Jack Ferguson was convicted of sexually assaulting two women in a Glasgow nightclub on New Year’s Day 2020. Ferguson was sentenced to 250 hours of unpaid work along with a six month restriction of liberty order. 
The complainers, both 19 years old, attended Shed nightclub on New Year’s Eve . The first complainer stated that she had been dancing with friends when Ferguson started dancing alongside them. At this point, he deliberately touches her buttocks. The second complainer told the court that appellant had forcefully penetrated her anus and vagina with his fingers. After this, the appellant was identified by the steward working at the nightclub as someone who had been asked to leave for being drunk. 
At trial the sheriff gave directions to the jury which explained that touching was sexual if a reasonable person would, in all the circumstances of the case, consider it to be sexual. It was explained that the test is objective. As a result, it was accepted that due to the nature of the penetration described, a reasonable person would consider it to be sexual. 
It was submitted on behalf of the appellant that the sheriff’s directions on what amounted to sexual assault were inadequate in the case, in which the accused has been under the influence of alcohol. It was argued that the sheriff should have further directed the jury to consider whether the conduct had a sufficiently large sexual component or whether the incident was impacted by alcohol as opposed to being overtly sexual. 
Counsel for the appellant referred to the case of SD v Dunn (Procurator Fiscal) Edinburgh, the appellant successfully challenge a conviction of a charge of sexual touching of the buttock. 
Lord Doherty provided the opinion of the court and stated: “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.”
In discussing the case of SD, Lord Dohery continued: “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.”
As a result, the appeal was refused.