Murderer’s appeal against conviction over judge’s ‘misdirection’ on diminished responsibility rejected

Nicholas Rodgers, who was sentenced to life imprisonment with a punishment part of 16 years for the murder of Alexandra Stuart in Peebles in August 2017, argued that the trial judge “misdirected” the jury on the issue of “diminished responsibility”.

The Appeal Court of the High Court of Justiciary agreed that the judge had made a “material error”, but ruled that there was no “miscarriage of justice”.

The Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Turnbull, heard that the appellant, who had a history of psychiatric problems, was found guilty in May 2018 of the murder of the 22-year-old postwoman after stabbing her in the chest following a night out partying.

‘Material misdirection’

The first ground of appeal was that the trial judge “erred” in directing the jury that it was open to them to find either that the substantial cause of the appellant’s action was the appellant’s abnormality of mind or that it was his use of alcohol or drugs at the time.

It was submitted that he failed to direct the jury that there was a “third option” open if the jury were satisfied that both had played a part.

In that event, it was argued that the test was whether abnormality of mind remained a “substantial cause” - it did not need to be the only cause or even the main or predominant cause - it was sufficient that it remained a cause.

The question for the jury was whether the appellant had satisfied them that, despite the ingestion of drink or drugs, his mental abnormality “substantially impaired” his mental responsibility for the fatal act.

If an accused person’s personality disorder was a substantial cause of his or her actions, the plea of diminished responsibility remained available, and section 51B of the Criminal Procedure (Scotland) Act 1995 made no change to the common law position.

The second ground of appeal was that the trial judge erred when he defined the balance of probabilities in percentage terms.

It was argued that balance of probabilities was a “simple English phrase” and as long as there was specific reference to the standard being lower than that of beyond reasonable doubt, its meaning “could not be improved”.

‘No miscarriage of justice’

The court ruled that despite the material misdirection there was no miscarriage of justice, having regard to the evidence.

The appeal judges observed that, in Graham v HM Advocate 2018 SCCR 347 the court adopted, for common law purposes, the model direction in R v Dietschmann [2003] 1 AC 1209; regarding it as consistent with the principle in Brennan v HM Advocate 1977 JC 38, that: “… a person who voluntarily and deliberately consumes known intoxicants, including drink or drugs, of whatever quantity, for their intoxicating effects, whether these effects are fully foreseen or not, cannot rely on the resulting intoxication as the foundation of a special defence of insanity at the time nor, indeed, can he plead diminished responsibility”.

Delivering the opinion of the court, the Lord Justice General said: “Abnormality of mind had to be a substantial cause of the impairment for the plea to be open. It need not be the only cause and the impairment ‘must not be brought on by the voluntary ingestion of drink or drugs’. If, nevertheless, the jury considered that a personality disorder was an operative (ie substantial) cause of an accused’s actions, the plea remained available. 

“It does not seem to be disputed that the principles of the common law position are still apt when considering the statutory provision. If an accused’s actions at the material time have been substantially impaired by reason of abnormality of mind, then the jury may find diminished responsibility established even if intoxication also played a part.

“Much of the judge’s directions in the area were unexceptional. However, in so far as he directed the jury (as he did) that they had an option to find, as an alternative, either that the mental disorder or the ingestion of alcohol or drugs had led to the impairment, he was in error. 

“It was not a question of these two possible causes necessarily being alternatives. The issue for the jury was, in terms of section 51B(1), whether the abnormality was a cause (ie an operative or substantial cause) of any impairment of the appellant’s ability to determine or control his conduct at the material time. 

“The trial judge’s use of ‘the’ rather than ‘a’ when referring to substantial cause created the error. It was a material error, given that it related to the central issue in the case. 

“All that the jury had to be told in relation to the possible combination of causes, and once the standard Brennan direction was given, was that they could return a verdict of culpable homicide, based on the appellant’s diminished responsibility, if they were satisfied on the balance of probabilities that ‘despite the drink, his mental abnormality substantially impaired’ his ability to determine or control his conduct.”

But the error did not lead to a miscarriage of justice. 

‘Correct verdict’

The question in practical terms was whether, if this appellant had not ingested the alcohol/drugs which he did, would he have acted as he did and delivered the fatal blow as a consequence of his mental abnormality?

The court noted that there was “no psychiatric evidence to that effect”. 

Lord Carloway added: “The unchallenged evidence was that the appellant had taken a very large quantity of alcohol and had consumed both prescribed (Valium) and illicit (Cocaine) drugs. The effects of such a combination are notorious. Dr Campbell deponed specifically to the Valium/alcohol mix causing ‘paradoxical aggression’ and a disinhibition of aggression. 

“Having regard to this evidence, it cannot reasonably be concluded that a miscarriage of justice has occurred. Even on the assumption that the appellant’s ability was impaired as a consequence of a combined effect of voluntary alcohol/drug ingestion and a mental abnormality, the correct verdict was one of murder.”

On the second ground of appeal, the court held that there was no material misdirection on balance of probabilities. 

The opinion stated: “In this case, the jury had, or rather ought to have had, a straightforward question to answer of whether, discounting the effect of alcohol and/or drugs, the mental disorder was a substantial cause of impairment. 

“It may have been better if the trial judge had not taken up defence counsel’s inaccurate (only 50%+ is actually needed) arithmetical formula. 

“Nevertheless, using it in the circumstances prevailing in this case would not have led the jury to misunderstand the meaning of probabilities. It is not a substantially erroneous description.”