A man who was deemed too young for jail after being found guilty of raping a 13-year-old schoolgirl should never have been convicted, appeal judges have ruled.
The non-custodial sentence given earlier this year to Sean Hogg, who was found guilty in April of raping the child in a park, was widely condemned by figures including JK Rowling and was being appealed by Scottish prosecutors.
However, Lady Dorrian, Scotland’s second-most senior judge, told the 22-year-old on Wednesday that he should never have been found guilty in the first place due to an “insufficiency of evidence”.
Hogg’s lawyers had argued that the requirement for corroboration in the Scottish legal system had not been met. They successfully argued that the judge in the initial case, Lord Lake, had misdirected the jury. There will not be a retrial.
Lord Lake had told a jury that the alleged victim’s evidence could be corroborated by the account of a witness who said he had seen her “distressed” following an incident, the court heard.
However, Donald Findlay KC, representing Hogg, had said this did not amount to corroboration of an allegation of rape and that the jury should never have been told this, leading to a “very significant miscarriage of justice”.
The appeal judges said they agreed with the submissions which had been made to them by Mr Findlay.
Sean Hogg, 22, pictured at the High Court in Glasgow after being convicted of rape, was deemed too young for jail. His conviction has now been quashed
Lady Dorrian, who sat with colleagues Lord Matthews and Lord Pentland, said: “For the reasons given in the written appeal the appeal must succeed.
“There was an insufficiency of evidence for a conviction and the inevitable result of the appeal must be acquittal.”
The case had caused major scrutiny of sentencing guidelines in Scotland, which state that criminals aged under 25 should be treated more leniently by the courts in part because their brains have not fully developed.
While there are other cases in which the guidelines have been controversially applied, the Hogg case was the most high profile.
Ms Rowling, the Harry Potter author, led the condemnation of the sentence, claiming the guidelines were another example of a supposedly “progressive” Scottish policy harming women and girls.
Lord Lake had said Hogg would have been sentenced to between four and five years in jail were it not for the sentencing rules, which were written by an independent body but backed by SNP ministers.
Aamer Anwar, the lawyer representing the complainer in the case, said his client had been left with a “feeling of devastation” at the successful appeal and now had “no hope of closure”.
He said his client called on the government, the judiciary and the Lord Advocate to state it was “never the intention” of the new sentencing guidelines that convicted rapists could escape imprisonment.
Ms Charteris offered to meet with the complainer following the case. She said: “The Crown will seek to learn any lessons it can from this case as we continue work to transform the way we prosecute sexual offences.”
Hogg smiled as he left the Court of Criminal Appeal in Edinburgh, having been cleared of raping the child at Dalkeith Country Park, in Midlothian, when he was aged 17.
He had been subject of significant media attention since his conviction, and was spared jail again in July for breaching the terms of his community order.
Prosecutors had taken the rare step of appealing the original sentence, of 270 hours of unpaid work, in a bid to have a harsher sentence imposed.
However, Ruth Charteris KC, the Solicitor General, said the Crown had decided not to pursue a new case against Hogg.
She added: “The Crown has come to a view that it is not in the public interest to seek a new prosecution.”
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