Judges will consider an appeal against the conviction of a man controversially spared jail over the rape of a 13-year-old girl.
Lawyers for Sean Hogg told the Court of Criminal Appeal that the judge who presided over his trial did not follow correct legal procedures to establish guilt and the 22-hyear-old suffered a “very significant miscarriage of justice”.
Hogg was found guilty of attacking his victim in Dalkeith Country Park on various occasions in 2018, when he was 17.
He avoided jail after being given a community payback order as a direct alternative to imprisonment after judge Lord Lake consulted Scotland’s new sentencing guidelines for people aged under 25.
Donald Findlay KC said Lord Lake told jurors in his legal directions that the complainer’s evidence could be corroborated by an account of a man who said she appeared to be “distressed” following the incident which led to Hogg’s conviction.
The lawyer told the court that it was wrong for the judge to have told the jurors this. He said the witness’ account of “distress” could not corroborate the complainer’s account.
Mr Findlay said that Lord Lake should have known this and that the jury should haven’t been told that they could use it as corroboration.
The KC told the court that Lord Lake’s actions resulted in Hogg being wrongfully convicted.
The Crown Office accepted that the judge misdirected the jury, and that part of the verdict should be quashed.
But prosecutor Ruth Charteris KC told the court that the Crown believed that there was enough evidence to allow it to maintain Hogg’s conviction.
Judge Lady Dorrian and her colleagues are to consider the case on Wednesday.
If the judges rule against Hogg, then the Crown will make submissions to the court about Hogg’s sentence being unduly lenient.
She added: “We will take our time to consider the issues in this case and we will issue our decision in writing in due course.”
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