JUSTICE Secretary Humza Yousaf has been urged to start reforming the test for challenging over-lenient court sentences in the wake of the Christopher Daniel controversy.
The Scottish Tories want the Scottish Law Commission to review whether the undue leniency test is fit for purpose or “overly restrictive” and an obstacle to justice.
If follows the case of 18-year-old dental student Daniel from Glasgow.
In January, he was granted an “absolute discharge” despite being found guilty of repeatedly sexually assaulting a six-year-old girl.
It meant he walked out of court a free man with no criminal record.
Sheriff Gerald Sinclair said Daniel was motivated by “inappropriate curiosity” not sexual gratification, and the girl “appeared to have suffered no injury or long lasting effects”.
The case led to calls for the Scottish Sentencing Council to update the guidelines on sexual assault.
Now Tory justice spokesman Liam Kerr has said the problem lies with the test which must be met before the Crown Office can appeal a sentence it considers overly lenient.
He said the Lord Advocate, James Wolffe QC, wrote to him in February saying the Crown could only apply for a longer sentence if the first was unduly lenient, with the definition of unduly lenient dating from 1995.
In a letter to Mr Yousaf, Mr Kerr said he understood the importance of legal precedent but added “everything can be improved and often must be” to maintain public confidence.
He said Mr Yousaf should ask the Scottish Law Commission, the body which recommends improvements in Scots law to the Government, to review the unduly leniency test and “assure itself and the public it is operating as intended and in accordance with the principles of justice”.
He added: “When a convicted child abuser walks free from court with no punishment, not even a criminal record, the system has failed.
“The Crown Office may have been restricted by the test of ‘undue leniency’ so the Scottish Law Commission must review this test to ensure this is not the case.
“While this outcome has been utterly devastating for the victim and her family, we must, at least try to ensure that no one else is treated in this appalling way.”
The Scottish Government said: “We have supported relevant agencies in taking robust action against those who commit sexual offences.
“We have strengthened the criminal law on sexual offences, increased support to victims organisations and encouraged more victims to report their experiences.
“While the law in this area is kept under review, it is worth noting this is a similar test to other legal jurisdictions across the UK.
“As the Cabinet Secretary said during a recent Parliamentary debate, the Scottish Government will raise the issue in future dialogue with the Scottish Law Commission.”
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