Provocation and coercive control: the Challen case

Sally Challen was convicted of murdering her husband in 2011 after striking him numerous times with a hammer. The prosecution’s case was that Mrs Challen had become increasingly obsessed with her husband’s lifestyle, experiencing feelings of jealousy, anger and resentment, but not to the extent of causing mental illness or an abnormality of mind.

The defence case was that Mrs Challen was suffering from a depressive disorder with persistent depressive symptoms in the weeks before killing her husband. They claimed she had suffered a depressive episode of moderate severity, which amounted to an abnormality of mind. Evidence during the trial from both family and friends described Mrs Challen as being severely controlled by her husband.

Mrs Challen was convicted by a jury of murder and sentenced to life imprisonment of a minimum of 22 years, later reduced to 18 years.

At the time of Mrs Challen’s trial, controlling and coercive behaviour was not a criminal offence. On 29 December 2015, however, s76 Serious Crime Act 2015 created the offence of controlling or coercive behaviour in an intimate or family relationship.

A person (A) commits an offence if he or she repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive, at the time they are personally connected, the behaviour has a serious effect on B, and A knows or ought to know that the behaviour will have a serious effect on B.

Home Office guidance lists examples of coercive behaviour including isolating people from their friends and family, monitoring their time and depriving them of their basic needs. The police recorded 9,053 offences of controlling and coercive behaviour in the year ending March 2018.

The grounds of appeal advanced in Mrs Challen’s case were based on fresh evidence which had come to light in relation to both coercive control by her husband and her mental state at the time of the killing.

The Court of Appeal was not persuaded that, had the argument stood alone, coercive control would have afforded the appellant a ground of appeal, finding that “coercive control is not a defence to murder”. They also declined to express a view as to whether the appellant was a victim of coercive control.

Instead the appeal was allowed on the basis of a psychiatric report that concluded that Mrs Challen was currently suffering and would have suffered at the time of the killing, from a personality disorder of moderate clinical severity and had symptoms of severe clinical mood disorder, most likely bipolar affective disorder. Had this evidence been available at the original trial, Mrs Challen would have had two partial defences: diminished responsibility and provocation in the context of coercive control. Therefore, the conviction was quashed.

The CPS reviewed the matter and agreed with the defence medical evidence. A plea of manslaughter on the basis of diminished responsibility was accepted in June 2019 and Mrs Challen was sentenced to nine years and four months’ imprisonment.

Had there been a retrial instead, it is likely that Mrs Challen would have advanced a defence of provocation in the context of coercive control. If successful, the law on provocation could have been reshaped. At present, there is a recognised concept of battered person syndrome, but this does not focus on the psychological impact of physical abuse, nor does it focus on coercion, degradation and control.

Although public understanding of coercive control is improving, both in society and the criminal justice system, it is by no means fully embedded. Indeed, it was accepted during the appeal that, at the time of the original trial, there was insufficient understanding among criminal lawyers and psychiatrists of coercive control as a form of domestic abuse.

The law on provocation was last reviewed in 1991 as it was seen to be discriminatory towards women who had killed their partners. Any retrial of Mrs Challen might have prompted a fresh review – something which would have caused the CPS considerable concern.

Behaviour which previously did not satisfy the defence of provocation might, in future cases, be recognised as controlling and coercive, opening the possibility of many murder convictions being reduced to manslaughter. By accepting the plea on the basis of diminished responsibility and not provocation, the CPS cannily prevented the court from expanding the scope of the latter. But it may only be a matter of time before another case emerges in which a defence of provocation is upheld in the context of coercive control.

Jessica Maguire is a legal assistant at Corker Binning