Calls have been made for the Scottish Law Commission to review the test of undue leniency after claims the existing system is “failing”.
The test was identified as one of the reasons the Crown Office did not pursue an appeal against the sentence of teenager Christopher Daniel, who recently received no criminal record despite being convicted of sexual assault against a minor.
The issue was raised after Daniel, 18, was found guilty of repeated sexual assaults on a six-year-old girl over a two-year period, but was granted an absolute discharge by Sheriff Gerard Sinclair for various reasons, including his perceived emotional naivety.
The decision meant that Daniel, who was between 15 and 17 at the time, will not be on the sex offenders’ register or have any criminal record.
"The problem lies with the test of ‘undue leniency’, which may be restricting the Crown Office’s ability to appeal sentences it considers to be overly lenient.
"When a convicted child abuser walks free from court with no punishment, not even a criminal record, the system has failed.
"I have therefore asked the Scottish justice secretary to formally empower the Scottish Law Commission to review whether the undue leniency test, as it currently stands is fit for purpose.
"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."
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