The test was identified as one of the reasons the Crown Office did not pursue an appeal against the sentence of teenager Christopher Daniel, who recently received no criminal record despite being convicted of sexual assault against a minor.
The issue was raised after Daniel, 18, was found guilty of repeated sexual assaults on a six-year-old girl over a two-year period, 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.
Scottish Conservative shadow justice secretary Liam Kerr has written to Scottish Justice Secretary Humza Yousaf 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 “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 Mr Yousaf to direct 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.” Prosecutors decided the sentence against Daniel 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.
Conservative MSP Liam Kerr claimed the sheriff’s decision over Daniel, who wants to be a dentist, had “devastated” the victim’s family. First Minister Nicola Sturgeon has said she understood concerns surrounding the “wholly exceptional” court decision. The victim’s mother has previously said the decision had “shifted blame” on to her family.
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.”