Rapist who avoided jail for attacking girl, 13, appeals conviction

Sean Hogg appeared at the Court of Criminal Appeal in Edinburgh

A rapist given community service after attacking a 13-year-old girl says he is the victim of a miscarriage of justice.

Lawyers for Sean Hogg, 22, told the appeal court that the judge misdirected the jury during his trial and the conviction should be quashed.

Hogg was found guilty of attacking the girl twice in Dalkeith Country Park in 2018, when he was 17.

He avoided prison after judge Lord Lake consulted Scotland's new sentencing guidelines for people aged under 25.

Donald Findlay KC told the Court of Criminal Appeal in Edinburgh that Hogg had suffered "a very significant" miscarriage of justice at the hands of Lord Lake.

He said: "The verdict that the jury brought back was demonstrably wrong."

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Prosecutors from the Crown Office accepted that the judge misdirected the jury and that part of the verdict should be quashed.

Solicitor general Ruth Charteris KC told the court: "The Crown's position is that mistakes were made during the trial."

However, the Crown argued that the jury still heard enough evidence for Hogg to be convicted of raping the girl on a single occasion.

Hogg was found guilty earlier this year of rape but due to the new under-25 sentencing guidelines, he was not jailed and instead given 270 hours of unpaid work.

Lord Lake said if Hogg had committed the crime when he was over 25, he would have given him a jail sentence of four or five years.

Lord Lake said if Hogg had committed rape when he was over 25 he would have been jailed for four or five years

Three of Scotland's most senior judges are considering the appeal.

During the hearing Lord Justice Clerk Lady Dorrian noted that when the jury returned their verdict, the judge, prosecutor and defence immediately realised it was "incompetent" and contrary to the directions they had been given on the law.

The verdict was allowed to stand and Lord Lake's subsequent decision not to jail Hogg attracted widespread criticism.

He had said that under guidelines for sentencing people aged under 25, his primary consideration had to be rehabilitation.

'Judge failed me'

Hogg, from Hamilton in South Lanarkshire, was also put under supervision and added to the sex offenders register for three years.

After the trial, Hogg's victim said she was failed by the justice system and the outcome would deter other girls from reporting rape.

The girl had been diagnosed with PTSD and underwent three years of counselling after the attacks.

Aamer Anwar, the lawyer representing the girl, who is now 18, said: "My client 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 judgement."

Earlier this year, First Minister Humza Yousaf said he believed those convicted of rape should go to prison but added that sentencing decisions had to be made by the courts.

Lady Dorrian said the appeal involved "difficult" issues and the judges would issue its decision at a later date.

Anyone listening to today's hearing would have come away with the distinct impression that Sean Hogg's appeal has a very good chance of success.

His lawyer Donald Findlay KC had to say very little and was asked very little by the three appeal court judges. In contrast, the Crown's Ruth Charteris KC was on her feet for a very long time and endured robust questioning.

We now know that at the trial, the lawyers and the judge Lord Lake realised the jury's verdict was legally unsound but Hogg was sentenced anyway. Lord Lake's unpaid work order caused uproar and raised serious questions about the courts' sentencing guidelines for under-25s.

Unless the mood music in court today was completely misleading, it appears likely that Sean Hogg's conviction will be overturned. In theory the Crown could ask for a retrial but the bar for that to happen is set pretty high.