04/01/24

Strangulation or Suffocation | Domestic Abuse | KANGS Criminal Defence Solicitors

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The act of strangulation or suffocation may often produce no physical marks or injury and, therefore, the Prosecution may, historically, have chosen to charge the offence of Assault Occasioning Actual Bodily Harm.

In order to assist, on 11 June 2022, by way of Statutory Instrument, Section 70 of the Domestic Abuse Act 2021 came into force.

Sukhdip Randhawa of KANGS Solicitors considers the effect of the changed legislation.

KANGS has been defending clients charged with criminal conduct of every nature,for well over twenty years and is rated as one of the best criminal law firms in the country, being ‘Top Ranked’ by the leading legal directories, The Legal 500 and Chambers UK.

Kangs Solicitors has won The Legal 500 award for Criminal & Fraud Law Firm of the Yearand the firm’s founding solicitor and senior partner, Hamraj Kang, has won The Legal 500 award for Individual Criminal & Fraud Solicitor of the Year.

Strangulation or Suffocation (‘the offence’) | KANGS Domestic Offences Solicitors

Definition of the offence

Section 70 of the Domestic Abuse Act 2021 inserted into Section 75A, Part 5 of the Serious Crime Act 2015 states:

‘Strangulation or suffocation

(1) A person (‘’A’’) commits an offence if –

(a) A intentionally strangles another person (‘’B’’); or

(b) A does any other act to B that –

(1) effects (B)’s ability to breathe; and
(11) constitutes battery of B.

(2) It is a defence to an offence under this section for A to show that B consented to the strangulation or other act.

(3) But Subsection (2) does not apply if –

(a) B suffers serious harm as a result of the strangulation or other act; and
(b) A either –

(1) intended to cause B serious harm; or
(11) was reckless as to whether B would suffer serious harm’

Serious harm means:

  • Grievous bodily harm: within the meaning of Section 18 of the Offences against a Person Act 1861.
  • Wounding within the meaning of the same section; or
  • Actual bodily harm within the meaning of Section 47 of that Act.

Sentencing Upon Conviction for the offence

The offence is an ‘either way’ offence, meaning that it can be tried either in the Magistrates’ Court or the Crown Court.

Upon conviction, a defendant will face:

  • in the Magistrates’ Court - up to six months imprisonment,
  • in the Crown Court - a term of imprisonment not exceeding five years.

Ancillary Orders

The offence is listed in the following Statutes:

  • Schedule 5 of the Sexual Offences Act 2003, whereby the defendant may be subject to an Ancillary Order under Part 2 of the Sexual Offences Act 2003 (Notification Requirements).
  • Schedule 4 of the Modern Slavery Act 2015, meaning that the defence outlined above cannot be advanced in these cases.
  • Section 65(A) of the Police and Criminal Evidence Act as a qualifying offence. [The ramifications being that the Police are able to retain biometric material (DNA fingerprints) for a period of three years, where there is an arrest without further action being taken, subject to the consent of the Commissioner for the retention/destruction of biometric material or, alternatively, retained for three years where a person is charged, but not convicted, or, retained for life, if convicted or cautioned.]
  • and also, the offence can be racially or religiously aggravated and is inserted into Schedule 18 of the Sentencing Code, whereby an offender may be considered a dangerous offender upon sentencing.

Current Sentencing Practices | KANGS Offences Against the Person Defence Solicitors

Duration of sentence

The recent case of R v. Cook (2023) indicated that, ordinarily, the sentence upon conviction, will be one of immediate custody.

The ‘starting point’ for the duration of the custodial sentence will be a term of eighteen months which may be increased where:

  • there exists a history of previous violence especially in the event of the previous violence having involved strangulation,
  • a child or children were present,
  • the attack occurred in the victim’s home,
  • there existed sustained or repeated strangulation,
  • a ligature or equivalent was utilised,
  • an abuse of power was involved,
  • the offender was under the influence of drink or drugs,
  • the offence was committed whilst the offender was on licence,
  • a vulnerable victim was involved,
  • steps were taken to prevent the victim reporting the incident and /or obtaining assistance.

Sentencing Council

The Council’s overriding principles in relation to domestic abuse are likely to be relevant when sentencing for the offence. The Guidelines are clear that such offences are to be regarded as particularly serious.

Whilst provocation is not considered as providing any mitigation for an offence within a domestic context accept in rare circumstances, mitigating factors will include:

  • good character,
  • age and immaturity,
  • remorse,
  • mental disorder,
  • genuine recognition of the need to change coupled with evidence of the offender having sought appropriate help and assistance,
  • a very short period of strangulation from which the offender voluntarily desisted.

Who Can I Contact for Advice and Help? | KANGS National Criminal Defence Solicitors

The Team at KANGS Solicitors, on a daily basis, represents clients charged with allegations of criminal conduct of every conceivable nature.

Our Team is nationally renowned for providing a service of the highest quality to all clients both individual and corporate and wherever located.

If we can be of assistance, our Team will be delighted to hear from you as follows:

Telephone: 0333 370 4333

Email: info@kangssolicitors.co.uk

We provide a no obligation, initial consultation at our three offices in Manchester, Birmingham and London. Alternatively, meetings can be held via video conferencing.

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