David Griffiths Little v. His Majesty’s Advocate [2025] HCJAC 17

Application under section 107(8) of the Criminal Procedure (Scotland) Act 1995:- On 22 April 2024 at Aberdeen Sheriff Court, following a trial on indictment, the appellant was convicted of a charge of sexual assault contrary to section 3 of the Sexual Offences (Scotland) Act 2009. The appellant appealed against his conviction on the ground that the sheriff erred in directing the jury that the issue of the appellant having reasonable belief that the complainer consented did not arise in relation to the charge. The appellant had sought to argue a wider point, for which leave to appeal was refused, namely, that in terms of section 3(1) of the 2009 Act, the absence of reasonable belief is an essential element of the offence and in every case the jury required to be satisfied of it before they could return a verdict of guilty. It was further contended that the removal of the issue from the jury’s consideration was contrary to the presumption of innocence, in breach of the common law and Article 6(2) of ECHR. It was contended that a jury could accept and reject different parts of a witness’s evidence, that it was not all or nothing and that an accused could have been wrong in thinking that a complainer consented but cold still have a reasonable belief that she had. It was submitted that the cases of Maqsood v HMA 2019 JC 45 and LW v HMA 2023 JC 184 failed to address the point that the presumption of innocence required the Crown to address reasonable belief in every case which resulted in an evidential burden being placed on an accused meaning that an essential element of the crime could be proved with no evidence being led in relation to it. Here the court refused the application to reinstate the wider ground of appeal. The court considered that the application did not pass the tests set out in Beggs v HMA 2006 SCCR 25 and Birnie v HMA 2015 SLT 460, namely, that there must be “...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.” The court stated that the law does not explicitly impose a burden on an accused person charged with such an offence but it does require that the question of the accused’s belief is a live issue and it will only be a live issue in a limited number of cases where, on the evidence, whilst 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. The court stated that evidence as to reasonable belief need not come only from an accused but could come from any source, including the complainer who could speak to the steps taken by an accused to find out if she was consenting. The court reiterated, however, that even if there was such an evidential burden on an accused that does not alter the onus of proof as it would still require the Crown to disprove it. The court stated that the present application was an attempt to reargue what is settled authority.