High Court rules no defence under sexual offences act to assault during consensual sexual activity

About this case:

• Citation:
  [2025] HCJAC 9
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

Sean Kirkup was indicted to the High Court in Glasgow on seven charges including the rape or sexual assault of several former partners. In respect of charge 7, he lodged a special defence that he acted in the way he did with complainer LM with her consent, or the reasonable belief that she was consenting.

The appeal was heard by Lord Carloway, Lady Dorrian, and Lord Matthews. Taylor, advocate, appeared for the appellant and the Solicitor General for Scotland, Charteris KC, and Harvey AD for the Crown.

Statutory language

The appellant maintained in his defence that he and the complainer had agreed at an earlier date that a safe word would be used by the complainer if she no longer consented to the violent elements of his behaviour. He argued that the effect of sections 3(2) and 60(2) of the Sexual Offences (Scotland) Act 2009, the general purpose of which was to promote and protect sexual autonomy, provided a defence to any conduct occurring during sexual activity except where it would result in death or significant injury.

It was noted that the draft version of the 2009 Act contained a section 37 which would have decriminalised consensual acts carried out for sexual gratification provided they did not lead to serious injury, explained as being an exemption for “certain activity of a sado-masochistic nature”. However, this proposal was not taken forward as the vast majority of consultation respondents were opposed to such a provision, arguing among other things that it would provide a loophole for persons tried for rape and domestic violence.

Counsel for the appellant submitted that the decision to remove section 37 of the draft Bill did not alter the statutory language, which allowed for consent to what would otherwise be an assault when it occurred during consensual sexual activity. The 2009 Act contained no restriction on what could be consented to in the context of sexual relations, and it was a question of fact for the jury to determine, applying an objective test, whether any behaviour was sexual. An additional argument for the appellant proceeded under Articles 7 and 8 ECHR, which he held were violated by the PH judge’s decision.

For the Crown it was submitted that the PH judge was correct to refuse the appellant’s special defence. Nothing in the 2009 made consent a defence to assault. The case of Smart v HM Advocate (1975) demonstrated that an agreement to “have a square go” could not constitute a defence, and this approach had been followed since. The fact that the SLC had considered that a distinct provision was required to exempt sado-masochistic practices was also an indicator that the intention of the 2009 Act was not the one argued for by the appellant.

Crime remains unaltered

Delivering the opinion of the court, Lord Carloway noted the requirement for evil intent in the crime of assault: “The court agrees with the Preliminary Hearing judge that there is no need for there to be an intent to injure and to cause bodily harm. Smart is correct insofar as it makes it clear that consent is no defence to a charge of assault; in that case a ‘square go’. The obiter remarks that evil intent requires an intent to injure are erroneous.”

He continued: “McDonald v HM Advocate (2004) SCCR 161, which involved a death during sexual activities to which, according to the appellant, the deceased had consented, proceeded upon a Crown concession that assault required an intent to injure, not merely one to cause pain. That concession was erroneous.”

Analysing the effect of the 2009 Act, Lord Carloway said: “The Sexual Offences (Scotland) Act 2009 has no effect on the requirements of, or defences to, assault. Section 3(2)(c) concerns the definition of a sexual assault, which need not involve any attack but can be committed simply by touching or otherwise making physical contact with a complainer. In these cases, consent will be a defence. The crime of assault remains unaltered and consent is no defence to an attack on the person of another.”

He concluded on the ECHR element of the case: “The appellant’s reliance on Articles 7 and 8 of the European Convention is undermined by decisions of the European Commission and subsequently the European Court of Human Rights in Laskey v United Kingdom (1997). Laskey was a complaint made by the unsuccessful sado-masochistic appellants in R v Brown (1994). The Commission held that the Article 7 complaint (no punishment without law) was inadmissible as manifestly unfounded.”

The appeal against the refusal of the special defence was therefore refused.