Abstract
This chapter will examine the problems posed for the law when it faces arguments based on new understandings of behaviour in the courtroom. It will particularly examine the issue of whether the legal conception of how coercion and control may partially excuse those who commit murder as a result of the coercive and controlling behaviour of others with whom they are in intimate relationships. It will examine the distinct approaches taken by the legislature and the courts and ask if more use of expert understandings of behaviour drawing on the cognitive sciences would assist. It is often said that law has a folk psychological understanding of human behaviour; the chapter will consider whether and how the viewpoint of the cognitive sciences might be utilized in the critique of the English law to refocus the “aim” of the law.
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Notes
- 1.
See e.g. Anti-slavery, ‘A call for European Union legislation on mandatory human rights and environmental due diligence, to prevent forced and child labour in global supply chains’, May 2020.
- 2.
References to England or English Law include Wales.
- 3.
1 A person commits an offence if:
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1.
the person holds another person in slavery or servitude and the circumstances are such that the person knows or ought to know that the other person is held in slavery or servitude, or
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2.
the person requires another person to perform forced or compulsory labour and the circumstances are such that the person knows or ought to know that the other person is being required to perform forced or compulsory labour.
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1.
- 4.
s45.
- 5.
- 6.
After the appeal decision was released a television documentary was shown: The Case of Sally Challen, BBC2 January 3, 2020.
- 7.
R v Challen (Georgina Sarah) [2019] EWCA Crim 916 [7].
- 8.
[2019] EWCA Crim 916 [11–13] – all quotations.
- 9.
[14].
- 10.
[13].
- 11.
[14].
- 12.
[20–21] quotation [21].
- 13.
This partial defence had been amended by the time of her appeal. This is the provision that applied at the time of the trial.
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 the 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 … (Homicide Act 1957 s2(1))
- 14.
[25].
- 15.
[22].
- 16.
The Court of Appeal quashed Challen’s conviction and ordered a retrial. In their reasoning the Court of Appeal accepted that there was new evidence based on the effect of Richard’s coercive and controlling behaviour on Sally. This new evidence could have strengthened a defence of diminished responsibility at her trial. The evidence needed to be tested before a jury. However, Challen pleaded guilty to manslaughter before such a trial could take place and her plea was accepted by the CPS Crown Prosecution Service. https://www.bbc.co.uk/news/uk-england-surrey-48554239.
- 17.
[37].
- 18.
The Court referred to evidence from Evan Stark, the sociologist whose expertise had been recognised by the Home Office when drafting the new offence under the Serious Crime Act.
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 [38].
- 19.
“In cases of coercive control the risk that one or both parties will be severely or fatally injured is a function of a victim’s level of entrapment, the degree to which due to fear, violence and/or the extent of control, she has been deprived of or otherwise lacks the non-violent means effectively to resist, refuse, defend against and/or escape from demands, attacks, betrayals. In these circumstances, while the victim’s vulnerability weighs the scale against her survival, the sense of having no way out can also fuel a powerful rage against the perceived source of her containment” [39].
- 20.
The previous partial defence to murder as set out in Homicide Act 1957, s3.
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.
- 21.
s55(3).
- 22.
s54(1)c.
- 23.
s54(3).
- 24.
s54(5).
- 25.
s55(6)(c).
- 26.
s55 Meaning of “qualifying trigger”
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1.
This section applies for the purposes of section 54.
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2.
A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies.
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3.
This subsection applies if D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person.
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4.
This subsection applies if D’s loss of self-control was attributable to a thing or things done or said (or both) which—
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a.
constituted circumstances of an extremely grave character, and
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b.
caused D to have a justifiable sense of being seriously wronged.
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a.
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5.
This subsection applies if D’s loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4).
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6.
In determining whether a loss of self-control had a qualifying trigger—
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a.
D’s fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence;
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b.
a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence;
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c.
the fact that a thing done or said constituted sexual infidelity is to be disregarded.
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a.
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7.
In this section references to “D” and “V” are to be construed in accordance with section 54.
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1.
- 27.
“The introduction of the partial defence of diminished responsibility in 1957 was a welcome reform. However, medical science has moved on considerably since then and the definition of diminished responsibility is now badly out of date. We are recommending an improved definition which we have drawn up with the help of the Royal College of Psychiatrists and other expert consultees. The new definition has had wide support amongst consultees. We believe that the new definition has the flexibility to accommodate future changes in diagnostic practice, whilst ensuring that the public remains well protected from those mentally disordered offenders who pose a continuing threat” (Law Com, 2006, para 1.49).
- 28.
“More fully [W]e would point out that the approach adopted within the document to the relationship between provocation and self-defence, with the suggestion of a new partial defence of ‘excessive self-defence’, is based, at least partly, upon a legal misrepresentation of psychology and physiology. Hence, one way of reading the proposal to abolish the provocation defence ‘in favour’ of the new partial defence of self-defence is that it rests upon the assumption that ‘anger’ cannot be a justification for ‘responsive violence’, but ‘fear’ can be. However, this assumes that the two emotions of anger and fear are distinct. In medical reality they are not. Physiologically anger and fear are virtually identical, whilst many mental states that accompany killing also incorporate psychologically both anger and fear. Hence, the abused woman who kills in response even to an immediate severe threat will also be driven at least partly by anger at the years of abuse meted out to her, and perhaps her children. Again, the woman who waits until the man is ‘helpless’ to kill him, is likely not merely to be angry but also fearful that eventually he will kill her, and/or her children, and that there is no way of preventing it other than by the death of the man (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). Any legal solution to the current perceived problems with partial defences to murder which rested upon the assumption that fear and anger can (even usually) be reliably distinguished must, from a medical perspective, therefore fail” (Law Com, 2004, para 3.99).
- 29.
s54(1)c.
- 30.
s2 Homicide Act 1957 as amended.
References
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Reports
Law Commission. (2004). Partial Defences to Murder. Law Com No 290.
Law Commission. (2006). Murder, Manslaughter and Infanticide. Law Com No 304.
Government Publications
Home Office. (2016). Ending violence against women and girls: Strategy 2016–2020. UK Government.
Websites
BBC News. https://www.bbc.co.uk/news/uk-england-surrey-48554239. Accessed February 19, 2020.
Domestic Abuse Bill, UK Parliament, 2020. https://publications.parliament.uk/pa/bills/cbill/58-01/0096/20096.pdf.
Justice for Women. https://www.justiceforwomen.org.uk/sally-challen/. Accessed February 22, 2020.
UK Government, publications fact sheet domestic abuse bill. https://www.gov.uk/government/publications/domestic-abuse-bill-2020-factsheets/domestic-abuse-bill-2020-overarching-factsheet.
Statutes
Homicide Act 1957.
Modern Slavery Act 2015.
Serious Crime Act 2015.
Cases
R v Ahluwhalia [1992] 4 All ER 889.
R v Challen (Georgina Sarah) [2019] EWCA Crim 916.
R v Hobson [1997] Crim L R 759 (CA).
R v Thornton [1992] 1 All ER 306.
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Claydon, L. (2021). Coercion and Control and Excusing Murder?. In: Ligthart, S., van Toor, D., Kooijmans, T., Douglas, T., Meynen, G. (eds) Neurolaw. Palgrave Studies in Law, Neuroscience, and Human Behavior. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-69277-3_4
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