Written by Sophie Kay, pupil @ 9KBW
On 28 February 2019, legal history was made when Sally Challen won her landmark appeal of her murder conviction. Sally appealed on the basis that the coercive and controlling abuse which she suffered should be considered as a part of the diminished responsibility defence. This is given that coercive control is now accepted as a legal concept by virtue of the enactment of section 76 of the Serious Crime Act 2015.
Lady Justice Hallett, who sat with Mr Justice Sweeney and Mrs Justice Cheema-Grubb quashed her conviction. A retrial was ordered in light of fresh evidence from a consultant forensic psychiatrist. This expert evidence (which was unavailable at trial) was that Sally suffered from two mental disorders at the time of the killing. It was accordingly held that her murder conviction was unsafe.
Sally Challen’s fate is still left to be determined at her retrial. Legally speaking, what is also uncertain is whether her retrial will move the jurisprudence on further to officially make coercive control a potential defence in and of itself. Equally, it is open to be decided whether coercive control is extrinsically linked to the diminished responsibility defence or not. Indeed, the ordering of a retrial arguably marks the biggest shift in the law of homicide since the 1990s, where the idea of “slow burn provocation” and the notion of battered woman syndrome was formally recognised and gave rise to a potential defence.
In R v Ahluwalia  96 Cr App R 133, the defendant suffered from physical violence and abuse from her husband (who also had an affair) for several years throughout their marriage. She set fire to her husband’s bedroom whilst he was asleep. He died days later from his injuries. At trial, she pleaded manslaughter on the basis that she had no intention of killing her husband; she only intended to inflict pain. The trial judge gave the jury a direction that provocation was also an available defence in light of the abuse she suffered. Despite this, she was convicted of murder.
On appeal, it was held that the classic definition of provocation as “a sudden and temporary loss of control” as first established in R v Duffy  1 All E.R 932 was good law. Therefore, the trial judge was correct to give the Duffy direction. However, due to the fact that this killing was a “slowburn” reaction to the sustained domestic abuse which she endured, there was no immediate loss of self-control. Further, it was held that a medical report which confirmed that the defendant suffered from severe depression at the time of the killing was overlooked. The appeal was allowed and a retrial ordered.
Likewise, in R v Thornton (No.2)  1 WLR 1174, battered woman syndrome was reaffirmed. At trial, the defendant was convicted of murdering her husband after unsuccessfully raising a plea to diminished responsibility in an attempt to establish manslaughter. However, the trial judge felt that he had a duty to leave the defence of provocation open to the jury. A Duffy direction was therefore given. It was directed that this defence would only succeed where it is established that the defendant suffered from “a sudden and temporary loss of control”. This direction was unsuccessfully challenged at the first appeal. In the instant case, however, no further challenge was made. Rather, this second appeal was based on fresh medical evidence that the defendant was suffering from battered woman syndrome and a personality disorder at the time of the killing, due to the persistent abuse which she suffered from. Indeed, it was argued that the effect of this period of abuse may have triggered a loss of control. It was further submitted these were characteristics which should specifically be considered by a jury deciding whether a defendant had been provoked and the standard of control expected of defendants in such circumstances. The murder conviction was quashed. It was held that a jury should be directed to consider both mental and physical characteristics in loss of control cases. This is in accordance with R v Ahluwalia, R v Humphreys  4 All. E.R. 1008, and R v Morhall  7 WLUK 280. As such, a retrial was ordered.
Clearly, there are interesting parallels to draw between this established body of case law and Sally Challen’s case. It should be noted that reporting restrictions were imposed by the Court of Appeal at the judgment. However, prior to the imposition of these restrictions, there was widespread media coverage of this appeal, along with Sally’s trial and her first sentencing appeal. In light of this, the retrial is now firmly in the public consciousness. It is therefore debateable whether a jury could be impartial at the retrial. It will be interesting to see whether abuse of process will be raised because it may be difficult to find a jury who is unaware of these proceedings. However, this is unlikely to succeed following R v Abu Hamza  11ECA Crim 2918. It was held that a fair trial is not impossible where there has been extensive publicity; juries are trusted to judge cases on the evidence presented when given appropriate judicial directions and guidance. Likewise, despite widespread publicity it was still possible to have a fair trial in the prosecution of Thomas Mair who killed MP Jo Cox.
Finally, as suggested in an earlier article, depending on the result of the retrial, there is the potential for coercive control to become a mitigating factor for sentencing. If so, the Sentencing Council might have to amend various guidelines. This is still unknown territory.
However, the very fact that a retrial has been ordered signifies that the legal landscape in this area is wide open for amendment.