ROGERS v. THE UNITED KINGDOM

FIRST SECTION

DECISION

Application no. 42425/19
Nicolas James ROGERS
against the United Kingdom

The European Court of Human Rights (First Section), sitting on 15 September 2020 as a Committee composed of:

Aleš Pejchal, President,
Pauliine Koskelo,
Tim Eicke, judges,
and Renata Degener, Deputy Section Registrar,

Having regard to the above application lodged on 2 August 2019,

Having deliberated, decides as follows:

THE FACTS

1.  The applicant, Mr Nicolas James Rogers, is a British national who was born in 1991 and is currently detained in HM Prison Shotts, Lanarkshire. He was represented before the Court by Ms R. Cameron of John Pryde & Co Solicitors, Edinburgh.The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.The background facts

2.  In the early hours of 6 August 2017 the applicant arrived at a house party. In the course of the morning, after most of the guests had left, he stabbed a young woman in the chest, killing her. He had a history of mental health issues and was taking prescription drugs to address them at the time of the incident.The trial

3.  The applicant was charged with murder and tried before a jury at the High Court in Glasgow. The prosecution led evidence that he had taken a very large quantity of alcohol at the party and had consumed both prescribed and illicit drugs (cocaine) prior to the stabbing. The applicant did not challenge that evidence. However, his defence was that while he had stabbed the victim, he had not been responsible for his actions on mental health grounds. The sole question for the jury was, therefore, whether he was guilty of murder or of the lesser charge of culpable homicide on the grounds of diminished responsibility as defined in section 51B of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act” – see paragraph 17 below).

(a)   Medical evidence

4.  The applicant led evidence at trial from Dr C., a psychiatrist. In her written report, admitted into evidence, she expressed the opinion that the applicant suffered from an Emotionally Unstable Personality Disorder (Borderline) (“EUPD”) and a Borderline Personality Disorder. The former involved “a marked tendency to act impulsively without consideration of the consequences, together with affective instability”. Outbursts of intense anger could lead to acts of violence or “behavioural explosions”. She noted that he habitually used alcohol to excess when he was not coping with unpleasant emotions and considered that diazepam, which he had been prescribed at the time of the incident, would have added to the disinhibiting effects of alcohol on aggression. She indicated that in her professional opinion the applicant’s medical conditions contributed to his behaviour at the time of the offence but that it was for the court to determine the relative contribution of his mental health issues and the relative contribution of intoxication. She continued:

“In my professional opinion [the applicant] was suffering from a significant abnormality of mind at the time of the alleged offence, namely emotionally unstable personality disorder ... However ... witness statements suggest that he had consumed large amounts of alcohol which in all probability significantly contributed to the alleged offence ...”

5.  Dr C. gave oral evidence at trial that the use of alcohol and diazepam was “not generally recommended”. She stated:

“At low doses, they basically produce more than an additive effect ... there’s a risk of excessive sedation, and in high doses there is a risk of paradoxical aggression, so rather than having a calming effect, the combination of large doses of alcohol with benzodiazepines in large or small doses can disinhibit aggression.”

6.  Dr C. answered affirmatively to the following question from the applicant’s legal representative:

“... your opinion is that his mental health condition, ie the unstable personality disorder, was present and contributed to his behaviour on 6th August.”

7.  Dr C. also confirmed that alcohol “may also have contributed to that”. On the trial judge intervening to ask about the contribution of drugs and alcohol, Dr C. said that this combination would be “unhelpful”.

8.  Dr S., also a psychatrist, was instructed by the prosecution. Her report was admitted into evidence but she was unable to attend the trial. In her report, Dr S. concluded that the applicant had an EUPD and possibly mild to moderate depression. She also concluded that the applicant’s intoxication at the time of the offence “likely significantly contributed to and may have been the crucial determining factor in the alleged offence”.

(b)   The trial judge’s charge to the jury

9.  Before the jury retired to deliberate, the trial judge delivered his charge to the jury. On the “crucial issue” of diminished responsibility, he explained the following:

“[T]he law ... accepts that sometimes the mind can be affected either temporarily or permanently so that it works abnormally. Now, if that is established the law acknowledges that the person’s responsibility for what he has done is diminished. Now, that can arise if a person’s ability to control his behaviour is, to use a phrase you’ve heard quite often now and I’ll repeat it again, substantially impaired by reason of abnormality of mind.”

10.  In such circumstances, he said the person could be convicted of culpable homicide on the grounds of diminished responsibility, rather than murder. However, he clarified, while an abnormality of mind could be caused by mental illness or a personality disorder, for example, the influence of alcohol or drugs could not cause abnormality of mind. He continued:

“Now, here of course there is evidence of mental illness and a personality disorder as well as evidence of alcohol and substance abuse, and for that matter the misuse of prescription drugs. Now, it is open to you to find that he had an abnormality of mind as a result of his depressive illness and his personality disorder. It is open to you to find that notwithstanding his use of alcohol and drugs, his underlying mental state gave rise to the abnormality of mind that was the substantial cause of his actions on 7 August 2017. However, it is also open to you to find that the substantial cause of his conduct was his use of alcohol and drugs and that he should not have his culpability reduced by means of diminished responsibility from murder to culpable homicide.”

(c)   The verdict

11.  On 31 May 2018, the jury convicted the applicant of murder. On 22 June 2018, he was sentenced to life imprisonment with a punishment part of sixteen years.The appeal against conviction

12.  The applicant appealed against conviction. In so far as relevant, he argued that the trial judge had erred in explaining diminished responsibility to the jury in a case where both abnormality of mind and alcohol and drugs played a part. The judge ought to have directed them that diminished responsibility had been made out where the abnormality of mind remained “a” (and not “the”) substantial cause of his actions.

13.  The trial judge prepared a report for the appeal setting out the background and his approach to the legal questions. On the issue of his charge to the jury concerning diminished responsibility, he accepted that he may not have expressed the correct view as to the meaning of the word “substantial” in this context. But he continued:

“20.  That said my impression is that a direction along the lines desiderated would not have altered the outcome. Although the evidence that he had a significant mental illness was clear, other factors were also very clear. As it seemed to me he was largely in control of his actions but made bad choices both generally and in particular on the day of the stabbing. He ignored advice from both professionals and his friends about taking alcohol and drugs. He told [E.] at the party that he knew he should not be drinking. He had been told alcohol and drug taking aggravated his underlying problem. He was upset at the failure of his family to support him after his suicide attempt. I consider that on the evidence it was clear that his personal unhappiness was what drove him to drink excessively, take prescription drugs other than as prescribed, take illegal drugs, gamble excessively and make two attempts on his life. The underlying personality disorder was undoubtedly a significant factor but to the extent that it impaired his judgment it was because it had been stirred up by his alcohol and drug abuse. His words at the time of the stabbing indicate that he was aware that threatening the witnesses with a knife was wrong and that what he then went on to do was also wrong.”

14.  The appeal was dismissed by the High Court of Justiciary sitting as a court of criminal appeal (“the Appeal Court”) on 10 May 2019. The court considered the appropriate approach to be taken to diminished responsibility under section 51B of the 1995 Act (see 17 below) in circumstances where alcohol or drugs had voluntarily been taken. It referred to the recent case of Graham v. HM Advocate (see paragraph 19 below) and the Appeal Court’s endorsement there of the model direction to the jury which had been given by the House of Lords in R. v. Dietchmann (see paragraph 18 below) prior to the enactment of section 51B. It continued:

“33. ... 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.”

15.  Turning to the trial judge’s charge to the jury, the court noted:

“34. ... [I]n 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 ... 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 ...”

16.  The question was whether this material misdirection had led to a miscarriage of justice such that the appeal ought to be allowed. The Appeal Court concluded that it had not. It noted that the question was, in practical terms, whether if the applicant had not ingested the alcohol and drugs he would have acted as he did as a consequence of his mental abnormality. It answered:

“36.  There was no psychiatric evidence to that effect. The unchallenged evidence was that the appellant had taken a very large quantity of alcohol and had consumed both prescribed (Valium [diazepam]) and illicit (Cocaine) drugs. The effects of such a combination are notorious. Dr [C.] 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.”Relevant domestic law and practiceDiminished responsibility

17.  The law as regards diminished responsibility is set out in section 51B of the 1995 Act, which entered into force in 2012 and reads as follows:

“(1)  A person who would otherwise be convicted of murder is instead to be convicted of culpable homicide on grounds of diminished responsibility if the person’s ability to determine or control conduct for which the person would otherwise be convicted of murder was, at the time of the conduct, substantially impaired by reason of abnormality of mind.

(2)  For the avoidance of doubt, the reference in subsection (1) to abnormality of mind includes mental disorder.

(3)  The fact that a person was under the influence of alcohol, drugs or any other substance at the time of the conduct in question does not of itself—

(a)  constitute abnormality of mind for the purposes of subsection (1), or

(b)  prevent such abnormality from being established for those purposes.

(4)  It is for the person charged with murder to establish, on the balance of probabilities, that the condition set out in subsection (1) is satisfied.”

18.  The House of Lords in R v. Dietschmann [2003] UKHL 10 (prior to the enactment of section 51B) indicated that juries in England and Wales being asked to consider the defence of diminished responsibility in a case where there had been alcohol consumption ought to be directed along the following lines:

“41.  Drink cannot be taken into account as something which contributed to ... any impairment of mental responsibility arising from [his mental] abnormality ... [Y]ou may take the view that both the defendant’s abnormality and drink played a part in impairing his mental responsibility for the killing and that he might not have killed if he had not taken drink. If you take that view, then the question for you to decide is this: has the defendant satisfied you that, despite the drink, his mental abnormality substantially impaired his mental responsibility for his fatal act, or has he failed to satisfy you of that.”

19.  In Graham v. HM Advocate [2018] HCJAC 57, the Appeal Court endorsed the terms of the model charge to the jury provided by the House of Lords in R v. Dietschmann.Jury trials in Scotland

20.  Judicial consideration of the compatibility of the jury system in Scotland with Article 6 of the Convention is summarised in Judge v. the United Kingdom (dec.), no. 35863/10, § 20, 8 February 2011.

COMPLAINT

21.  The applicant complained under Article 6 §§ 1 and 2 of the Convention that his trial was unfair because he did not receive a reasoned decision based on the evidence. He contends that the safeguards said by this Court in Judge, cited above, and Beggs v. the United Kingdom (dec.), no. 15499/10, §§ 160-163, 16 October 2012, to apply did not operate in his case to ensure that he had a fair trial. He moreover contended that his right to be presumed innocent had not been respected because the prosecuting authorities had not established by evidence set out in a reasoned decision his guilt of the crime of murder, according to law.

22.  Under Article 13, taken in conjunction with Article 6 §§ 1 and 2, he submitted that there was no rational basis for the Appeal Court’s conclusion and did not therefore offer an effective remedy for the breach of his Article 6 rights.

THE LAW

23.  The applicant essentially complains under Article 6 § 1 that in light of the material misdirection he did not have a reasoned decision based on the evidence and that this was not remedied by the Appeal Court. The Court considers it appropriate to examine the matter from the perspective of Article 6 § 1 only, which provides in so far as relevant as follows:

 “ In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

24.  In its judgment in Taxquet v. Belgium [GC], no. 926/05, § 83-84, ECHR 2010, the Grand Chamber observed that the institution of the lay jury could not be called into question. It further concluded that the Convention did not require jurors to give reasons for their decision and that Article 6 did not preclude a defendant from being tried by a lay jury even where reasons were not given for the verdict. Nevertheless, it held that the accused and the public must be able to understand the verdict that had been given (at § 90 of its judgment). In proceedings conducted before professional judges, the accused’s understanding of his conviction stemmed primarily from the reasons given in judicial decisions, which had to indicate with sufficient clarity the grounds on which judges had based their decisions and show that the essential issues of the case have been addressed (at § 91). The Grand Chamber continued:

“92.  In the case of assize courts sitting with a lay jury, any special procedural features must be accommodated, seeing that the jurors are usually not required – or not permitted – to give reasons for their personal convictions ... In these circumstances likewise, Article 6 requires an assessment of whether sufficient safeguards were in place to avoid any risk of arbitrariness and to enable the accused to understand the reasons for his conviction ... Such procedural safeguards may include, for example, directions or guidance provided by the presiding judge to the jurors on the legal issues arising or the evidence adduced ..., and precise, unequivocal questions put to the jury by the judge, forming a framework on which the verdict is based or sufficiently offsetting the fact that no reasons are given for the jury’s answers ... Lastly, regard must be had to any avenues of appeal open to the accused.”

25.  It is clear from Taxquet that what is required by Article 6 is not a reasoned decision as such, but that a convicted person be able to understand the reasons for the verdict.

26.  The Court in Judge, cited above, addressed whether a convicted person could understand the reasons for the verdict handed down by a jury in Scotland (see also Beggs, cited above, §§ 160-163). It observed:

“36.  The Court considers that, in the present case, none of the features which led the Grand Chamber to find a violation of Article 6 in Taxquet are present in the Scottish system. On the contrary ... in Scotland the jury’s verdict is not returned in isolation but is given in a framework which includes addresses by the prosecution and the defence as well as the presiding judge’s charge to the jury. Scots law also ensures there is a clear demarcation between the respective roles of the judge and jury: it is the duty of the judge to ensure the proceedings are conducted fairly and to explain the law as it applies in the case to the jury; it is the duty of the jury to accept those directions and to determine all questions of fact. In addition, although the jury are ‘masters of the facts’ ... it is the duty of the presiding judge to accede to a submission of no case to answer if he or she is satisfied that the evidence led by the prosecution is insufficient in law to justify the accused’s conviction ...

37.  These are precisely the procedural safeguards which were contemplated by the Grand Chamber at paragraph 92 of its judgment in Taxquet ...”

27.  There is therefore no doubt that the Scottish system of jury trials does not, in principle, give rise to any concerns as regards the ability of a convicted person to understand the verdict.

28.  In the present case, the central facts were not contested (see paragraph 3 above). The only issue before the jury was whether the applicant’s responsibility for the stabbing was diminished on mental health grounds. The reason for his conviction of murder after trial was therefore particularly obvious: the jury must have rejected his contention that his abnormality of mind was the substantial cause of his actions. The applicant argues that the material misdirection by the trial judge meant that he was denied the necessary safeguards at trial. But this argument is misconceived. The misdirection in his case did not cast any doubt whatsoever on the reasons for the verdict given: it remained plain to the applicant why he had been convicted of murder.

29.  The appeal judgment was delivered by professional judges, who handed down a reasoned judgment which explained very clearly why his conviction had been upheld. The Appeal Court explained that the question, under section 51B of the 1999 Act as properly understood, was whether, if the applicant had not ingested alcohol and drugs, he would have acted as a he did because of his mental abnormality (see paragraphs 15-16 above). It found that there was no psychiatric evidence to this effect. It referred to the “notorious” effects of the combination of diazepam, cocaine and alcohol, and the disinhibition of aggression it caused. It was satisfied, as a matter of law, that even if the applicant’s ability was impaired as a consequence of the combined effect of voluntary drug and alcohol ingestion and a mental abnormality, the correct verdict was one of murder. It is thus apparent that the Appeal Court did not accept that, on the evidence presented at trial and on a balance of probabilities (see paragraph 17 above), the applicant had established as the law required that his abnormality of mind was a substantial cause of his actions. The applicant claims that the court’s conclusion was irrational but this claim is without any foundation. On the contrary, as the appeal judgment makes clear, the Appeal Court’s conclusion was firmly based on the medical evidence led at trial.

30.  The Court therefore finds that the proceedings in the applicant’s case, including his appeal, afforded safeguards against arbitrariness and made it possible for him to understand why he had been convicted. While the misdirection might initially have left some confusion in his mind as to whether his defence of diminished responsibility had properly been rejected based on the evidence, this ambiguity was resolved by the Appeal Court. There is accordingly no appearance of a violation of Article 6 § 1 of the Convention. It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 8 October 2020.

Renata DegenerAleš Pejchal
Deputy RegistrarPresident

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