On the face of it the fact that Rob Titchener appears to have survived the three stab wounds that Helen inflicted on Sunday night should have been as good news for Helen as it was for him.
It was not.
Had Rob gasped his last breaths in the blood flooding over his kitchen floor Helen would have been charged with murder, but it is most unlikely that she would have been convicted. Apart from the possibility of being acquitted on the grounds of self-defence – perhaps a long shot given that Rob appears to have been unarmed as she stabbed him repeatedly, there were two defences available to her.
Perhaps the harder of these to establish would have been “diminished responsibility,” a somewhat peculiar defence introduced in 1957 in an attempt to prevent the hanging of those with mental health problems that fell short of the usually insurmountably high bar of legal insanity. It survived the abolition of the death penalty and survives to this day, albeit in a somewhat modified form. Forensic psychiatry can sometimes be a woolly and imprecise branch of medicine and over the years the courts have often been willing, in deserving cases, to find previously undiagnosed mental problems where a mandatory life sentence seems unnecessary.
However the obvious defence to murder for a woman who has suffered for months or years in an abusive relationship would have been “loss of self-control,” the modern version of what, until 2009, was known as “provocation.” The classic use for the old provocation defence was where a man returned home to find his wife in bed with a lover. In such circumstances the law recognised that some men might quite understandably kill either the wife, or the lover, or both, in a sudden fit of uncontrollable anger, and if they did so they should be guilty only of manslaughter. Wives, however, who snapped after years of humiliation and abuse had no such defence.
The tables are now turned: sexual infidelity is specifically excluded as an excuse for “loss of control.” The defence is however available to women like Helen if
“a person of the defendant’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant might have reacted in the same or in a similar way to D.”
Crucially, the loss of self-control need not be “sudden”, which would have opened up the field for the whole history of Rob’s abominable behaviour to be aired in court. It is a bit more complicated than that – the loss of self-control must be as a result of a “qualifying trigger;” either a threat of serious violence or “something said or done which:”
(a) constituted circumstances of an extremely grave character, and
(b) caused the defendant to have a justifiable sense of being seriously wronged.”
Helen could have supplied her lawyers with plenty of ammunition: not just Rob’s controlling and coercive behaviour but his actual use of violence, and the fact that – on at least one occasion – he had raped her. Yes she might well have had to plead guilty to manslaughter; but with no-one to argue Rob’s corner, an acquittal on the murder charge would be, if not guaranteed, at least highly likely.
If the judge then thought that she had suffered a “high degree of provocation” he would have looked at sentencing guidelines that contemplate a sentence of about 2 years imprisonment after a guilty plea. 2 years, crucially, is a short enough sentence to be suspended.
As a result, if I was advising Helen on a murder charge I would tell her that there was a reasonable chance of keeping her out of prison altogether.
But Rob is alive and this makes matter much, much worse for Helen.
The severity of the injuries, and the use of a knife, mean that a charge of wounding with intent to cause GBH is virtually inevitable, especially as she has decided, on legal advice, not to answer any police questions. The only tricky charging decision is whether she should also face a charge of attempted murder as well.
The maximum sentence for both offences is the same: life imprisonment. But in contrast to murder, there is no defence of diminished responsibility or “loss of control” available for these slightly lesser charges.
As a result Helen has two options: fight the case hoping for a complete acquittal, and risk an even lengthier prison sentence if she loses; or try to cut a deal with the prosecution at the earliest possible stage, plead guilty and hope to rely on mitigation to keep her out of gaol.
Her best – indeed her only realistic – hope for a complete acquittal is to argue that she acted in self-defence, or perhaps the defence of her 5 year old son Henry. We still have only a sketchy picture of exactly why she stabbed her husband. If she did so because in the heat of the moment she genuinely thought that he was about to use violence against her or her son, the law is fairly generous to her. She is allowed to use reasonable force and she is not expected “to weigh to a nicety the precise amount of defensive force required.” What’s more, it will be for the prosecution to prove that she was not acting in reasonable self-defence. But she still faces serious difficulties. Disproportionate force is not allowed and where someone uses a knife to repeatedly stab somebody who is unarmed, it is easy to see the problems she would have, even if she actually did believe herself in danger.
The alternative is to try to plea bargain her way out of a prison sentence. But that will not be easy.
It’s certainly no good pleading guilty to attempted murder. There are sentencing guidelines which set the starting point, even for the least serious cases of attempted murder at 9 years imprisonment. If Rob turns out to have suffered “long term physical or psychological harm” the starting point rises to 15 years. Even after an immediate guilty plea, and assuming Rob makes a perfect recovery she will be lucky to escape with less than 6 years.
And of course, if Rob is alive that will make mitigating for her incredibly difficult. Sadly, he does not seem to have the sort of gentlemanly manners to show magnanimity in the face of his wife’s attempt to murder him.
When the time comes for Helen to be sentenced Rob will be ready for him. A solicitous police officer will have prepared a “Victim Impact Statement.” It will no doubt draw attention to the lasting physical and psychological effects the stabbing has had on him: the months in hospital, the painful reconstructive surgery, the flashbacks and nightmares and the post-traumatic stress disorder. Worse still, he will probably say, is the knowledge that all this happened in front of the 5 year old that he had been bringing up as his own son. We can expect the sentencing judge to describe his statement as “deeply moving” especially if it consists mainly of lies, and to castigate Helen for ruining Henry’s life as well as Rob’s.
Any attempt to blacken Rob’s character in mitigation will be met by an indignant Crown Prosecution Service, which endorses every brief with the stern injunction to prosecuting counsel to take a strong line with “derogatory mitigation.” If she goes down this route she will need the best QC that she can find because it will take defence advocacy of genius simultaneously to persuade a sentencing judge that Helen is deeply remorseful for what she did, and that Rob thoroughly deserved to be stabbed. Even if it succeeds in getting her a short sentence Rob will surely petition the Attorney-General to review it as being “unduly lenient.” When the Attorney General succeeds he usually secures a pretty substantial increase in sentence.
The same problems, albeit to a slightly lesser extent, apply to a plea to a S.18 wounding charge. The use of a knife automatically puts the offence into a higher sentencing category, with a starting point of at least 6 years imprisonment even if Rob makes a perfect recovery. On a plea that might come down to 4: below that would require the judge to accept Helen’s mitigation, something that Rob will contest vigorously.
A guilty plea would only start to become tempting if the prosecution dropped any suggestion that Helen intended to cause serious injury. A simple offence of unlawful wounding would be serious enough given the use of the knife, but with a sympathetic judge 18 months to 3 years would not be out of the question, and a suspended sentence, though far from inevitable, would be a realistic possibility. With remission that would at least reduce her time in prison to less than 18 months which, coincidentally, is the maximum time during which a baby can stay with its mother in a prison mother and baby unit.
Those of us rooting for Helen – and that surely includes every Archers fan apart from those in the psychopathic community – must hope that when she gives her account she is able to raise at least some possibility that she was acting in self-defence. My guess is that if her evidence went head to head with Rob’s the jury would see him for the monster that he is.
Already the weight of the criminal justice system will be starting to bear heavily on Helen. She will soon be prompted at every opportunity to plead guilty in order to get a lighter sentence. She will be expected to make up her mind if she intends to contest the charges within weeks.
Despite the use of the knife I cannot believe that Helen intended to cause serious injury. Barring the clearest instructions to the contrary she must plead not guilty to attempted murder or wounding with intent. And if her instructions are that she acted in self-defence, then she must not plead guilty even to a lesser charge; she must place her faith in a British jury.
Helen now faces a slow and gruelling ordeal in the next few months. She is likely to be granted bail, but whether she will be able to stay in Ambridge, the small town where she may bump into Rob at any moment, is another matter. Bail conditions may mean she has to move away, perhaps to spend the last few weeks of her pregnancy living alone in some grimy city bail hostel. Once her baby is born – and a grimy bail hostel is no place for a baby to start its life – she will then face a dispute in the family courts at least as vicious as her impending criminal trial: she may struggle to get legal aid for her criminal defence, she will certainly do so for any dispute over her baby’s residence. There will be times when she will be tempted to give up but if she perseveres there is still every chance that justice will prevail.
Let us hope that both Helen, and her lawyers, are equal to the battles that lie ahead.
(This article first appeared in the Daily Telegraph 5th April 2016)