Challen, R. v

Fresh psychiatric evidence may render a murder conviction unsafe where it is credible, admissible, reasonably unavailable at trial, and may materially affect the available partial defences. Under Criminal Appeal Act 1968, the court must assess those matters in the interests of justice.

Coercive control is not itself a defence to murder. It may, however, provide relevant context for diminished responsibility or provocation, particularly where credible evidence indicates an undiagnosed mental disorder and an abusive relationship. Where the fresh evidence creates factual and expert issues properly for a jury, the appropriate course is to quash the conviction and order a retrial rather than substitute manslaughter.

The appellant was convicted of murdering her husband after killing him with a hammer in August 2010. At trial, the judge left provocation and diminished responsibility to the jury, although the defence relied principally on diminished responsibility. The appellant was sentenced to life imprisonment with a minimum term later reduced on appeal from 22 to 18 years.

She appealed against conviction on fresh evidence. A post-conviction psychiatrist diagnosed borderline personality disorder and a severe mood disorder, probably bipolar affective disorder, at the time of the killing. The appeal also relied on evidence concerning an abusive and allegedly coercive relationship. The central issue was whether that evidence should be received and, if so, whether it undermined the safety of the conviction.

1. Appeal allowed. The court received the post-conviction psychiatric evidence of Dr Adshead, held that it undermined the safety of the murder conviction, quashed the conviction and ordered a retrial on the murder count.

2. Applying section 23 of the Criminal Appeal Act 1968, the court considered whether receiving the evidence was in the interests of justice. The evidence was credible and would have been admissible at trial. There was a reasonable explanation for its absence: the appellant’s later manic episodes in custody had prompted a genuine reconsideration of her condition, rather than an impermissible attempt at expert shopping. Contemporaneous material arguably supported the new diagnoses and had not been assessed for that purpose at trial.

3. The court stressed that coercive control was not a free-standing defence to murder. Its relevance was confined to the partial defences of diminished responsibility and provocation. The general theory of coercive control alone would not have afforded a ground of appeal on the facts. Its possible relevance arose because the fresh psychiatric diagnosis and evidence of an abusive relationship could affect the assessment of the appellant’s responsibility and self-control.

4. The court did not determine whether the appellant had been subjected to coercive control, the extent of any such control, or its effect upon her actions. Those disputed expert and factual questions had not been properly explored at trial and were matters for a jury. Dr Adshead’s evidence was therefore received, but Professor Stark’s evidence was not required and Dr Exworthy’s further evidence did not materially advance the appeal.

5. A substitution of manslaughter was not appropriate. The court ordered a retrial, directed service of a fresh indictment within 28 days, and directed re-arraignment within two months.

• Court of Appeal (Criminal Division): In this appeal, the court quashed the murder conviction and ordered a retrial: [2019] EWCA Crim 916.
• Court of Appeal (Criminal Division): On 24 November 2011, the court reduced the minimum term from 22 years to 18 years.
• Crown Court: On 23 June 2011, the appellant was convicted of murder. On 26 June 2011, she received life imprisonment with a minimum term of 22 years.