Appeal court judges have dismissed claims a Dundee man who molested two students should have his conviction quashed because jurors weren’t told to consider whether his actions were motivated by drinking too much alcohol.
Jack Ferguson, 20, sexually assaulted the two women whilst on a night out at the Shed nightclub in Shawlands, Glasgow, on New Year’s Day 2020.
Glasgow Sheriff Court heard how Ferguson danced in front of his first victim, a 19-year-old medicine student, before touching her on the buttocks.
The court heard how Ferguson then assaulted his other victim – a business management student – shortly afterwards.
Sheriff Martin Jones QC also ordered him to be placed on the Sex Offenders Register for five years.
Miscarriage of justice claim
Lawyers for Ferguson believed he fell victim to a miscarriage of justice and urged judges at the Court of Criminal Appeal in Edinburgh last year to quash their client’s appeal.
Defence advocate Brian McConnachie QC told the court that Sheriff Jones failed to give adequate directions to jurors when explaining the law surrounding sexual assault.
Mr McConnachie said Sheriff Jones’s directions were inadequate given that Ferguson had consumed too much alcohol on the night in question.
The lawyer said jurors should have been told to consider whether the assaults were motivated by sexual reasons or caused by the over consumption of alcohol.
Mr McConnachie said that because Sheriff Jones didn’t do this, his client fell victim to a miscarriage of justice and have his conviction quashed.
However, in a written judgement issued late last week, appeal judges Lord Doherty, Lord Matthews and Lord Woolman rejected the appeal.
‘Apply common sense’
Lord Doherty wrote that the law on sexual assault long held that being drunk was no defence in sexual assault cases.
He wrote: “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.
“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.”
Guilty after trial
Ferguson was convicted on sexual assault charges following a trial in April 2021. His victims cannot be named for legal reasons.
Jurors heard from a friend of the first victim who said Ferguson joined them on the dance floor.
She said: “He tried to dance with us together which was a bit uncomfortable. My friend told me that he just touched her on the bum.”
Ferguson was described as being “too close” to the second victim.
She was said to have been “lifted up” and “shook” before the young woman managed to jump away.
Jurors heard Ferguson had also attempted to carry out a sex act on her.
A friend of the woman told prosecutor Graham MacDonald how Ferguson escaped, but that they were able to give a description of him to security.
Asked what he looked like, the witness added: “He had light hair and distinctive dark-framed glasses.”
Ferguson was later stopped by bouncer Andrew Cochrane and immediately blurted out: “It was not me.”
Appeal refused
Lawyers for Ferguson addressed the appeal court last year. But now judges there have dismissed the appeal.
Lord Doherty added: “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.’
“The challenge to the sheriff’s directions is ill-founded. There has not been a miscarriage of justice. The appeal is refused.”
