Written 2nd January 2025 by Ruth Peters
A draft sentencing guideline for offences of non-fatal strangulation and non-fatal suffocation offences was published for consultation by the Sentencing Council on 15th May 2024. The new sentencing guideline published following that consultation came into effect yesterday 1st January 2025.
Judges and magistrates now have a dedicated guideline to follow to help ensure courts take a consistent and proportionate approach when sentencing such offences. There was previously no Sentencing Guideline for these offences.
The offences of non-fatal strangulation and suffocation were introduced by the Domestic Abuse Act 2021 and came into force on 7 June 2022.
What is non-fatal strangulation?
The act of non-fatal strangulation involves the intentional strangling of another person or any other act that affects a person’s breathing.
The offence is made out if a suspect ‘intentionally strangles another person’ or does any other act that affects their ability to breathe and constitutes a battery.
The maximum sentence is five years imprisonment.
What is non-fatal suffocation?
Non-fatal suffocation occurs when a person uses unlawful force on a victim, whether intentionally or recklessly, that affects the victim’s ability to breathe, for example by putting a hand over the victim’s mouth or compressing the chest.
No physical injuries need be caused for the offences to be committed.
Sentencing non-fatal strangulation offences
Prior to the introduction of the sentencing guideline, in the case of Cook [2023] EWCA CRIM 452 the Court of Appeal indicated that a custodial sentence would ordinarily be appropriate for such offences save in exceptional circumstances. In such case the Court of Appeal indicated that ordinarily it would be a sentence of immediate custody with a starting point of 18 months’ custody.
In the case of Chall [2019] EWCA CRIM 865 the court observed that a victim personal instatement written only a few weeks after an offence may provide clear evidence only as to the immediate consequences and may not be sufficient to enable a judge to make any safe findings as to the severity and likely duration of any psychological harm. The court went on to state that the intensely personal nature of such a statement my sometimes call for caution as to whether the harm suffered by the victim may, unintentionally, have been overstated.
The Court of Appeal then went on to consider Cook as referred to above. Here the court pointed out that the offence of intentional strangulation does not require proof of any injury or harm. The act of strangulation inevitably creates a real and justified fear of death and real harm was inherent in the act of strangulation.
The Court of Appeal also considered the case of Butler. Having regard to Butler, the appropriate course is to consider the sentence for the offence of intentional strangulation and then consider the extent to which that sentence should be increased to reflect the additional criminality involved in the other aspects of the assault and the assault as a whole.
In passing judgement, the Court of Appeal in Yorke stated ‘a very significant degree of harm is inherent in an offence of intentional strangulation’. The court confirmed that the background of an 18 months starting point for an offence of intentional strangulation should be followed.
Sentencing Guideline non-fatal strangulation and suffocation
Category of offence
In order to determine the category, the court should assess culpability and harm.
Harm
All cases of strangulation involve a very high degree of inherent harm. The court should assess the level of harm caused with reference to the impact on the victim.
Category 1 – Offence results in a severe physical injury or psychological condition which has a substantial and long-term effect on the victim’s ability to carry out their normal day-to-day activities or on their ability to work.
Category 2 – All other cases
Culpability
The guideline defines culpability as follows:
Category A
- Sustained or repeated strangulation or suffocation
- Use of ligature
Category B
Cases falling between category A or C because:
- Factors in both high and lesser categories are present which balance each other out; and/or
- The offender’s culpability falls between the factors as described in high and lesser culpability
Category C
- Fleeting incident and voluntary resistance
- Excessive self-defence
- Mental disorder or learning disability, where linked to the commission of the offence
The guideline goes on to consider factors increasing seriousness and factors reducing seriousness.
Factors increasing seriousness
The guideline considers factors which would aggravate an offence and increase seriousness.
Statutory aggravating factors:
- 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 transgender identity
Other aggravating factors:
- Offence committed in domestic abuse context
- Victim isolated and unable to seek assistance
- Offence was committed against person providing a public service, performing a public duty or providing services to the public
- History of violence or abuse towards victim by offender
- Victim pregnant at time of offence
- Presence of children
- Gratuitous degradation of victim
- Abuse of trust or power
- Any steps taken to prevent the victim reporting an incident, obtaining assistance and/or from assisting or supporting the prosecution
- Commission of offence whilst under the influence of alcohol/drugs
- Offence committed whilst on licence or post sentence supervision
- Failure to comply with current court orders
Factors reducing seriousness or reflecting personal mitigation
- No previous convictions or no relevant/recent convictions
- Remorse
- Good character and/or exemplary conduct
- History of significant violence or abuse towards the offender by the victim
- Age and/or lack of maturity
- Mental disorder or learning disability, where not linked to the commission of the offence
- Sole or primary carer for dependent relative(s)
- Pregnancy, childbirth and post-natal care
- Determination and/or demonstration of steps taken to address addiction or offending behaviour
- Serious medical conditions requiring urgent, intensive or long-term treatment
- Difficult and/or deprived background or personal circumstances
- Prospects of or in work, training or education
Specialist lawyers for non-fatal strangulation offences
At Olliers we specialise in representing individuals facing investigation or prosecution in relation to allegations of a domestic nature.
We understand the complexities of cases involving allegations of domestic abuse and matters are rarely as straightforward as they may appear to be initially. Investigators will inevitably only have one side of the story and are rarely as straightforward as may be initially presented to police.
We are frequently contacted by clients who have been asked to attend a voluntary interview or following an interview under caution, have been released at the pre-charge stage on police bail or under investigation.
Pre-charge domestic violence lawyers
At Olliers we specialise in representing individuals at the pre-charge investigative stage of the case and advocate a proactive approach to pre-charge engagement with investigators.
We look to engage with police at an early stage of the investigation and will always look to make representations against charge by arguing there is not a ‘realistic prospect of conviction’ or that ‘it is not in the public interest to prosecute’.
Contact our specialist team of domestic abuse lawyers
If you are being investigated or face prosecution in relation to an allegation of domestic a domestic nature including non-fatal strangulation or suffocation, please contact our specialist team by completing the form below, telephoning 0161 834 1515 (Manchester) or 020 3883 6790 (London) or email info@olliers.com
Whilst our Head Office is based in Manchester, we also have a London office, and our team of specialist lawyers represent individuals anywhere in England and Wales in relation to domestic allegations.
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- About the Author
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Ruth leads the business development team at Olliers across all areas of specialism. Ruth was the Manchester Legal Awards 2021 Solicitor of the Year.
She has been with the firm for more than 20 years and has an enviable level of experience across the entire spectrum of criminal defence.
