Labour veteran Margaret Curran has questioned why a child rapist was spared jail while a former SNP MP was given a prison term for embezzlement.
Sean Hogg, 21, was handed a community payback order for raping a 13-year-old girl several times in a Dalkeith park five years ago.
By contrast, Natalie McGarry was given a 20-month jail term as punishment for stealing funds from SNP and independence groups.
New First Minister Humza Yousaf and justice chief Angela Constance are facing questions over whether current procedures are fit for purpose.
Demands for SNP intervention
Ex-Labour politician Ms Curran, who served in both Holyrood and Westminster, raised concerns over Mr Hogg’s sentence on social media.
She tweeted: “Given she defeated me I am no fan of Natalie McGarry but how can she go to prison for stealing about £25,000 yet a child rapist gets community service.”
Former communities minister Ms Curran accused Ms Constance and Mr Yousaf of “hiding” and a “dereliction of duty”.
She said “When it comes to something as fundamental as child rape, the fact they haven’t responded, even having signalled an understanding of the concerns, is a dereliction of duty.
“I think Angela Constance and Humza Yousaf are going into hiding a bit.
“They’ve taken their eye completely off the ball.”
Given she defeated me I am no fan of Natalie McGarry but how can she go to prison for stealing about £25,000 yet a child rapist gets community service. Can Angela Constance please come out of hiding and say something
— Margaret Curran (@Margaret_Curran) April 10, 2023
Ms Curran said Ms McGarry’s jail term struck her as particularly harsh when compared with Mr Hogg being allowed to walk free.
She said: “Natalie McGarry was horrible to me. She justified me getting harassed on the street. I’m not doing this because I think she’s a poor soul.
“I just thought, this is crazy. This offends my sense of right and wrong.”
How did a child rapist avoid jail?
Legal experts and the wider public were stunned when Mr Hogg was ordered to carry out 270 hours of unpaid work instead of a term behind bars.
Under new guidelines, judges are urged to avoid putting criminals aged under 25 in prison unless absolutely necessary.
Lord Lake, who sentenced Mr Hogg, said he would have been jailed for four or five years had he been older.
He told him: “You are a first offender with no previous history of prison – you are 21 and were 17 at the time.
“Prison does not lead me to believe this will contribute to your rehabilitation.”
Crucially the guidelines would not have prevented the judge from sending Mr Hogg to jail had he deemed it suitable.
Top lawyer Aamer Anwar said: “Sentencing guidelines are exactly what they say they are. They are guidelines.
“There was nothing I could read that would have precluded the judge in the case from imposing a custodial sentence.
“I have never in over two decades in the courts heard of an individual not receiving a custodial sentence for rape.”
Is SNP intervention appropriate?
When questioned, Mr Yousaf said he had to be “careful” over any comments he makes in case there is an appeal.
He said: “I can understand the concern people have raised.
“I also have to be quite careful. Ministers – most certainly the first minister – shouldn’t intervene in sentencing decisions.”
Legal expert Mr Anwar agreed politicians should not meddle in verdicts passed down by the courts.
He said: “I would be against justice ministers or politicians intervening.
“It’s a matter for the Crown Office, more so, as in what do they intend to do? Do they intend to appeal? And if not, why not?”
Mr Anwar added: “Within most democratic justice systems, you have an independent judiciary, you have an independent prosecution, and you have an independent defence.
“I don’t particularly want to go down the route where you have home secretaries and prime ministers jumping in every five minutes.”
But Ms Curran insisted there is more the Scottish Government must do given they are responsible for managing the justice system.
She said: “I understand there are legal processes which are separate from political concerns, and they’ve got to respect that, but I don’t think that lets them off the hook.”
The Scottish Tories have slammed Mr Hogg’s “outrageous” sentence and demanded Ms Constance review current guidelines.
Guideline review
A Scottish Sentencing Council spokesperson said: “The council cannot comment on particular cases which are always a matter for the judge.
“The Sentencing Young People guideline has been approved by the High Court. It is based on robust, independently-assessed evidence from around the world.
“Sentencing guidelines are not binding. Where appropriate a judge can decide not to follow a guideline, but must give their reasons.
“The council is currently developing a guideline on sentencing rape offences. This will include a full public consultation.”
A spokesperson for the Judicial Office for Scotland said: “Judges always carefully consider the facts that are presented to the court, and always take into account the unique factors of each case.”