Peterhead fiscal made 'prejudicial' remarks
Appeal judges have criticised a prosecutor for acting in "a grossly improper manner" during the trial of a lorry driver who was jailed for killing a woman in a crash.
Adam Morrison had his conviction for causing Bettina Adams' death quashed at the Court of Criminal Appeal.
His lawyers had argued the trial prosecutor made "highly prejudicial" remarks in his speech to the jury.
The judges ruled his conviction was a miscarriage of justice.
Lord Brodie, who heard the appeal with Lord Eassie and Lord Drummond Young, said: "We have come to the view that there is substance in these grounds of appeal and that, as a result of the conduct of the procurator fiscal depute and what we see as being deficiencies in the sheriff's jury directions, the appellant's conviction must be regarded as a miscarriage of justice."
Mr Morrison, 32, formerly of Cove Bay, Aberdeen, was jailed for 18 months and banned from driving for five years by Sheriff Gregor Murray last year.
He had previously been found guilty, by a majority verdict following a trial at Peterhead Sheriff Court, of causing the death of 44-year-old Mrs Adams by driving without due care and attention.
Management accountant Mrs Adams had died from head injuries on 21 January 2011 after her Vauxhall Astra car collided with the articulated lorry being driven by Mr Morrison at the A90 Aberdeen to Peterhead road.
The lorry driver had intended to turn right onto the southbound carriageway by crossing the northbound carriageway from a junction when the crash occurred.
He was later freed on interim liberation pending the hearing of his appeal.
His counsel David Moggach told the panel of three appeal judges that the prosecutor at the trial had made highly prejudicial remarks which had gone unchecked by the sheriff at the time, or when he came to give his directions to the jurors.
The fiscal, Alasdair Fay, had said: "How would you feel, ladies and gentlemen, if you were (the deceased's husband)? He's been sat quietly through much of this trial. He should be looking ahead to Christmas with his wife.....right now.
"Maybe if you try and put yourself in his shoes, maybe you'll conclude that if you had been Mr Morrison what you would have done is turn left (and travel to the next roundabout with a view to using it to get to access to the southbound carriageway)."
Lord Brodie said: "These remarks were plainly irrelevant to a consideration of whether the appellant had been at fault.
"In so far as they sought to recruit the jury's sympathy for the deceased's husband in his loss and bereavement as an element of the Crown case, the procurator fiscal depute was acting in a grossly improper manner which required emphatic action by the sheriff.
"However the sheriff did not address this matter in his charge other than in terms which were essentially conventional."
Sheriff Murray had told jurors they could not be swayed by emotions or prejudices and if they felt sorry for anyone in the case they had to put that to one side.
But Lord Brodie said: "In our view, that fails to address the fact that in his address to the jury the procurator fiscal depute had expressly and culpably invited the jury to do the contrary."
Mr Morrison's lawyers were also critical of the approach the fiscal took to the "not proven" verdict.
In his speech to the jury, the prosecutor told them the verdict was "nobody's friend" and if they had a reasonable doubt they should find him not guilty.
He said: "It's a historical hangover which, as you may be aware, the Scottish Parliament is currently debating actually abolishing."
Lord Brodie said the remarks were improper, and added that, as the law stood, three verdicts were open to a jury in Scotland - guilty, not guilty and not proven.
"The procurator fiscal depute's personal view that this framework was 'a historical hangover' was neither here nor there. What the procurator fiscal depute was doing was attempting to close off a verdict which the jury was entitled to reach," he said.
"His comment that 'it's a historical hangover which, as you may be aware, the Scottish parliament is currently debating actually abolishing' was in any event inaccurate," the judge added.
"This obvious transgression of propriety - with potentially important consequences was something which could have been corrected by the sheriff relatively easily. We do not consider that that was what the sheriff did," he said.
"We have come to the view that there is substance in these grounds of appeal and that, as a result of the conduct of the procurator fiscal depute and what we see as being deficiencies in the sheriff's jury directions, the appellant's conviction must be regarded as a miscarriage of justice."
Lord Brodie said the sheriff used a general conventional direction to jurors on the subject and added: "A much firmer direction, disapproving the procurator fiscal depute's remarks, was patently required."
The appeal judges also said the prosecutor had denigrated the defence position in the trial in a way that was improper and was prejudicial to the lorry driver.
Lord Brodie said: "In so far as these remarks tilted the balance as between Crown and defence that is required for a fair trial, the sheriff did nothing to attempt to restore the balance."