Tuesday, 10 December 2019

R v Sally Challen ~ Invisible chains

On 14 August 2010 Sally Challen killed her husband, Richard Challen, with 20 or more blows from a hammer.  In 2011, she was tried and convicted of his murder. The trial was in the Crown Court sitting at Guildford - His Honour Judge Critchlow and a jury.  A sentence of life imprisonment was imposed with a minimum term of 22 years - later reduced to 18 years. 

In February 2019,  the Court of Appeal heard Sally Challen's appeal which was on the basis of fresh evidence, namely the diagnosis by a consultant forensic psychiatrist (Dr Gwen Adshead), that
Challen was suffering from two previously undiagnosed disorders at the time of the killing and fresh evidence as to the alleged coercive control by the victim. The murder conviction was quashed and a retrial ordered. See the Court of Appeal's extempore judgment at [2019] EWCA Crim 916 - Hallett LJ, Sweeney and Cheema-Grubb JJ.  The appeal is of particular note because of the court's observations about coercive behaviour, a form of conduct which may now amount to an offence under the Serious Crime Act 2015. Coercive behaviour is not a defence to murder but may be relevant in considering the available partial defences to murder - e.g. diminished responsibility.

In June 2019, a plea of guilty to manslaughter was accepted by the Crown and Sally Challen was sentenced to 9 years and 4 months - time already served.  She was therefore released - The Guardian 7 June 2019.

On 9 December 2019, the case was the subject of a BBC 2 broadcast which may be viewed for a limited period via this link.

Controlling or Coercive Behaviour:

The Serious Crime Act 2015 section 76 created the offence of "Controlling or coercive behaviour in an intimate or family relationship".  Section 76 came into force on 29 December 2015.

Case law prior to the introduction of this offence indicated the difficulty in proving a pattern of behaviour amounting to harassment within an intimate relationship - see, for example, Curtis [2010] EWCA Crim 123 and Widdows [2011] EWCA Crim 1500 and CPS Legal Guidance.

Partial defences to murder:

When a defendant is tried for murder, a conviction for manslaughter is possible if one of the partial defences succeeds.

Diminished responsibility is a partial defence available under the Homicide Act 1957 section 2.

The common law provided a partial defence of provocation and the defence was modified by section 3 of the Homicide Act 1957 - (see section 3 in the original Act).  That defence was replaced by a partial defence of Loss of Control - Coroners and Justice Act 2009 section 54.  This change came into force on 4 October 2010 but is not retrospective and therefore not applicable to Sally Challen's case.

A third partial defence, not relevant to Sally Challen's case, is Suicide Pact - Homicide Act 1957 section 4.

Sally Challen's appeal:

The court was asked to receive expert evidence from medical practitioners including psychiatrist Dr Gwen Adshead. The judgment, delivered by Hallett LJ, sets out the court's reasoning for accepting the medical evidence -

"In deciding whether to receive the evidence from Professor Stark and Doctors Adshead and Exworthy, pursuant to s.23 of the Criminal Appeal Act, we must consider whether it is in the interests of justice to do so. We must have particular regard to: (a) whether the evidence appears to the court to be capable of belief; (b) whether it appears to the court the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal, and (d) whether there is a reasonable explanation for the failure to adduce the evidence in these proceedings
As this court has observed frequently, any available defences should be advanced at trial, and if evidence, including medical evidence, is available to support a defence it should be deployed at trial. As a general rule, it is not open to a defendant to run one defence at trial and when unsuccessful, to try to run an alternative defence on appeal, relying on evidence that could have been available at trial. This court has set its face against what has been called expert shopping. Nor is it open to an appellant to develop and sometimes embellish their account to provide material upon which a fresh expert can base a new report and diagnosis.

Thus, the hurdle for Ms Wade is a high one in persuading us that the conviction is unsafe on the basis of the fresh evidence. She advanced the appeal principally on the ground that evidence of the theory of coercive control is now available and if adduced at trial would have assisted the appellant significantly in advancing her defence. However, it is important to remember that coercive control as such is not a defence to murder. The only partial defences open to the appellant were provocation and diminished responsibility, and coercive control is only relevant in the context of those two defences
We emphasise that we were not persuaded that had it stood alone the general theory of coercive control on the facts as presented to us would have afforded the appellant a ground of appeal. However, it did not stand alone. We have focused on Dr Adshead's post-conviction diagnosis that the appellant suffers from borderline personality disorder and a severe mood disorder, probably bipolar affective disorder, and suffered from those disorders at the time of the killing. If that is correct, it is in that context that the theory of coercive control may be relevant.

We considered, therefore, the circumstances in which Dr Adshead was instructed so as to determine whether this was simply an exercise in expert shopping. We then considered the evidential basis of Dr Adshead's opinion.

First, we accept that Dr Adshead was consulted because of genuine changes in the appellant's condition in prison, namely the manic episodes. Coupled with the history of depression, the episode suggested to the appellant's solicitor a diagnosis of bipolar affective disorder. This was confirmed later by Dr Adshead. It is possible that the manic episodes were triggered by the stress and incarceration and the medication for depression, as Dr Gilluley believes, but in Dr Adshead's opinion the timeline suggests otherwise. If her diagnosis of the two disorders is correct, this was missed by the psychiatrist at trial and there is a reasonable explanation for not adducing the evidence.

Second, we accept that the evidence is credible and would have been admissible in the proceedings. There is a body of objective contemporaneous material that arguably supports Dr Adshead's diagnosis, albeit she made it several years after the killing. Some of that material was before the jury, but its potential relevance was not addressed. We give some examples. Mrs Noble was so concerned about the appellant's erratic behaviour in 2009 that she thought the appellant may be bipolar. This was recorded by the GP in the appellant's notes at the time. The appellant had problems at work in 2009 and was signed off for work for a month that year suffering from stress. She was prescribed medication for clinical depression, and she was referred to a psychiatrist.

The prosecution may well argue that she had recovered by 2010 but there is clear evidence of abnormal behaviour in the build up to the killing, in particular, the obsessive stalking of the deceased and to her response in 2010 to the reconciliation proposal. One minute she was euphoric, then she was back to what Dr Adshead thought was almost paranoid jealousy. This was all noticed, at the time, by others. Dr Adshead's diagnosis is not, therefore, based on a new account from the appellant.

Dr Adshead also gives an opinion on how, if the appellant was in an abusive and controlling relationship, these disorders may be relevant to both partial defences. Again, there are sufficient independent and contemporaneous references to the possibility of the appellant's having been controlled by the deceased to support the proposition that she was in an abusive relationship. It is now conceded by Dr Gilluley that she was. There may be good arguments against the proposition that the abusive relationship amounted to coercive control (and we can assure Ms Carberry we have given them very careful consideration) but in our view, these are not issues for us to determine. We express no view on whether the appellant was the victim of coercive control and no view, if she was a victim, on the extent to which it impacted upon her ability to exercise self-control or her responsibility for her actions. However, because expert evidence was not available to defence counsel at trial, neither the possibility that she was suffering from these two disorders, nor the issue of the impact upon her of the abusive relationship were explored at trial in any detail. The issue of provocation was not advanced at all.

We have been persuaded, therefore, that the unusual circumstances of this case, and we emphasise they are unusual, we should receive the fresh evidence of Dr Adshead. We intend no discourtesy to Professor Stark in concluding that shall not receive his evidence. As it seems to us, the relevance of the coercive control theory, where a defendant suffers from a mental disorder, is well within Dr Adshead's competence and expertise. We decline to receive Dr Exworthy's evidence because it did not, in our judgment, advance the appeal significantly or at all.

Having received Dr Adshead's opinion, therefore, we are satisfied that it does undermine the safety of the conviction. We shall quash that conviction.

We have considered the representations made to us as to whether we should substitute a verdict of manslaughter or order a retrial. We have concluded that the only proper option for us, given the issues are not for us to determine, is to order a retrial. We shall say no more because we do not wish to prejudice that retrial."

A useful account of the appeal may be seen at ICLR Weekly Notes 4 March 2019 - "Allowing an appeal on the basis of new evidence is not unusual, but the case is said to have made legal history by virtue of its raising the issue of domestic abuse by way of coercive and controlling behaviour, and its effect in diminishing the victim’s responsibility for a desperate act of homicidal violence against the perpetrator."

Justice for Women:

See the Justice for Women's comments about the case.

Media comment:

The Telegraph 9 December 2019 - The case of Sally Challen, review: a meticulous look at one of the most surreal cases

The Guardian 9 December 2019 - The case of Sally Challen review: inside the trial that changed everything for women

If you or anyone you know has been affected by domestic abuse, visit loverespect.co.uk or womensaid.org.uk for advice and support

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