Non-Fatal Strangulation

Non-Fatal Strangulation

Non-fatal strangulation

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The Domestic Abuse Act 2021 has created a new criminal offence of non-fatal strangulation and non-fatal suffocation. This offence applies to any case where a person intentionally strangles or suffocates another person, including in cases of domestic abuse. The offence is punishable by up to 5 years in prison and therefore most cases of this nature are dealt with at the Crown Court

The act of non-fatal strangulation involves the intentional strangling of another person or any other act that affects a person’s breathing.

What is Non-fatal strangulation?

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This offence is committed when a person intentionally strangles another. 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 satisfactory for the purpose of a prosecution. The pressure doesn’t need to be exerted by perpetrators hands, it could be pressure applied by a foot, an arm (chokehold or headlock), a knee or a ligature.

All that is required for this offence to be satisfied is pressure to the neck which was intentional. It follows therefore that a reckless act will be insufficient and may provide for an avenue of defence.

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What is Non-fatal suffocation?

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Non-fatal suffocation is a crime that occurs when someone intentionally or recklessly does something that restricts another person's ability to breathe. This crime is different from non-fatal strangulation, which is specifically defined as applying pressure to the neck. Non-fatal suffocation can be committed in several ways, including:

• Covering someone's mouth or nose with their hand, a bag, or tape.

• Compressing someone's chest; and even potentially

• throwing an object at someone that causes them to be "winded" or to struggle to breath.

The mens rea, or mental state, required for non-fatal suffocation is the same as that for battery, which is intentionally or by way of recklessness. This means that someone can be convicted of non-fatal suffocation even if they did not intend to cause the victim to lose their breath.

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Why you should contact Joe Rawlings now

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Joe Rawlings has substantial experience in successfully representing clients facing allegations of domestic abuse. If you have been charged with non-fatal strangulation, it is important to speak to an experienced criminal defence solicitor as soon as possible. A criminal defence solicitor can help you understand the charges against you and develop a defence strategy.

Here are some of the defences that may be available to you if you have been charged with non-fatal strangulation:

• Self-defence

• Defence of another person

• Accident/ consequence of a reckless act NOT intentional

• Necessity

• Consent

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 law defines "serious harm" as any injury that would meet the requirements of Assault Occasioning Actual Bodily Harm (ABH), wounding or Grevious Bodily Harm (GBH.) This means that if someone is strangled or suffocated during sex and they suffer any injuries that fall into this category, the person who strangled or suffocated them can be charged with a crime, even if the victim said they were okay with it. The Act has therefore prevented the ‘rough sex’ defence commonly advanced.

There is a defence to this crime if the person who strangled or suffocated the victim can prove that the victim consented to the act and that they did not cause any ‘serious harm.’ However, this defence is very difficult to prove, and it is usually only successful in cases where the victim has explicitly said that they wanted to be strangled or suffocated.

It is important to note that the law on non-fatal strangulation is complex, and the defences that are available to you will depend on the specific facts of your case. If you have been charged with non-fatal strangulation, it is important to speak to an experienced criminal defence solicitor as soon as possible.

Sentencing Non- Fatal Strangulation

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 6 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.

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.