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A guide to Non-fatal Strangulation and Non-fatal Suffocation

Stuart Miller Solicitors | Criminal Defence Solicitors

In June 2022, two new offences came into force in English and Welsh criminal law. These new offences concern non-fatal strangulation and non-fatal suffocation. The new criminal offences can arise in any context but are expected to be used extensively in domestic violence cases, where non-fatal strangulation and non-fatal suffocation are common. If you have been charged with one or both of these offences, or suspect you might be, you are undoubtedly worried about any personal or professional impacts of such a charge, and indeed what might happen to you if you are found guilty. If that is the case, this guide is for you. It outlines the new offences and explains how cases are built, how they might be punished, and what defences are available.

What are the offences of non-fatal strangulation and non-fatal suffocation?

The offences of non-fatal strangulation and non-fatal suffocation were created by Section 70 of the Domestic Abuse Act 2021 (DA Act 2021), which inserted the new offences into the older Serious Crime Act 2015 (SCA 2015). The law came into force on June 7, 2022, and it is not retroactive, which means that it cannot be used to prosecute historic allegations of non-fatal strangulation and non-fatal suffocation, only those occurring on or after June 7, 2022.

According to Section 75A(1)(a), a person commits an offence of non-fatal strangulation if they intentionally strangle another person. Under Section 75A(1)(b), a person commits an offence of non-fatal suffocation if they do any other act to another person that affects that person’s ability to breath and constitutes a battery of that person.

There is no formal definition of ‘strangulation’. Instead, it is to be understood in its normal meaning, which, according to the Crown Prosecution Service (CPS) is: the obstruction or compression of blood vessels and/or airways by external pressure to the neck impeding normal breathing or circulation of the blood. No injury or particular level of force is required.

Some examples of non-fatal strangulation include:

  • holding one or two hands around someone’s neck
  • choking or head locking someone with an arm around the neck
  • tightening a scarf, belt, or other form of ligature around someone’s neck
  • hanging from the neck
  • placing pressure on the neck using a foot or knee

Some examples of non-fatal suffocation include:

  • using the hands to cover a person’s mouth and nose
  • compressing someone’s chest to stop or significantly slow their breathing
  • any other method of restricting someone’s breath

Obviously, to trigger this offence, the strangulation or suffocation has to be non-fatal. In other words, the strangulation or suffocation cannot have killed the person. If it did, the charge would be one of murder or manslaughter instead.

Note that because of the nature of these crimes, non-fatal strangulation and non-fatal suffocation may be charged alongside other older offences, such as assault, battery, actual bodily harm (ABH), and grievous bodily harm (GBH).

Non-fatal strangulation and non-fatal suffocation in the context of domestic violence

The UK government estimates that 1 in 20 adults in the UK (that’s over 2.3 million people) experienced domestic abuse in the year ending March 2020. This is a very serious problem and the UK government has taken great strides to ensure that any new criminal legislation appropriately tackles the problem by giving police the powers to investigate and charge alleged offenders quickly to prevent further occurrences.

Domestic violence happens to people of all ages, all genders, and all sexual orientations, though is particularly common in heterosexual relationships, where typically it is the male partner committing an offence against the female partner.

These new offences were created as part of a broader government strategy to combat violence against women and girls, and to tackle domestic abuse throughout the UK. The extent to which they impact the prevalence of these terrible acts remains to be seen.

What evidence is relevant in a case of non-fatal strangulation and non-fatal suffocation?

Because this is a new offence, there is not yet much case law on how exactly the prosecution will build their case. That said, there is guidance from the CPS concerning the types of details that the prosecution must secure if they are to prove an offence of non-fatal strangulation and non-fatal suffocation has taken place.

The alleged victim’s testimony will be key in this respect, and the prosecution is likely to focus on topics such as:

  • Any adverse physical reaction to strangulation, such as difficulty breathing, chest pain, or hyperventilation
  • Any associated pain, such as neck stiffness, pain when swallowing, or sickness
  • Any damage to the vocal cords, meaning the victim cannot speak properly or suffers from hoarseness or coughing
  • Any damage to the larynx, mouth, teeth, or tongue
  • Any mental impact of the strangulation or suffocation, such as amnesia, anxiety, or post-traumatic stress disorder (PTSD)
  • Any resultant hearing loss or disturbance
  • Any dizziness, headaches, vision problems, or nausea
  • Any information on how long the incident lasted
  • Any repeat commission of these acts
  • Any loss of sight or hearing during the incident
  • Any medical attention provided to the victim
  • Any words or actions that exacerbated suffering during the incident, such as the alleged perpetrator mocking the victim during the strangulation or suffocation

To obtain this evidence, the CPS is likely to depend on victim statements, but may also look to CCTV footage, transcripts or recordings of the 999 call, photos or videos of the scene, reports from medical personnel and first responders, the testimony of close family or friends, and the suspect’s account of proceedings.

Medical testing and reports are especially important because in many cases, non-fatal strangulation and non-fatal suffocation does not leave any physical marks on the victim’s body but may cause damage through oxygen restriction, which can impact the brain.

What is the sentence for non-fatal strangulation and non-fatal suffocation?

The offence of non-fatal strangulation and non-fatal suffocation is an either way offence, which means it could be tried in the Magistrates’ Court or in more serious cases it could be tried in the Crown Court.

If convicted in the Magistrates’ Court, the maximum sentence is 12 months’ imprisonment or a fine, or both.

If convicted in the Crown Court, the maximum sentence is 5 years’ imprisonment or a fine, or both.

Are there any defences available to non-fatal strangulation and non-fatal suffocation offences?

It is a defence to non-fatal strangulation and non-fatal suffocation under section 75A(2) SCA 2015 for the ‘victim’ of the non-fatal strangulation and non-fatal suffocation to have consented to the activity. This is most likely to apply in cases where the non-fatal strangulation and non-fatal suffocation was performed as part of a sexual activity, or among friends during horseplay.

That said, the defence will not apply if the victim suffered serious harm and the alleged perpetrator intended to cause said serious harm or was reckless as to whether the victim would be seriously harmed. In this case, ‘serious harm’ means any grievous bodily harm, wounding, or actual bodily harm.

Some other general defences may apply also, for example:

  • Duress. If someone forced you to commit the offence by threatening to inflict harm on you or someone you care about, this may serve as a defence to your actions.
  • Intoxication. If you were involuntarily intoxicated at the time of the offence (for example, if someone spiked your drink and it caused you to act that way) then it may be a defence. If you simply were drunk of your own accord and acted that way, there would be no defence.
  • Insanity. If you were suffering from a mental illness or condition that caused you to act in that manner and you were not aware of your actions, you may be able to raise a defence. Note, however, that if insanity is proven, you are likely to be sectioned under the Mental Health Act 1983 for your own safety and the safety of those around you.

Can the offence of non-fatal strangulation and non-fatal suffocation only be committed by men?

While it is true that the crime of non-fatal strangulation and non-fatal suffocation came about in relation to broader concerns about violence against women and girls, it is not the case that the crime can only be committed by men against women or girls.

According to the wording of the legislation, anyone can be charged with this crime, not just males. There is no mention of sex or gender in the legislation whatsoever.

Where to get more help?

This may be a new offence, but an experienced team of expert criminal defence lawyers will have prepared for this for years. And that is exactly the case at Stuart Miller Solicitors. Our team of defence experts are thoroughly prepared to defend cases of non-fatal strangulation and non-fatal suffocation, and are attuned to the special difficulties of domestic violence cases. For a free and non-judgemental consultation, get in touch with our team today. We may even be able to get your case dropped before it goes to court.

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