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Non-fatal strangulation or non-fatal suffocation

Updated: 19 August 2022|Legal Guidance, Domestic abuse , Violent crime , Sexual offences

Introduction

Section 70 Domestic Abuse Act 2021 (DA Act 2021) introduced the offences of non-fatal strangulation and non-fatal suffocation. The offences came into force on 7 June 2022 and are not retrospective.

The purpose of this guidance is to assist prosecutors in reviewing and preparing cases involving these offences and set out the points to prove. It also provides practical guidance to assist prosecutors in deciding when to charge these offences.

When considering these offences prosecutors must follow the Code for Crown Prosecutors and consider the guidance in the Offences Against the Person, incorporating the Charging Standard legal guidance.

Prosecutors should make clear in their review of cases the rationale for charging an offence of non-fatal strangulation or non-fatal suffocation, the case analysis and strategy.

These offences are applicable to all cases not just those involving domestic abuse (DA). It should therefore be considered in every case where there is evidence of non-fatal strangulation or non-fatal suffocation. For cases involving DA the Domestic Abuse legal guidance should also be applied.

Prosecutors should note that the following codes have been created on the CPS case management system to be used when charging these offences: SC15005 (non-fatal strangulation) and SC15006 (non-fatal suffocation).

Violence Against Women and Girls Strategy (VAWG

The VAWG Strategy provides an overarching framework for crimes identified as being primarily, but not exclusively, committed by men, against women and girls within the context of power and control. Though the majority of reported victims covered by VAWG offences are women, the CPS recognises that some suspects or defendants will be women, some victims will be men and some victims and suspects or defendants will be non-binary or identify in a different way.

All references in this guidance are gender neutral and are applied to all suspects or defendants and victims of crime in accordance with the Code for Crown Prosecutors.

Non-fatal strangulation or non-fatal suffocation

Definition

Section 70(1) DA Act 2021 inserted section 75A into Part 5 of the Serious Crime Act 2015 (SCA 2015) creating an offence of non-fatal strangulation (section75A(1)(a)) and a separate offence of non-fatal suffocation (section 75A(1)(b)).

The legislation states the following:

Section 75A(1) a person (“A”) commits an offence if-

  • A intentionally strangles another person (“B”), or
  • A does any other act to B that – 
    • affects B’s ability to breathe, and
    • constitutes a battery of B.

Non-fatal strangulation – section 75A(1)(a) SCA 2015

Section 75A(1)(a) SCA 2015 is the offence of non-fatal strangulation.

The legislation does not provide a definition of ‘strangulation’ or ‘strangles’. The word should be given its ordinary meaning which 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. This offence applies where strangulation is non-fatal and does not result in death of the victim.

Applying any form of pressure to the neck whether gently or with some force could obstruct or compress the airways or blood flow. Strangulation does not require a particular level of pressure or force within its ordinary meaning, and it does not require any injury.

Although not a criminal case, in Stocker v Stocker [2019] UKSC 17 (a defamation case), the UK Supreme Court considered the ordinary meaning of ‘strangle’ in the context of a Facebook post. The Court defined ‘strangle’ as force to the neck, which did not involve killing.

The common methods of non-fatal strangulation are:

  • Manual – one or two hands held around the neck of a person
  • Chokehold or head lock – external pressure applied by an arm around the neck
  • Ligature – for example a scarf or belt tightened around the neck
  • Hanging
  • Pressure on the neck from a foot or knee

The above list is not exhaustive.

For this offence there is no requirement for prosecutors to prove that “A” had an intention to cause injury to “B”. The relevant mental element is that “A” intended to commit the act of non-fatal strangulation. It requires an intentional act, and that the offence cannot be committed recklessly. It is difficult to envision how non-fatal strangulation could be committed recklessly but if this arises consideration should be given whether an offence of non-fatal suffocation is appropriate.

Non-fatal suffocation – section 75A(1)(b) SCA 2015

Section 75A(1)(b) SCA 2015 is the offence of non-fatal suffocation. The legislation does not provide a definition of ‘suffocation’. The word should be given its ordinary meaning which is to deprive a person of air which affects their normal breathing. This definition is wider than that of non-fatal strangulation which requires pressure to the neck.

Methods of non-fatal suffocation could include:

  • putting a hand over the mouth and nose
  • compressing the chest
  • any other force or suppression applied to a person to cause a restriction of breath

The above list is not exhaustive: the legislation is widely drafted to include someone who ‘does any other act’. Therefore, any action that causes a person to be deprived of air which affects their normal breathing could be considered to fall within the definition.

To complete the offence of non-fatal suffocation, prosecutors must also prove that an offence of battery has occurred. This legislation also does not provide a definition of battery. Its legal meaning is derived from caselaw; which is the intentional or reckless application of unlawful force to another person. Therefore, the mental element of this offence is wider than non-fatal strangulation as it can be committed intentionally or recklessly.

Defences

Section 75A(2) SCA 2015 provides a statutory defence for A to show that B consented to the strangulation or other act. However, this is a limited by section 75A(3) SCA 2015 which states the 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.

The legislation goes on to provide a definition of ‘serious harm’ in section 75A(6) SCA 2015 as:

  • grievous bodily harm (GBH) within the meaning of section 18 of the Offences Against the Person Act 1861,
  • wounding within the meaning of section 18 of the Offences Against the Person Act 1861, or
  • actual bodily harm (ABH), within the meaning of section 47 Offences Against the Person Act 1861.

This gives legislative effect to the decision in R v Brown [1993] UKHL 19 which decided that consent by the victim to the infliction of any injury amounting to ABH, unlawful wounding or GBH did not provide a suspect or defendant with a defence.

Prosecutors should refer to the legal guidance on Offences Against the Person, incorporating the Charging Standard for the definitions of GBH, wounding and ABH.

Sentencing

These offences are triable either way. A person found guilty of this offence is liable on summary conviction to imprisonment for a term not exceeding 12 months, or a fine, or both and on conviction on indictment to imprisonment for a term not exceeding 5 years or to a fine, or both.

There are currently no Sentencing Council Guidelines specific to this offence.

Case building

Prosecutors should ensure that efforts are aimed at building a robust prosecution case. In cases of this nature often the act will not have been witnessed by others, with a prosecution needing to rely primarily on the account of the victim. Consideration should be given to the detail provided by the victim, which may provide support, including (but not limited to) information about the following:

  • Their physical reaction such as: any difficulty breathing, hyperventilating or chest pain.
  • Any difficulty or pain such as: pain when swallowing, any nausea or vomiting and throat/neck pain or stiffness.
  • Whether the victim’s voice was affected such as: hoarseness, coughing and difficulties with speech.
  • Whether the victim’s hearing was affected such as: deafness or ringing in the ears.
  • Whether the victim suffered any damage to their larynx – such as a fracture – or any injury to the mouth and tongue due to direct pressure on the teeth.
  • Whether the victim suffered any amnesia or shown symptoms of PTSD.
  • Whether the victim had any dizziness, headaches or blurred vision.
  • Whether the victim suffered incontinence during the incident or after they lost consciousness.
  • Any information as to how long the incident lasted.
  • Whether this is the first time the victim has been subjected to non-fatal strangulation or suffocation.
  • Whether the suspect or defendant said anything during the incident.
  • Whether the victim could hear or see throughout the incident.
  • What happened immediately before and after the incident.
  • Whether the victim sought medical attention.

Some of this information may be contained with a victim personal statement (VPS). It is therefore particularly important to obtain a VPS in all cases of this nature. See the Joint Agency Guide to the Victim Personal Statement for further information.

It is important to ensure that they have been provided with any additional evidence and information from the police to assist in building a robust case. Consideration should be given to other potential sources of evidence, such as:

  • Any disclosures to close relatives, friends and third parties.
  • Any account from the first responder on the scene detailing, their observations of the victim and suspect, (if they remain in attendance), including any visible signs of injury, signs of confusion or disorientation, voice quality and incontinence. Along with details of the scene itself, such as: signs of a struggle and paraphernalia that could be associated with non-fatal strangulation or non-fatal suffocation e.g. ropes, belts and plastic bags/sheeting.
  • Previous convictions and crime reports.
  • The suspect’s account – where appropriate ensure this has been challenged in a police interview. For example, where consent to strangle has been raised.
  • There is no requirement for there to be any injuries for this offence but any medical evidence should be obtained when it is a reasonable line of enquiry. Where victims have been taken to A&E, an oxygen saturation test may have been completed. Where this test shows results below normal rates this could be relied upon as compelling evidence to support a prosecution and should be requested. Within any medical notes received prosecutors should also look out for evidence of petechiae. These are pin prick dots where small blood vessels have burst, which can sometimes be seen in the eyes, ears or scalp.
  • The 999 call for assistance.
  • Body Worn footage.
  • Photos of injuries or scene.

This is not an exhaustive list.

Non-fatal strangulation and non-fatal suffocation often leaves minimal or no visible injury on the victim, but it is documented by medical experts that it can pose risks to the victim’s health, both immediately and in the longer term, due to the restriction of oxygen to the brain. It can also cause psychological damage to the victim. The lack of visible injury alone should therefore not undermine any decision to prosecute.

Offences available to prosecutors and selecting the appropriate charge

Other than the standalone offence(s) under section 75A SCA 2015, there are already several offences in existence that should be considered when the offending is described as non-fatal strangulation or non-fatal suffocation. These are detailed below:

  1. Section 39 Criminal Justice Act 1988 - Common Assault or Batterys

    Any act by which a person intentionally or recklessly causes another to suffer or apprehend immediate unlawful violence. Includes battery, which is committed by the intentional or reckless application of unlawful force to another person.

    This offence is summary only. A person found guilty is liable to a term of imprisonment not exceeding 6 months and/or a fine.

  2. Section 47 Offences Against the Person Act 1861 – Assault occasioning actual bodily harm (ABH)

    ABH includes any hurt which interferes with the health or comfort of the victim: such hurt need not be permanent but must be more than transient and trifling [R v Donovan [1934] 2 KB 498]. “Harm” is not limited to “injury” but extended to hurt or damage, and “bodily”, whether used as an adjective or an adverb, is “concerned with the body” and not limited to skin, flesh and bones [DPP v Smith [2006] EWHC 94 Admin].

    Psychological harm that involves more than mere emotions such as fear, distress or panic can amount to ABH. However psychological injury not amounting to recognisable psychiatric illness does not fall within the ambit of bodily harm for the purposes of the Offences Against the Person Act 1861 [R v D [2006] EWCA Crim 1139].

    ABH can also include cases where the circumstances in which the assault took place are more serious e.g. repeated threats or assaults on the same victim or significant violence. This could include non-fatal strangulation or suffocation.

    This offence is triable either way. A person found guilty on summary conviction is liable to a term not exceeding 12 months' imprisonment and/or a fine. Upon an indictable conviction a person is liable to a term not exceeding 5 years' imprisonment.

  3. Section 21 Offences Against the Person Act 1861 – Attempting to choke, suffocate or strangle any other person in order to commit any indictable offence

    This offence requires a person to attempt to choke, suffocate or strangle any other person in order to render that person insensible, unconscious or incapable of resistance with intent to commit an indictable offence.

    This is an indictable offence. If a person is found guilty on indictment they are liable to a term not exceeding life imprisonment.

    This offence is rarely charged as it requires proof a specific intent to commit an indictable offence, which may be absent in many cases and it can be very difficult to obtain sufficient evidence to prove. This offence has not been repealed in legislation and is still available to prosecutors, but consideration should be given to charging non-fatal strangulation or non-fatal suffocation if there is sufficient evidence to support those charges.

  4. Section 18 Offences Against the Person Act 1861 – Wounding with intent to do grievous bodily harm (GBH)

    This offence requires a person to unlawfully and maliciously cause GBH or wound a person with the intention to cause GBH.

    This is an indictable only offence. If a person is found guilty on indictment they are liable to a term not exceeding life imprisonment.

  5. Section 20 Offences Against the Person Act 1861 – Inflicting bodily injury, with or without a weapon

    This offence requires a person to unlawfully and maliciously inflict a wound or GBH on a person.

    This is an either way offence. If a person is found guilty on a summary conviction they are liable to a term of imprisonment not exceeding 12 months' and/or a fine. On an indictable conviction they are liable to a term of imprisonment not exceeding 5 years' imprisonment.

It is for the prosecutor to consider all the circumstances and facts of the case to arrive at a decision on the appropriate charge. Taking into account the principles set out in the Code for Crown Prosecutors, in particular paragraph 6 which provides guidance on the selection of charges.

Principles which may inform that decision can be found in the Offences Against the Person, incorporating the Charging Standard legal guidance.

Non-fatal strangulation or non-fatal suffocation often leaves minimal or no injury but due to the nature of the offending this should not reduce the level of harm caused. This also highlights the importance of exploring any non-visible injuries, as injuries may only become apparent sometime after the incident.

If there is sufficient evidence to prove non-fatal strangulation or non-fatal suffocation this should be charged in preference to a common assault/battery even where there are no or minimal injuries. Common assault/battery should never be charged solely as a means of keeping an offence in the magistrates’ court.

Prosecutors will often have to consider if the offending should be charged as ABH, non-fatal strangulation or non-fatal suffocation. A definition of ABH can be found in the Offences Against the Person, incorporating Charging Standard legal guidance.

ABH, non-fatal strangulation and non-fatal suffocation all carry the same sentencing powers available to the Court. There are currently no sentencing council guidelines in place for non-fatal strangulation or non-fatal suffocation offences, but there are for ABH.

Where there is clear and credible evidence that non-fatal strangulation, non-fatal suffocation or ABH has occurred, prosecutors should charge an offence of non-fatal strangulation or non-fatal suffocation rather than an ABH. This will mark the seriousness of this offending clearly on the defendant’s record in the event of a conviction.

Where the evidence shows a distinct single offence of non-fatal strangulation or non-fatal suffocation, with no other offending but the injuries amount to a GBH, prosecutors should ensure the Court has sufficient powers to sentence. Where a suspect can be properly charged under s18 of the Offences Against the Person Act 1861, that offence should be preferred rather than a non-fatal strangulation or a non-fatal suffocation as it carries a higher sentence. Refer to the Offences Against the Person, incorporating the Charging Standard legal guidance for a definition of GBH and the cases of R v Golding [2014] EWCA Crim 899 and R v Bollom [2003] EWCA Crim 2846.

This would also be the case where there is evidence of a non-fatal strangulation or non-fatal suffocation, but there was sufficient evidence of an attempted murder. The more serious offence should be charged to allow the Court sufficient sentencing powers. Refer to the Homicide: Murder and Manslaughter legal guidance and Offences Against the Person, incorporating the Charging Standard legal guidance for further information.

There may be scenarios where it is appropriate to consider whether alternative verdicts may be open to the jury and they could consider adding non-fatal strangulation or non-fatal suffocation as an alternative count.

Where there is sufficient evidence of more than one type of assault, prosecutors must ensure that their case strategy is clear, and the case is opened to the Court in a way that explicitly sets out the elements of the offences charged. The Court will then be able to apply the appropriate sentence based on the entire assault. This will also ensure that the offence is on record and could demonstrate to the Court escalating behaviour enabling the Court to consider the seriousness of non-fatal strangulation or non-fatal suffocation. It also helps to ensure that a fully informed risk assessment can be completed with regard to the defendant.

In R v Carrigan [2021] EWCA Crim 1553 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.” Laying a separate charge, where appropriate, will allow the Court to reflect this during any sentencing exercise.

R v Jex [2021] EWCA Crim 1708 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. 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.

In addition to the other offences against the person, consideration should be given to the offending as a whole and whether other offence(s) should be charged. These may include rape and sexual offences or controlling and coercive behaviour for example. This is not an exhaustive list and any other relevant offence should be considered in order to reflect the totality of the offending behaviour.

Reference should be made to the Rape and Sexual Offences legal guidance, the Controlling and Coercive Behaviour in an Intimate or Family Relationship legal guidance and the Domestic Abuse legal guidance, alongside this guidance where relevant.

Acceptability of pleas

Prosecutors should refer to the Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise and paragraph 9 of the Code when determining acceptability of pleas.

In some cases, the defendant may offer a guilty plea to a different charge or plead guilty to some of the charges made against them, but not all.

When considering whether to accept a plea in these instances, this should be discussed with the victim. The victim’s views (either directly, or through any support organisation working on their behalf) should be taken into account before any decision is made.

The following factors should be considered when deciding whether to accept a plea:

  • whether the defendant offers a plea that is in accordance with the evidence available to the prosecution.
  • whether the defendant has any previous incidents recorded against them.
  • whether it would be advantageous to the victim and any children or dependents not to have to give evidence.
  • the victim's views on the pleas offered (some victims would prefer to give evidence rather than accept a plea to only one part of the offending or a lesser offence).
  • whether the plea fetters the discretion of the court in relation to sentencing.
  • whether the difference between the prosecution and defence version of events is such that it would significantly affect the sentence that would be imposed (if it does, there should be a Newton Hearing to determine the facts).
  • the fact that defendants will often seek to minimise the offence or mitigate their offence; and,
  • whether the acceptance of plea could impact upon the ancillary orders available to the court at sentence.

Accepting a plea to an ABH in place of non-fatal strangulation or non-fatal suffocation is unlikely to alter the sentencing powers available to the Court but it would impact upon what is reflected on the offender’s record and could impact upon future risk assessments prepared by other organisations. For these reasons prosecutors should think carefully about the suitability of accepting an ABH plea in place of non-fatal strangulation or non-fatal suffocation and, where it is considered appropriate to accept a plea to a different offence, the rationale should be clearly recorded.

A plea to a battery or common assault in place of a non-fatal strangulation or non-fatal suffocation is unlikely to be an acceptable plea. It would reduce the severity of the offending and is unlikely to reflect the culpability of the offender and the harm caused to the victim.

Where there has been an agreed basis between prosecutors and the defence to a plea, this should be put into writing and signed by both parties.

Extra-territorial jurisdiction

Section 70(1) DA Act 2021 inserted section 75B into the Serious Crime Act 2015. This provides extraterritorial jurisdiction of the criminal courts in England and Wales. Where appropriate, UK nationals and those habitually resident in England and Wales that allegedly commit the section 75A offence of non-fatal strangulation or non-fatal suffocation outside the UK may be tried in England and Wales. A UK national is defined at section 75B(2) SCA 2015. For more information prosecutors should refer to the Jurisdiction legal guidance.

Further reading

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