Sean Kirkup v. His Majesty’s Advocate [2025] HCJAC 9

Note of Appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- The appellant was indicted to a Preliminary Hearing at Glasgow High Court on seven charges relating to the rape, sexual assault and domestic abuse of various former partners. Charge 7 alleged the rape of LM and included an averment that the appellant did “...seize her by the throat and compress same thereby restricting her breathing and penetrate her vagina with your penis and you did thus rape her to her injury...”. The appellant pled not guilty and lodged a special defence to charge 7 which stated that:- “insofar as he slapped LM to the face and body, seized her by the throat and restricted her breathing, and penetrated her vagina, he did so with her consent and with the reasonable belief that she was so consenting”. It was the appellant’s position that he and the complainer had previously agreed that a ‘safe word’ would be used by the complainer as a sign that she no longer consented to the violent elements of the appellant’s behaviour. At the Preliminary Hearing it was submitted on behalf of the Crown that consent could not be a defence to the libel of assault. It was submitted on behalf of the appellant that the general purpose of the Sexual Offences (Scotland) Act 2009 was to promote and protect sexual autonomy and the effect of sections 3(2)(c) and 60(2) of the 2009 Act provided a defence of consent to any conduct occurring during sexual activity, apart from where the conduct would result in death or significant injury. The Preliminary Hearing judge (under reference to Smart v HMA 1975 JC 30) stated that the 2009 Act did not create a defence of consent to assault when it was committed in the context of sexual activity. The appellant appealed against that decision. It was submitted on behalf of the appellant that the law of assault, in which consent was irrelevant, should not be applied to consensual sexual conduct and the 2009 Act did not contain any restrictions on what could be consented to in the context of sexual conduct. It was submitted that if the jury did not accept the behaviour was sexual or that the appellant held a reasonable belief that the complainer was consenting, it would be open to them to convict of assault. On behalf of the Crown it was submitted that the PH judge was correct to refuse the appellant’s special defence as it related to conduct which amounted to assaults as the law was clear that consent was not a defence to assault and nothing in the 2009 Act altered that. Here the court refused the appeal. The court reiterated that consent is not a defence to a charge of assault on the person of another and motive for the attack is irrelevant. The court agreed with the PH judge that there is no need for there to be present an intent to injure and to cause bodily harm and the requisite intention is to do the act deliberately and where there are physical encounters with inherent dangers to cause serious harm such conduct should not be viewed as consensual sexual activity. The court considered that issues of proportionality and Article 8 had been reasonably analysed by the PH judge.