New Laws on Non-Fatal Strangulation and Suffocation

As of the 7^th June 2022, Crown Prosecutors will have new powers to charge suspects with the following specific offences:

1. Non-fatal strangulation
2. Non-fatal suffocation

Domestic Abuse Act 2021

These key measures have been implemented as the Domestic Abuse Act 2021 (“the Act”) comes into force. The Crown Prosecution Service has published legal guidance in relation to these offences which will assist lawyers when dealing with cases where such offences have been charged. Section 70 of the Act inserted section 75A into Part 5 of the Serious Crime Act 2015, thus creating the two separate offences described above. The legislation states that a person (“A”) commits an offence if:

1. A intentionally strangles another person (“B”), or
2. A does any other act to B that:
   1. Affects B’s ability to breathe, and
   2. Constitutes battery of B.

Defences

A statutory defence is set out at section 75A(2); it is a defence for A to show that B consented to the strangulation or other act. This defence 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

On summary conviction, a person is liable to receive a maximum term of 12 months’, or to a fine or both. On conviction on indictment, a maximum sentence of 5 years’ imprisonment is available to the court, or a fine or both. The legal guidance published by the Crown Prosecution Service helpfully sets out a non-exhaustive list of how these two offences can manifest. When coming to a decision on charge, Prosecutors must carefully consider when it is appropriate to charge either non-fatal strangulation or suffocation as an alternative to offences such as Battery, Actual Bodily Harm and Grievous Bodily Harm. The legal guidance makes clear that even where a complainant is left with little or no physical marks, this is not a reason to detract from the seriousness of these offences. There must be sufficient evidence to charge an individual with offences of non-fatal strangulation or suffocation. Where these offences are charged, it will reflect the seriousness of the offending should a defendant be found guilty. A huge driving force behind the implementation of such offences is to assist in protecting victims and their families from repeat offending. In coming to any decision on charge, Prosecutors must consider the ‘Full Code Test‘ i.e., there must be sufficient evidence to provide a realistic prospect of conviction and it must be in the public interest to prosecute.

Behaviour of a Defendant

The legal guidance also asks Prosecutors and the police to focus on the behaviour of a defendant. This has been described as taking an ‘offender-centric’ approach and involves the police investigating the behaviour of a suspect before, during and after the alleged offence. As is of course common in many police investigations, additional reasonable lines of enquiry will be sought such as obtaining CCTV, digital evidence, and witness statements. Of interest, the legal guidance also sets out when the two offences can occur in rape or serious sexual offences by clarifying the ‘rough sex’ defence. This defence makes clear that victims cannot consent to the infliction of serious harm or death during sex. An estimated 20,000 cases of non-fatal strangulation are reported to women’s charities every year. Concerns over the number of cases reported has assisted in bringing about the new powers given to Prosecutors to charge non-fatal strangulation and suffocation. In domestic violence cases, defendants are often charged with Common Assault which is a summary only offence which can only be dealt with at the lower court and has a maximum sentence of 6 months’ imprisonment.

Domestic Abuse consultation

In April 2022, the Crown Prosecution Service published public consultation on new domestic abuse legal guidance (the 12-week consultation began on the 4^th April 2022 and will end on the 26^th June 2022). This consultation rejects claims that there is what has been viewed as a ‘typical’ victim of domestic abuse. It tackles the myths and stereotypes that can appear in domestic abuse cases in an effort to assist Prosecutors in challenging misconceptions in order to present the best possible version of a case to a jury in court.

Article written by Ruth Peters