Policy paper

Strangulation and suffocation

Updated 3 January 2024

1. What are we doing?

The Act creates a new criminal offence of non-fatal strangulation or suffocation. The offence will apply to any case where a person intentionally strangles or suffocates another person, including in cases of domestic abuse. The offence will also apply where strangulation or suffocation is committed abroad by a British national or by a person who is habitually resident in England or Wales, as if the offence had happened in England and Wales.

The House of Lords has played a huge role in promoting the need for non-fatal strangulation to be made a specific criminal offence, punishable by up to five years in prison. In the debates on the Bill, more than half of the speakers argued that this very dangerous practice, which is little noted currently by police, should immediately be criminalised. Use of non-fatal strangulation increases seven-fold the risk of being killed by a perpetrator and can often cause internal injury as well as the obvious terror since it can imply a threat to kill. I congratulate the government on successfully shaping an appropriate amendment to bring this offence into force.

Victims’ Commissioner: Dame Vera Baird QC

2. How are we going to do it?

The Domestic Abuse Act 2021 amends the Serious Crime Act 2015, introducing two new sections — section 75A and 75B— which will create a new and specific criminal offence of non-fatal strangulation and suffocation.

The Government intends, before bringing this new offence into force, to develop appropriate guidance, training and publicity to ensure the effectiveness of the offence from the outset.

3. Background

The lobby groups, We Can’t Consent to This (WCCTT) and the Centre for Women’s Justice (CWJ), called for a free-standing offence of non-fatal strangulation or asphyxiation in late April 2020. The proposal for a new offence was strongly supported by both the Domestic Abuse and Victims’ Commissioners and numerous domestic abuse charities from around England and Wales.

CWJ argued that strangulation was a common factor reported by survivors of domestic abuse and that it was a measure often used by an abuser to instil fear, power and control over their victim, rather than being a failed homicide attempt. They also advised that strangulation and asphyxiation were the second most common method of killing in female homicides - 29% or 17% - as compared to only 3% of male homicides. Non-fatal strangulation offences were significantly under-charged across the UK notwithstanding they were recognised as a common feature of domestic abuse and were a well-known risk indicator. Strangulation was also difficult to prosecute, given there was often no or very few physical marks. In some case, it was not prosecuted at all. Where strangulation was prosecuted, it was frequently charged as common assault rather than the more serious offence of actual bodily harm (ABH). CWJ therefore argued that a new standalone offence of non-fatal strangulation should be created that reflected the serious consequences and experience suffered by the victim from such behaviour. Other jurisdictions had recognised this as a serious crime and had created a standalone offence to ensure the abuser, in inflicting a terrifying ordeal on the victim, is rightly prosecuted under the law, enabling justice to be served.

Briefing and research material from WCCTT and CWJ on the need for a specific non-fatal strangulation offence, in addition to evidence garnered from other jurisdictions who had created a non-fatal strangulation offence, were considered by the Government. This information and research was considered alongside the current offences in England and Wales that relate to attempted strangulation, which cover a range of seriousness from common assault and battery to attempted murder. Attempted strangulation can also be part of a course of action under controlling or coercive behaviour offence (contained within section 76 of the Serious Crime Act 2015). There is also a specific offence under section 21 of the Offences against the Person Act 1861 which makes it an offence to attempt to choke, suffocate or strangle any person, or choke, suffocate or strangle a person in an attempt to render that person insensible, unconscious or incapable of resistance with intent to commit another offence.

The Government had previously taken the view that this range of offences cover the diverse circumstances and levels of seriousness that may involve attempted strangulation. If domestic abuse were made an element of the offence then it might serve to impede prosecutions, e.g. where a relationship is ambiguous or there was a broader criminal context. Furthermore, limiting such an offence to domestic abuse situations would risk anomalous and inconsistent treatment of different offenders whose conduct may be equally culpable.

The Government however concluded that there did appear to be evidence that non-fatal strangulation cases were difficult to prosecute, leaving victims in fear of further reprisals from their abuser, in addition to feeling let down by the criminal justice system. It was for this reason that the Government elected to create a new offence of non-fatal strangulation and suffocation.

4. What will the Act do and what behaviour does it criminalise?

Section 70 of the act, amends the Serious Crime Act 2015, (the 2015 Act) by adding 2 new sections—sections 75A and 75B. The new offence has been included in the 2015 Act as the offence of strangulation and suffocation is closely linked with controlling or coercive behaviour which is also contained in the 2015 Act. Section 75A makes provision for the new criminal offence of non-fatal strangulation and suffocation. This offence will have general application and will apply to all cases where a person (D) intentionally strangles or suffocates another person (V), including cases where this offence occurs in a domestic abuse context. The new offence, which will cover a range of behaviours, includes strangulation but will also cover suffocation and other methods used by a person that affect a victim’s ability to breathe (such as constriction).

As is currently the case under the law for other assault offences, the new offence will also include a defence. This is set out in section 75A(2), providing a defence for a person accused of strangulation or suffocation to show that the other person (the victim) consented to being strangled or to any other act that affected their ability to breathe. It will be for the defendant to provide sufficient evidence to raise the consent defence and the prosecution will then have to prove that to the contrary beyond reasonable doubt.

However, that defence will not apply where the victim suffers serious harm, and where the perpetrator intended to cause that harm or was reckless as to causing harm, no matter whether the victim consented to the acts that caused the serious harm or not. This reflects the current law as set out in the case of R v Brown [1993] 2 W.L.R. 556 and subsequent cases, that where a person consents to an act that amounts to no more than a battery, consent of the victim is a valid defence for the person who committed the act of battery. This provision aims to strike a balance between respect for an individual’s private life and acts that may have been consensual between partners but where no, or limited injury occurs, and those where more serious harm results. This is linked to section 71 of the Domestic Abuse Act 2021 which lists the three existing assault offences for which “Consent to serious harm for sexual gratification is not a defence”.

The offence will be triable in either a magistrates’ court or the Crown Court. The maximum penalty on summary conviction in a magistrates’ court will be 12 months’ imprisonment (but this should be read as 6 months’ until such time as provisions in the Sentencing Act 2020 come into force) and/or an unlimited fine. On conviction on indictment in the Crown Court, the maximum penalty will be 5 years’ imprisonment. In effect, the offence has the same maximum penalty as actual bodily harm (ABH) but, for the particular circumstances of strangulation and suffocation, does not have the same evidential requirements as ABH, which have posed problematic in prosecuting such cases.

It also remains open to the prosecution to charge a ABH, grievous bodily harm (GBH) or another more serious offence where the evidence exists to sustain such a charge.

5. Will this new offence apply across the UK?

No. The new offence applies to England and Wales. However, the offence will also apply where strangulation or suffocation has been committed abroad by a British national (or a person who is habitually resident in England and Wales) as if the offence had occurred in England and Wales.