Sean Hogg suffered a ‘miscarriage of justice’ after being convicted of raping the 13-year-old girl in 2018, when he was 17, an appeal court heard.
Hogg, now 22, insists he was wrongfully convicted of repeatedly attacking the girl in Dalkeith Park, Midlothian in Scotland.
He was spared a prison sentence due to his age and sentenced to 270 hours unpaid work by Judge Lord Lake at Glasgow’s High Court in April.
He would have been jailed for four or five years had he been aged over 25, the judge said.
Prosecutors at Scotland’s Crown Office had intended to challenge Hogg’s sentence, described as ‘unduly lenient’.
However, Scotland’s most senior judges will now review whether the conviction should be quashed, due to legal mistakes – including a ‘factual error on behalf of the trial judge’.
The complainant has been left ‘devastated’ by the decision and maintains she ‘told the truth’, the Court of Criminal Appeal in Edinburgh heard.
Both the advocate depute (prosecutor) and the trial judge were identified as having failed to push for more detail or issue adequate directions to the jury, the appeal court was told.
Solicitor General Ruth Charteris KC said: ‘The Crown’s position is clear, mistakes were made at the trial.
‘The trial judge referred to distress in (one of the incidents), that was wrong.’
Referring to that incident, she said there was no evidence of penetration.
She added there were issues with corroboration, ‘a factual error on behalf of the judge’, and that the Crown ‘sought to amend the verdict’.
Ms Charteris said there were ‘three main issues, the decision to direct the jury on distress; an error made in directions, and also the verdict returned by the jury’.
Judge Lord Matthews – sitting at the appeal court alongside Lady Dorian and Lord Pentland – described some of the evidence as ‘worthless’ and said: ‘There was a strong public interest in the trial being fair.’
Representing Hogg, Donald Findlay KC told the court: ‘There has been a miscarriage of justice.
‘What happened was wrong and ended up with a verdict being allowed to stand, which should not have been allowed to stand.’
Aamer Anwar, the solicitor who represented the complainant, said: ‘My client in April of this year was left devastated.
‘As far as she is concerned, she came forward. She told the truth. She spoke up. She believes the police and the jury did its duty.
‘There is much more she wishes to say, but it would be inappropriate to comment further until the appeal court issues its judgment.’
Hogg was told by Lord Lake during his sentencing in April that he did not believe prison would ‘contribute to his rehabilitation’.
Sentencing, Lord Lake said: ‘‘Rape is one of the most serious crimes and that is why it is tried at the High Court.
‘Looking at the circumstances, her age and vulnerabilities are aggravating factors.
‘For the level of seriousness, I have to consider your liability and have regard to your age as a factor.
‘This offence, if committed by an adult over 25, you attract a sentence of four or five years.
‘I don’t consider that appropriate and don’t intend to send you to prison.
‘You are a first offender with no previous history of prison; you are 21 and were 17 at the time. Prison does not lead me to believe this will contribute to your rehabilitation.’
New guidelines for sentencing people under 25, making rehabilitation rather than punishment a primary consideration, were introduced in Scotland in January 2022.
But the sentence was branded ‘worryingly lenient’ by the chief executive of Rape Crisis Scotland, Sandy Brinley, who said: ‘Our thoughts are with the survivor of this crime.
‘For survivors of any sexual violence, it can be very difficult to see reports of convicted perpetrators walking free from court.’
A decision will be issued in writing in due course.
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