Coercive and Controlling Men and the Women Who Kill Them

Lynn Ellison*

Abstract

The problem of how to deal with abused women who kill their abusers has taxed the courts
since the 1990s, when a series of high-profile cases involving “battered women” were
successfully argued in the appeal court. Since then, in addition to physical violence, a new
form of domestic abuse has been recognised in law, known as “coercive and controlling
behaviour;” and the partial defences to murder of provocation and diminished responsibility
have been reformed. This article traces the history of some of the most ground-breaking
cases of the past and considers the effect of the new offence on the partial defences,
primarily by considering the case of Sally Challen, following her successful appeal in 2019.
The reformed defences of loss of control and diminished responsibility are assessed in light
of the implications of coercive and controlling behaviour in pleading the defences. The
position of domestic abuse in linking both defences and the problem of presenting the
defendant to the jury in her victimhood is also considered.

Keywords

Coercive and controlling behaviour, domestic abuse, diminished responsibility, provocation,

loss of control, partial defences to murder, Coroners and Justice Act 2009, Serious Crime Act
2015 (UK).

I. DOMESTIC VIOLENCE AND WOMEN WHO KILL

The criminal justice system has wrestled for years with the issue of how to deal with women
who kill their abusive partners. Many of the high-profile cases of the past few decades1 have
centred on the effect of prolonged abuse over a number of years; however these cases
concentrated on physical violence, given that such behaviours were already criminal acts in

*
Lynn Ellison LLB (Hons), LLM, PG Cert (HE), FHEA, is a Senior Lecturer in the Wolverhampton Law School, University of
Wolverhampton. ORCID ID: 0000-0002-8527-3264.
1
See, for example, the campaign of https://www.justiceforwomen.org.uk/ (accessed 01/11/19), following the domestic violence
revolution of the 1970s.
22 Lynn Ellison

law,2 and had the benefit of the emerging understanding of the effects of domestic violence. 3
Until recently the law was silent on the fact that non-physical domestic abuse can cause
extreme harm to the victim, sometimes even driving her to kill in response. It is only within the
past decade that the effect of non-physical abusive behaviour has been enshrined in the law
as a criminal offence in its own right, with the enactment of s. 76 of the Serious Crime Act
2015 criminalising “coercive and controlling behaviour.” The author acknowledges that
domestic abuse is not confined to male/female interactions, but female/male abuse and
same-sex abuse is outside of the scope of this discussion. The most recent statistics
demonstrate that women are the victims in 74% of all domestic homicides, with the suspect
being their partner or ex-partner in 81% of cases. Male victims of domestic homicide account
for 26% of the total, with 45% of those having a partner/ex-partner as suspect.4
This article will consider the historical development of an understanding of the issues
of physical abuse as they pertained to the problem of abused women who were convicted of
murder, despite having pleaded the abuse in their defence. The previous partial defences to
murder as they existed prior to 2009 will be explored. The article will then consider the
changing landscape of the courts’ response to a selection of appeal cases which raised the
profile of physically abused women who killed. It will then analyse the effect of a new law
regarding non-violent coercive and controlling behaviour and the impact that this may have on
future murder defence pleas in the light of the recent appeal of Sally Challen. Finally,
consideration will be given to the nature of victimhood in defending women who kill.
Murder is defined as the unlawful killing of a human being under the Queen’s peace,
with malice aforethought, meaning with an intention to kill or cause grievous bodily harm. 5
The mandatory sentence upon conviction is a life sentence, starting with a tariff of time to be
served in custody with the potential to serve the rest of natural life in the community on a
lifelong licence.

II. PARTIAL DEFENCES TO MURDER – HISTORICAL DEVELOPMENT AND REFORM

There are two murder-specific defences; the function of both defences is primarily to
ameliorate the effect of the mandatory sentence for murder6 and also accommodate the
principle of fair labelling, a principle of social reinforcement7 which seeks to ensure that the
defendant’s conviction and label reflect the blameworthiness of her actions. Murder is the
strongest label which expresses “the revulsion which ordinary people feel for anyone who
deliberately kills another human being”8 and the law’s function is to “cut up the
murder/manslaughter cake in a way which renders the two wrongs meaningfully distinct.”9
The defences perform an excusatory function and their partial nature, resulting not in
acquittal but in a conviction for manslaughter, serves to acknowledge that a life has been lost.

2
Common law offence of battery, s.47, s.20 and s.18 of the Offences Against the Person Act 1861 c.100.
3
Domestic Violence and Matrimonial Proceedings Act 1976 c.50; Chiswick Women’s Aid, first battered women shelter, opened in
1971.
4
Office for National Statistics, Domestic abuse victim characteristics, England and Wales: year ending March 2019, available:
https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/articles/domesticabusevictimcharacteristicsenglanda
ndwales/yearendingmarch2019#table-4f16865b (accessed 26/11/19).
5
R v Vickers [1957] 2 QB 664.
6
Provocation: Royal Commission on Capital Punishment 1949-1953 Report, (1953) Cmd 8932 at para 124; report resulting in
defence of diminished responsibility: Homicide Act 1957 c.11, s.2.
7
Andrew Ashworth, ‘Reforming the Law of Murder’ (1990) Criminal Law Review 75, 76.
8
Criminal Law Revision Committee, Offences Against the Person (1976) Report 14, para 15.
9
William Wilson, ‘The Structure of Criminal Homicide’ (2006) Criminal Law Review 471, 475.
Wolverhampton Law Journal 23

The resulting lesser conviction for voluntary manslaughter opens up a range of sentencing
options, ensuring that any mitigating features may be considered.
Prior to 2010, these defences were provocation and diminished responsibility.
Provocation was a common law defence, partially defined in s. 3 of the Homicide Act 1957 as
follows:

“Where on a charge of murder there is evidence on which the jury can find that the
person charged was provoked (whether by things done or by things said or by both
together) to lose his self-control, the question whether the provocation was enough to
make a reasonable man do as he did shall be left to be determined by the jury; and in
determining that question the jury shall take into account everything both done and
said according to the effect which, in their opinion, it would have on a reasonable
man.”

It was necessary that the loss of control was sudden and temporary10, a requirement that was
said to favour male defendants over female, given the way in which men typically reacted to a
provocative situation by exhibiting a hot rage. This may be contrasted with the typical female
“slow-burn” reaction, although this was not always supported by empirical research.11

The defence of diminished responsibility was contained in s.2 of the Homicide Act 1957:

“Where a person kills or is a party to the killing of another, he shall not be convicted of
murder if he was suffering from such abnormality of mind (whether arising from a
condition of arrested or retarded development of mind or any inherent causes or
induced by disease or injury) as substantially impaired his mental responsibility for his
acts and omissions in doing or being a party to the killing.”

The defences were reformed in 201012 but remain relevant to this discussion in that the
defendants concerned in the cases discussed here were convicted under the law as it existed
prior to reform.
Historically, the defences were used in circumstances which may seem surprising. As
recently as 1997, a defendant was sentenced to just 200 hours of community service after
pleading provocation when stabbing his wife eleven times because she threatened to leave.13
In 1992 a husband successfully pleaded the defence after killing his wife in front of her
children whilst “seeing a red mist” upon discovering her infidelity.14 He was sentenced to just
seven years in prison. Most disturbingly in 1991, the defence was successfully pleaded by a
man who kicked his partner to death claiming she provoked him by nagging and being drunk.
He walked free from court with a suspended sentence after being told by the judge that “he

10
R v Duffy [1949] 1 All ER 932.
11
Law Commission, Partial Defences to Murder (LC 290, 2004), RD Mackay, ‘The Provocation Plea in Operation: An Empirical
Study’ Appendix A.
12
With the enactment of the Coroners and Justice Act 2009, c.25.
13
Joseph Swinburne, reported at https://www.telegraph.co.uk/news/uknews/law-and-order/2469112/Murder-law-shake-up-
brings-legislation-into-line-Analysis.html (accessed 01/11/19).
14
Les Hulme, reported at http://news.bbc.co.uk/1/hi/uk/7530582.stm (accessed 01/11/19).
24 Lynn Ellison

expressed every sympathy” for the killer and that “this lady would have tried the patience of a
saint.”15
The landscape of the use of the provocation plea in the early 1990s demonstrates that
although the plea was being successfully used in cases where men killed women for infidelity
and nagging, it was almost impossible to plead as an abused wife, given that the loss of
control had to be sudden and temporary. This issue was examined during the decade as a
result of several appeals involving women convicted of murder following prolonged domestic
abuse.
One of the most ground-breaking cases involving physical violence was that of Kiranjit
Ahluwalia.16 In 1989, Ahluwalia killed her husband by setting light to his bedroom, after having
suffered years of violence and humiliation at his hands, including during pregnancy. On the
night of the killing, her husband had threatened to burn her face with a hot iron. The effect of
prolonged abuse on her self-esteem is evidenced by a letter to her husband, clearly containing
elements of complete denial of autonomy:

"Deepak, if you come back I promise you - I won't touch black coffee again, I won't go
town every week, I won't eat green chilli, I ready to leave Chandikah and all my friends, I
won't go near Der Goodie Mohan's house again, Even I am not going to attend Bully's
wedding, I eat too much or all the time so I can get fat, I won't laugh if you don't like, I
won't dye my hair even, I don't go to my neighbour's house, I won't ask you for any
help."17 (sic)

Despite raising a defence of provocation at trial, Ahluwalia was convicted of murder and
sentenced to life. Upon appeal,18 it was acknowledged for the first time that although
provocation required a sudden loss of self-control, in cases of domestic abuse, the defendant
may lose control at the end of a “slow-burn” reaction to prolonged provocation. Ahluwalia won
her appeal against conviction and at a retrial in September 1992,19 the court accepted her plea
to the lesser charge of manslaughter on the grounds of diminished responsibility, a defence
not raised at trial and based on new psychiatric evidence as to the effects of the abuse in
terms of “Battered Woman Syndrome,” a form of post-traumatic stress disorder20 which has
now been somewhat discredited.21 Ahluwalia was sentenced to time served and released.
A second high-profile case was that of Sara Thornton, who, after repeated violence
and threats to the life of herself and her ten-year old daughter, killed her husband with a single
stab wound. Despite a plea of diminished responsibility, she was convicted of murder on 23
February 1990.22 She had not raised a defence of provocation, but the judge left this defence
to the jury. Thornton unsuccessfully appealed her conviction, revisiting the “suddenness”
requirement of provocation.23 It was held that there had been no sudden loss of self-control

15
Joseph McGrail, reported at http://news.bbc.co.uk/1/hi/uk/7530582.stm, ‘Spotlight on Domestic Abuse Laws’ (29 July 2008)
(accessed 04/11/19).
16
R v Ahluwalia [1989] Lewes Crown Court (7 December 1989).
17
R v Ahluwalia [1992] EWCA Crim 1, 892.
18
R v Ahluwalia [1992] EWCA Crim 1.
19
Ibid.
20
Available: https://pro.psychcentral.com/battered-woman-syndrome-key-elements-of-a-diagnosis-and-treatment-plan/
(accessed 05/11/19); Lenore E Walker, The Battered Woman (Harper & Row, 1980); The Battered Woman Syndrome (Springer
Publishing, 1984) cited in J Loveless, ‘R. v GAC: battered woman "syndromization"’ (2014) 9 Crim LR 655, 655.
21
Loveless (n20) 655.
22
R v Thornton (No 2) [1996] 2 All ER 1023 at 1025, citing original trial date.
23
R v Thornton [1992] 1 All ER 306.
Wolverhampton Law Journal 25

when Thornton had fetched and sharpened a knife. A further successful appeal24 considered
diminished responsibility due to “Battered Woman Syndrome” and a personality disorder and
the court further acknowledged that the effect of the abuse, if causing these psychiatric
conditions, would be relevant not just to the issue of diminished responsibility but also to the
issue of provocation in that it may form part of the circumstances of the defendant when
considering the objective element of the defence.25 A retrial was ordered and Thornton was
convicted of manslaughter on the grounds of diminished responsibility.26
Thirdly, Emma Humphries,27 who killed her abusive pimp at the age of 17, did not plead
the defence at trial despite being subjected to repeated rapes and other violent acts. In light of
the Thornton and Ahluwalia cases she successfully appealed28 and was released from
custody, only to die of an accidental overdose of prescription medication within three years.29
These appeals succeeded in changing judicial attitudes to the effect of physical abuse
in terms of both partial defences but did not expressly consider the effect that non-physical
abuse could also have upon the abused. As prominent sociologist Professor Evan Stark wrote
in 2007,

“The domestic violence revolution appears to have had little effect on coercive control,
the most widespread and devastating strategy men use to dominate women in
personal life”30 and “Because of its singular emphasis on physical violence, the
prevailing model minimises both the extent of women’s entrapment by male partners
in personal life and its consequences.”31

In 2010, both partial defences were reformed,32 and the current law reflects some changes to
how these defences operate, in particular that removal of the “sudden” requirement from loss
of control after provocative behaviour and the exclusion of sexual infidelity from its ambit.
There are some changes to the language of mental impairment requirement in diminished
responsibility and the effect that the impairment must have on the defendant’s abilities.

III. LOSS OF CONTROL – REPEALING THE PROVOCATION DEFENCE

Following the Law Commission’s proposals in its 2004 Partial Defences to Murder report33 the
defence of provocation was abolished and replaced with the defence of loss of control,
contained in ss. 54-56 of the Coroners and Justice Act 2009. The Law Commission Report
acknowledged that the existing defence was “inherently gendered”34 in its tendency to favour
the typically male reaction of explosive rage whilst restricting the availability of the defence to
a female defendant killing out of fear or panic.

24
R v Thornton (No 2) [1996] 2 All ER 1023.
25
Ibid, at 1031.
26
Available: https://www.independent.co.uk/news/sara-thornton-is-cleared-of-murder-1349913.html (accessed 05/11/19).
27
R v Humphreys [1995] 4 All ER 100.
28
Ibid.
29
Available: https://www.justiceforwomen.org.uk (accessed 05/11/19).
30
Evan Stark, Coercive Control – How Men Entrap Women (Oxford University Press, 2007) 8.
31
Ibid, 10.
32
Coroners and Justice Act 2009, c.25.
33
Law Commission, Partial Defences to Murder, Final Report, (LC290, 2014).
34
2004 Rights of Women response to the Law Commission, Partial Defences to Murder (Consultation paper no. 173, 2003)
available: https://rightsofwomen.org.uk/wp-content/uploads/2014/10/Partial-defences-to-murder-.pdf (accessed 29/10/19) 3.
26 Lynn Ellison

A successful plea of loss of control requires that the defendant loses control as a result of a
qualifying trigger.35 The trigger may consist of fear of serious violence from the victim against
the defendant or another identifiable person;36 or may be attributable to a thing or things done
or said (or both) which constituted circumstances of an extremely grave character and
caused her to have a justifiable sense of being seriously wronged.37 The terms “justifiable” and
“extremely” require an objective assessment, an element which has been criticised not least
for the problem that the abused woman will need to persuade a jury that her loss of control
was justified, but that it was so even in circumstances where the last act of provocation may
have been relatively minor in its overall contribution to the cumulative effect of abuse. 38
Whichever trigger is cited, the defendant must then be judged by an objective
standard, the test being whether a person of her sex and age, with a normal degree of
tolerance and self-restraint and in her circumstances, might have reacted in the same or
similar way.39 No elaboration is given on the role of the defendant’s sex and how or why this
may impact upon her tolerance or self-restraint.40 As Mitchell has noted,

“The difficulty here is that there are no clear objective or scientific data about
consistency in levels of self-control. We do not know how much consistency there is in
people’s views about when self-control should or should not be exercised, nor do we
know the degree of similarity in people’s ability to exercise self-control in any given set
of circumstances.”41

The defence cannot be used where the defendant acted out of a considered desire for
revenge42 and to combat the historic use of the provocation defence for adultery, sexual
infidelity was expressly excluded as a qualifying trigger.43 The fear trigger was included as a
concession to battered women as historically the defence only allowed for reactions borne out
of anger, not from fear, panic or horror.44

IV. DIMINISHED RESPONSIBILITY – REFORMED DEFENCE

The defence of diminished responsibility in s. 2 of the Homicide Act 1957 was amended by
section 52 of the Coroners and Justice Act 2009. It requires the defendant to be suffering
from an abnormality of mental functioning arising from a recognised medical condition.45 This
must substantially impair her ability to understand the nature of her conduct, form a rational
judgment or exercise self-control.46 This in turn must provide an explanation for her conduct in
relation to the killing47 and will do so if it causes, or contributes significantly to that conduct.48

35
Coroners and Justice Act 2009 c.25, s.54(1)(a) and (b).
36
s.55(3).
37
s.55(4)(a) and (b).
38
S Edwards, ‘Anger and Fear as Justifiable Preludes for Loss of Self-Control’ (2010) 74(3) Journal of Criminal Law 223.
39
s.54(1)(c).
40
A Norrie, ‘The Coroners and Justice Act 2009 - partial defences to murder (1) Loss of control’ (2010) 4 Criminal Law Review
275, 281.
41
BJ Mitchell, 'Years of Provocation, Followed by a Loss of Control' in Lucia Zedner and Julian V Roberts (eds), Principles and
Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth (Oxford University Press, 2012) 122.
42
s.54(4).
43
s.55(6)(c).
44
Edwards (n38) 223.
45
Homicide Act 1957 c.11, s.2(1).
46
s.2(1A).
47
s.2(1)(c).
Wolverhampton Law Journal 27

The defence reflects an insanity plea in that the burden of proof shifts to the defendant to
prove the defence49 on the balance of probabilities, a requirement that relies on adducing
supporting medical evidence.
In addition to the reformed partial defences, a further recent change to the law sheds
some light on the legal understanding of non-physical abuse.

V. COERCIVE AND CONTROLLING BEHAVIOUR DEFINED

A new crime of coercive or controlling behaviour in an intimate or familial relationship was

introduced by s. 76 of the Serious Crime Act 2015. The offence requires repeated or
continuous behaviour by the perpetrator, who must be personally connected to the victim in
the sense of being in a current or previous intimate relationship or a family member. The
behaviour must have a serious effect on the victim, which means that the victim must have
feared that violence would be used against her on at least two occasions or that the behaviour
caused serious alarm and distress and has had a substantial adverse effect on the victim’s
day to day activities.50 The effect of this behaviour must be known by the perpetrator, or he
ought to have known that it would have such effect.51 In the year ending March 2019, there
had been 17,616 offences of coercive control reported to the police.52
The cross-Government definition of domestic violence and abuse defines this category
of behaviour in these terms:

“Controlling behaviour is a range of acts designed to make a person subordinate

and/or dependent by isolating them from sources of support, exploiting their
resources and capacities for personal gain, depriving them of the means needed for
independence, resistance and escape and regulating their everyday behaviour.

Coercive behaviour is a continuing act or a pattern of acts of assault, threats,

humiliation and intimidation or other abuse that is used to harm, punish, or frighten
their victim.”53

The statutory guidance refers to the behaviour as limiting space for action and exhibiting “a
story of ownership and entitlement over the victim.”54 For the first time, actions such as
isolating a person from their family, monitoring their time, continuously putting them down,
telling them they are worthless, enforcing rules and activities which humiliate, degrade or
dehumanise the victim55 have been included in the guidelines for a statutory offence, thus

48
s.2(1B).
49
s.2(2).
50
“The phrase 'substantial adverse effect on B’s usual day-to-day activities' may include, but is not limited to: Stopping or
changing the way someone socialises; Physical or mental health deterioration; A change in routine at home including those
associated with mealtimes or household chores; Attendance record at school; Putting in place measures at home to safeguard
themselves or their children; Changes to work patterns, employment status or routes to work.” available:
https://www.cps.gov.uk/legal-guidance/controlling-or-coercive-behaviour-intimate-or-family-relationship (accessed 05/11/19).
51
Serious Crime Act 2015 c.9, s.76.
52
Office for National Statistics, Crime and Justice Domestic Abuse, available:
https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/articles/domesticabuseprevalenceandtrendsenglanda
ndwales/yearendingmarch2019 (accessed 26/01/19).
53
Home Office, Controlling or Coercive Behaviour in an Intimate or Family Relationship, Statutory Guidance Framework (December
2015) 3.
54
Ibid, 4.
55
Ibid, 4.
28 Lynn Ellison

acknowledging a much broader range of activities than previously enshrined in law. Previous
law concentrated on the application or threats of physical violence, albeit accepting the effect
that fear of such violence may induce psychiatric illness in the victim 56 and that harassment,
from any source, amounted to a criminal act.57
The threshold for when the conduct amounts to an offence is dependent upon the
facts of each case. The Crown Prosecution Service has produced extensive guidelines which
highlight the range of behaviours that may apply, including the following advice:

“There might be confusion about where the 'appropriate' dynamic of a relationship

ends and where unlawful behaviour begins. The College of Policing Authorised
Professional Practice on Domestic Abuse states: "In many relationships, there are
occasions when one person makes a decision on behalf of another, or when one
partner takes control of a situation and the other has to compromise. The difference in
an abusive relationship is that decisions by a dominant partner can become rules that,
when broken, lead to consequences for the victim."”58

Behaviour contrary to s. 76 constitutes an offence and does not operate as a defence. It

should however be evaluated in the light of its effect on the murder-specific defences outlined
previously.

VI. SALLY CHALLEN APPEAL – AN AMALGAMATION OF OLD AND NEW LAW

A case that considers the interplay between the partial defences and the new coercive and
controlling behaviour offence is that of Sally Challen, whose appeal against her murder
conviction was heard in the Court of Appeal in 2019.59 The case does need to be assessed
with some caution, however, given that it is based on an appeal considering the effect of
coercive and controlling behaviour on the partial defences as they existed prior to the 2010
reforms. Nonetheless, some themes have emerged which will apply to the current defences.
Sally was 15 years old when she met her husband Richard Challen who was 22 at the
time. Richard was unfaithful on many occasions and Sally was referred to a psychiatrist in
2009, who noted alcohol abuse, marital problems and psychosexual stresses. A disorder,
however, was not diagnosed.
In 2009, Sally left Richard and began divorce proceedings, but she found it impossible
to live without her husband. She began to engage in obsessive behaviour, accessing his text
messages and voicemails in order to discover details of the women with whom her husband
had been associating.
In 2010 Richard agreed to reconcile with his wife but only if she signed a post-nuptial
agreement which contained unfavourable terms. Despite agreeing to reconcile it was clear
that the affairs continued. Sally asked her husband about this and was told “Don’t question
me.”60

56
R v Ireland and Burstow [1997] UKHL 34.
57
Protection from Harassment Act 1997, c.40.
58
Available: https://www.cps.gov.uk/legal-guidance/controlling-or-coercive-behaviour-intimate-or-family-relationship (accessed
05/11/19).
59
R v Challen (Georgina Sarah) [2019] EWCA Crim 916.
60
Ibid, para 10.
Wolverhampton Law Journal 29

Having witnessed Richard’s continued contact with other women despite their agreement to
reconcile, Sally made her husband something to eat and then took a hammer from her
handbag and repeatedly hit her husband of thirty-one years over the head with the hammer,
killing him. She covered his body with blankets, rested his head on a pillow and left a note
which read “I love you, Sally.”61 She then left the house, typed a note and returned to the house
to place it in the kitchen. The note 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.”62

Having spent the evening with one of her sons without any indication of what had occurred,
the following day Sally called her cousin from Beachy Head, a notorious suicide spot. She was
approached by a chaplain as she neared the edge of the cliff. The chaplain reported that she
said that she had killed her husband and that “If I cannot have him, no-one can.”63
Sally maintained that she had been subjected to appalling treatment by her husband
for years, further stating “I should be put in a padded cell somewhere, because I have gone
completely off my rocker. I am just so very depressed.”64
At her trial for murder, Challen raised the defence of diminished responsibility, which at
the time of the murder in early 2010 was contained in the unamended s. 2 of the Homicide Act
1957, requiring an abnormality of mind which substantially impaired her mental responsibility.
Although Sally did not rely on the defence of provocation it was put to the jury by the judge.
Provocation was still governed by common law and s. 3 of the Homicide Act 1957, requiring
the defendant to suffer a “sudden and temporary”65 loss of self-control after being provoked
by things said or done (or both), which would then be objectively assessed in terms of the
effect that the provocation would have on a reasonable woman.
The prosecution’s case was that Challen was a jealous and obsessive wife. Her
actions in taking the hammer to the house demonstrated that the murder was premeditated.
Dr Paul Gilluley, a consultant forensic psychiatrist, gave evidence that Challen had long-term
low self-esteem and was suicidal at times, exhibiting alcohol dependency syndrome which
affected her mental health, but not to the extent that she was suffering from a disorder or
depression. He referred to feelings of jealousy, anger and resentment.
The defence based the diminished responsibility plea on evidence from expert witness
Dr Exworthy along with evidence from Challen. Richard was described as controlling by
friends and family and their two sons made statements supporting their mother, describing
how their father had controlled her for some years. A picture was painted of a marriage where
61
Ibid, para 11.
62
R v Challen (Georgina Sarah) [2019] EWCA Crim 916, para 16.
63
Ibid, para 13.
64
Ibid, para 14.
65
Tindal CJ in R v Hayward (1833) 6 C & P 157 at 159, 172 ER 1188 at 1189.
30 Lynn Ellison

Sally was dominated by Richard and, in the words of her cousin, the deceased had pulled the
strings in their marriage and the defendant had danced. The defence maintained that Challen
was suffering from a depressive disorder at the time of the killing, which in the opinion of Dr
Exworthy amounted to an abnormality of mind.
It is relevant that Sally Challen alleged that her husband had anally raped her as
punishment for being hugged or kissed by another man whilst on holiday, an element of the
case facts which receives very little attention. Challen is generally presented as a woman
suffering no physical violence, yet this is an incidence of physical and sexual violence in the
extreme and a fundamental example of the exertion of control over her by her husband.
Neither defence was accepted by the jury, and on 23 June 2011 in Guildford Crown
Court, Challen was convicted of murder and sentenced to life imprisonment with a minimum
custodial term of twenty-two years, later reduced on appeal to eighteen years. In the summing
up regarding the reduction of the minimum term in November 2011, Royce J made the
following observations about the opinions of Richard and Sally’s sons:

“We have had the opportunity of considering with care the statements from both sons
made to the police in August 2010, and an additional statement made more recently.
They make compelling reading. They do not demonstrate that the sons harbour any
bitterness towards their mother for what she has done, only sadness about her
predicament. One son is bitter towards the deceased father for, as he saw it, driving
her to do what she did. While we must approach such statements with some caution,
sometimes they can be instructive in considering what the real background to an
offence has been and the extent of culpability.”66

Shortly after the murder, the amended law for the two partial defences came into force. At the
time, it was hoped that the new defences would redress the gender bias from the previous
unreformed position. The intention was that abused women who kill would plead the new loss
of control defence, given that the requirement for a sudden loss of control had been explicitly
excluded by the statute.67
In 2018, Challen sought permission to appeal the conviction68 in light of the new
coercive and controlling behaviour offence and the existence of fresh psychiatric evidence
concerning the effect of her husband’s behaviour on her mental health at the time of the killing
and since her conviction. Leave to appeal was granted.
The appeal, to the Court of Appeal in 2019,69 was based on post-conviction psychiatric
evidence that Sally was suffering from a moderately severe personality disorder and had
symptoms of a severe clinical mood disorder, which was in this case most likely to be bipolar
affective disorder. This meant that she was dependent upon her husband and especially
vulnerable to his control.
The appeal was advanced on two grounds, one for each of the partial defences. In
respect of diminished responsibility, it was argued that the fresh evidence on both coercive
control and the psychiatric evidence supported the fact that Challen suffered an abnormality

66
R v Georgina Sarah Anne Louise Challen [2011] EWCA Crim 2919, per Royce J, at 15-16.
67
Law Commission, Partial Defences to Murder, Final Report, (LC290, 2014), paras 3.75-3.78.
68
R v Challen (Georgina) [2018] EWCA Crim 471.
69
R v Challen (Georgina Sarah) [2019] EWCA Crim 916.
Wolverhampton Law Journal 31

of mind. It was argued that had evidence on coercive control been available in 2011, the jury
may have decided differently with respect to this defence.
Regarding provocation, it was argued that the fresh evidence on coercive control
illustrated that Challen was provoked into killing her husband because of his behaviour, which
was coercive and controlling for several years.
Stark’s definition of coercive and controlling behaviour was considered, with the
following passage from his report to the court being cited:

“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.”70

VII. ANALYSIS

Perhaps frustratingly, the court made no comment upon the issue of whether Challen’s
relationship, which was acknowledged to be abusive even by the prosecution by 2019,
amounted to one of coercive and controlling behaviour. The appeal was allowed on the basis
that the fresh psychiatric evidence had rendered the murder conviction unsafe and a retrial
was ordered. Challen’s subsequent plea of manslaughter on the grounds of diminished
responsibility was accepted and no retrial occurred.
In light of Challen’s appeal and the consideration given to coercive control, the impact
of s. 7671 upon the existing partial defences requires evaluation and it has been suggested
that the partial defences are interpreted as far as possible to align with the offence.72

a. Loss of Control

Regarding loss of control, the fear of serious violence trigger would seem to be of little help to
the psychologically controlled women as she will find it impossible to evidence violence, let
alone serious violence. The word “violence” imports a physical attack which would not fall
under the ambit of psychological control. This leaves the alternative trigger of things said or
done. These, however, have to constitute circumstances of an extremely grave character,
causing her to have a sense of being seriously wronged; elements which are objectively
assessed. The nature of coercive control is that it can remain hidden and can be implemented
by subtle elements of control, some of which fall on the very edge of unfortunately socially
acceptable control by men over women’s behaviour.73
This sense of being seriously wronged still has to be justifiable and this is also an
objective assessment; what may be justifiable subjectively to the victim of the coercion may
not be so to the jury members not suffering under such control.74 A common response to

70
R v Challen (Georgina Sarah) [2019] EWCA Crim 916, para 38.
71
Serious Crime Act 2015 c.9, s.76.
72
Vanessa Bettinson, ‘Aligning Partial Defences to Murder with the Offence of Coercive or Controlling Behaviour’ (2019) 83(1)
Journal of Criminal Law 71, 71.
73
C Bishop, ‘Evidencing domestic violence, including behaviour that falls under the new offence of 'controlling or coercive
behaviour' (2018) 22(I) International Journal of Evidence & Proof 3, 9.
74
See, for example, Edwards (n38) 223.
32 Lynn Ellison

domestic abuse, whether physical or psychological, is to ask “Why did she not just leave him?”
demonstrating naivety in recognising the effect upon the victim, “partly because her
cognitions have been so distorted by the years of abuse that she does not perceive the
options for escape, for example legal options, at all in the same way as an ordinary person
would do.”75 Indeed, in the Thornton trial, the judge at first instance posited that “there are …
many unhappy, indeed miserable, husbands and wives. It is a fact of life. It has to be faced,
members of the jury. But on the whole it is hardly reasonable, you may think, to stab them
fatally when there are other alternatives available, like walking out or going upstairs.” 76
Regarding this element of the defence, Herring has argued that domestic abuse in and of itself
should be enough to satisfy the component of being seriously wronged. 77
Even if the hurdles of establishing the qualifying trigger and its associated
requirements are met, the final objective assessment of the defence then requires a
consideration of whether a person of her sex and age and in her circumstances might behave
in the same or similar way. At least Challen’s case opens up the possibility that expert
evidence on the provoking effect of the coercive behaviour resulting in her loss of control may
be advanced in court. The protective statutory exclusion for acting out of a considered desire
for revenge would generally operate to exclude cases such as Challen’s, where her
premeditated actions in taking the hammer to the house suggest an element of planning that
is inconsistent with the idea of a loss of control, albeit that this now does not need to be
sudden and can now follow a “slow-burn” pattern of development. This acts to level the
playing field between typically male and typically female responses to provocative conduct,
but the jury must consider to what extent the law should justify a murder, as many may well
be uncomfortable with finding any excusatory element in the actions of a wife who carries out
a planned attack on her husband. The legislature has spoken on this matter in terms of the
revenge exclusion and it is for the jury to weigh the evidence in each case as to whether this
should apply to prevent loss of control from operating as a valid defence.

b. Diminished Responsibility

In terms of pleading diminished responsibility, the problem with adducing this defence is that
it centres the responsibility for the killing in the mental condition of the killer. As Norrie asserts,
an abused woman “should not be pressed into the law of diminished responsibility.”78 There
may be circumstances where someone’s mental state is such that their responsibility is
indeed diminished but there is no identifiable disorder to plead; indeed, their response to the
abuse may be a “normal response to the denial of their autonomy.”79 Loss of control may be
the preferable defence. In such instances, “lawyers will need the assistance of experts who no
longer speak of syndromes but speak of her reaction as a reasonable response to habituated
violence.”80 Naturally, if there is a recognised medical condition as required by the defence,
then this may be evidenced by medical reports and expert witnesses, hopefully with a clearer
understanding of how coercive control may impact upon mental health.

75
Royal College of Psychiatrists in response to Law Commission Consultation Paper No 173, cited in Partial Defences to Murder,
Final Report, Law Commission (LC290, 2014), para 3.99.
76
R v Sarah Elizabeth Thornton, Birmingham Crown Court (23 February 1990) per Judge J.
77
JW Herring, 'The Serious Wrong of Domestic Abuse and the Loss of Control Defence' in A Reed and M Bohlander (eds), Loss of
Control and Diminished Responsibility (Ashgate, 2011) 65 -78.
78
Norrie (n40) 285.
79
Bettinson (n72) 79.
80
Edwards (n38) 223.
Wolverhampton Law Journal 33

c. The link between both partial defences in abusive situations

The two defences are generally separate. Loss of control depends upon the actions of the
victim and is therefore independent and external to the mental faculties of the defendant.
Diminished responsibility is concerned only with the mental abnormality of the defendant and
thus the victim bears no element of responsibility for his own death and can be plead even if
the victim is a stranger to the defendant.
It is in the sphere of domestic abuse, however, that the two defences become
inextricably linked. In these cases, the argument is not solely that the defendant suffers from a
mental abnormality, nor is it that the victim provoked her to lose her self-control, it is often that
the defendant suffers from a mental abnormality because of the actions of the victim, which
in turn were provocative in the extreme. The victim in this instance therefore bears a
responsibility for the existence of evidence to support both defences, given that his behaviour
has induced both internal and external states in the defendant. He should perhaps therefore
bear more blame for causing the victim’s responsibility to be diminished as well as causing
her to lose control by his treatment of her.
Argument has been made for the potential reform of the murder specific defences to
include coercive control as a defence in its own right,81 however, the nature of coercive control
only applies in the context of the current framework of defences.
Although the case of Sally Challen has been described as having limited application in
terms of the fact that the appeal applies to pre-2009 defences,82 nevertheless it may break
new ground in terms of understanding the effect of coercive control in intimate relationships
much as Ahluwalia did for physical abuse. There is still a long way to go with regards to
coercive control. The existence of s. 76 of the Serious Crime Act 2015 alone does not mean
that the section will be well implemented and that actors within the criminal justice system
will be well versed in the effects of coercive control upon victims. The hidden nature of
coercive control, the gendered normalisation of so much of it as socially acceptable in the
context of typical male/female interactions, the problems of evidencing the coercion and the
tendency for victims to try to minimise the situation and want to continue the relationship, all
present difficulties with its implementation.83 The Crown Prosecution Service has been at
pains to point this out in its guidance, which states:

“Controlling or coercive behaviour can be overlooked as victims might be seen as

colluding or consenting to the behaviour. In some circumstances the victim may not
be aware or be ready to acknowledge, least of all be ready to report, that they are being
abused. Do not assume that compliance, dependence, denial and other responses are
collusive. Rather, these reactions might better be understood as ways of coping or
adapting to the abuse.”84

81
Bettinson (n72) 72, 80.
82
Karl Laird, ‘Case comment: Homicide: R v Challen (Georgina) Court of Appeal Criminal Division [2019] EWCA 916’ (2019) 11 Crim
LR 980, 980-982.
83
All elements referred to in Bishop (n73).
84
Crown Prosecution Service Legal Guidance, Controlling or Coercive Behaviour in an Intimate or Family Relationship (30 June
2017) Part 7.
34 Lynn Ellison

Nevertheless, the new offence has been validly criticised for underuse and for the fact that
many police officers simply do not understand the nature of the offence or the effect that it
can have on its victims85, preferring the concrete evidence of physical violence over the hidden
insidious damage wrought by coercive control.
Since the implementation of s. 76 of the Serious Crime Act 2015 and the greater
understanding of the nature of non-physical domestic abuse, further developments in criminal
law may be welcomed. The Domestic Abuse Bill,86 which seeks to define domestic abuse as a
standalone criminal offence, is currently in the Committee stage of the House of Commons.
On 2 October 2019 the Bill was carried over into the next session of Parliament,87
unfortunately delaying its passage still further in a Parliament fraught with Brexit concerns.
The Bill creates an offence of domestic abuse, which is defined in s. 1 as where A and
B are personally connected to each other and the behaviour is abusive. “Abusive” consists of
the following behaviours:

(a) physical or sexual abuse;

(b) violent or threatening behaviour;
(c) controlling or coercive behaviour;
(d) economic abuse;
(e) psychological, emotional or other abuse.

The Bill also makes provision for the appointment of a new Domestic Abuse Commissioner.
The current Government definition of domestic abuse does not have the force of law but also
includes,

“Any incident or pattern of incidents of controlling, coercive or threatening

behaviour, violence or abuse between those aged 16 or over who are or have been
intimate partners or family members regardless of gender or sexuality. This can
encompass but is not limited to the following types of abuse: psychological,
physical, sexual, financial or emotional.”88

Despite the existence of a specific statutory offence of domestic abuse, if the bill becomes
law, being a victim of the crime is not in itself able to be used as a separate defence for
murder in the same way that the s. 76 offence89 does not have that effect. It does however
impact upon the legal landscape for the operation of the existing defences, in light of the
legislature’s growing acceptance of recent psychiatric evidence that damaging domestic
abuse goes way beyond the bruises and broken bones of its traditional physical construct.
Following Challen’s appeal, on 1 April 2019, at the Old Bailey, Packiam Ramanathan, a
73-year old woman, was found not guilty of murdering her husband after just half an hour of
jury deliberations.90 She pleaded guilty to manslaughter on the grounds of loss of control after
citing years of abuse at the hands of her husband during their arranged marriage. In summing

85
Jon Robins, ‘Coercive Behaviour in the Spotlight’ (2018) JPN 182, 182.
86
Domestic Abuse Bill (HC Bill 422).
87
Hansard, House of Commons (2 October 2019) Vol 664, column 1333.
88
Available: https://www.gov.uk/government/news/new-definition-of-domestic-violence (accessed 26/11/19).
89
Serious Crime Act 2015 c.9.
90
Available: https://www.theguardian.com/uk-news/2019/apr/01/woman-73-who-beat-husband-to-death-cleared (accessed
30/10/19).
Wolverhampton Law Journal 35

up, the judge referred both to the physical and verbal violence she had endured, referring to
her husband as a “control freak” and acknowledging his coercive and controlling behaviour.
The manslaughter conviction meant that the mandatory life sentence was avoided, and
Ramanathan was sentenced to two years and four months in prison.91
On 10 December 2019, Emma-Jayne Magson’s appeal is scheduled to be heard at the
Court of Appeal.92 Magson was convicted of murdering her violent boyfriend and is serving a
minimum tariff of seventeen years. Although the appeal is not based solely on coercive
control, it reflects the Challen appeal in that new psychiatric evidence has come to light since
the original trial that Magson was suffering from a number of problems including a personality
disorder, the trauma associated with a very recent miscarriage, an undiagnosed autistic
spectrum disorder and a history of abuse both as an adult and a child, including abusive
behaviour at the hands of her victim.93 Given the success of Challen’s appeal, Magson may
succeed on the basis of new psychiatric evidence as it relates to diminished responsibility.

VIII. CONCLUSION

There is something inherently unsettling about the nature of defending women who kill their
abusers, because they have spent years, sometimes decades, in a prison of their abuse,
before taking the one single action to break free of control. In defending them, the task
requires a further underlining of their victim status, indeed it requires proof of the suffering
they have endured. This process concentrates the mind of the jury on the woman as victim,
helpless, worthy of pity, returning them to their status as powerless. The language used in
both the media and the court is inherently gendered, the women who kill have been described
as “a meek little mouse”94 (Challen); frail and slight, reserved95 (Ramanathan); slight, nervous,
begging,96 helpless97 (Ahluwalia). The need to define the woman as victim in order to prevent
imprisonment in an abusive situation being exchanged for prolonged incarceration as a life
prisoner is an unfortunate requirement of raising either partial defence. In painting the picture
of the abused woman, it also seems incumbent on her defence lawyers to try to establish
some level of previous goodness, a “nice” person, who would never normally resort to
violence. This may be contrasted with the position of male defendants who are assessed on
the actual moment of the criminal offence, rather than relying on establishing a history of
“niceness.”
In coercive control the sense of victimhood may be stronger than where physical
violence has been used as the defendant is asserting that she was passive, controlled by her
male partner rather than the recipient of violence from an often-stronger male. The defence of
women who kill their coercive abusers needs to be framed in terms of the “woman’s defence
of her privacy and liberty rights, contrasting her ‘survivor self’ with her ‘victim self,’”98 with the
“survivor self” being described by Stark as “strong, resourceful, reasonable, insightful and
aggressive,”99 comparing her actions to free herself as akin to a hostage taking actions to

91
Ibid.
92
Available: https://www.justiceforwomen.org.uk/ (accessed 30/10/19).
93
Ibid.
94
R v Challen (Georgina Sarah) [2019] EWCA Crim 916.
95
Barrister Stephen Kamlish QC at trial, R v Sarah Elizabeth Thornton, Birmingham Crown Court (23 February 1990).
96
R v Ahluwalia [1992] 4 All ER 889, at 892.
97
Ibid, at 897.
98
Stark (n30) 389.
99
Ibid, 389.
36 Lynn Ellison

remove herself from a kidnapping situation.100 Viewing the female victims of coercive control
who kill through the lens of an aggressive kidnapped woman101 reaffirming and re-establishing
her rights turns the narrative into one of strength in escape rather than one of weakness,
whilst still acknowledging that another human being has lost his life with the conviction and
associated label of voluntary manslaughter.
The law has travelled some distance in accepting the effect that abusive behaviours
have upon the mind and actions of the victim. The partial defences have always served not to
relieve the defendant of liability, but to explain why she acted as she did. Never a full defence,
the partial defences instead seek to strike a balance in sentencing and in labelling, either by
acknowledging that in law, the defendant’s responsibility for her actions was diminished by
her mental state, or in law she was so provoked by her abuser’s behaviour that she can fulfil
the stringent criteria of the loss of control defence. From the early piecemeal acceptance of
the effects of physical violence to the modern view of coercive and controlling behaviour, the
changing attitudes to the effect of one person exercising power and control over another have
been gradually recognised by both the legislature and the judiciary.
Time will tell whether the offence of coercive and controlling behaviour will have
significant impact upon murder defence pleadings, but cases such as Challen and the
comments of the judge in summing up in Ramanathan certainly indicate that coercive and
controlling behaviour is now in our collective legal consciousness. Violence can be
psychological as well as physical, with long term damage to the psyche remaining long after
any physical injuries may have healed. It is hoped that if the Domestic Abuse Bill102 is passed,
with the definition of abuse acknowledged in statute to consist of non-physical as well as
physical behaviours, future pleas of loss of control on the basis of the qualifying trigger of
“fear of serious violence”103 can include fear of serious non-physical as well as physical
violence. This would bolster pleas of loss of control and would alleviate the need to rely on the
“things said or done” trigger104 alone. The benefit of a successful plea of loss of control is that
the defence turns wholly on the provocation offered to the defendant by the victim, rather than
on her resulting mental state, though it is clear from the cases discussed herein, including the
2019 Challen appeal, that a woman suffering under abuse is still more likely to succeed in an
appeal if she pleads diminished responsibility than if she pleads loss of control. This serves to
underline the argument that she has killed because she suffers from an abnormality of mental
functioning (albeit caused by her abuser), rather than the fact that she has killed because of
his criminal treatment of her in a way that legally amounts to a partially excusatory response
to his provocative and unlawful conduct.

100
Ibid, 389.
101
B Midson, 'Coercive control and Criminal responsibility: Victims Who Kill Their Abusers' (2016) 27(4) Criminal Law Forum 417,
433; cited in Bettinson (n72) 78.
102
Domestic Abuse Bill (HC Bill 422).
103
Coroners and Justice Act 2009, c.25, s.55.
104
Ibid.