Written by Ruth Peters, 22nd September 2023
The recent case of Yorke  EWCA CRIM 1043 clarifies sentencing law in relation to allegations of non-fatal strangulation.
What is the offence of non-fatal strangulation?
Non-fatal strangulation is a relatively new offence which was introduced under the Domestic Abuse Act 2021. Non-fatal strangulation is committed when any person intentionally strangulates another person, or does any other act to that person that affects the ability of that person to breathe and constitutes a battery of that person.
The offence came into force for any offence committed on or after 7th June 2022.
The Domestic Abuse Act 2021
The Domestic Abuse Act 2021 widened definitions and time limits for a number of offences. As a result of this legislation the number of options open to investigators increased substantially.
The key provisions contained in the Act are were:
- Creation of new role of Domestic Abuse Commissioner
- Statutory definition of domestic abuse includes not only physical violence but that of ‘emotional, coercive and controlling behaviour and economic abuse’
- Children who witness abuse to be given statutory recognition as “victims”
- The scope of ‘coercive and controlling behaviour extended to incorporate abuse post-separation. The definition of “personally connected” widened to include ex-partners and family members who do not live together
- New criminal offence of non-fatal strangulation
- Time limit for prosecution of common assault or battery in domestic abuse cases increased to two years
- Statutory presumption in favour of special measures for complainants in criminal, family and civil courts and prohibition on complainants being cross-examined by alleged abuser
- High risk offenders to be the subject of polygraph testing as a condition of their parole licence
- New police powers to issue civil Domestic Abuse Protection Notices (“DAPN”)
- Statutory duty to be placed upon local authorities to ensure victims and children are placed in refuges and other safe accommodation.
- Guidance supporting the Domestic Violence Disclosure Scheme (“Clare’s law”) placed on a statutory footing
- Definition of ‘revenge porn’ extended to cover the threat to disclose intimate images with the intent to cause distress
What is the maximum sentence for a non-fatal strangulation offence?
The offence of non-fatal strangulation is “triable either way”. This means it can be dealt with at the Magistrates’ Court or at the Crown Court. If the matter is dealt with at the Crown Court the maximum sentence is imprisonment not exceeding a maximum period of 5 years.
What do the prosecution need to prove in relation to an allegation of non-fatal strangulation?
There is no requirement to prove any injury or harm caused as a result of the strangulation so long as it is intentional.
Sentencing of non-fatal strangulation offences
Non-fatal strangulation does not have a specific sentencing guideline from the Sentencing Council.
In the case of Cook  EWCA CRIM 452 the Court of Appeal indicated that a custodial sentence would ordinarily be appropriate for such offences save in exceptional circumstances. In such case the Court of Appeal indicated that ordinarily it would be a sentence of immediate custody with a starting point of 18 months’ custody.
The court went on in such case to consider a list of aggravating factors which may increase the starting point. They also detailed statutory aggravating factors as well as commenting on the sentencing counsel’s overarching principals in relation to domestic abuse which are likely to be relevant when sentencing allegations of intentional strangulation. This guideline makes clear that offences of domestic abuse are to be regarded as particularly serious.
Case law non-fatal strangulation offences
The recent case of Yorke which was heard by the Court of Appeal on 30th August 2023 went on to consider sentencing in relation to intentional strangulation offences. In their judgement the Court of Appeal referred to a number of relevant cases as follows;
In the case of Chall  EWCA CRIM 865 the court observed that a victim personal instatement written only a few weeks after an offence may provide clear evidence only as to the immediate consequences and may not be sufficient to enable a judge to make any safe findings as to the severity and likely duration of any psychological harm. The court went on to state that the intensely personal nature of such a statement my sometimes call for caution as to whether the harm suffered by the victim may, unintentionally, have been overstated.
The Court of Appeal then went on to consider Cook as referred to above. Here the court pointed out that the offence of intentional strangulation does not require proof of any injury or harm. The act of strangulation inevitably creates a real and justified fear of death and real harm was inherent in the act of strangulation.
The Court of Appeal also considered the case of Butler. Having regard to Butler, the appropriate course is to consider the sentence for the offence of intentional strangulation and then consider the extent to which that sentence should be increased to reflect the additional criminality involved in the other aspects of the assault and the assault as a whole.
In passing judgement, the Court of Appeal in Yorke stated ‘a very significant degree of harm is inherent in an offence of intentional strangulation’. The court confirmed that the background of an 18 months starting point for an offence of intentional strangulation should be followed.
Specialist lawyers for non-fatal strangulation offences
At Olliers we specialise in representing individuals facing investigation or prosecution in relation to allegations of a domestic nature.
We understand the complexities of cases involving allegations of domestic abuse and matters are rarely as straightforward as they may appear to be initially. Investigators will inevitably only have one side of the story and are rarely as straightforward as may be initially presented to police.
Pre-charge domestic violence lawyers
At Olliers we specialise in representing individuals at the pre-charge investigative stage of the case and advocate a proactive approach to pre-charge engagement with investigators.
We look to engage with police at an early stage of the investigation and will always look to make representations against charge by arguing there is not a ‘realistic prospect of conviction’ or that ‘it is not in the public interest to prosecute’.
Contact our specialist team of domestic abuse lawyers
If you are being investigated or face prosecution in relation to an allegation of domestic abuse please contact our specialist team by completing the form below, telephoning 0161 834 1515 (Manchester) or 020 3883 6790 (London) or email firstname.lastname@example.org
Whilst our Head Office is based in Manchester, we also have a London office and our team of specialist lawyers represent individuals across England and Wales frequently in relation to domestic allegations.