Sally Challen [2019] EWCA Crim 916
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R v Georgina Sarah Anne Louise Challen [2019] EWCA Crim 916 concerned an appeal by the Vice President of the Court of Appeal Criminal Division, sitting with Sweeney J and Cheema-Grubb DBE J, against a conviction for murder.
On 14 August 2010 Mrs Challen killed her husband of 31 years with at least 20 blows from a hammer. She pleaded guilty to manslaughter on the grounds of diminished responsibility but the plea was not accepted. At trial His Honour Judge Critchlow left both provocation and diminished responsibility to the jury. On 23 June 2011 she was convicted of murder and sentenced to life imprisonment with a minimum term of 22 years, reduced on appeal to 18 years on 24 November 2011.
The appellant met Mr Challen when she was 15 and they married when she was 25. He was repeatedly unfaithful, causing her considerable distress. She left him in autumn 2009, bought her own property with money inherited, and began divorce proceedings. Mr Challen then joined a dating agency. The appellant found the separation difficult and became obsessed with monitoring his communications, remotely accessing his emails and voicemail messages and checking his dating profiles. In June 2010 he agreed to reconciliation on condition that she enter a post-nuptial agreement on terms unfavourable to her. A solicitor advised caution but she agreed. The divorce was discontinued. On 14 August 2010 she took a hammer to the former matrimonial home where they were clearing belongings. When she went out to buy lunch Mr Challen telephoned another woman. On her return she saw that the phone had been moved and checked the last dialled number. When she asked if she could see him the following day he replied “Don’t question me.” As he ate she struck him repeatedly with the hammer. He suffered nine defensive wounds. She covered his body with blankets and left a note saying “I love you, Sally”, changed her clothes and went home. She typed another note which she left in the kitchen. The following morning she gave one of her two sons a lift to work, then drove to Beachy Head. A police chaplain and negotiator persuaded her to leave the cliff edge after about four hours. She said to the chaplain “If I cannot have him, no-one can.” She told police she could not live without the deceased and had “flipped” when she realised he was still seeing other women.
At trial the prosecution case, advanced by Ms Carberry QC, was that the appellant was a jealous woman whose behaviour had become increasingly obsessive and whose actions were premeditated, as evidenced by her taking the hammer to the house. Dr Paul Gilluley, consultant forensic psychiatrist, gave evidence that she had not been suffering from any mental illness or abnormality of mind at the relevant time. He accepted she fulfilled the criteria for alcohol dependency syndrome but not to the extent of causing mental illness or depression. He observed that those suffering a depressive disorder could not switch it on or off and that her son living with her had not noticed any disorder. The defence case rested on Dr Exworthy’s evidence that she was suffering from a depressive disorder with persisting depressive symptoms in the three to four weeks before the killing, constituting a depressive episode of moderate severity which amounted to an abnormality of mind. The appellant gave evidence describing the build-up to the killing, her suspicions of infidelity from 2004 onwards, and her distress. She said she consulted her GP in 2004 and 2007, was referred for counselling, and was prescribed anti-depressant medication in 2008. In August 2009 she was signed off work for a month with stress-related problems and saw Dr Valmana, a psychiatrist, who by October 2009 concluded her mood was fine and she had no suicidal thoughts. Her sons David and James told the jury they thought their father had behaved badly, that he controlled everything, and that their mother had been unhappy for about ten years. Friends and colleagues gave evidence of the appellant’s responsible job performance and her distress over the marriage, describing the deceased as controlling.
The appeal was brought by Ms Wade QC, who had not appeared below, on two grounds. First, fresh evidence on coercive control and fresh psychiatric evidence supported the proposition that at the time of killing the appellant was suffering from an abnormality of mind and that expert evidence on coercive control, had it been available at trial, might have led the jury to a different conclusion on diminished responsibility. Secondly, the fresh evidence also went to provocation in that it helped establish the appellant was provoked by the deceased’s controlling and coercive behaviour. Ms Wade invited the court to consider the extent to which understanding of coercive control had improved since the trial, noting that Parliament enacted section 76 of the Serious Crime Act 2015 to criminalise such conduct. She submitted that at the time of trial in 2011 there was insufficient understanding among criminal justice practitioners and psychiatrists of coercive control as a form of domestic abuse. The appeal relied on a report from Professor Evan Stark, a sociologist and forensic social worker, dated 19 June 2018, two psychiatric reports from Dr Gwen Adshead dated 16 May 2016 and 14 October 2017, two addendum reports from Dr Exworthy dated 19 August 2016 and 26 October 2017, and a report from Professor Marianne Hester dated 7 January 2019. The Crown relied on a post-conviction report from Dr Gilluley dated 1 March 2017. The court heard evidence de bene esse from Dr Gilluley, Professor Stark, Dr Adshead and Dr Exworthy.
Professor Stark explained that in coercive control abusers deploy a broad range of non-consensual, non-reciprocal tactics over an extended period to subjugate a partner rather than merely to hurt them physically. Compliance is achieved by making victims afraid and denying basic rights and resources. He stated that the risk of severe or fatal injury is a function of the victim’s level of entrapment, the degree to which fear, violence or control have deprived her of the non-violent means to resist or escape. While vulnerability weighs against survival, the sense of having no way out can fuel a powerful rage against the perceived source of containment. Ms Wade submitted the evidence met the criteria for admissibility as expert testimony under R v Turner (1975) 60 Cr App R 834 and subsequent authorities. Dr Adshead, who specialises in working with violent women and personality disorders, based her opinion on prison inmate records showing the appellant had been treated for depression in custody and suffered at least two manic episodes in 2014 and 2016 for which she received anti-psychotic medication, her own clinical assessment, the transcript of police interviews which disclosed pressure of speech, GP records, witness statements and personality assessments. Dr Adshead’s opinion was that the appellant suffers and suffered at the time of killing from a personality disorder of moderate clinical severity and symptoms of a severe clinical mood disorder, most probably bipolar affective disorder. She stated that the psychotic episodes in prison, lasting several weeks on both occasions, supported the view that the appellant suffered from a severe clinical mood disorder at the time of the killing. She explained that coercive control was relevant because of the interplay between the disorders and the effect of such control, and that the more severe symptoms of the mood disorder were masked during the time the appellant and deceased lived together. Dr Exworthy agreed with this analysis. He stated that at the time of his original assessment he did not have the prison records or certain witness statements and was not familiar with the concept of coercive control. He had originally believed that if the appellant had taken a hammer to the house she could not avail herself of provocation, so he focused only on diminished responsibility based on depression constituting an abnormality of mind. In light of what he had since learned and Dr Adshead’s diagnosis with which he agreed, he was now of the view that both partial defences were available.
Ms Carberry maintained that the reports did not individually or together provide fresh evidence that the appellant was suffering from an abnormality of mind or was provoked within the meaning of the Homicide Act. She characterised the appeal as an attempt to reopen matters comprehensively placed before the jury by detailed factual and expert evidence. She reminded the court that the appellant’s full medical and social history had been before the jury, including that she regularly sought help from her GP when needed but made no visits in the ten months before the killing, that Dr Valmana’s 2009 assessment found no mood disorder or other psychiatric disorder, that a psychiatric nurse shortly after arrest found no mental health issues, and that evidence of her demeanour and behaviour came from sources close to her who spoke of her excellent work attendance, high competence and social activity. Ms Carberry emphasised that Dr Adshead did not see the appellant until five years after the killing and saw her only once. She invited the court to prefer Dr Gilluley’s opinion, given that he saw the appellant much closer in time. Dr Gilluley stated he had considered whether the appellant might be suffering from battered woman syndrome or post-traumatic stress disorder but concluded she did not. Had she been suffering from a personality disorder he would have expected it to affect at least some relationships outside the home and her functioning at work and socially, yet she managed to raise her children, hold down a job and look after her parents and in-laws, all suggesting she was functioning within normal limits. Dr Gilluley accepted the appellant may have personality traits but considered them within normal limits and not reaching the level of a disorder. He had seen no evidence to suggest bipolar disorder near the time of killing. He relied on Dr Valmana’s assessment and stated the manic episodes in custody may have been triggered by stress or medication. Before the court he accepted for the first time that the appellant was abused, but insisted this fell far short of evidence of a mood disorder or other major psychiatric disorder. Ms Carberry also reminded the court that the defence at trial was diminished responsibility and that very experienced counsel did not pursue provocation for good reason. The appellant had admitted taking the fatal weapon to the scene, had become suspicious through listening to messages and internet research, and the clear inference was one of premeditation, reinforced by her admission that on an earlier occasion she had entered the house at night with a hammer to check on her husband. She had told police she killed in anger and that if she could not have him no one could.
Lady Justice Hallett, giving the judgment of the court, observed that under section 23 of the Criminal Appeal Act 1968 the court must consider whether it is in the interests of justice to receive fresh evidence, having particular regard to whether the evidence is capable of belief, whether it may afford any ground for allowing the appeal, whether it would have been admissible, and whether there is a reasonable explanation for the failure to adduce it. The court noted that as a general rule any available defences should be advanced at trial and if medical evidence is available it should be deployed. It is not open to a defendant to run one defence at trial and when unsuccessful to try an alternative on appeal relying on evidence that could have been available. The court has set its face against expert shopping. The hurdle for Ms Wade was therefore a high one. The court emphasised that coercive control as such is not a defence to murder and is only relevant in the context of the two partial defences of provocation and diminished responsibility. The court stated it was not persuaded that had it stood alone the general theory of coercive control on the facts presented would have afforded a ground of appeal. However, it did not stand alone. The court focused on Dr Adshead’s post-conviction diagnosis that the appellant suffered from borderline personality disorder and a severe mood disorder, probably bipolar affective disorder, at the time of the killing. It was in that context that the theory of coercive control may be relevant.
The court considered first whether Dr Adshead was instructed as an exercise in expert shopping and secondly the evidential basis of her opinion. The court accepted 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 episodes suggested to the solicitor a diagnosis of bipolar affective disorder, which Dr Adshead confirmed. The court acknowledged it was possible the manic episodes were triggered by stress, incarceration and medication, as Dr Gilluley believed, but accepted that in Dr Adshead’s opinion the timeline suggested otherwise. If her diagnosis of the two disorders was correct, this was missed by the psychiatrist at trial and there was a reasonable explanation for not adducing the evidence. The court accepted that the evidence was credible and would have been admissible. There was a body of objective contemporaneous material that arguably supported Dr Adshead’s diagnosis, albeit made several years after the killing. Some was before the jury but its potential relevance was not addressed. The court gave examples. Mrs Noble was so concerned about the appellant’s erratic behaviour in 2009 that she thought the appellant might be bipolar, recorded by the GP at the time. The appellant had problems at work in 2009 and was signed off for a month suffering from stress. She was prescribed medication for clinical depression and referred to a psychiatrist. The prosecution might argue she had recovered by 2010 but there was clear evidence of abnormal behaviour in the build-up to the killing, in particular the obsessive stalking of the deceased and her response to the reconciliation proposal, one minute euphoric then back to what Dr Adshead thought was almost paranoid jealousy. This was noticed at the time by others. Dr Adshead’s diagnosis was not based on a new account from the appellant. Dr Adshead also gave an opinion on how, if the appellant was in an abusive and controlling relationship, these disorders may be relevant to both partial defences. There were sufficient independent and contemporaneous references to the possibility of the appellant having been controlled by the deceased to support the proposition that she was in an abusive relationship, now conceded by Dr Gilluley. The court acknowledged there may be good arguments against the proposition that the abusive relationship amounted to coercive control and against the extent to which it impacted upon her ability to exercise self-control or her responsibility, but stated these were not issues for the court to determine. The court expressed no view on whether the appellant was the victim of coercive control or, if so, on the extent to which it impacted. However, because expert evidence was not available to defence counsel at trial, neither the possibility she was suffering from the two disorders nor the issue of the impact of the abusive relationship were explored in any detail and the issue of provocation was not advanced at all.
The court was persuaded that in the unusual circumstances of the case it should receive the fresh evidence of Dr Adshead. The court declined to receive Professor Stark’s evidence, stating that the relevance of the coercive control theory where a defendant suffers from a mental disorder was well within Dr Adshead’s competence and expertise. The court also declined to receive Dr Exworthy’s evidence because it did not advance the appeal significantly. Having received Dr Adshead’s opinion, the court was satisfied that it undermined the safety of the conviction. The court quashed the conviction. The court considered whether to substitute a verdict of manslaughter or order a retrial and concluded that the only proper option, given the issues were not for the court to determine, was to order a retrial, stating it would say no more so as not to prejudice that retrial. The court ordered a retrial on the murder count and directed that a fresh ind