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, 21, 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 his young victim multiple times 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 from Lord Lake.
He said: “The verdict that the jury brought back was demonstrably wrong.”
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 multiple rapes, 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.
Three of Scotland’s most senior judges are considering the appeal.
During the hearing Lord Justice General 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.
She said: “I did not get justice, the judge failed me, he didn’t protect me. You let him go, but gave me, the victim, a life sentence.”
The girl had been diagnosed with PTSD and underwent three years of counselling after the attacks.
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.