Caitlin Evans discusses the Domestic Abuse Act 2021 and non-fatal strangulation.
According to Laura Farris, MP for Newbury, speaking in the House of Commons when the Domestic Abuse Bill was debated on 28th April 2020, non-fatal strangulation is a growing problem:
We must recognise that violence of this nature is becoming normalised. ComRes undertook a survey last November of a large group of women aged between 18 and 39. Of them, 70% said that they had experienced strangulation during sex, and of that cohort, more than half said that the man had not sought their consent before doing so. They had not wanted it, and some of them gave moving interviews to the BBC in which they said they thought the man was going to kill them.
In response, the offence of non-fatal strangulation was duly enacted in law and is now frequently charged in criminal proceedings.
The offence was brought into law on 7th June 2022 by s.70 of the Domestic Abuse Act 2021 which inserts section 75A into the Serious Crime Act (SCA) 2015. It is not retrospective so offences of strangulation committed prior to this date will continue to be charged as an offence of assault.
Section 75A(1) sets out the elements of the offence as follows:
Section 75A(2) of the SCA 2015 provides a statutory defence for A to show that B consented to the strangulation or other act.
This is limited by Section 75A(3) SCA 2015 which states that the defence does not apply if:
Serious harm is defined at section 75A(6) as any injury that amounts to actual bodily harm, grievous bodily harm or wounding. Parliament clearly intended this legislation to be protective of complainants in relationships where some degree of violence has become normalised. A complainant cannot consent to bodily harm occurring in the context of strangulation where the harm is more than transient and trifling. A defendant who inflicts such harm deliberately or recklessly will be guilty of an offence. It is perhaps difficult to imagine an act of strangulation which does not carry the risk of serious harm, although such harm will not result in every case.
The defence is therefore a deliberately narrow one, and even narrower than the defence available in cases of assault occasioning actual bodily harm or grievous bodily harm/wounding. In such cases, the common law position is that it is a defence if the complainant consented and if there is a ‘good reason’. Good reason has been defined inconsistently by the courts: in Brown  1 A.C. 212 HL sadomasochism was considered not to constitute a good reason, whereas in Wilson  2 Cr. App. R 241 a woman being branded with her husband’s initials was a good reason on the basis that it was not in the public interest for the Court to interfere in consensual activity between a husband and wife. There was clearly a potential for Judges considering the context in which the harm occurred being influenced by their own assumptions and values in a way that might promote an uneven approach. Parliament has now intervened to narrow the scope of the defence in relation to offences of ABH or GBH.
The Domestic Abuse Act 2021 creates no general rule of principle but did enact the following:
for offences under s.18, 20 and 47 of the Offences against the Person Act (assault occasioning actual bodily harm and grievous bodily harm with or without intent).
The maximum sentence is 5 years imprisonment.
There are no sentencing guidelines for this offence. However, the Court of Appeal authority, Alfie Cook  EWCA Crim 452, has provided useful guidance on the proper approach to sentencing at paragraphs 14 to 17.
The Court noted that the Sentencing Judge is entitled to have some regard to the assault occasioning actual bodily harm guidelines. However, the starting point should not be set by reference to the ‘actual harm’ or the level of physical injury caused. It is not necessary to prove harm as an element of the offence. The Court noted that “there is real harm inherent in the act of strangulation” due to the fear and likelihood of loss of consciousness, even if no visible injuries are left.
A custodial sentence will be appropriate save in exceptional circumstances. ‘Ordinarily’ that sentence will be one of immediate custody.
The starting point will be 18 months custody irrespective of the gender of the perpetrator.
The starting point may be increased by reference to the following factors (this list is not exhaustive):
Statutory aggravating factors will also apply:
The court should also consider the domestic abuse guidelines if relevant. Many of the aggravating features in the domestic abuse guidelines are already specifically listed by the Court of Appeal in Cook, however the additional ones are as follows:
In relation to mitigation, advocates should consider the following guidance in the domestic abuse guidelines: “Provocation is no mitigation to an offence within a domestic context, except in rare circumstances.” Mitigating factors will include, but are not limited to:
This charge is a useful tool for prosecutors in cases where no visible injury has been caused and arguably reflects the inherently serious nature of strangulation, as noted by the Court of Appeal in Cook.
However, it can sometimes be a needless complication when charged in addition to an assault occasioning actual bodily harm. When strangulation is an element of the assault, the assault occasioning actual bodily harm will be placed in the highest culpability category of the Sentencing Guidelines and a single offence incorporating the whole assault may be simpler and more appropriate in some cases.
Those defending will need to contend with the narrow scope of the defence available to an offence of non-fatal strangulation, but it may be thought that those charged under the Offences Against the Person Act will equally find that the scope of available defences is reduced following the commencement of the Domestic Abuse Act 2021.
To be kept up-to-date with our latest news and future events, please complete the short form.
A member of the clerking team will help you resolve your request.