Calls have been made for the Scottish Law Commission to review the test of undue leniency.
It was identified as one of the reasons that the Crown Office did not pursue an appeal against the sentence of a teenager who recently received no criminal record despite being convicted of sexual assault against a minor.
Liam Kerr, Scottish Conservative shadow justice secretary, has written to Humza Yousaf, the Scottish Justice Secretary, asking him to empower the Scottish Law Commission to review this test, and “ensure it remains fit for purpose”.
In the letter, Mr Kerr wrote that “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”.
The Scottish Tories have now formally asked that the Justice Secretary directs the Scottish Law Commission to review the test.
Mr Kerr said: “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.”
The issue was raised after Christopher Daniel, 18, was found guilty of repeated sexual assaults on a six-year-old girl 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.
Prosecutors decided that the sentence could not be appealed by the Crown Office on the grounds of undue leniency because the case does not meet the high legal test required.
A Scottish Government spokesman said: “The Scottish Government has supported relevant agencies in taking robust action against those who commit sexual offences.
“We have strengthened the criminal law on sexual offences, increased support to victims organisations and encouraged more victims to report their experiences.
“While the law in this area is kept under review, it is worth noting this is a similar test to other legal jurisdictions across the UK.
“As the Cabinet Secretary said during a recent Parliamentary debate, the Scottish Government will raise the issue in future dialogue with the Scottish Law Commission.”