Abnormal traits relevant to provocation

LAW REPORT 11 July 1995

Regina v Humphries; Court of Appeal (Criminal Division) (Lord Justice Hirst, Mr Justice Cazalet and Mr Justice Kay) 7 July 1995

When considering whether the reasonable person would be provoked in the circumstances of a defendant, the jury was entitled to take into account characteristics of the defendant which were not repugnant to the general concept of the reasonable person including a permanent psychological illness or disorder which was abnormal, such as attention-seeking through wrist- slashing.

The Court of Appeal allowed an appeal by the appellant, Emma Claire Humphries, against her conviction of murder, substituted a verdict of manslaughter and varied her sentence so that she was released forthwith.

The appellant had an unhappy family background and had a strong tendency to seek attention exemplified by frequent attempts to cut her wrists, leaving visible marks and scars. She left home in 1984, aged 16, to work as a prostitute. She was picked up by the victim, lived with him and continued to work as a prostitute. He began to beat her up and she lost interest in him. Over Christmas and the New Year of 1984/85 she was remanded in custody for some weeks and he took in another young girl. In February 1985 the appellant was in a bar with the victim, his son and two friends. The victim told the appellant they would be "all right for a gang-bang tonight".

The appellant and victim went to the victim's house. The appellant took two knives from the drawer, fearing trouble. She cut both her wrists with one of the knives. The victim walked past her sitting on the landing with one of the knives. He undressed and sat near her with only his shirt on. She was fearful he wanted sex and might force himself on her. The victim taunted her that she had not made a very good job of her wrist-slashing. She lost her self-control and stabbed him.

In her defence she relied on the whole history from when she first met the victim as a cumulative catalogue of provocative conduct against her, culminating with the jibe about the inefficiency of her wrist-cutting which was the trigger which snapped her self-control. A consultant psychiatrist testified that the appellant was of "abnormal mentality with immature, explosive and attention-seeking traits".

The trial judge, when directing the jury in relation to the provocation of the reasonable man, said they had to decide the effect of the jeer on a young woman in that situation who did not have a distorted and explosive personality.

Helen Grindrod QC and Vera Baird (R.R. Sanghvi & Co, Wembley) for the appellant; John B Milmo QC and Adrian Reynolds (CPS) for the Crown.

Lord Justice Hirst, giving the court's judgment, said that it was argued for the appellant that, although the "explosive trait" would not qualify as an eligible characteristic of the reasonable man, the appellant's two other characteristics of attention-seeking and immaturity were eligible characteristics. For the Crown it was argued that any characteristic was ineligible for attribution to the reasonable man if it was wholly inconsistent with or repugnant to the general concept of an ordinary reasonable person.

There was force in the submission that the appellant's tendency to attention- seeking by wrist slashing was closely comparable to dyslexia and anorexia which qualified as eligible characteristics, and like the latter could be regarded as a psychological illness or disorder which was in no way repugnant or wholly inconsistent with the concept of the reasonable person. It was also a permanent condition which was abnormal.

It was clearly open to the jury to conclude that the provocative taunt relied on as the trigger inevitably hit directly at this abnormality and was calculated to strike a very raw nerve. Immaturity was clearly in no way repugnant. Therefore the judge should have left for the jury's deliberation those two relevant characteristics as eligible for attribution to the reasonable woman, it being for them to decide what, if any, weight should be given to them in the circumstances. That was in full conformity with section 3 of the Homicide Act 1957 that it was for the jury and not the jury the issue of provocation.

The court also agreed that the judge failed to analyse to the jury the various strands of provocation at the successive stages starting from the first meeting with the victim and culminating with the killing. This tempestuous relationship was a complex story with several distinct and cumulative strands of potentially provocative conduct building up until the final encounter. Analysis of those strands should have been given to the jury.

Ying Hui Tan, Barrister