for this court to determine according to long-standing principles. Scots law does not
explicitly impose a burden on an accused person charged with an offence under section 3 of
the 2009 Act, but it does require that the question of the accused's belief is a live issue. In
considering the 2009 Act in Graham v HM Advocate 2017 SCCR 497, the Lord Justice General
(Carloway) explained at paragraph 23 that the reference to the absence of reasonable belief
in section 1 (rape) did not add a new requirement which would need to be proved by
corroborated testimony, it simply changed that part of the mental element from absence of
honest belief to absence of reasonable belief. In Maqsood v HM Advocate, at paragraph 17, he
explained that beyond giving the statutory definition of an offence under section 1, no
further direction was required on reasonable belief unless it was a live issue in the trial.
That issue will be live only in a limited number of situations in which, on the evidence,
although the jury might find that the complainer did not consent, the circumstances were
such that a reasonable person could nevertheless think that she was consenting.
[28]
It is not entirely clear that there is always an evidential burden placed on the accused
in cases such as this. Evidence as to reasonable belief can come from any source and is not
confined to the accused. For example, evidence as to the steps taken by an accused to
ascertain whether there was consent could come from the complainer.
8
[29]
That having been said, very often a matter will only be known to an accused person
and evidential burdens are not unusual. They do not subvert the onus of proof. Even if
there is such a burden it is only to the effect of requiring an issue to be raised on the
evidence. It is then for the Crown to disprove it, usually by means of inference.
[30]
Clear and high authority for this can be found in Sheldrake. Amongst the arguments
presented to the House of Lords was that any burden of proof imposed on a defendant,
whether legal or evidential, was an interference with the right under Article 6.2. However,
in paragraph 1 of his speech, Lord Bingham said that
"An evidential burden is not a burden of proof. It is a burden of raising, on the
evidence in the case, an issue as to the matter in question fit for consideration by the
tribunal of fact. If an issue is properly raised, it is for the prosecutor to prove,
beyond reasonable doubt, that that ground of exoneration does not avail the
defendant".
[31]
This is just another attempt to reargue, through a different lens, a point which must
now be regarded as settled by authority which is binding on us.
[32]
Reference has been made to Maqsood and LW, it being said that they involved
sleeping or intoxicated complainers, but consideration should be given to other authorities.
[33]
In Nyiam v HM Advocate 2022 JC 57 it was submitted that in every case of rape in
which consent is pled an absence of reasonable belief was an essential part of the case,
always an issue and required to be proved by corroborated evidence. Reliance was placed
on Winton v HM Advocate [2016] HCJAC 19. The point in Winton, however, was whether the
old defence of honest belief was still available, and, in any event, reasonable belief had been
a live issue. Winton was explained in Graham v HM Advocate where amongst other things,
the court said that although a judge ought to continue to direct a jury that the definition of
rape includes an absence of reasonable belief, no further direction on reasonable belief was
9
required unless it was a live issue. In Nyiam, the court agreed and considered this point to be
settled.
[34]
In Maqsood, an argument that Graham was wrongly decided was rejected and a
similar argument about Maqsood and Graham was also rejected in RKS v HM Advocate
[35]
An even more recent discussion is to be found in Thomson v HM Advocate 2024
SCCR 294. In that case, at paragraph [44], the Lord Justice General said the following:
"The matter was explained in Maqsood v HM Advocate 2016 JC 45 as follows (LJG
(Carloway) delivering the Opinion of the Court, at para [17]:
`...although a judge ought to continue to direct a jury that the definition of rape
includes an absence of reasonable belief, no further direction on reasonable belief is
required unless that is a live issue at trial. That issue will be live only in a limited
number of situations in which, on the evidence, although the jury might find that the
complainer did not consent, the circumstances were such that a reasonable person
could nevertheless think that she was consenting. That does not normally arise, for
example, where an accused described a situation in which the complainer is clearly
consenting and there is no room for a misunderstanding'.
A reasonable person would not think that a woman who says `No', `Not tonight' and
`I'm tired' was instead consenting to intercourse. On this basis, the trial judge was
correct to direct the jury that no issue of honest or reasonable belief arose. Insofar as
the appellant denied the instances of rape described by the complainers occurred at
all, again no issue of reasonable belief arose ..."
[36]
Thomson was not a case involving a sleeping or intoxicated complainer.
[37]
It is part of the function of a domestic court to interpret domestic legislation and the
Appeal Court has done just that in relation to the 2009 Act. There is nothing
unconstitutional about that. There has been no arguable breach of Article 6.2.
[38]
The application is refused.
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