Non-fatal Strangulation and Suffocation Proposed Sentencing Guideline Published

A draft sentencing guideline for offences of non-fatal strangulation and non-fatal suffocation offences was published for consultation by the Sentencing Council on 15th May 2024.

Under the proposals, judges and magistrates will have a dedicated guideline to follow to help ensure courts take a consistent and proportionate approach when sentencing such offences. There is no current Sentencing Guidelines for these offences.

The offences were introduced by the Domestic Abuse Act 2021 and came into force on 7 June 2022. The offences do not only apply in a domestic abuse context and also include similar acts carried out in non-domestic situations.

What are Sentencing Guidelines?

Sentencing guidelines help make sure that judges and magistrates in courts across England and Wales take a consistent approach to sentencing.

The Sentencing Code states that the courts must follow any relevant sentencing guidelines unless it is contrary to the interests of justice to do so.

Guidelines provide guidance on factors the court should take into account that may affect the sentence. They set out different levels of sentence based on the harm caused to the victim and what is known as ‘culpability’ – how blameworthy the offender is.

All new sentencing guidelines follow more recent Council guideline models and include a stepped approach to sentencing.

Guidelines set sentencing ranges within the maximum for the offence as set out in current legislation.

What is non-fatal strangulation?

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

The offence is made out if a suspect ‘intentionally strangles another person’, or does any other act that affects their ability to breathe, and constitutes a battery.

The maximum sentence is five years imprisonment.

What is non-fatal suffocation?

Non-fatal suffocation occurs when a person uses unlawful force on a victim, whether intentionally or recklessly, that affects the victim’s ability to breathe, for example by putting a hand over the victim’s mouth or compressing the chest. 

No physical injuries need be caused for the offences to be committed. 

Category of offence

In order to determine the category, the court should assess culpability and harm.

Harm

All cases of strangulation involve a very high degree of inherent harm.  The court should assess the level of harm caused with reference to the impact on the victim.

Category 1 – Offence results in a severe physical injury or psychological condition which has a substantial and long-term effect on the victim’s ability to carry out their normal day-to-day activities or on their ability to work.

Category 2 – All other cases

Culpability

The draft guidelines define culpability as follows:

Category A

• Sustained or repeated strangulation or suffocation
• Use of ligature

Category B

Cases falling between category A or C because:

• Factors in both high and lesser categories are present which balance each other out; and/or
• The offender’s culpability falls between the factors as described in high and lesser culpability

Category C

• Very brief incident and voluntary resistance
• Excessive self-defence
• Mental disorder or learning disability, where linked to the commission of the offence

The draft guideline goes on to consider factors increasing seriousness and factors reducing seriousness. 

Factors increasing seriousness

Statutory aggravating factors:

• Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction
• Offence committed whilst on bail
• Offence motivated by, or demonstrating hostility based on any of the following characteristics or presumed characteristics of the victim: disability, sexual orientation or transgender identity

Other aggravating factors:

• Offence committed in domestic context
• Victim isolated and unable to seek assistance
• Offence was committed against person providing a public service, performing a public duty or providing services to the public
• History of violence or abuse towards victim by offender
• Presence of children
• Gratuitous degradation of victim
• Abuse of trust or power
• Any steps taken to prevent the victim reporting an incident, obtaining assistance and/or from assisting or supporting the prosecution
• Commission of offence whilst under the influence of alcohol/drugs
• Offence committed whilst on licence or post sentence supervision
• Failure to comply with current court orders

Factors reducing seriousness or reflecting personal mitigation

• No previous convictions or no relevant/recent convictions
• Remorse
• Positive character and/or exemplary conduct (regardless of previous convictions)
• History of significant violence or abuse towards the offender by the victim
• Age and/or lack of maturity (which may be applicable to offenders aged 18-25) 
• Mental disorder or learning disability, where not linked to the commission of the offence
• Sole or primary carer for dependent relative(s)
• Pregnancy, childbirth and post-natal care
• Determination and/or demonstration of steps taken to address addiction or offending behaviour
• Serious medical conditions requiring urgent, intensive or long-term treatment
• Difficult and/or deprived background or personal circumstances
• Prospects of or in work, training or education

Her Honour Judge Rosa Dean, Sentencing Council lead for the guideline commented:

“Strangulation or suffocation are very serious offences and can create a real and justified fear of death, causing the victim to experience a high degree of psychological harm from the encounter, even where no physical injuries are visible.

“The proposed guidelines will ensure that courts have the most up-to-date guidance so that all cases where strangulation or suffocation has occurred are sentenced in an appropriate and consistent manner.”

There are currently no offence-specific sentencing guidelines for these offences and courts apply principles from a recent Court of Appeal judgment when sentencing these offences. 

The guideline consolidates aspects of that judgment into a guideline format, using the Council’s stepped approach to sentencing to determine the seriousness of offences and appropriate sentences.

When does the consultation end?

The Council is seeking views on the draft guideline (which applies to adult offenders only) from judges, magistrates and others with an interest in the sentencing of these offences. 

The consultation will run from 15 May 2024 to 14 August 2024.

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.

We are frequently contacted by clients who have been asked to attend a voluntary interview or following an interview under caution, have been released on bail or under investigation.

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 info@olliers.com

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.