What now for Helen Titchener? The Archers and the criminal law

The Archers is beloved by lawyers. We may fib about our interest in it, and masquerade as people who are far too busy and intellectual to listen to a soap opera about simple farming folk.

But we love it, and like all other listeners we were gripped by Sunday evening’s turn of events. Many at the criminal Bar will be only too willing to act for Helen Titchener, should she need it, and we’ll do it pro bono if necessary, as fictional characters don’t actually qualify for legal aid (indeed, owing to recent Government cuts, nor do an increasing number of real-life people). Pat, Tony, Tom – get in touch, as Doughty Street Chambers will gladly field a team for Helen.

The Archers scriptwriters are rather good at identifying legal issues and giving them a popular airing. Long term fans remember both Tom Archer’s triumphant acquittal after he trashed a field of GM crops, and Susan Carter’s time in prison after she assisted an offender, sheltering her ne’er do well brother who was on the run. The scriptwriters have dealt with racial abuse, drug addiction and homelessness, as well as rather too much about cricket.

But never murder. Until now.

The question for lawyers is two fold: first, is he really dead, or will he stagger back into life like the vampire he really is? The second is: how best to defend her against the inevitable charge of murder if he has indeed passed on?

There is no doubt, for the listener at least, that Helen is a victim of psychological and physical abuse, including rape. The slow burn of the psychological abuse has been as painful for listeners as it was for her: her freedom to move taken from her; her car keys confiscated; separated from her family and friends; prevented from working; subject to repeated, chronic criticism of her abilities and skills. The physical abuse followed a typical pattern found all too often in real life – “it was all her fault” – “she brought in on herself” – “poor Rob was only defending himself”.

Although it all now sounds too late for Helen, a new offence came in to force on 29th December 2015 – “controlling or coercive behaviour in an intimate or familial relationship” (Section 76, Serious Crime Act 2015).

Helen’s abuse at the hands of Rob sounds like a checklist of the kind of behaviour which could have justified charging him with the new offence (see the Government’s guidance on section 76).

If Helen or others had been aware of the new offence, and made a complaint to the Borsetshire Constabulary, perhaps the violence of Sunday night may have been avoided.

If Rob has indeed kicked the milking bucket, it is inevitable Helen will be charged with murder. A possible, partial defence would be that she suffered a loss of control as defined in s.54 of the Coroners and Justice Act 2009. This replaced the old defence of “provocation”, and if run successfully at trial would reduce the offence of murder to the lesser one of manslaughter.

The partial defence requires the loss of control to have a “qualifying trigger”: either caused by her fear of serious violence from Rob either to herself or another (her son Henry), or caused by things done or said which constituted circumstances of an extremely grave character, and which gave Helen a justifiable sense of being seriously wronged.

These provisions were brought in to cover situations, like Helen’s, where there has been seriously abusive or wrong behaviour against a defendant, who just cannot take it any more.   Should a jury convict her of manslaughter on the basis of loss of control, she will not get the life sentence that is mandatory for murder, but a relatively short prison sentence of about 4 years.

But the problem here, taxing the ingenuity of criminal lawyers in every Court robing room in the land, is whether it can be established that Helen is indeed a victim of abuse? Like much abuse in real life, it has been carried out in the toxic secrecy of the home, and there are no witnesses to support Helen (apart, perhaps, from the BBC’s hidden microphones in Blossom Hill Cottage). Indeed, an astute Crown Prosecution Service lawyer would consider calling her family as prosecution witnesses, attesting to Rob’s great “care” of her, and to her threat in front of witnesses that she “would kill him”.

Even Kirsty may not provide much hope – she had not witnessed any violence, nor seen any marks or bruises. Helen only has to raise the defence and not prove it, but the prosecution are entitled to bring evidence to disprove it. Enter Pat Archer, perhaps, to say her daughter was unstable and Rob was just lovely? This story will run and run.

Helen might be better placed to argue self defence, either of herself or of Henry. If successful, she would be acquitted of murder outright. That defence requires evidence from her that she feared immediate violence against her or her son, and that grabbing the knife was a reasonable and proportionate way of stopping it. Once raised by the defendant, the burden falls on the prosecution to make the jury sure that it does not apply. We just have to hope the jury listen to The Archers.

What if Rob survives, though? If Helen finally sets out his longstanding abuse of her he may well find himself being charged at least with the new “controlling or coercive behaviour” offence (which carries up to five years in prison). Other charges of rape and other offences of violence against Helen could also follow. Those microphones in Blossom Hill Cottage provide unimprovable evidence against him.

And what of Helen? She would most likely be charged with wounding or causing grievous bodily harm with intent. There is no ‘loss of control’ defence to that. Barring self-defence she will either have to plead guilty, and rely on the mitigation of Rob’s horrible treatment of her, or hope the jury acquits.

Looking ahead to any trial which might feature in future episodes, if the jurors listen to The Archers I’d wager Helen will be free in no time at all, quite rightly humming “dum tee dum tee dum tee dum” all the way back to Ambridge.

Jeannie Mackie and Francis FitzGibbon QC are criminal barristers at Doughty Street Chambers.

According to domestic violence charity Refuge’s statistics, one in four women is abused during her lifetime. 1 in 9 is severely physically abused each year. Two are killed each week. The National Domestic Violence Helpline can be contacted on 0808 2000 247.