Woman who murdered abusive boyfriend loses ‘diminished responsibility’ appeal

Lord Carloway
Lord Carloway
A domestic abuse victim who claimed she suffered a miscarriage of justice after being found guilty of murdering her boyfriend has had an appeal against her conviction rejected.
Wendy Graham, who was sentenced to life imprisonment with a punishment part of 11 years in 2008 for stabbing her partner Mark Thomson to death, had her case referred to the High Court of Justiciary Appel Court by the Scottish Criminal Cases Review Commission (SCCRC) on the basis of “new evidence” which suggested that she was suffering from an “impairment of mind” at the time of the killing.
However, appeal judges ruled that there was no reasonable explanation for the evidence not having been led at trial and that, in any event, the evidence would not have affected the jury’s determination of the issue of diminished responsibility.
‘Mental impairment’ 
The Lord Justice General, Lord Carloway, sitting with Lady Clark of Calton and Lord Turnbull, heard that the appellant was unanimously found guilty of the murder of her partner on 4 June 2008 at their flat in Edinburgh, by stabbing him repeatedly with a knife.
The issue at the trial at the High Court in Edinburgh was whether the appellant should be convicted of murder or culpable homicide.  
The Crown led evidence from two forensic psychiatrists: Dr Lenihan, the consultant at the Royal Edinburgh’s Orchard Clinic; and Dr Morris, the specialist registrar at the Royal Edinburgh.
Dr Lenihan noted that the appellant had previously been diagnosed with an “emotionally unstable personality disorder” (EUPD), but expressed the view that “the most prominent mental disorder present” at the time of the killing was her dependence on alcohol and drugs.
Dr Morris reported that the appellant had told him that there had been a “long history of being the subject of domestic violence”, but he considered that, at the time of the killing, the appellant was “intoxicated with drugs and alcohol” and that this would “outweigh any possible evidence of mental disorder”.  
Although the appellant advanced a plea of diminished responsibility, this was withdrawn from the jury’s consideration by the trial judge as the defence had not led any medical evidence to support it, despite obtaining a report from Professor Lindsay Thomson, the medical director of the State Hospital at Carstairs, who said the appellant’s behaviour was “highly suggestive of a personality disorder”, notably EUPD.  
Professor Thomson had considered “battered person syndrome” (BPS) - being a reference to any person who, because of constant and severe domestic violence, becomes depressed and unable to take any independent action to escape the abuse - but she considered that the appellant’s extensive use of substances on the day, with likely impairment of her judgment, was the “most relevant factor” in the case. 
Provocation remained for the jury’s consideration, as did whether the appellant had had the requisite intent or level of recklessness for murder, but provocation was rejected and the jury were clearly satisfied that the necessary mental element had been present. 
‘New evidence’
In June 2017 the SCCRC referred the case on the basis of new evidence, from chartered psychologist Dawn Harris, relating to the appellant’s psychological state at the time of the killing. 
The appeal raised the primary issue of whether the terms of section 106(3)(a) of the Criminal Procedure (Scotland) Act 1995 had been satisfied, namely, whether a miscarriage of justice had occurred, based upon the existence and significance of evidence which was not heard at the original trial; there being a reasonable explanation of why that evidence was not so heard (s 106(3A)).  
The reference also raised a subsidiary question, stemming from dicta in Galbraith v HM Advocate 2002 JC 1, of whether the evidence of a psychologist is capable of demonstrating, contrary to psychiatric opinion, that an accused person suffered from a “mental abnormality” which impaired his ability to determine or control his acts at the material time.
Mrs Harris, who first saw the appellant in February 2017, reported that, at the time of the killing, the appellant “would not have had the capacity to think rationally”, having been “driven by years … of abuse and trauma leading her to acting on impulse in a moment of feeling overwhelmed”, which “could be considered an impairment of mind”. 
Professor Thomson also gave evidence at the appeal hearing, and told that court that the appellant’s mental abnormality of mind, as caused by an EUPD and BPS, would be “relevant to diminished responsibility”.
On behalf of the appellant it was submitted that the psychiatrists who had provided reports and given evidence at the time had misunderstood the law of diminished responsibility where intoxication interacted with a personality disorder, which led them to adopt a flawed approach.
Professor Thomson, it was said, had “revised her opinion” in accordance with the law as it was now understood.  
It was argued that the defence had made a mistake, even if that did not amount to defective representation, as there had been no inquiry at the time of the trial into whether the personality disorder had been a substantial cause of mental impairment at the time of the killing.
The absence of the evidence of impairment “skewed the picture” for the jury, but there was now evidence of that impairment.
Mrs Harris’s evidence was that the appellant’s severe history of complex trauma and dissociation would have impacted upon her ability to control her emotions and reactions on the night of the killing, and the circumstances which arose would have acted as a “trigger” for the violence.
No miscarriage of justice
However, the appeal was refused after the judges ruled that there was no explanation for the new evidence not having been led at trial.
Delivering the opinion of the court, the Lord Justice General said: “The court does not have any explanation, far less a reasonable one, for medical or other evidence relating to diminished responsibility not being led at the trial. It has read and heard of some speculative theories about why, for example, Prof Thomson was not called. After all, Prof Thomson had reported that at least battered person syndrome (BPS) could be considered to be a psychological condition which was ‘relevant to’ diminished responsibility in terms of Galbraith v HM Advocate 2002 JC 1. 
“It seems probable that, had the appellant led Prof Thomson, there would have been sufficient evidence for the plea to go to the jury… It would also have been open to the appellant to have instructed such other inquiries and experts, as she deemed fit, to support the plea.  
“Prof Thomson’s view has not changed, other than in relation to her understanding of the legal test. Mrs Harris’s opinion, had it been solicited at the time of the trial, would have been similar to, if not the same as, that which she advanced both at the time of her reports in 2017 and during the appeal hearing.  
“There is no explanation given as to why that opinion, or one from other practitioners in the trauma field, was not obtained. In these circumstances, this appeal fails at the first hurdle; an absence of any explanation for the new evidence not having been adduced at trial.” 
Lord Carloway added: “The view of Mrs Harris, that the effects of the combination of alcohol and drugs on the appellant would have been limited because she said she was taking no more, and possibly less, than she normally did, is neither supported by the evidence nor does it coincide with the not inconsiderable experience of the court in dealing with the violent effects of the combination of alcohol with, as in this case, a cocktail of prescribed and non-prescribed drugs including, most notably, amphetamine.  
“Having regard to the court’s conclusions on the reliability of Mrs Harris’s evidence on this aspect, it is not persuaded that her testimony would have affected the jury’s consideration of the views of Drs Lenihan and Morris that any contributory element of the appellant’s personality would have been outweighed by the effects of drink and drugs. The court does not consider, in this context, that there is any basis for assuming that the two psychiatrists, who saw the appellant in the aftermath of the killing, misunderstood the law in relation to diminished responsibility.  
“In these circumstances, and without criticising Mrs Harris’s good faith or expertise, the court is not persuaded that her evidence in relation to the appellant’s mental state at the material time was capable of being regarded as reliable or that, even if it were, it was likely to have had a material bearing on the issue of diminished responsibility.”
On the subsidiary issue, the court observed that, at present in Scotland there was no prohibition on persons, who are not psychiatrists expressing an opinion on whether a person suffers from an opinion on whether a person suffers from an abnormality of mind and whether this was resent at the time of the relevant incident - provided that the test in Kennedy v Cordia (Services) 2016 SC (UKSC) 59 is met.
“There may be great value in hearing testimony from a clinical psychologist on, for example, whether an accused suffers from a recognised personality disorder, especially if clinical tests, accepted as valid by the profession, support that conclusion”, the Lord Justice General said.
He added: “It is for the court to determine, following Kennedy v Cordia (Services) (supra), whether a particular clinical psychologist has the appropriate qualifications, by training and experience, to give evidence on such matters, which are otherwise generally within the expert province of the consultant forensic psychiatrist. 
“In that regard, although a clinical psychologist may well be able to diagnose a personality disorder, it might be a different matter if the psychologist is being asked to give evidence about the interaction of alcohol, and more especially certain drugs, with the disorder.”
However, the court suggested that perhaps the Scottish Law Commission, in its current review of the law of homicide, could give consideration to the matter and “make appropriate recommendations on the qualifications which should be demanded by the court before a witness is asked to give evidence on what can be a very important matter in the context of a murder trial”.

© Scottish Legal News Ltd 2019

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