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Cite as: 2022 SLT 151, 2022 GWD 2-21, [2021] ScotHC HCJAC_51, 2022 SCCR 26, [2021] HCJAC 51

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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2021] HCJAC 51

HCA/2021/000197/XC

Lord Woolman

Lord Doherty

Lord Matthews

OPINION OF THE COURT

delivered by LORD DOHERTY

APPEAL AGAINST CONVICTION

JACK FERGUSON

Appellant

against

HER MAJESTY'S ADVOCATE

Respondent

Appellant: McConnachie QC; John Pryde & Co SSC Edinburgh for Livingston Browne, Glasgow

Respondent: Prentice QC, sol adv, AD; the Crown Agent

2 December 2021

Introduction

[1]

On 26 April 2021 at Glasgow Sheriff Court the appellant was convicted after a three

day trial of the following offences:

"(002) on 1 January 2020 at The Shed Nightclub, 129 Langside Avenue, Glasgow,

you JACK FERGUSON did sexually assault [CF] ... in that you did dance in front of

her and touch her buttocks;

CONTRARY to Section 3 of the Sexual Offences (Scotland) Act 2009;

and

(003) on 1 January 2020 at The Shed Nightclub, 129 Langside Avenue, Glasgow,

you JACK FERGUSON did sexually penetrate the vagina and anus of [KR] ... and

did approach her from behind, place your hand beneath her underwear and digitally

penetrate her anus and vagina;

CONTRARY to Section 2 of the Sexual Offences (Scotland) Act 2009."

[2]

On 24 May 2021 the sheriff sentenced the appellant to a community payback order

with 3 years' supervision and 250 hours of unpaid work, and a requirement that, as and

when directed by his supervising officer, he co-operate in an assessment of his suitability for

the community sex offender programme and if deemed suitable undertake the programme.

The sheriff also imposed a 6 month restriction of liberty order. The appellant was made

subject to the notification requirements of the Sexual Offences Act 2003 for a period of

5 years. The appellant appeals his conviction. He does not appeal against sentence.

The evidence

[3]

Senior counsel for the appellant accepted that there had been sufficient evidence to

entitle the jury to convict the appellant of both charges. For present purposes it suffices for

us to provide the following summary of the evidence.

[4]

At the time of the offences the appellant was aged 19. CF and KR were young

women who were also aged 19. They were friends. Neither knew the appellant. All three

attended an event at the Shed nightclub which began on Hogmanay and went on until the

early hours of New Year's Day.

[5]

CF's evidence was that when she was dancing on the dance floor with A, a female

friend, the appellant approached them and started dancing with them. When he walked

away he went behind CF and touched her buttocks with one hand. It had been deliberate

rather than accidental, and it had been very noticeable to CF. The appellant did not say

anything to her. She described him as having "a merry happy level of intoxication".

[6]

KR's evidence was that she and M, a female friend, were dancing alone on the dance

floor at about 2 am. Suddenly she felt a finger in her anus and a finger in her vagina. It felt

aggressive, forceful and painful. She turned around and saw the appellant standing close

behind her, less than a metre away. He was alone. No other male was as close to her. She

shouted at him, asking him what he was doing. She told him not to touch her. The

appellant did not react. He said nothing. In cross-examination KR did not accept that her

identification was mistaken or that the appellant had simply been in the wrong place at the

wrong time.

[7]

Shortly after the assault on KR a steward was given a description of the man who

had been close behind her, and he located the appellant within the nightclub. He recognised

him as a person whom he had ejected earlier in the evening for being "quite drunk".

[8]

The appellant did not give evidence and the defence did not lead any other evidence.

The relevant statutory provisions

[9]

Sections 2, 3 and 60(2) of the Sexual Offences (Scotland) Act 2009 provide:

Sexual assault by penetration

(1)

If a person ("A"), with any part of A's body or anything else--

(a)

without another person ("B") consenting, and

(b)

without any reasonable belief that B consents,

penetrates sexually to any extent, either intending to do so or reckless as to whether

there is penetration, the vagina or anus of B then A commits an offence, to be known

as the offence of sexual assault by penetration.

...

Sexual assault

(1)

If a person ("A")--

(a)

without another person ("B") consenting, and

(b)

without any reasonable belief that B consents,

does any of the things mentioned in subsection (2), then A commits an offence, to be

known as the offence of sexual assault.

(2)

Those things are, that A--

...

(b)

intentionally or recklessly touches B sexually,

...

Interpretation

...

(2)

For the purposes of this Act--

(a)

penetration, touching, or any other activity,

...

is sexual if a reasonable person would, in all the circumstances of the case, consider it

to be sexual."

The appeal

[10]

It is common ground that in order to convict the jury had to be satisfied that there

was mutual corroboration. It is not suggested that the sheriff did not give appropriate

directions in that regard. It is also common ground that CF and KR did not consent to what

happened to them, and that there was no basis for maintaining that the appellant reasonably

believed that either of them had consented. Senior counsel for the appellant also accepted

that, given the nature of the penetration in charge 3, a reasonable person would consider it

to be sexual. The narrow issue in the appeal is whether the sheriff adequately directed the

jury as to what constitutes a sexual assault.

[11]

The sheriff directed the jury that touching is sexual if a reasonable person would, in

all the circumstances of the case, consider it to be sexual. He explained to them that that is

an objective test. Senior counsel for the appellant accepted that those were accurate

directions, but he submitted that in circumstances such as the present case, where an

accused was under the influence of alcohol, they were insufficient. He maintained that the

sheriff ought also to have 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." He submitted that the decision of the court in SD v

Dunn (Procurator Fiscal, Edinburgh) 2015 SCCR 449 supported that proposition. That case

involved a summary complaint rather than solemn proceedings, but the circumstances had

been broadly similar to those in charge 2. In SD the court held that the sheriff had been

wrong to convict the accused of sexual assault. It quashed that conviction and substituted a

conviction of assault. Senior counsel for the appellant acknowledged that SD was an appeal

in respect of a single charge of sexual touching, whereas in the present case it had been open

to the jury to have regard to the evidence concerning charge 3 when forming a view as to

whether the touching in charge 2 had been sexual. Nevertheless, the jury ought to have

been given the suggested supplementary directions.

[12]

The advocate depute submitted that the sheriff's directions about sexual assault had

been appropriate. They reflected and explained the statutory test in section 60(2). The

sheriff did not require to give the suggested further directions. The circumstances in the

present case were very different from those in SD because here a course of conduct was

alleged and it was open to the jury to have regard to the evidence relating to charge 3 when

determining whether the touching in charge 2 was sexual. In any case, in SD the court was

not seeking to prescribe directions which must be given in every case where a contravention

of section 3 is alleged and where the accused had been drinking. The proposed additional

directions would only have served to confuse the jury. They would have tended to suggest

a test which was different from the statutory test.

Decision and reasons

[14]

In our opinion 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.

[15]

SD v Dunn (Procurator Fiscal, Edinburgh) was an appeal by stated case from a

summary trial. The conviction which was appealed was a charge of sexual assault by

touching. The court was not addressing the question of the jury directions which would be

necessary or appropriate in trials of such charges in solemn proceedings. We do not find SD

to be of any assistance in the present context. In our opinion it ought to be treated as a case

decided on its own particular facts.

[16]

We do not understand the court in SD to have intended to provide any authoritative

interpretation or gloss of section 60(2), 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. In that regard it is not without significance that the opinion was not published

on the High Court Judgments website. Rather, it seems likely that it was reported as a note

in the Scottish Criminal Case Reports only because someone who knew of it requested that it

be reported.

[17]

That is sufficient to dispose of the appeal. However, we think it right to add that,

having had the advantage of reading both the stated case and the opinion in SD, we doubt

whether it was correctly decided.

[18]

SD was charged with sexual assault by placing his hands on the complainer's

buttocks. The salient facts were as follows. The incident took place on the dance floor in a

nightclub. SD and the complainer did not know each other. SD had had a substantial

amount to drink. During the evening he approached the complainer, but she indicated to

him that she was not interested in his attentions. Later, when the complainer and a female

friend were dancing together on the dance floor, SD came up behind the complainer and

grabbed her buttocks with both hands, causing her dress to ride up slightly. SD's defence

was that he had not touched the complainer's buttocks. He gave evidence to that effect. He

maintained that the complainer and other Crown witnesses who spoke to him having done

so were making it up.

[19]

The sheriff found the Crown witnesses to be credible and substantially reliable and

that it was SD who was being dishonest. He was satisfied that the grabbing of the

complainer's buttocks had been intentional or reckless, and that it was without her consent

or any reasonable belief on SD's part that she was consenting. He was also satisfied that a

reasonable person in all the circumstances would consider that the touching was sexual.

[20]

In his note within the stated case the sheriff explained that the matters raised in the

grounds of appeal had not been ventilated before him during submissions at the trial. He

commented on three of those matters. The first (reading short) was that "any contact" with

the complainer's "clothed buttocks ... took place in a public place ... when [SD] was under

the influence of alcohol." The sheriff observed that that was indeed correct, but that SD had

earlier shown interest in the complainer and been rebuffed, and had later come up behind

her and grabbed her buttocks with both hands. The contact had not been fleeting. The

grabbing had been deliberate and sexual. The second matter was a contention that in

applying the test in section 60(2) the sheriff ought to have had regard to the fact that a

conviction would result in SD becoming subject to the notification requirements of the

Sexual Offences Act 2003. The sheriff, observed (rightly) that consideration of those

consequences was not relevant to his application of the section 60(2) test to the facts. The

third matter was that, if the sheriff was satisfied that SD grabbed the complainer's buttocks

but that it was not sexual, he could have convicted him of common law assault. The sheriff

responded that it was very clear to him from the nature of the contact and the other facts

found that the section 60(2) test was satisfied.

[21]

The opinion of the court was very short. It contained only four paragraphs. The first

paragraph was an introduction and the fourth paragraph dealt with the formal disposal of

the appeal. The material parts of the opinion are as follows:

"1 ... A conviction under s.3 has the consequence of triggering the notification

requirements of the Sexual Offences Act 2003, which are relatively onerous.

2. ... We take the view that in order for an offence to be sexual in terms of s.3, any

sexual element must be sufficiently significant to trigger that section. In this

connection an objective test is applied; s.80 [sic] of the 2009 Act makes that clear. We

are of opinion that the sexual element is insufficiently demonstrated in the present

case to bring it within the requirements of s.3 of the 2009 Act, as against the

requirements of common law assault. As I have mentioned the test for what is

sexual is an objective one, that is, what a reasonable person would consider to be

sexual. The sheriff has referred to a number of factors that he relies upon in

supporting his conclusion here that the assault was sexual. It seems to us, however,

that he has not given sufficient attention to the fact that the appellant had consumed

a considerable amount of drink beforehand, with the result that the assault can be

regarded as drink-fuelled rather than overtly sexual.

Against that background, what was involved, seizing the complainer's

buttocks with both hands, while clearly to be condemned and clearly amounting to a

common law assault, does not seem to us to have a sufficiently large sexual

component to bring s.3 into operation. For these reasons we will allow the appeal."

[22]

We find it remarkable that the court held that on the facts found by the sheriff he was

not entitled to hold that a reasonable person would consider that SD's grabbing of the

complainer's buttocks was sexual. SD had been attracted to the complainer earlier in the

evening, but he had been rebuffed. Later, he grabbed her buttocks with both hands. It

caused her dress to ride up slightly. A reasonable person would be likely to have in mind

that a woman's buttocks are among the more private parts of her anatomy and that another

person might well have a sexual interest in observing or touching them. Each case will turn

on its own particular facts and circumstances. In our view, on the facts in SD it was open to

the sheriff to conclude that the grabbing of the complainer's buttocks was sexual. We find it

unsurprising that he reached that conclusion.

[23]

The court in SD interfered with the sheriff's assessment, observing that he had:

"not given sufficient attention to the fact that the appellant had consumed a

considerable amount of drink beforehand, with the result that the assault can be

regarded as drink-fuelled rather than overtly sexual."

We doubt whether that was a good basis for the court to interfere. The assessment of the

evidence was a matter for the sheriff. The fact that an accused was intoxicated at the time of

an alleged offence is, of course, one of the facts and circumstances to which a decision-maker

may have regard along with all the other facts and circumstances when deciding whether a

reasonable person would consider the behaviour in question to be sexual. However, usually

it is unlikely to be of any great significance. We see no error in the approach the sheriff took.

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

(Brennan v HM Advocate 1977 JC 38, opinion of the court delivered by Lord President Emslie

at p 47; see also pp 50 and 51). In every case, if all of the other requirements of section 3 are

satisfied, the question is whether in all the circumstances a reasonable person would

consider the relevant activity to be sexual. That is the position whether or not the

perpetrator was intoxicated.

[24]

The court in SD may have been influenced by the consequences for SD of a

conviction for sexual assault - and in particular that he would be subject to the notification

requirements of the Sexual Offences Act 2003 for 5 years. It may have felt that those

requirements would be disproportionate to what it might have considered to be the

relatively minor nature of SD's offence, and it may have been astute to try to avoid such an

outcome. If so, that would have been an erroneous approach. Parliament has legislated to

provide the circumstances in which the notification requirements are to apply.

Conclusion and disposal

[25]

The challenge to the sheriff's directions is ill-founded. There has not been a

miscarriage of justice. The appeal is refused.