The offence of strangulation is relatively new on statute books but is an offence that is being prosecuted with some zeal by the Police and Crown Prosecution Service. 

I am seeing a significant number of new clients accused of strangulation in any circumstances where hands are put on the throat of another during a physical altercation. In some circumstances, the charge is completely unwarranted and other index offences are more appropriate. 

Nevertheless, I am still seeing an increase in the number of cases that are prosecuted under this legislation. Below is I layman's guide to the offence of strangulation, it is not designed to be totally comprehensive, but it is a rough and ready layman's guide to the offence and questions that are commonly asked by clients who face such charges. It is not designed to be a replacement for specialist legal advice, and it is highly advisable for anyone accused of this offence to seek such advice at an early stage.

Defence of strangulation

Defence of strangulation was brought into effect following decades of pressure by criminal justice and domestic abuse campaigners who saw that strangulation was often misclassified as assault by beating or common assault, often failing to reflect its serious psychological and physical harm. It is said that the introduction of Section 75A of the Serious Crime Act 2015 recognised:

• The unique risks of strangulation, including its link to domestic homicide. Studies suggest strangulation victims are 7 times more likely to be killed by their abuser.
• The psychological impact, as many victims suffer long-term trauma even if no visible injuries are present.
• The need for harsher penalties than that available for common assault or assault by beating

The offence of strangulation, as defined under Section 75A of the Serious Crime Act 2015 was introduced by the Domestic Abuse Act 2021 and is seen to be recognition of the harm caused by strangulation and suffocation, even in the absence of visible injury.

The elements of the Offence of Strangulation or Suffocation

In order to be convicted of this offence the prosecution must prove all of the elements of the offence so that the jury are sure, or beyond reasonable doubt. It is therefore important to consider what the elements of the offence are. Under Section 75A(1) of the Serious Crime Act 2015, a person commits an offence if they:

• Intentionally strangle another person, or
• Carries out any other act that:
   
  1. 1. Affects the other person’s ability to breathe, and
     2. Constitutes battery of the other person

Strangulation offences are particularly associated with domestic abuse but apply to any context, including assaults by strangers, in public settings, or in criminal group activity.

Defences to Strangulation

There are a number of defences that can be successfully deployed in such cases, these include:

Lack of intent

the person must be intentionally strangled in order for the defendant to be convicted. This is what we lawyers call an offence of specific intent. The prosecution will need to show beyond reasonable doubt that the defendant intended to strangle the person. Therefore, if it is maintained that there was no intent to strangle, then this will amount to a complete defence.

Fabrication

Often, allegations of strangulation can occur in a domestic scenario. And often, there are no injuries or other evidence to support the fact that the offence has taken place. Seen a number of cases were it is suggested that the offence has been concocted by a partner or previous partner with a grudge or vengeance against the defendant, specifically on occasion in respect of where there are extant family court proceedings in respect of childcare and they complainant in the case wishes to use the evidence of the alleged attack in order to persuade the family court that they should have custody, or a larger share of custody, of the children.

Consent 

Consent is a limited defence to the offence. While the complainant’s consent may be a defence under Section 75A(2), this does not apply if the other person suffers serious harm, and the defendant either intended or was reckless as to whether the other person would suffer serious harm.

Serious harm includes:

• Grievous bodily harm (GBH) under Section 18 of the Offences Against the Person Act 1861.
• Wounding under the same Act.
• Actual bodily harm (ABH) under Section 47 of the 1861 Act.

So, even in consensual sexual scenarios, if serious injury results, a defendant may not be able to rely on consent as a defence.

Prosecution of Strangulation Offences

Strangulation is a “triable either way” offence, meaning it can be heard in both the Magistrates’ Court and Crown Court. The maximum penalty is 5 years' imprisonment in the Crown Court or 6 months’ imprisonment on summary conviction (Magistrates’ Court).

Sentencing in Strangulation cases 

There are a number of Court of Appeal cases that have clarified sentencing approaches, these include:

• R v Cook [2023] EWCA Crim 452: The Court of Appeal ruled that strangulation should not be treated merely as an assault but as a serious standalone offence. The absence of visible injuries does not mean lesser harm.
• R v Butler [2023] EWCA Crim 800: Strangulation inherently causes serious harm, whether physical or psychological.
• R v Borsodi [2023] EWCA Crim 899: Confirmed that while custodial sentences are generally appropriate, suspended sentences may be justified in certain cases.

However, the Sentencing Council's guidelines (effective from January 2025) supersede previous case law and set out a structured approach to the sentencing exercise. Sentencing guidelines can be difficult to navigate, and if you require advice as to where a potential offence falls on the guidelines it is his advisable to seek specialist legal assistance. However, notable parts of the sentence in guidelines include:

High culpability factors (warranting higher sentences) include:

• Sustained strangulation or suffocation.
• Use of a ligature (e.g., rope, cord, belt).
• Offence committed in a domestic abuse context.
• Presence of children during the attack.

Harm factors (affecting severity) include:

• Extreme fear or psychological trauma suffered by the victim.
• Physical injuries that impact daily life.

Mitigating factors (potentially reducing the sentence) include:

• Lack of previous convictions.
• Genuine remorse.
• Mental illness linked to the offence.

Racially or Religiously Aggravated Strangulation (Crime and Disorder Act 1998, Section 29)

The aggravation level is determined by:

• Whether racial or religious hostility was a motivation for the Commission of the offence.
• The distress caused to the victim and their community.

General Guidance on Strangulation