The respondent was charged with sexual assault under section 3 of the Sexual Offences (Scotland) Act 2009 for touching the bottom of YZ at the Argyle Bar in Edinburgh on 24 December 2022. After trial, the sheriff convicted the respondent of common law assault, removing the sexual aspect of the charge and the reference to section 3.

The Crown appealed, arguing that the sheriff had erred by considering the respondent’s intoxication and intent to play a practical joke, which should not influence whether the assault was sexual. The respondent claimed the sheriff correctly accounted for his motivation and intoxication.

The court allowed the appeal, stating that factors like intoxication or intent to joke were irrelevant in determining whether the assault was sexual. The court found that the touching was sexual under section 3, as it was an intentional or reckless act on an intimate area without consent, convicting the respondent and imposing a 5-year notification requirement under the Sexual Offences Act 2003.