Man who sexually assaulted two women in Glasgow nightclub loses appeal against conviction

Lord Doherty

About this case:

• Citation:
  [2021] HCJAC 51
• Judgment:
  External link
• Court:
  High Court of Justiciary
• Judge:
  Lord Doherty

Jack Ferguson was convicted by a jury of two charges under sections 2 and 3 of the Sexual Offences (Scotland) Act 2009 and sentenced to 250 hours of unpaid work as well as a six-month restriction of liberty order. At the time of the offences, both he and the two complainers were 19 years old.

The appeal was heard by Lord Woolman, Lord Docherty and Lord Matthews. Brian McConnachie QC appeared for the appellant and Alex Prentice QC for the Crown.

Forceful penetration

The two complainers, neither of whom knew the appellant, attended an event at the Shed nightclub which began on Hogmanay 2019 and continued into the early hours of the next day. The first complainer, CF, stated in evidence that she had been dancing with another friend when the appellant approached them and started dancing with them, and deliberately touched her buttocks when he went behind her.

KF, the second complainer, gave evidence that the complainer had forcefully penetrated her anus and vagina with his fingers while she was dancing at about 2:00. Shortly afterward, the appellant was identified by a steward at the nightclub as someone he had ejected earlier in the evening for being “quite drunk”.

In his directions to the jury, the trial sheriff explained that touching was sexual if a reasonable person would, in all the circumstances of the case, consider it to be sexual. He also explained to the jury that that was an objective test. It was accepted that, given the nature of the penetration described in the second charge, a reasonable person would describe it as sexual.

Senior counsel for the appellant submitted that the sheriff’s directions on what constituted sexual assault were inadequate in the circumstances of the case, in which the accused had been under the influence of alcohol. The sheriff ought to have further directed the jury that they should consider whether the conduct in question had a sufficiently large sexual component or whether the incident was drink-fuelled rather than overtly sexual.

Counsel also sought to rely on a decision note from 2015, SD v Dunn (Procurator Fiscal) Edinburgh, in which an appellant successfully challenged a conviction of a single charge of sexual touching of the buttocks with broadly similar circumstances to the case involving the complainer CF, as authority for the propositions concerning the effect of alcohol.

Common sense

Giving the opinion of the court, Lord Doherty began: “The sheriff’s directions in relation to sexual touching were both appropriate and sufficient. Equipped with those directions, the jury could be relied upon to apply their common sense and experience of life to decide whether the touching was sexual. It was not necessary for them to be given the further directions which senior counsel for the appellant suggests.”

It was considered that this was sufficient to dispose of the appeal. However, the court went on to express doubts about whether the SD case relied upon by the appellant had been correctly decided.

On this matter, Lord Doherty noted generally: “We do not understand the court in SD to have intended to provide any authoritative interpretation or gloss of section 60(2) [of the 2009 Act], or to have laid down any legal principles which it envisaged ought to have general application. Had the court meant to do any of those things we are sure that it would have issued a much more substantial and fully reasoned opinion than it did.”

Lord Doherty concluded: “We do not find the distinction which the court drew between ‘drink-fuelled’ and ‘overtly sexual’ assaults helpful or illuminating in this context, not least because the proposed dichotomy is a false one. The two categories are not mutually exclusive. Many sexual assaults are committed by assailants who are intoxicated to varying degrees with alcohol or drugs or both; and, in general, self-induced intoxication is no defence to a criminal charge.”

The appeal was therefore refused.