The Domestic Abuse Act 2021 – Non fatal strangulation or suffocation
August 1, 2022
1. A and B are in a relationship. During an argument, A grabs Bs neck and pushes them into the wall, restricting their breathing. The police are called by a neighbour but when they arrive, no injuries can be seen and B does not want to give a statement. No further action is taken against A. 12 months later, B leaves the relationship and reports the incident to police, telling them that A had grabbed them by the neck and restricted their breathing for at least a minute. B has no pictures of injuries and tells police they didn’t lose consciousness during the incident. Why couldn’t A be prosecuted?
a. With no loss of consciousness and no injuries, the police could not charge ABH and would only be able to charge a common assault (battery) for the unlawful infliction of force;
b. No prosecution could be brought for a common assault by the time it is reported because over 6 months had elapsed.
2. If B had given the statement straight away, things may have been different as A could have been charged with a common assault. The lack of injury may have resulted in evidential difficulties and an acquittal or, if a conviction was achieved, the sentencing guidelines in the absence of injury indicate that a starting point of a low level community order would be appropriate. But as of 7 June 2022, ‘A’ could face up to 5 years in prison… even if ‘B’ only reported it years later.
Non-fatal suffocation and non-fatal suffocation
3. Section 70(1) of the Domestic Violence Act 2021 (‘The Act’) inserted section 75A into part 5 of the Serious Crime Act 2015 creating two new offences which came into force on 7 June 2022: non-fatal strangulation (s.75A(1)(a)) and non-fatal suffocation (s.75A(1)(b)).
4. Non-fatal strangulation is committed when A intentionally strangles B. There is no statutory definition of strangulation but guidance issues by the Crown Prosecution Service suggests that pressure to the neck, which impedes normal breathing or circulation of blood, is sufficient. There is no requirement for this pressure to be forceful or violent, even gentle pressure which affects normal breathing would appear to satisfy the actus reus of the offence. The pressure doesn’t need to be exerted by A’s hands, it could be pressure applied by a foot, an arm (chokehold or headlock), a knee or a ligature of some kind. All that is required for this offence to be satisfied is pressure to the neck which was intentional. Recklessness will therefore not suffice.
5. Non-fatal suffocation is committed when A does any other act (other than strangulation/pressure to the neck) which constitutes a battery and affects Bs ability to breathe. Again, there is no definition of suffocation but the aforementioned CPS guidance suggests any deprivation of air which affects normal breathing will suffice. This offence is wider than non-fatal strangulation as it means that any act of unlawful touching (whether by direct or indirect touching) which affects someone’s ability to breathe will be an offence. This could be compressing someone’s chest (i.e. by grabbing hold of them forcefully) or covering someone’s airways e.g. with a hand, a bag or tape. This offence also differs from non-fatal strangulation in that the mens rea is the same for battery – intention or recklessness. The definition of non-fatal suffocation is therefore so wide that it could potentially cover a situation where A throws an object in Bs direction, knowing there is a risk that object would hit B, and that object causes B to be ‘winded’ and struggle to breathe.
6. The crucial similarity between non-fatal strangulation and non-fatal suffocation is that absolutely no injury is required to prove the offence. Moreover, the lack of injury may not be as harmful to a prosecution as it potentially would be in cases of assault. Indeed, in cases of strangulation or suffocation there is often no injury or very minor injury (e.g. reddening to the neck or chest) and this has hitherto prevented prosecutions for more serious assaults in these cases, the only available charge being one of common assault and therefore limiting the court’s sentencing powers to 6 months imprisonment. The Domestic Violence Abuse Act 2021 has sought to fill this gap with the introduction of these two new offences which are likely to be charged, where appropriate, instead of common assault or ABH in order to give the court’s greater sentencing powers and also to mark the seriousness of the offending on the defendant’s record. The Act it is not restricted simply to domestic abuse cases – it covers all situations where intentional strangulation or intentional/reckless suffocation occurs. A section 18 OAPA 1861 or attempted murder charge may be more appropriate in cases where more serious injury occurs as a result of the strangulation or suffocation but these new offences could be left as an alternative for a jury to consider.
Strangulation or suffocation abroad
7. Section 75B of the Domestic Violence Act 2021 makes clear that if a person does an act in a country outside the United Kingdom which would constitute an offence under section 75A and that person is a United Kingdom national or is habitually resident in England and Wales, that person is guilty in England and Wales of that offence. This therefore means that a defendant can be prosecuted in England and Wales if they commit an offence of non-fatal strangulation or suffocation whilst abroad.
8. It is a defence under s.75A of the Act to show that the complainant consented to the strangulation or suffocation but this is provided that no serious harm is caused. The Act gives legislative effect to R v Brown  UKHL 19 which made clear that a person cannot consent to injury amounting to actual bodily harm, wounding or grievous bodily harm. Section 71 of the Act states that a person cannot consent to serious harm for sexual gratification and ‘serious harm’ is defined as s.18 GBH, wounding or ABH. In practice, the Act therefore prevents a defendant from using the ‘rough sex’ defence if any injury was caused by the suffocation or strangulation which amounted to ABH (which can include more than minor bruising or loss of consciousness) as consent will not be a defence.
9. There are presently no sentencing guidelines for non-fatal strangulation or suffocation which are triable either way offences. The maximum sentence when tried summarily is 12 months imprisonment and when tried on indictment, 5 years imprisonment. The current guidelines on s.47 ABH places assaults featuring strangulation or suffocation in the high culpability bracket but if there was no injury present the starting point would be 36 weeks. However, it is possible that sentencing judge’s will give greater weight to psychological injury when assessing harm in non-fatal strangulation or suffocation cases given that there is often no visible injury or minor injury in these cases.
10. Often, strangulation or suffocation may form part of a wider assault involving threats to kill or punches or kicks that cause injury. It could also form part of a wider offence in the context of a coercively controlling relationship or could feature as an element of a sexual offence such as rape. In such cases, the strangulation or suffocation element may not always have been charged as a standalone offence, instead being considered a ‘feature’ of the assault for example. That is likely to change now given that the strangulation/suffocation element of an offence is being highlighted as a particularly serious one. The guidance refers to two cases:
a. R v Carrigan  EWCA Crim 1553 where the judge said, “it was no ordinary allegation of assault occasioning actual bodily harm. It included a repeated, protracted and terrifying attack on a vulnerable and defenceless woman in her own home at a time when her attacker was in possession of a knife. Most importantly, it included a period of strangulation when her breathing was interrupted. That particular characteristic must inevitably take the offence into the top category of seriousness for the purposes of applying the relevant guideline.” The guidance states that ‘prosecutors should note from this case that the Court already considers non-fatal strangulation to be a particularly serious element of offending. Laying a separate charge, where appropriate, will allow the Court to reflect this during any sentencing exercise.’
b. R v Jex  EWCA Crim 1708 which was a domestic abuse case, where the relationship had ended over 2 years prior to the incident. The defendant carried out a prolonged assault on the victim accompanied by threats. During the course of the assault the defendant strangled the victim four times using such force that the victim struggled to breathe. The guidance states that ‘in the circumstances of this case now, a prosecutor would be able to consider charging both an assault offence, a non-fatal strangulation and a non-fatal suffocation offence to reflect the seriousness of the offending and allow the Court sufficient sentencing power’.
11. The reality is that a defendant who commits a violent assault which has strangulation or suffocation as a feature may now face a charge of assault alongside a charge of non-fatal strangulation or suffocation. It remains to be seen what affect this will have on sentencing but those defending a person faced with multiple charges arising out of a single incident (i.e. an assault which includes a punch and strangulation) should refer the Court to the guidance on totality which would suggest that, in most cases, a concurrent sentence would be appropriate. However, defendants should be alive to the fact that a sentencing Judge would have the option of consecutive sentences should they feel that the overall criminality would not sufficiently be reflected by concurrent sentences and, further, their record will reflect that they have been convicted of an offence of suffocation/strangulation which is much more specific than an offence of assault. It is likely therefore that any future offending of that kind would attract much harsher sentences. It is unlikely, given the CPS guidance, that alternative pleas to common assault or ABH would be accepted in cases where suffocation or strangulation are present unless there are good reasons for doing so.