By Katy Thorne QC
It was pretty difficult to miss the Sally Challen case in the news earlier this year. Her success was, of course important for her and her legal team. But the case is also important for practitioners for two reasons. Firstly, because it continues the current trend of the criminal justice system towards a more nuanced approach when dealing with certain types of criminal behaviour. Secondly because it reinforces for appeal lawyers, the important role that a publicity campaign can play when trying to change the law.
Sally Challen was convicted of murder in 2011, having killed her husband by striking him multiple times with a hammer she had brought with her to the scene, concealed in her handbag. The defence she ran at trial was one of diminished responsibility based on her depression. Her conviction was quashed in March 2019, after the Court of Appeal heard fresh evidence from a psychiatrist who was of the opinion that the defendant was suffering from two previously undiagnosed mental disorders at the time of the killing, this evidence not having been available at trial.
The Court, presided over by Lady Justice Hallett, decided that there was evidence of an abusive relationship and that, importantly, coercive control was capable of being relevant to the defences of provocation and of diminished responsibility. In Challen’s particular case the Court declined to make a finding of fact whether in fact the relationship rendered Ms Challen herself the victim of coercive control or whether, if she was such a victim, that impacted upon her responsibility for her actions (diminished responsibility) or upon her ability to exercise self-control (provocation). However, the Court did conclude that because neither the evidence of the two mental disorders nor the impact of the abusive relationship on such a person was available at trial, the conviction was unsafe. The court ordered a retrial, but the CPS accepted that a diminished responsibility defence was likely to succeed and therefore accepted the plea to manslaughter on that basis.
Thus, a legal rubicon was crossed, coercive control was accepted as being at least relevant to the defences of provocation and diminished responsibility. Whether that particular constellation of circumstances will reappear in other cases remains to be seen, the Court expressed the view that it was an unusual case, but the Court of Appeal has, in the judgment, acknowledged the role that coercive control may play in a defence to murder.
The result of the Challen case may be an alignment of the partial defences to murder with the recent introduction of the offence of coercive controlling behaviour in an intimate relationship (s76 Serious Crime Act 2015) and is perhaps part of a trend towards a more sophisticated analysis of human behaviour in the criminal justice system. The reduced ability of some people to resist the will of others is increasingly recognised in relation to, for example, the sexual grooming of children, but has developed recently with prosecuting authorities reassessing their assumptions about the behaviour of complainants and suspects in complex situations such as child sex abuse rings and drug supply conspiracies. Similarly, it has caused those who are victims of human trafficking or modern slavery to be treated as such as opposed to being prosecuted. This trend is to be welcomed and it is sincerely hoped that the more nuanced analysis will prevent miscarriages of justice in the future.
This case will also remind appellate lawyers how a well organised media campaign goes hand in hand with success when trying to change the law. Just for Kids have changed the landscape for children as witnesses and defendants; JENGbA was instrumental in pressurising the senior judiciary into rethinking joint enterprise; and Justice for Women and the Centre for Women’s Justice have played a pivotal role in changing the law for women who suffer sexual abuse or violence. Each organisation has pushed the boundaries in the law and managed to get public opinion behind each campaign and were assisted in their legal submissions by the impact of publicity. The campaign for justice for Sally Challen is the latest example of how a change in the law becomes easier for the courts to swallow if there is support in the court of public opinion.
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