Non-fatal Strangulation and Suffocation Consultation

In revising its assault offences guidelines which were published in 2021 the Council had considered research highlighting the seriousness of strangulation as a form of assault. As a result, the revised guidelines provided for the culpability of the perpetrator of any assault involving strangulation, suffocation or asphyxiation to be assessed at the highest level of seriousness.

Subsequently, the Government decided that specific offences of non-fatal strangulation and suffocation were necessary to ensure perpetrators could be charged and prosecuted with a sufficiently serious offence even in the absence of physical injuries.

Section 70(1) of the Domestic Abuse Act 2021 created an offence of non-fatal strangulation and a separate offence of non-fatal suffocation. The offences were introduced as part of the Government's Violence Against Women and Girls Strategy and came into force on 7 June 2022.

The legislation does not provide definitions of strangulation or suffocation, but CPS charging guidance for prosecutors states that: ‘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.’ The guidance provides common examples of acts which may be charged as non-fatal strangulation as:

• 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;
• pressure on the neck from a foot or knee.

CPS prosecution guidance also provides a definition of non-fatal suffocation, confirming this has a wider ordinary definition and is to ‘deprive a person of air which affects their normal breathing.’ Common examples of suffocation are given as:

• 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.

Given that strangulation and suffocation are both forms of assault which are provided for in the assault guidelines as high culpability offences, many sentencers referred to these guidelines when sentencing the new offences after their introduction. In particular the ABH guideline was referred to, as ABH shares the same statutory maximum sentence as the new offences. However, the ABH guideline assesses actual harm caused, and in the absence of physical injuries sentences were not always reflective of the seriousness of the harm caused or risked by an offence. This was noted by the Court of Appeal in R v Cook [2023] EWCA Crim 452, which set out the approach to sentencing these offences until such time a sentencing guideline was available.

This guideline consolidates aspects of that judgment into a guideline format, using the Council’s stepped approach to sentencing. The format of a judgment differs to a guideline meaning some features highlighted as increasing or decreasing seriousness by the Court of Appeal are assessed at step one of the guideline’s seriousness assessment, and others at step two. The rationale for the proposed assessment is explained in this consultation document and anticipated impacts are highlighted in the accompanying resource assessment.

The guideline seeks to ensure appropriate sentences for these offences, as well as proportionality and relativity with sentences for related offences and other sentencing guidelines.