Judges reject appeal by murderer of Peebles postwoman Alex, 22

Rogers, 29, of Innerleithen, was convicted of murdering Alex, 22, at a party in Cuddyside in Peebles in August 2017 after a trial in May the year after, and in June last year he was sentenced to life imprisonment with a minimum tariff of 16 years.

Rogers, represented by Gordon Jackson, claimed he was suffering from an abnormality of mind and contended that trial judge Lord Alan Summers had misdirected jurors regarding his special defence of diminished responsibility.

The Appeal Court of the High Court of Justiciary in Edinburgh accepted that Lord Summers had made a mistake but ruled that it hadn’t resulted in miscarriage of justice.

Lord justice general Lord Carloway, sitting with Lord Menzies and Lord Turnbull, heard that Rogers stabbed Alex in the chest with a seven-inch knife while drunk and drugged up during a night out.

One ground of appeal was that Lord Summers had erred in directing the jury that it was open to them to find that the main cause of the murder was either Rogers’ abnormality of mind or misuse of alcohol or drugs at the time rather than a combination of both.

The other ground of appeal put forward by Rogers was that Lord Summers had erred in defining the balance of probabilities in percentage terms despite that being his defence team’s proposition.

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”.

The appeal judges noted that Rogers, having voluntarily and deliberately consumed both drink and drugs for their intoxicating effects, could not rely on the resulting intoxication as the foundation of a special defence of insanity at the time or plead diminished responsibility.

Lord Carloway, advocate Colin Sutherland, 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 cause of an accused’s actions, the plea remained available.

“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 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 whether the abnormality was a 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.

“The unchallenged evidence was that the appellant had taken a very large quantity of alcohol and had consumed both prescribed and illicit drugs, valium and cocaine.

“The effects of such a combination are notorious.

“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 and drug ingestion and a mental abnormality, the correct verdict was one of murder.”

Regarding the second ground of appeal, Lord Calloway said: “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 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 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.”