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05 Mar 2019

Article by: Zaki Hashmi

On 28 February the Court of Appeal quashed the murder conviction of Sally Challen in a judgment which has received widespread media coverage.

Ms Challen killed her husband in a hammer attack in 2010 and was convicted at Guildford Crown Court the following year. At her trial she advanced the defence of diminished responsibility following years of mental abuse; the prosecution case was that she was a jealous wife who committed the offence after suspecting infidelity.

The murder conviction was quashed because of new psychiatric evidence suggesting that at the time of the killing Ms Challen was suffering from two mental disorders, and that the absence of such evidence at her trial led to her conviction being unsafe.

The Court declined to substitute a conviction of manslaughter for that of murder. If they had done so then it is possible that Ms Challen, who has spent 9 years in prison, could have been immediately released. Instead a retrial was ordered for later this year. The Court also declined to grant Ms Challen bail pending retrial.

Since Ms Challen’s conviction in 2011 the criminal offence of controlling and coercive behaviour has become law. The offence is committed within an intimate or family relationship where one party causes the other to fear that violence will be used against them on at least two occasions, or where the controlling party causes serious harm and distress which has a substantial adverse effect on the day to day activities of the victim. It follows that such abusive behaviour need not involve the use or threat of violence.

In her appeal Ms Challen claimed that she had been subjected to decades of such controlling behaviour by her husband. The media coverage of Ms Challen’s successful appeal has focused on this aspect of the case, with headlines proclaiming it to be a “landmark decision” or “watershed moment”, but such focus has the potential to be misleading. In fact the ruling in favour of Ms Challen turned on the relatively narrow issue of the absence of evidence regarding her mental health at the original trial, and not on her claims to have been subjected to coercive control in the years leading up to the fatal attack.

Although their judgment will not be published for several months it is clear that the Court of Appeal has not made any extension to the law concerning the defence of diminished responsibility, and has certainly not developed a new defence to murder benefitting those who claim to have been controlled and coerced by the person that they killed. While campaigners may claim success in raising legitimate issues of domestic abuse it does not necessarily follow that they have succeeded in changing the law.