Non-Fatal Strangulation
8 January 2024
Author: Claire Mainwaring, first six pupil at 5KBW
Non-Fatal Strangulation
Introduction
The standalone offence of non-fatal strangulation came into force on 7th June 2022, a decision welcomed by domestic abuse charities and victims alike. But why was this legislation introduced, how will it protect victims, and what is the current sentencing guidance?
Research and campaigning
Strangulation has long been used by perpetrators of domestic abuse as a “tool to exert power and control”[1] and has been linked to a higher risk of homicide when compared to victims who have not been strangled.[2] Within domestic abuse organisations, non-fatal strangulation is therefore treated as an especially high-risk factor when assessing reported abuse.
Strangulation often does not cause any visible signs of physical injury, and as a result, victims are less likely to report it, and less likely to be believed when they do. However, despite the typical absence of visible injury, research into the impact of non-fatal strangulation has revealed a startling range of serious neurological consequences, including seizures, paralysis, and sensory loss.[3] Strangulation may also cause further long-term complications such as stroke or miscarriage.[4]
It is the unique physiological risks posed by non-fatal strangulation, its association with coercive and controlling behaviour, and the inevitable psychological impact on victims that led to demands for it to stand apart from other offences against the person.
Legislation
Prior to the implementation of the freestanding offence, there were three principal ways in which strangulation could be treated by the criminal justice system: as battery, ABH or GBH.
Due to the lack of any visible signs of injury, strangulation was generally charged as common assault,[5]a summary-only offence with a maximum sentence of 6 months’ imprisonment. Campaigners argued that the charge of battery did not accurately reflect the gravity of the act of strangulation and its litany of physical and psychological consequences. In an attempt to address the law’s impotence in this regard, the government introduced the new offence of non-fatal strangulation under the Domestic Abuse Act 2021.
Offence
Section 70 of the Domestic Abuse Act 2021 inserted the offence of strangulation or suffocation into section 75 of the Serious Crime Act 2015:
75A Strangulation or suffocation
- A person (“A”) commits an offence if—
- A intentionally strangles another person (“B”), or
- A does any other act to B that—
- affects B’s ability to breathe, and
- constitutes battery of B
Defence
Section 75A of the Serious Crime Act 2015 provides a defence to strangulation, limited by the provisions under s 75(3):
- It is a defence to an offence under this section for A to show that B consented to the strangulation or other act.
- But subsection (2) does not apply if –
- B suffers serious harm as a result of the strangulation or other act, and
- A either –
- Intended to cause B serious harm, or
- Was reckless as to whether B would suffer serious harm.
Sentencing
Sentencing for the new offence goes further than that of common assault. Under section 75(5) of the Serious Crime Act 2015 defendants charged with non-fatal strangulation can now be tried in the Crown Court and face up to five years’ imprisonment.
There are currently no sentencing guidelines for the offence of non-fatal strangulation. However, in the 2023 case of R v Cook[6], the Court of Appeal set out the desired approach to sentencing in the lower courts, the important points of which are summarised below.
Starting point
Sentence for intentional strangulation should ordinarily be one of immediate custody with a starting point of 18 months. Although strangulation is typically an offence perpetrated by men unto women, this starting point should be the same irrespective of the defendant’s gender.
The context of domestic abuse
Where the offence of non-fatal strangulation has been carried out within a relationship, the Sentencing Council’s overarching principles in relation to domestic abuse should be considered by the court.
Aggravating factors
The starting point may be increased in light of the following non-exhaustive factors:
- History of previous violence, the significance of which will be greater when the previous violence has involved strangulation.
- Presence of a child/children.
- Attack carried out in the victim’s home.
- Sustained or repeated strangulation.
- Use of a ligature or equivalent.
- Abuse of power.
- Offender under influence of drink or drugs.
- Offence on licence.
- Vulnerable victim.
- Steps taken to prevent the victim reporting an incident.
- Steps taken to prevent the victim obtaining assistance.
Statutory aggravating factors will also apply:
- Previous convictions, having regard to –
- the nature of the offence to which the conviction relates, and its relevance to the current offence, and
- the time that has elapsed since the conviction.
- Offence committed whilst on bail.
- Offence motivated by or demonstrating hostility based on protected characteristics.
Mitigating factors
If the offence is carried out against a backdrop of domestic abuse, except in rare circumstances, provocation would not be considered a mitigating factor.
Mitigating factors include:
- Good character.
- Age and immaturity.
- Remorse.
- Mental disorder.
- Genuine recognition of the need for change and evidence of the offender having sought appropriate help and assistance.
- Very short-lived strangulation from which the offender voluntarily desisted.
Finally, as there is no specific sentencing guideline for the offence, the Sentencing Council Overarching Principles’ Guideline applies.
Commentary
The case of R v Cook itself goes some way to demonstrate the efficacy of the new standalone offence. On 6th June 2022, one day before the implementation of the new offence, Mr Cook strangled the mother of his child. Consequently, in November 2022, he was convicted in the magistrates’ court of common assault, for which he could not have received a sentence of more than 6 months. Under the new provisions, however, Mr Cook was sentenced to 15 months’ imprisonment in relation to a later incident of strangulation of the same victim, a sentencing decision which was upheld and described as “entirely appropriate” by the Court of Appeal.
[1] https://www.womensaid.org.uk/womens-aid-responds-non-fatal-strangulation-offence/
[2] N. Glass et al., ‘Non-fatal strangulation is an important risk factor for homicide of women’ [2008] 35(3) J Emerg Med 329.
[3] H. Bichard et al, ‘The neuropsychological outcomes of non-fatal strangulation in domestic and sexual violence: A systematic review’ [2021] Neuropsychological Rehabilitation p. 4.
[4] Ibid.
[5] Kelly, R; Ormerod, D; (2021) Non-Fatal Strangulation and Suffocation. Criminal Law Review , 7 pp. 532-555.
[6] R v Cook [2023] EWCA Crim 452
