Justice by begging bowl… and the victims crying out for change
By Graham Grant
IS there anyone involved in the case of child sex offender Christopher Daniel who believes that justice has been done?
A sheriff found Daniel guilty of molesting a six-year-old girl, but he was let off with an absolute discharge, sparing him a criminal record.
Now 18, and studying dentistry, the teenager repeatedly touched the child over her clothing while he was aged between 15 and 17 – a charge he denied in court.
Sheriff Gerard Sinclair sparked international outrage after ruling it would damage Daniel’s career prospects if he had faced a more severe penalty, arguing he had been guilty only of ‘inappropriate curiosity’.
He also claimed the girl had not suffered ‘long-lasting effects’, an extraordinary assessment given that no-one can know whether or not she has escaped permanent psychological damage.
Presumably Sheriff Sinclair believes justice has been done, but it’s hard to believe he hasn’t reflected on his decision-making: after all, amid a public outcry, his sentencing statement was published – a highly unusual step – in a bid to explain his rationale.
Daniel might well believe justice wasn’t served – as he denied sexual assault – although his lawyers say the teenager has been attending counselling sessions.
They also say their ‘client’s family appreciate the genuine sensitivity of this issue and have no wish to cause further upset to the victim’s family’.
The girl’s parents are outraged because the Crown Office dropped an appeal against the outcome of the summary trial on the grounds of ‘undue leniency’, while the victim’s mother has revealed plans for a possible judicial review of the Lord Advocate’s decision not to appeal.
This is a costly move, so public donations would probably be needed – though there is no guarantee that, even if the requisite sum were to be raised, the judges would rule in favour of the victim’s family.
But what does it say about our justice system in the 21st century that ‘crowd-funding’ may be the only realistic mechanism for ensuring that a sex offender who abused a little girl is adequately punished?
The sheriff’s aim was for Daniel to be allowed to return to his studies; as he is not on the sex offenders’ register, even if he was thrown off his dentistry course, he could later become a ‘lifeguard, a teacher, a gynaecologist, anything’, as the victim’s mother told the Mail in an interview in Saturday’s paper.
Yet to try and prevent Daniel abusing again, the girl’s parents may have to resort to justice by begging-bowl – an approach that may well work, given that so far more than 30,000 people have signed a petition demanding ministerial intervention to review Daniel’s case.
Nicola Sturgeon and Justice Secretary Humza Yousaf insist politicians can’t meddle with the courts, though that hasn’t stopped them fast-tracking moves to introduce a presumption against jail terms of up to a year.
They can’t interfere with judicial decisions, but they can seek to bind the hands of sheriffs: so the independence of the courts is, it seems, a fairly flexible concept, depending on whatever the political goal is at the time (emptying prisons, in this case).
The bid to phase out prison terms of up to 12 months poses a particular risk for vulnerable women, as almost all convicted domestic abusers who are sent to jail face sentences of less than a year.
In another shocking case, sex offender Mikey Hoc raped a blind woman only weeks after being freed on bail over another sex attack.
Her ordeal took place soon after a court freed the 19-year-old on bail when he appeared facing another rape charge.
Politicians don’t decide bail, but is it really satisfactory for them to throw up their hands in abject surrender in the face of such stark evidence that the justice system is irrevocably broken?
Of course, it is true that Miss Sturgeon can’t be held responsible for Sheriff Sinclair’s decision, although the SNP did set up a special ‘council’ to make sentencing less opaque: an objective which, as the Daniel row demonstrates, has yet to be met.
In fact, the Scottish Sentencing Council is an expensive talking-shop, pumping out propaganda in an abortive attempt to allay public concern about soft touch justice.
Sheriff Sinclair is also chief executive of the Scottish Criminal Cases Review Commission, meaning he has a dual role: handing down sentences, and convictions, and running the body that decides whether or not convictions are unsafe.
The fact this curious arrangement is allowed to continue shows the extent to which the justice system, at its senior levels, operates for the most part in a hermetically sealed bubble, and seems firmly resistant to – and often highly dismissive of – public criticism.
The Lord Advocate, James Wolffe QC, also has a dual role, as a member of the Scottish Cabinet – another custom we’re all supposed to swallow, as if it didn’t raise serious questions over the blurring of boundaries between the political and legal realms.
When the SNP came to power in 2007, then first minister Alex Salmond said it was ‘unnecessary and inappropriate’ for the Lord Advocate to be involved in the ‘political operations’ of government, or to sit at the Cabinet table.
But in August last year, it emerged that Mr Wolffe had attended 59 sessions of Miss Sturgeon’s Cabinet in the previous two years – nearly three-quarters of all meetings held.
And yet it’s not entirely clear who holds the country’s top law officer to account in any meaningful fashion, particularly as he has largely shunned media scrutiny, preferring to operate behind closed doors, except for the odd photocall.
The Crown’s position is that there are sound legal reasons why it can’t forge ahead with an appeal against Daniel’s sentence.
If that’s the case, perhaps Mr Yousaf should be focusing on changing the law on appeals against ‘undue leniency’, rather than emptying prisons.
No head of a prosecution authority anywhere in the world can be routinely expected to publicly explain the precise reasoning behind every decision – but then this isn’t a routine case.
Couldn’t Mr Wolffe – who may privately deplore Sheriff Sinclair’s sentence, and the reasons for it – step out of the shadows to explain why on earth a mother is having to beg for cash to get justice for her sexually abused daughter?
Don’t hold your breath: Scottish justice remains rooted in arcane traditions of uncertain origin which help to fuel the secrecy culture in our courts.
It is a sclerotic system that is ripe for overhaul – but the SNP has proved utterly incapable of challenging the growing disconnect between those who dispense the law, and the public they are supposed to serve.
*This column appeared in the Scottish Daily Mail on February 19, 2019.
