Challen, R. v [2019] EWCA Crim 916

[2019] EWCA Crim 916Case No 201605604 B2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of Justice Strand London, WC2A 2LLDate Thursday, 28 February 2019
B e f o r e:
LADY JUSTICE HALLETT DBE
Vice President of the Court of Appeal Criminal Division
MR JUSTICE SWEENEY
MRS JUSTICE CHEEMA-GRUBB DBE
R E G I N A v
GEORGINA SARAH ANNE LOUISE CHALLEN
Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Street, London EC4A 2DY, Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)
This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.
Miss C Wade QC and Ms L Wibberley appeared on behalf of the Appellant
Ms C Carberry QC and Mr P Grieve-Smith appeared on behalf of the Crown
J U D G M E N T
(Draft for approval)
Between
ChallenDefendantRCrown

The grounds of appeal

[1]need to give the result of this appeal and our reasons as soon as possible. The judgment will be perfected at a later date. Background minimum term from 22 years to 18 years. the victim.[5]Adshead dated 16 May 2016 and 14 October 2017; two addendum psychiatric reports from Dr Exworthy, who gave evidence at the trial, dated 19 August 2016 and 26 October 2017, and a report on developments and understanding of coercive control from Professor Marianne Hester, dated 7 January 2019.[7]Dr Exworthy de bene esse. The facts The appellant a woman of previous good character, was 57 at the time of the trial. She met Richard Challen when she was 15 and he was 22. They married when she was 25. They had two sons. Richard Challen was unfaithful on several occasions and this caused the appellant considerable distress. She sought medical help over the years and in 2009 was referred to a psychiatrist. He noted excessive alcohol use, marital problems and other "psychosexual stresses", but concluded that there was no evidence of a disorder. and with whom.[9]obtained was rescinded at her request. The appellant and the deceased decided to rent out the family home and to go to Australia for six months. At this time they were still living apart and she continued to have her suspicions about the deceased's friendships with other[10]women. She also believed he was being unfair in relation to the financial arrangements. following day. He replied, "Don't question me."[12]said, "I love you, Sally", changed her clothes and went home.[13]and in the following morning she gave him a lift to work.[14]appellant walked towards the cliff edge, she was approached by the chaplain, Mr Hardy. She told him that she had killed her husband and said, "If I cannot have him, no-one can." rocker. I am just so very depressed."[16]at Beachy Head, police found a copy of the note left in the deceased's kitchen. It read:
"Richard said he would take me back if I signed a post-nuptial agreement. I said I would and we both saw solicitors yesterday. I then found out he was seeing someone and sleeping with them and had no intention of taking me back. It was all a game so he could get everything. He was going to get me to sign and then issue divorce proceedings. I can't live without him. He said it would take time, but he felt the same. Now I find he is seeing women and sleeping with them. He did this in order to get his own back on me. All those prostitutes and other women. How could he? Please look after David, James and Peppy. I'm sorry but I cannot live without Richard. All my love, Sally."
In her interview with the police the appellant gave an extraordinarily full and sometimes rambling account of her marriage and the killing. She stated the marriage had been generally happy, but, "Everything had been on [the deceased's] terms." She performed all the household tasks and did her best to please him, but he was always critical of her.[17]was prepared to agree to his terms for reconciliation even if they were unfair.[18]did not want anyone else to have him if she could not. The trial interviews.[20]marriage, that she had had suicidal thoughts at times and that she had feelings of jealousy, anger and resentment. Such feelings and feelings of being unable to cope could lead to depression. amounted to an abnormality of mind. was discharged from Dr Valmana's care. because she could not get an appointment. as to whether or not she was going insane.[27]agreed to stop seeing other women if they got back together. Suzanne Anderson, the appellant's cousin, believed that the deceased had pulled the strings in their marriage and the appellant had ‘danced’. She too was aware of the appellant's suspicions of the deceased's infidelity. In 2007/2008 the appellant had found receipts for unhappy after leaving the deceased in 2009.[29]it appeared that she had lost a lot of weight and looked drawn.[30]of 2010. The grounds of appeal Ms Wade QC, who did not appear in the court below, advanced two grounds of appeal.[1]The fresh evidence on coercive control and the fresh psychiatrist evidence support the proposition that at the time of killing the appellant was suffering from an abnormality of mind. Had expert evidence on coercive control been available at the time of the trial, the jury may have reached a different conclusion on diminished responsibility.[2]The fresh evidence also goes to the issue of provocation in that it helps establish the appellant was provoked to kill the deceased because of his controlling and coercive behaviour.[33]much so that Parliament enacted s.76 of the Serious Crime Act 2015 to make it a criminal offence to exercise coercive control over one's partner. S.76 criminalises a pattern of abusive behaviour, the individual elements of which are not necessarily unlawful[34]in themselves. This is designed better to protect victims of domestic abuse.[35]of intimidation, isolation, control and occasional violence.[36]of defence counsel at trial. He could only act on the material before him.[37]In summary, he stated: "In coercive control, abusers deploy a broad range of non-consensual, non-reciprocal tactics, over an extended period to subjugate or dominate a partner, rather than merely to hurt them physically. Compliance is achieved by making victims afraid and denying basic rights, resources and liberties without which they are not able to effectively refuse, resist or escape demands that militate against their interests." perceived source of her containment.[39]witness on the theory of coercive control in other jurisdictions.[40]in 2012. Ms Wade reminded us of various decisions of this court in which it has been accepted that there is a need for expert evidence in cases where there is a background of domestic violence and such evidence meets the criteria for admissibility as expert testimony, as set out in R v Turner (1975) 60 Cr App R 834, R v Hobson [1998] 1 Cr App R 31, R v Muscroft [2001] EWCA Crim 604, R v Smith [2002] EWCA Crim 2671, R V Thornton (No.2) 1996 1 WLR 1174. conducted by a psychologist. him were erratic.[43]suffers and was suffering at the time of the killing from a severe clinical mood disorder. Assuming that Dr Adshead's diagnosis is correct, coercive control is then said to be relevant because of the interplay between the disorders and the effect of coercive control. The interplay means that the more severe symptoms of a mood disorder were masked during the time that the appellant and the deceased lived together. Only since the appellant has lived apart from the coercive control has the true nature and etiology of her personality disorder and mood disorder could be diagnosed.[44]is now recognised she suffered and in the context of coercive control. opposed to abuse and entrapment. having him.

Prosecution Response

[48]Homicide Act at the time. i. the fact that the appellant regularly sought help from her GP when she thought she needed it but made no visits to her GP in the ten months leading up to the killing. ii.Dr Valmana's assessment of her in 2009 was that although she may have been drinking to excess, she was not suffering from a mood disorder or any other psychiatric disorder. iii. She was assessed by a psychiatric nurse shortly after her arrest and was not found to be suffering from any mental health issues. iv. Evidence of her demeanour and behaviour in the days and weeks leading up to the killing came from sources close to her. This included her two sons, one son's girlfriend, her neighbour, her closest friend and work colleagues, who spoke about her excellent attendance at work and her high level of competence. She was socially active. She v. Detailed accounts about the deceased's behaviour towards the appellant were put before the jury. In relation to Dr Adshead's new diagnosis, Ms Carberry placed considerable emphasis on the fact that Dr Adshead did not see the appellant until five years after the killing and then saw her only once. She invited us to prefer the opinion of Dr Gilluley who saw the appellant much nearer the time and who told us yesterday that he considered at that stage whether the appellant might be suffering from what he called battered woman syndrome or post-traumatic stress disorder but concluded that she did not. Had the appellant been suffering from a personality disorder, as Dr Adshead has opined, he would have expected it to have affected at least some of her relationships outside the home and to have affected her functioning at work and socially. Yet, he noted she managed to bring up her children, hold down a job and look after her parents and her in-laws, all of which suggested to Dr Gilluley that she was functioning within normal limits. Ms Carberry conceded that Dr Gilluley had accepted that the appellant may have personality traits but invited us to note that in his view they were within normal limits and did not reach the level of a disorder. Further, she asked us to bear very much in mind that suggest a diagnosis of bipolar disorder.[54]He accepted that there were stresses in her life and, before us, he accepted for the first time that the appellant was abused, but this is far from saying there was evidence of a mood disorder or other major psychiatric disorder. Given the extent of Dr Gilluley's consideration and his expertise, Ms Carberry invited us to find that his opinion was[55]preferable to that of Dr Adshead, and we should reject the fresh evidence put before us. no-one could. Conclusions to adduce the evidence in these proceedings.[59]coercive control is only relevant in the context of those two defences. coercive control may be relevant. the evidential basis of Dr Adshead's opinion.[62]a reasonable explanation for not adducing the evidence.[63]for clinical depression, and she was referred to a psychiatrist. based on a new account from the appellant.[65]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

[66]safety of the conviction. We shall quash that conviction. because we do not wish to prejudice that retrial. his Honour Judge Critchlow has now retired.[70]welcome your submissions on what we would should order here.[71]idea of a retrial. We have not actually made any representations about a retrial. LADY JUSTICE HALLETT: If you wish to make them, we will reconsider. since November 2010.[73]retrial. May I now take instructions from my instructing solicitor. (Pause).[74]case. Everything is already out there, and they would be otiose in the circumstances.[75]made your submissions but we have heard them in full, and in fact, they are all submissions that we assumed would be made and we had taken into account, and we are[76]still minded to order a retrial. Mr Carberry, where are you on the question of reporting restrictions? outcome of that case. judgment. MS CARBERRY: Yes, I do.[79]a little more than:
"The conviction was quashed" about ordering as follows: "
The Court of Appeal heard that in the opinion of consultant forensic psychiatrist the appellant was suffering from two mental disorders at the time of the killing. This evidence was not available at trial. The court quashed the conviction and ordered a retrial." Would you be content with that? MS CARBERRY: My Lady, yes.

Would you be content with that?

[80]Ms Wade? MS WADE: I would ask your Ladyship to read it again. of the killing."[82]"This evidence was not available at trial. The court quashed the conviction and ordered a retrial." Has everyone got it? MS HARRISON: My Lady, it is Sian Harrison from the Press Association. I would, obviously, like to point out there has been at that lot of contemporaneous reporting. LADY JUSTICE HALLETT: I know. MS HARRISON: And there has, obviously, more detail than that.

Has everyone got it?

[83]retrial. The reporting restrictions apply to the judgment. MS HARRISON: Thank you. LADY JUSTICE HALLETT: Is there anything else, Ms Wade? MS WADE: No, thank you, my Lady. I am requested to ask for bail at the moment, but I am not sure that the court is in a position to deal with that matter now. My understanding is there will have to be some reports.[84]trial in 2011, and they should try and get the retrial on as soon as possible. MS WADE: Thank you. LADY JUSTICE HALLETT: Is there anything else that we need to deal with? Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

Cited in 3 later judgments