University student who sexually assaulted friend at gaming evening loses appeal against conviction

About this case:

• Citation:
  [2025] HCJAC 18
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Beckett

David Little was convicted of a single charge of sexual assault by unanimous verdict in June 2024, with a further charge of sexual assault at a different locus found not proven and a drugs offence charge withdrawn by the Crown at the close of its case. He argued on appeal that the sheriff erred in concluding, and then directing the jury, that the issue of reasonable belief in consent did not arise on charge 2 based on the evidence.

The appeal was heard by the Lord Justice Clerk, Lord Beckett, with Lord Matthews and Lord Armstrong. N Shand, advocate, appeared for the appellant and Harvey AD for the Crown.

No middle ground

In the evening of 26 November 2021, the appellant and the complainer, who at the time were close friends, went to a friend’s flat and spent the evening playing video games and drinking alcohol. As the evening progressed, the appellant’s behaviour became progressively weirder. He repeatedly tried to cuddle the complainer and kiss her on the neck, which she did not want him to do. The complainer’s impression of the appellant was that he was acting as though more drunk than he actually was, and he continued trying to kiss and cuddle the complainer as they left the flat in a taxi to obtain ketamine.

The appellant maintained generally in his evidence that the acts in charge 2 were “totally consensual” and that the complainer was the one who was sitting close to him. The sheriff advised the jury that, as the appellant’s position was that the complainer was clearly consenting, the part of his special defence relating to reasonable belief could be disregarded.

For the appellant it was submitted that the jury were entitled to find his explanation why he considered the complainer to be consenting was reasonable, even if wrong. 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. The jury were still able to find they could not reach a clear conclusion on the appellant’s state of knowledge.

The Advocate Depute submitted for the Crown that 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. The appellant’s evidence was in sharp contrast to the complainer’s, and there was no room for a middle ground.

Correct to proceed

Lord Beckett, delivering the opinion of the court, said of the appellant’s alleged belief in consent: “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.”

He continued: “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. [Witness] 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. The application of the law to the evidence is clear in this case.”

Noting the recent decision in Thomson v HM Advocate (2024), which also did not involve a sleeping or intoxicated complainer, Lord Beckett said: “As in Thomson, 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.”

He concluded: “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 issue. 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.”

The case was thereafter remitted to Aberdeen Sheriff Court in order to correct the minute stating that the appellant’s sentence was imposed as an alternative to imprisonment, when it was truly imposed as an alternative to a fine.