Non-Fatal Strangulation: elements, defence and sentencing

30/06/2023

Caitlin Evans discusses the Domestic Abuse Act 2021 and non-fatal strangulation.

Introduction

According to Laura Farris, MP for Newbury, speaking in the House of Commons when the Domestic Abuse Bill was debated on 28^th 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.

Elements

The offence was brought into law on 7^th 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:

1. A intentionally strangles another person (“B”),

or

• A does any other act to B that:
• affects B’s ability to breathe, and
• constitutes a battery of B.

Defence: Consent

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:

1. B suffers serious harm as a result of the ‘strangulation’ or ‘other act’, and
2. A either intended to cause B serious harm or was reckless as to whether B would suffer serious harm.

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 [1994] 1 A.C. 212 HL sadomasochism was considered not to constitute a good reason, whereas in Wilson [1996] 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:

1. From 29^th April 2021 consenting for the purpose of sexual gratification is not a good reason, and
2. From 7^th June 2022 reasonable punishment is not a good reason

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).

Sentence

The maximum sentence is 5 years imprisonment.

There are no sentencing guidelines for this offence. However, the Court of Appeal authority, Alfie Cook [2023] 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):

• History of previous violence. The significance of the history will be greater when the previous violence has involved strangulation.
• Presence of a child or 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 committed whilst 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 (a) the nature of the offence to which the conviction relates, and its relevance to the current offence; and (b) the time that has elapsed since the conviction.
• Offence committed whilst on bail.
• Offence motivated by or demonstrating hostility based on any of the following characteristics, or presumed characteristics of the victim, disability, sexual orientation, or trans-gender identity.

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:

• Victim forced to leave home, or steps have to be taken to exclude the offender from the home to ensure the victim’s safety.
• Impact on children (children can be adversely impacted by both direct and indirect exposure to domestic abuse).
• Using contact arrangements with a child to instigate an offence.
• A history of disobedience to court orders (such as, but not limited to, Domestic Violence Protection Orders, non-molestation orders, restraining orders).

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:

• 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.

Conclusion

This strangulation 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.