Intentional Strangulation – Sentencing Update

How to approach a violent, often invisible offence, lacking sentencing guidelines – A short guide to sentencing for intentional strangulation – Olivia Brooksbank-Laing
Olivia Brooksbank-Laing
What has changed on the subject recently?

A success in the campaign to further protect victims of domestic abuse arrived in the newly introduced offence of non-fatal strangulation (s.75A to the Serious Crime Act 2015, added by s.70 of the Domestic Abuse Act 2021 which came into force on 7th June 2022). 

The offence is committed when a person intentionally strangles another person, or does any other act to that person that affects the ability of the person to breathe and constitutes a battery of that person – leading to the offence being dubbed “intentional suffocation” or “intentional strangulation” by practitioners. “Strangulation” was not given a statutory definition, but is often defined by medical practitioners as “the obstruction of blood vessels and/or air flow in the neck”.

Crucially, the elements of the offence no longer require evidence of injury or harm, resulting in legal recognition being given to the very real invisible injuries, both internal and psychological, that can result from this offence.

The new approach

New legal guidance followed in the form of case law, in the absence of any tailored Sentencing Guidelines for the offence. The relatively recent case of Yorke [2023] EWCA Crim 1043 provides some much-needed clarity in this area. The Court considered the following relevant cases:

  1. The case of R v Cook [2023] EWCA Crim 452 highlighted the danger in attempting to apply guidelines from other offences based on certain similarities; assault occasioning actual bodily harm (‘s47 assault’) had frequently been used by judges as a reference. It was determined that a judge was not required, nor entitled, to do more than have some regard to the assault guidelines. A specific starting point was introduced for the offence of intentional strangulation at 18 months’ immediate custody. Aggravating factors identified for the offence included the influence of alcohol and the event taking place in the victim’s home. Potential mitigating features were also identified, including not only the usual pattern of remorse or mental disorder, but also factors tailored to the offence of strangulation, including where the incident was short-lived and the attacker ceased their actions voluntarily.
  2. R v Butler [2023] EWCA Crim 800, where the offender was charged with intentional strangulation and s47 assault arising from the same event. The court noted in many cases where these two offences are charged together, taking the strangulation as the lead and increasing the sentence to reflect the lower offence will often be the appropriate approach. Caution must be taken in “double-counting” the element of strangulation, as it would likely be categorised as a Culpability A, Harm 1 Factor A1 factor in the s.47 assault guidelines. The importance of harm was also discussed, as the Court of Appeal rejected the appellant’s attempt to argue that a lack of evident harm should reflect a lesser sentence. What we now know of this offence was made abundantly clear: there is inherent harm in the act of intentional strangulation and it does not need to leave a telltale mark.
  3. In R v Chall [2019] EWCA Crim 865, the court warned of the weight given to Victim Personal Statements (VPS) when written within a short period following the offence, as it may only provide evidence of the immediate impact on the victim. Therefore, reliance on the VPS when considering the substance and longevity of psychological harm may lead to an inaccurate assessment. Caution was also directed in relation to to the emotional and personal nature of a VPS and the potential for overstating the actual harm that resulted.

Despite the Sentencing Council having yet to set a clear path for sentencing intentional strangulation, following the approach in Yorke provides a general guide to sentencing this offence.

Discussion of seeking expert medical views

The benefit of a neutral figure amidst the drama of the criminal courts, in the form of a medical expert giving objective and unbiased opinions within their area of expertise (s.19(2)(1)(a) of the Criminal Procedure Rules 2020), cannot be overlooked. Expert evidence is admissible if their opinion is necessary on a matter outside the knowledge and experience of the tribunal (see this article for further discussion of expert evidence generally). 

However, there is a danger that medical experts that had been called upon for their expertise of non-fatal strangulation prior to 7th June 2022, may not provide a conclusive assessment of the injuries when considering the introduction of inherent harm after this date. In particular, they may not have taken into account the serious, but often invisible, injuries that can result. Fault can be attributed to the failure to re-train experts on the new offence, or simply the lack of training to identify such internal or psychological harm. 

For those injuries of a more complex nature (such as severe brain damage arising from asphyxiation) extensive medical investigations and use of specialised equipment may be required, which again requires a certain level of expertise. Experts can prove of particular use to prosecutors where corroborative medical evidence can rebut defence claims of the act being an accident, carried out in self-defence, or consensual. 

Additionally, as non-fatal strangulation is frequently committed in the context of domestic abuse, complainants are more vulnerable to intimidation or being influenced to retract support for the prosecution. With the criminal justice system at breaking point and trials being listed anywhere up to two years after first appearance, it is becoming increasingly commonplace for complainants to become disillusioned with the process and retract support of their own volition. Whilst there may be other hurdles which need to be crossed in order to secure a conviction, expert evidence may provide an extra layer of security to the prosecution case. 

Olivia Brooksbank-Laing is a second-six pupil at Central Chambers, under the supervision of Benjamin Knight. She is available for work in the Magistrates’ and Crown courts. To instruct her, please contact the criminal clerking team by telephone or by emailing clerks@centralchambers.co.uk.

 

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