R v Hartland [2023] : Additional Guidance on Sentencing Cases of Intentional Strangulation - Estelle Chambers

R v Hartland [2023] EWCA Crim 790: Additional Guidance on Sentencing Cases of Intentional Strangulation

The offence of intentional strangulation came into force in June 2022. Since then, many cases involving the new offence have passed through the court system. Yet this is an offence which does not have an offence-specific guideline for sentencing, meaning we must rely on general guidelines and previous judgments to assist the court in reaching the correct sentence.

Trinity Chambers' Criminal Pupil, Estelle Chambers, gives an overview of the offence of intentional strangulation. R v Cook [2023] EWCA Crim 452, the main authority for sentencing this offence will then be discussed. This will be followed by a further analysis of the more recent case of R v Hartland [2023] EWCA Crim 790 which expands upon the principles set out in Cook. A final case of R v Butler (Geoffrey) [2023] EWCA Crim 800 will then be referred to which assists in cases where intentional strangulation is to be sentenced alongside actual bodily harm (ABH).

What is intentional strangulation?

Section 75A of the Serious Crime Act 2015 creates an offence of intentional strangulation. Under this Act, a person commits the offence if:

• They intentionally strangle another person, or
• They do any other act to another person that affects their ability to breathe and constitutes a battery.

Legislation does not provide a definition of ‘strangulation’, however, guidance outlines 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 (Crown prosecution service, 'Non-fatal strangulation or non-fatal suffocation' (CPS, 31 May 2023) . The offence does not require a particular level of pressure or force, and it does not require any injury to be caused. Previously, where no visible injury was caused, cases of strangulation were often prosecuted as batteries. This new offence enables such cases to be dealt with more seriously.

It is a defence if the defendant can show that the person consented to the strangulation or other act outlined above. However, this defence will not apply if the person suffers serious harm as a result, and the defendant intended to cause or was reckless as to whether such harm would be caused.

The offence usually occurs within a domestic context. However, it is not confined to domestic abuse cases. It is often the case that intentional strangulation is charged alongside controlling/coercive behaviour and other assaults. This offence frequently occurs in criminal proceedings, yet sentencing exercises are not always straight forward given that there is no offence-specific sentencing guideline.

Previous guidance for sentencing intentional strangulation

After a summary conviction, the maximum sentence for this offence is imprisonment for a term not exceeding the general limit in the magistrates’ court, a fine, or both. A conviction on indictment carries a maximum sentence of five years imprisonment, a fine, or both. Given that there is no offence-specific guideline to follow during sentencing hearings, judges should refer to the overarching principles for sentencing, and the overarching principals for domestic abuse cases where applicable.  Also in such cases, the court should be referred to case law to assist them in the sentencing exercise.

The case of R v Cook has been the main form of guidance for criminal practitioners and judges when sentencing cases of intentional strangulation. In this case, it was made clear that the absence of any reference to injury or harm in the legislation was deliberate. Rather, the harm is inherent in the offence itself. As such, Cook outlines that counsel should not seek to set the starting point for the offence by reference to actual harm - to do so would be wrong in principle.

Cook gives helpful guidance that the starting point for such cases should generally be 18 months imprisonment. Generally, in cases of this nature, a custodial sentence will be appropriate, save in exceptional circumstances. The starting point may then be increased with reference to the following non-exhaustive list of aggravating factors:

• History of previous violence (particularly if the previous violence involved strangulation)
• Presence of a child or children
• Attack carried out in the victim’s home
• Sustained or repeated strangulation
• Use of ligature
• Abuse of power
• Offender under the influence of drink or drugs
• Offence on licence
• Vulnerable victim
• Steps taken to prevent the victim reporting the incident
• Steps taken to prevent the victim obtaining assistance.

Additional Guidance set out in R v Hartland [2023] EWCA Crim 790

The recent case of R v Hartland provides additional guidance when sentencing cases of intentional strangulation. Hartland confirms the position set out in Cook, but expands upon certain elements. Cook already outlined that counsel should not seek to set the starting point for the offence by reference to actual harm. Hartland expanded upon this and confirmed that the defence cannot seek to rely on a lack of actual harm or injury as mitigation to lower the starting point. However, where harm is caused which is over and above that which is inherent in the offence, that should in appropriate cases be treated as an aggravating factor, influencing the courts assessment of the seriousness of the offence, and causing an upward adjustment from the 18-month starting point:

“Cook stated that the absence of any reference to injury or harm in the statutory definition of non‑fatal strangulation under the Serious Crime Act 2015 s.75A was deliberate and that in addition to the terror likely to be experienced by the victim there was real harm inherent in the act of strangulation. A defendant could not therefore submit that a starting point should be lower because a victim was robust or unaffected by the strangulation, Cook followed. That did not mean that the level of harm inflicted was irrelevant to an assessment of the seriousness of the offence. Where either physical or psychological harm was over and above what was inherent in the offence, that might be an aggravating factor and require an upward adjustment from the starting point.” (paragraphs 60 & 61)

This additional guidance means that prosecutors can rely on injuries/harm as an aggravating factor if they go beyond the harm which is inherent in the offence itself. However, the defence are not afforded the same ability in the alternative, namely, they cannot rely on a lack of harm as mitigation. The defence, therefore, are left to rely on other mitigating features, such as the common statutory mitigating features contained within the overarching principles for sentencing. It is unclear the point at which harm goes ‘over and beyond that which is inherent in the offence’, so this could give rise to submissions at sentencing such cases and this aspect may develop further as more cases progress through the courts.

Guidance on sentencing intentional strangulation alongside ABH

A final piece of guidance on sentencing intentional strangulation comes from the case of Butler. It was confirmed in this case that where strangulation is charged together with assault occasioning actual bodily harm (ABH), it will in many cases be appropriate to treat the strangulation as the lead offence. This is despite both offences having the same maximum sentence of five years if convicted on indictment.

“We think that in many cases where strangulation is charged together with assault occasioning actual bodily harm, this approach, which involves treating the strangulation as the lead offence and increasing the sentence for that offence to reflect the overall criminality, will be applicable. But there may perhaps be cases where, on the facts, it is more appropriate to regard the offence of assault occasioning actual bodily harm as the lead offence. Ultimately, it may not matter which offence is treated as the lead offence, provided that double counting is avoided.”

What can be taken from this judgment is that, while strangulation will often be the most practical lead offence, either offence could be the lead offence, as long as double counting is avoided. It is particularly important to avoid double counting when the strangulation is being aggravated in the way set out in Hartland, namely that the harm caused was over and above that which was inherent in the offence. If the harm caused by the strangulation is to be counted as an aggravating factor for strangulation offence, but also as the injury/harm caused by the ABH, then this could result in double counting and ought to be avoided.

Specialist Team

Barristers in Trinity's Criminal team have extensive experience of dealing with cases involving serious assaults, including intentional strangulation. To find out more, get in touch with the Criminal and Regulatory clerking team, email: criminalclerks@trinitychambers.co.uk or call 0191 232 1927.