R v Challen  EWCA Crim 916 involved the appellant being subject to coercive control by her husband for over 30 years. She killed him and was convicted of murder in 2011 having relied, unsuccessfully, on the partial defence of diminished responsibility.
In her out of time appeal against conviction, we sought to argue that the court should approach domestic abuse from a perspective of social and personal entrapment.
Traditional criminal jurisprudence has focused on the way discrete incidents of violence have impacted on the psychology of the victim and have led to practitioners and psychiatrists relying on battered woman syndrome and the diagnosis of post-traumatic stress disorder. These conditions have readily been seen as being consistent with diminished responsibility. Simultaneously, however, the main facets of domestic abuse – which are: systemic coercion, degradation and control – are undermined.
It is only when we look at the factual matrix, which typically leads to domestic homicide, from the perspective of personal and social entrapment – leading to what Professor Evan Stark refers to as a ‘loss of personhood’ on the part of the abused partner – that we can truly understand domestic abuse.
Defining control: a ‘bespoke’ abuse
Control involves a strategic disarming of a victim by denying her basic rights and liberties; isolating her, cutting off finances, monitoring her movements, micro-regulating domestic duties and so forth. Coercive control is often referred to as a ‘bespoke’ abuse in the sense that the perpetrator will tailor the control to his victim’s specific vulnerabilities. In an intimate relationship, such vulnerabilities are obviously known to the perpetrator. Coercion in the form of violence or sexual violence is often used as a punishment to show the victim what will happen to her if she resists the control. Consequently, her fear will lead to her compliance.
In Challen, the evidence which went to coercive and controlling behaviour on the part of the deceased had been available at the time of the original trial but the level and extent of the defendant’s entrapment had not been appreciated because the focus was on episodic and discrete acts of violence. In a relationship which was not characterised by regular violence, it was not perceived that any woman in the defendant’s situation would have acted as the defendant did in hitting the deceased 20 times with a hammer.
In summary, the two grounds of appeal which were advanced were as follows: had fresh evidence going to (a) the concept of coercive control and (b) undiagnosed psychiatric conditions, been available at the time of the trial, then the appellant would have been acquitted of murder and convicted of manslaughter on the basis of either diminished responsibility or provocation.
The court declined to admit the fresh evidence of Professor Stark. This was not problematic as that evidence merely consisted of an exposition of his theory of coercive control which, the court made clear, it accepted. Realistically, it would be difficult not to accept it given that it is the basis for the offence of controlling and coercive behaviour provided by s 76 of the Serious Crime Act 2015.
The court admitted the fresh evidence of a psychiatrist who, like the court, understood the dynamic of coercive control. The court was influenced by the fact that the psychiatrist had an understanding of the concept of coercive control and, therefore, the interplay between the psychiatric conditions from which the appellant was said to be suffering and her susceptibility to coercive control because of those conditions. The appellant suffered from a personality disorder with dependent traits which made her particularly susceptible to being coerced and controlled by the deceased. She was also diagnosed as suffering from a serious mood disorder at the time of the killing which had been masked by the effect of the coercive control.
The court did not decide whether the appellant had been the victim of coercive control but held that the conviction was unsafe because expert evidence had not been available to defence counsel at trial. Neither the mental disorder nor the impact of the abuse were explored in detail, and potentially, the evidence went to both partial defences.
Points for defence and prosecution
If coercive control is a bespoke form of abuse where the perpetrator will identify and exploit vulnerabilities which are peculiar to the victim, then it lends itself to the (abolished) partial defence of provocation where the personal characteristics of the defendant can go to the gravity of the provocation and the subjective question of whether the defendant was provoked to lose her self-control. The objective question of, whether a woman of the defendant’s age in the same situation might have acted as the defendant did, is arguably satisfied given the personal and social entrapment caused by coercive control.
There is no reason why coercive control cannot be classed as ‘circumstances of an extremely grave character which would cause a defendant to have a justifiable sense of being seriously wronged’ for the purpose of the partial defence of loss of control provided by ss 54-55 of the Coroners and Justice Act 2009. Criminal practitioners should be alert to this when defending and prosecuting cases involving abused women who have killed.
The paradigm of the abused woman who kills her abuser was central to the policy underlying the enactment of ss 54-55 of the 2009 Act. Yet, it seems that many such women are still being convicted of murder. Justice for Women and the Centre for Women’s Justice have commissioned research aimed at ascertaining why this is. The project is due to report in 2020. Anecdotally, those cases – where convicted women have sought advice – disclose recurring themes. These include:
- a failure to take detailed instructions on the history of the relationship with the deceased;
- inability to talk about previous sexual violence;
- traumatic amnesia about the conduct of the killing;
- failure to obtain psychiatric reports; and
- reliance on the wrong defence.
Proactivity (and new defence) required
In the meantime, and more generally, practitioners need to adopt an holistic and proactive approach to addressing the effect of domestic abuse on women defendants.
Some relevant Crown Prosecution Service policies emanate from an international policy framework to which reference can be made in the context of considering whether to continue with a prosecution or to accept pleas of guilty. The United Kingdom ratified the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1986 and is obliged to take steps to end discrimination against women in all forms. Signatories are required to have in force and to promote Anti-Violence Against Women and Girls strategies in all state activity including the criminal justice system.
CEDAW policy derives, in part, from principles in the United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders also known as the ‘Bangkok Rules’. These rules acknowledge amongst other things, that domestic abuse is a cause of offending by women and in particular, of women’s violent offending against male partners. The rules mandate decision-makers within the criminal justice system to eliminate discrimination against women including by diverting women offenders from prosecution.
Set against this background, recent calls for a new defence which would apply in circumstances where certain offending is a direct consequence of domestic abuse, make good sense.