1. Introduction

The case of Ferguson v. Her Majesty's Advocate ([2021] ScotHC HCJAC_51) presents a significant examination of the legal standards applied in sexual assault convictions under Scottish law. This case involves the appellant, Jack Ferguson, who was convicted of two counts of sexual assault following incidents that occurred on New Year's Day 2020 at The Shed Nightclub in Glasgow. The primary legal issue revolved around whether the trial judge provided adequate directions to the jury regarding the definition and assessment of sexual assault under the Sexual Offences (Scotland) Act 2009.

2. Summary of the Judgment

Jack Ferguson was convicted of:

• Sexually assaulting a young woman by dancing in front of her and touching her buttocks, contrary to Section 3 of the Sexual Offences (Scotland) Act 2009.
• Sexually penetrating another woman without consent, contrary to Section 2 of the same Act.

The sheriff sentenced Ferguson to a community payback order, supervised for three years, 250 hours of unpaid work, and a six-month restriction of liberty order. Additionally, Ferguson was subjected to notification requirements under the Sexual Offences Act 2003 for five years. Ferguson appealed his conviction, arguing that the jury directions regarding what constitutes sexual assault were inadequate.

The High Court of Justiciary upheld the conviction, affirming that the sheriff's directions were appropriate and sufficient. The court dismissed Ferguson's appeal, emphasizing the application of an objective standard in assessing sexual assault.

3. Analysis

3.1 Precedents Cited

In his appeal, Ferguson referenced the case SD v. Dunn (Procurator Fiscal, Edinburgh) 2015 SCCR 449 to argue that additional jury directions were necessary when the accused was intoxicated. However, the High Court distinguished the present case from SD, noting that SD involved a summary trial with different circumstances. The court emphasized that SD should be treated based on its specific facts and not broadly applied to solemn proceedings like Ferguson's.

The court also referenced:

• Brennan v HM Advocate 1977 JC 38 – highlighting that self-induced intoxication is generally not a defense in criminal charges.

By scrutinizing these precedents, the court reinforced the principle that the objective test under Section 60(2) remains paramount, irrespective of the accused's intoxication.

3.2 Legal Reasoning

The court's reasoning centered on the application of an objective test to determine whether the accused's actions constituted a sexual assault. Under Section 60(2) of the Sexual Offences (Scotland) Act 2009, the determination hinges on whether a reasonable person, considering all circumstances, would view the conduct as sexual.

The appellant contended that the sheriff should have instructed the jury to consider the influence of alcohol, suggesting that intoxication might render the conduct drink-fueled rather than overtly sexual. The High Court rejected this argument, asserting that intoxication is merely one of many factors that inform the overall assessment but does not alter the fundamental application of the objective test.

Furthermore, the court critiqued the argument that the sheriff's reliance on SD v. Dunn was misplaced, clarifying that SD did not offer a generalizable legal principle applicable to all solemn proceedings involving sexual assault charges.

3.3 Impact

This judgment solidifies the application of the objective standard in sexual assault cases within Scottish law. By dismissing the need for supplementary jury directions regarding intoxication, the court underscores that the presence of alcohol does not negate the sexual nature of an act if a reasonable person would perceive it as such. This precedent ensures consistency in how sexual assault is evaluated, reinforcing that the burden remains on assessing the nature of the conduct rather than the state of mind or intoxication of the accused.

For future cases, this decision clarifies that while personal circumstances like intoxication may inform the context, they do not redefine the legal thresholds for sexual assault. Legal practitioners must therefore focus on the objective perception of the conduct in question when arguing or determining such cases.

4. Complex Concepts Simplified

Objective Test: This is a legal principle where the assessment is based on what a 'reasonable person' would perceive in the given circumstances, rather than the subjective intent or belief of the accused.

Sexual Assault (Section 3): Under the Sexual Offences (Scotland) Act 2009, this refers to any intentional or reckless sexual touching without consent and without a reasonable belief in consent.

Notification Requirements: These are legal obligations that require individuals convicted of sexual offences to inform law enforcement of their personal details and any changes, for a specified period.

Corroboration: In criminal law, this refers to the agreement of two independent pieces of evidence supporting the existence of a fact.

5. Conclusion

The High Court of Justiciary's decision in Ferguson v. Her Majesty's Advocate reaffirms the steadfast application of the objective test in determining sexual assault under Scottish law. By dismissing the appellant's arguments for additional jury directions, the court underscores that the inherent nature of the act, as perceived by a reasonable person, remains the central criterion irrespective of contextual factors like intoxication. This judgment not only upholds the integrity of the statutory provisions but also ensures that the legal standards for sexual assault maintain clarity and consistency, thereby fortifying the protection against sexual offences within the legal framework.