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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2025] HCJAC 18
HCA/2024/304/XC
Lord Justice Clerk
Lord Matthews
Lord Armstrong
OPINION OF THE COURT
delivered by LORD BECKETT, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION
by
DAVID LITTLE
Appellant
against
HIS MAJESTY'S ADVOCATE
Respondent
Appellant: Shand; Burnett Criminal Defence, Aberdeen
Respondent: Harvey AD; the Crown Agent
25 March 2025
[1]
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. At
an adjourned diet on 6 June 2024, the sheriff imposed a community payback order with a
requirement of 100 hours of unpaid work and a supervision requirement for 12 months. The
jury's verdict of guilty was unanimous. The appellant had given notice in the form of a
2
special defence of consent and reasonable belief in consent in advance of trial. The sole
ground of appeal before this court is whether the sheriff erred in concluding, and then
directing the jury, that the issue of the appellant having reasonable belief that the
complainer consented did not arise on charge 2 if, as the appellant maintains, it was
properly a question of fact for the jury.
[2]
The Crown withdrew charge 3, a drugs offence, at the close of its case and the sheriff
acquitted the appellant. Charge 1 was a serious offence averring sexual assault by
penetration of the complainer. The jury found it not proven, by majority. It is apparent
from the sheriff's report that the events founding charge 1 occurred after the complainer and
appellant had left the apartment in Aberdeen forming part of the locus of charge 2 for the
last time that night.
[3]
The appellant's note of appeal included grounds of appeal challenging the settled
law on reasonable belief of consent more generally as being contrary to the presumption of
innocence under Scots law and under ECHR Article 6(2). Leave to appeal on those grounds
was refused at first and second sift. The appellant made an application under section 107(8)
of the Criminal Procedure (Scotland) Act 1995 to reinstate those parts of his grounds of
appeal. On 17 January 2025 this court refused the application and a written Opinion with
The evidence
The complainer
[4]
The appellant and complainer studied on the same course at university and became
close friends during the COVID pandemic. Their friendship was like a sibling relationship.
In the evening of 26 November 2021, the appellant and complainer attended a "movie night"
3
at a friend's flat. The group spent the evening there playing a computer game rather than
watching films. Both the complainer and appellant were drinking alcohol and played a
drinking game alongside the computer game but the other two were not drinking. As the
evening progressed, the appellant's behaviour became progressively weirder. He
repeatedly tried to cuddle the complainer and kiss her on the neck. She felt uncomfortable
and said as much to the appellant. She said it politely as she does not like confrontation but
he did not take it seriously, he did not listen to her. He managed to kiss her neck once at the
flat. It was as if they were playing musical chairs, with her getting up to get away from him
and him then sitting next to her wherever she went. She tried to distance herself from the
appellant by moving away from him but he would simply move closer to her, grab her arm
and pull her closer towards him. She tried standing to get away from him but he persisted,
grabbing her arm and pulling her closer to him. Whilst she was feeling the effects of the
alcohol, her impression of the appellant was that he was acting as though more drunk than
he actually was. The complainer and her two female friends, AC and LT, went to the
bathroom together where they discussed the appellant's strange behaviour and that it was
making the complainer feel uncomfortable.
[5]
The appellant and the complainer then travelled together by taxi to collect ketamine.
Whilst in the taxi, the appellant was persistent and weird. He attempted to hold her hand
and kiss her neck. He succeeded only in kissing her shoulder. The complainer relayed this
information to AC and LT via group-chat messaging. She wrote, "He's just tried to kiss me"
to which AC replied, "OMG, you're kidding". The complainer sent further messages:
"No, it's getting pretty awkward. He keeps putting his arm over me and leaning or
kissing me. He's off to pick up then we're coming back and I'm sitting on the sofa
with you two. Fuck that, we are friends."
The complainer messaged the appellant on 28 November 2021:
4
"I told you throughout all of the night that I was extremely uncomfortable with you
kissing my neck etc and confronted you in front of [LT] and [AC] when you did it
again."
The complainer spoke to the content of these messages during the course of her evidence
with reference to production 11. Once back at the flat she took some ketamine and felt really
bad under its effect. She again went to the bathroom with her two friends and repeatedly
said to them "home". The appellant was saying she could stay on a sofa at his place but she
said she did not want to do that. It felt uncomfortable. It is apparent that she did end up
with him later on and the events giving rise to charge 1 occurred. Most of the
examination-in-chief and cross-examination of the complainer focused on charge 1 and does
not bear on charge 2.
AC
[6]
AC was a student and was friends with both complainer and appellant. She
confirmed hosting a "movie night" at her flat for her partner LT, the complainer and the
appellant during the evening of 26 November 2021. The group spent the evening drinking
and talking, although AC did not drink much. The complainer became intoxicated quite
quickly. At some point in the evening the complainer and appellant decided to get
ketamine. They left the flat and returned 20-30 minutes later with the drugs. During that
time, the complainer had written in a group chat that the appellant had attempted to kiss
her. On their return, the complainer fluctuated between lucidity and extreme intoxication.
At some point during the evening the complainer had presented as upset. The complainer
told AC that the appellant had tried to kiss her on the neck.
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LT
[7]
LT described the group spending the evening socialising together in the living room.
LT did not drink much at all and, as the evening went on, felt the atmosphere was turning
awkward. She saw the appellant trying to kiss the complainer on the neck on several
occasions. The complainer repeatedly told the appellant to stop and pulled herself away
from him.
The appellant
[8]
He was in the same academic year as the complainer. They came to know each other
through working at the same place and became close but platonic friends during the
pandemic. He attended the movie night with his friends. The four of them spent the
evening drinking alcohol, laughing and talking. Everyone had a similar amount to drink.
During the evening, the complainer started to sit very close to him in the living room. She
placed her arm around him and leant her head on his shoulder. They kissed at one point.
This all happened when AC and LT were in a different room. When they returned to the
living room, the complainer would jump away from him and the atmosphere became
awkward.
[9]
He and the complainer arranged to collect drugs together by taxi. During the course
of the journey there, the complainer was sitting very close to him. They were holding hands.
She told him that she really liked what was happening between them that evening and that
she liked them being so close. He and the complainer kissed in the taxi. On their return to
the flat, he consumed two lines of ketamine, as did the complainer. Their two friends had
less. He entered a comatose state, or a "k-hole", during which he lay on the sofa, put in his
earphones to listen to music and closed his eyes.
6
[10]
The appellant maintained generally in his evidence that the acts in charge 2 were
"totally consensual" and that "[she] was often the one that was actually sitting close to me".
During cross-examination, when asked about his trying repeatedly to kiss and cuddle the
complainer and kissing her on the neck at the flat before the taxi journey for ketamine, he
replied that it did not happen.
Jury directions
[11]
The sheriff considered the evidence heard during the trial together with the issue of
reasonable belief and discussed it with parties before speeches. She concluded and advised
them that whether the appellant had a reasonable belief in consent was not a live issue on
the evidence. The appellant's position was that the complainer was clearly consenting and
there was no room for misunderstanding. Accordingly, she directed the jury:
"But what I would say here in relation to [the special defence] is that you can
disregard the part of it that refers to the accused having a reasonable belief in
consent, because that's not been a live issue in this case because the accused's
position here is that the complainer did not consent."
[12]
The sheriff immediately acknowledged in her report that she had erred in stating,
"the accused's position here is that the complainer did not consent". There is no doubt that
his evidence was that complainer did consent. As counsel for the appellant properly
acknowledged, the jury would have readily understood that this was a slip of the tongue.
We need say no more about it. In response to the grounds of appeal, she explained:
"... so far as charge 2 is concerned, the appellant's position in evidence was that
there was no attempted and actual kissing / cuddling instigated by him as described
by the complainer, at the flat or in the taxi. Any contact relevant to that charge
occurred with her consent, indeed was at her instigation and she verbalised this in
the taxi.... He simply denied the complainer's version of events that he was the
instigator...."
7
Submissions
Appellant
[13]
The sheriff erred in her direction to the jury by removing from their consideration the
question of the appellant's reasonable belief that the complainer consented. He had testified
that the behaviour was consensual, the complainer had been sitting close to him, placing her
arm around him, holding his hand and consensually kissing him throughout the evening.
The jury were entitled to find his explanation why he considered the complainer to be
consenting was reasonable, even if wrong.
[14]
This was not a case where there had been violence or force used by the appellant, nor
was it a case where the complainer was asleep during the offending. In those circumstances,
it is easier to conclude that reasonable belief of consent is not a live issue. Whilst the
complainer's evidence was that she had verbally communicated to the appellant that she
was uncomfortable with his advances, there was still scope for uncertainty over what was
said, how it was said and, indeed, whether it was said. There was evidence that all of the
witnesses had been drinking alcohol and had taken ketamine. There were inconsistencies
between the testimony of different witnesses. These were reasons for the jury to proceed
with caution when reaching definitive conclusions. A jury is entitled to pick and choose
amongst the evidence as they see fit and does not require to accept or reject the evidence of a
witness in its entirety. Although the jury's verdict signals their acceptance of the
complainer's evidence that she did not consent, the jury might nevertheless have found that
they were not able to reach clear conclusions on the appellant's state of knowledge such that
they could exclude a reasonable, albeit mistaken, belief on the part of the appellant that she
was consenting.
8
[15]
Whilst the authorities are mostly against the appellant, they are wrong. The
Lord Justice Clerk (Dorrian) explained the correct approach in Winton v HM Advocate
"...Whilst the absence of reasonable belief is an essential element of rape under s.1,
which the Crown must prove in every case, it is only where the accused's belief in
consent was a reasonable one where his conduct would not amount to rape..."
Crown
[16]
The present case was a straightforward one where the complainer's evidence was
that she was not consenting and the appellant's evidence was that she was. There was no
room for misunderstanding between them.
[17]
The law on reasonable belief is settled. Whether an accused person had, or did not
have, a reasonable belief was an inference to be drawn from proven facts, and a direction by
a trial judge on reasonable belief is not required unless the issue is live; Graham v HM
belief in consent to be live in any trial, such an issue must arise on the evidence; Nyiam v HM
consent and the accused said that she did, it was not for defence counsel to invent a middle,
speculative ground, Thompson v HM Advocate 2024 SCCR 294. Reasonable belief in consent
would not arise in any situation where the complainer communicates her lack of consent.
[18]
The complainer's evidence was that she did not consent to the appellant's actions.
She had moved away from him and had told him that his actions were making her feel
uncomfortable. By doing and saying those things, she communicated to the appellant that
she was not consenting to his advances. There was no basis for him to believe, reasonably,
that she was consenting. The appellant's evidence was in sharp contrast to the complainer's
account. His evidence was that the sexual conduct between himself and the complainer was
9
"totally consensual" and that she had initiated it. The case was straightforward and the
issue for the jury was whether the complainer consented or not. There was no room for a
middle, speculative ground of reasonable belief. It was not a live issue and it followed that
the sheriff was correct not to direct the jury on it.
Decision
[19]
So far as relevant in this case, section 3 of the 2009 Act provides:
"(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--
...
(b) intentionally or recklessly touches B sexually,..."
Section 16 of the 2009 Act provides:
"In determining, for the purposes of Part 1, 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 whether there was consent or, as the case may be, knowledge; and if so,
to what those steps were."
[20]
There is no evidence that the appellant took any such steps. At best for him, it might
be that he assumed there was consent on the basis of his account that the complainer was
indicating enthusiasm for his advances, was reciprocating and consenting. The difficulty
with that is that the jury rejected his evidence that the complainer consented. They accepted
her evidence that she did not consent. Her evidence was that she told him that he was
making her uncomfortable and that she kept moving away from him but he persisted in his
advances. LT's evidence was stronger still. She saw the appellant trying to kiss the
complainer on the neck several times and she kept telling him to stop and pulled herself
away.
10
[21]
Scots law has long taken the view that a direction on the question of an accused's
belief that a complainer consented is only needed if it is a live issue on the evidence; Meek v
HM Advocate 1982 SCCR 613. In Maqsood, the Lord Justice General (Carloway) explained
that beyond giving the statutory definition of an offence under part 1 of the 2009 Act (section
1 in that case), no further direction is required on reasonable belief unless it is 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.
[22]
So far as Winton is concerned, we note that the words at paragraph 7 of the opinion
of the court are the words of the trial judge in her report and not the words of Lord Justice
Clerk (Dorrian). Whilst it is true that in paragraph 8 she expressed agreement with the
whole passage quoted at paragraph 7, the Lord Justice Clerk continued:
"The law in relation to rape and other sexual offences was completely re-drawn by
the 2009 Act. S.52 not only abolishes the old common law offences of rape and the
like, it specifies that where provisions of the 2009 Act regulate conduct, those
provisions have the effect of replacing any former rule of law regulating conduct.
The terms of ss.19 do not provide for a defence of reasonable belief in consent,
which would raise an evidential burden on the defence, rather they provide that an
absence of reasonable belief in consent is an essential part of the offence to be proved
by the Crown."
We consider that the true ratio decidendi of Winton is, first that section 17 of the 2009 Act does
not create an offence but provides that a person within the scope of that section is not
capable of giving consent and that where the requirements of section 17 are met, the Crown
need not prove the lack of consent. Secondly, it is that there was no basis for introducing a
concept of honest but unreasonable belief in a sexual offence brought under the 2009 Act.
[23]
The Lord Justice Clerk (Dorrian) presided in RKS v HM Advocate 2020 JC 235. The
court considered Winton. In delivering its opinion Lord Turnbull explained, at
11
paragraph 30, that the court did not accept a contention that reasonable belief is a live issue
in every prosecution under section 1 of the 2009 Act, regardless of the nature of the evidence
led. The court refused to remit Maqsood for consideration by a full bench, noting the
consistent approach of many benches since Meek.
[24]
In Nyiam, where the appellant sought to argue that Maqsood was wrongly decided, in
delivering the opinion of a court comprising also Lord Pentland and Lord Matthews, the
Lord Justice Clerk (Dorrian) explained at paragraph 21:
"[21] In the argument that was wrongly decided and that a fuller
bench should be convened to address the matter was advanced and rejected. A
similar argument regarding itself was rejected in RKS v HM Advocate . The
argument is neither changed nor strengthened by reference to a case ( ) in
which (a) the point of the appeal was whether the old defence of honest belief was
still available and (b) reasonable belief had been a live issue. In RKS the court stated
(para 30):
'We do not accept the contention that reasonable belief is a live issue in every
prosecution under , regardless of the nature of the
evidence led.'
The court went on to point out (para 34) that in (para 23) the court had noted
that:
'The purpose of this part of [of the ] was not to add a new
requirement which would need to be proved by corroborated testimony, but
simply to change that part of the mental element from an absence of an
honest belief to an absence of a reasonable one.'
It added (para 35):
'Nothing which has been advanced on the appellant's behalf causes us to
think that what the court said in either of the cases
of or ought to be reconsidered.'
In the court said that the law continues to be as stated clearly
in (para 16). In the light of this consistent line of authority it is entirely clear
that the submission advanced to the effect that was wrongly decided is
untenable. There is no justification for remitting the point to a larger court. The law
on reasonable belief must now be regarded as conclusively settled."
12
[25]
Counsel sought to distinguish a case such as Maqsood on the basis it, and LW v HM
Advocate 2023 JC 184, involved an intoxicated or sleeping complainer. He acknowledged
that the decision of this court in Thomson v HM Advocate 2024 SCCR 294 was against him. It
did not involve a sleeping or intoxicated complainer. The Lord Justice General (Carloway)
said the following in delivering the opinion of the court, at paragraph 44:
"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...."
[26]
In the case we are considering, the complainer said that she told the appellant that he
was making her uncomfortable and kept moving away from him to another seat or stood to
avoid him sitting next to her. LT spoke of a change in atmosphere caused by the appellant
repeatedly trying to kiss the complainer's neck and of the complainer repeatedly telling the
appellant to stop. LT saw her pulling herself away from him.
[27]
The application of the law to the evidence is clear in this case. As in Thomson, at
paragraph 45, since the complainer's evidence was that she did not consent, made that plain
to the appellant whose evidence was only that she did consent, there was no basis for a
middle, speculative ground not spoken to by the appellant that he had believed on
reasonable grounds that there was consent. To the extent that the appellant denied in his
evidence that the conduct in charge 2 occurred, reasonable belief in consent was not a live
13
issue; Thomson at paragraph 44; Briggs v HM Advocate 2019 SCCR 323, Lord Glennie
delivering the opinion of the court at paragraph 19.
[28]
It follows that the sheriff was entirely correct to proceed as she did. There was no
misdirection, far less a miscarriage of justice. The appeal is refused.
A necessary correction of an entry in the Sheriff Court's records
[29]
The sheriff reports that the minute for 6 June 2024 records, erroneously, that a
community payback order for 100 hours (level 1) was imposed as an alternative to a prison
sentence (section 227A(1)) when it was truly imposed as an alternative to a fine
(section 227A(4)). Accordingly, we remit the proceedings under section 299(4) to the Sheriff
Court at Aberdeen for correction under section 299(2)(c).
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