HMA v Wendy Graham 2018

Ms Graham who was sentenced to life imprisonment after being found guilty of murdering her boyfriend had her appeal against conviction rejected. Ms Graham appealed the conviction on the basis that she suffered a miscarriage of justice and she should have had diminished responsibility in relation to this offence.

The Scottish Criminal Case Review team referred her case to the High Court of Appeal on the basis of new evidence. Ms Graham was sentenced in 2008 for stabbing her partner to death. The new evidence was that Ms Graham was suffering from an impairment of the mind at the time of the murder. However the appeal court ruled that there was no reasonable explanation for the evidence not having been led at trial and in any event this evidence would have not affected the jury’s determination. The issue at hand in the Appeal Court was whether the appellant should have been convicted of murder or culpable homicide.

Although the appellant advanced a plea of diminished responsibility, this was withdrawn from the jury’s consideration by the trial judge as the defence did not led any evidence to support this and only had one expert say her behaviours were linked to that of a personality disorder. This expert was not led as a witness but only prepared a report. Their own expert considered the “battered person syndrome” (BPS) defence but stated that Ms Graham’s substance abuse on that day was the most likely trigger of her behaviour. Provocation was available to the jury to consider but this was rejected as they considered that the required mental element was present in this case and she was not incapable of stopping herself.

In June 2017 there was new evidence from a chartered psychologist, Ms Dawn Harris, relating to the appellant’s psychological state when the offence occurred. She concluded at the time of the killing the appellant “would not have had the capacity to think rationally” because of years of suffering abuse at the hands of the victim.

The appellants defence team argued that the psychiatrist at the time of the trial in 2008 did not understand the law of diminished responsibility and the two psychologists for the crown had erred. 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. Therefore, the appeal was rejected.