'Banning it less hard': non-fatal strangulation

Despite much fanfare, the new non-fatal strangulation law in England and Wales treats the offence less seriously than previously, not more seriously. Scotland should steer clear.

You’ll probably have come across the phenomenon of ‘ban it harder’. Campaign groups with a lot of energy (but not so much policy expertise) and politicians with a desire for a good photo op (but not so much policy expertise) team up to introduce a law that makes something illegal, even though it is … already illegal. ‘Cat abduction’ is now a crime, even though stealing pets was already illegal. ‘Criminal damage to memorials’ is now a crime, even though vandalism was already illegal. ‘Assaulting a shopworker’ will soon be a crime, even though assault is already illegal. You get the picture.

The campaign groups and politicians in question often like to glide swiftly over the fact that the thing they want to ‘ban’ is already banned; when pressed they have learned how to mumble about ‘raising awareness’. But if they are ever forced to give a straight answer, they usually say one of two things:

1. Introducing a ‘standalone offence’ will result in more police and CPS focus going towards this issue, meaning more criminals will be caught.

2. The standalone offence will allow courts to punish the criminals who are caught more severely than they can under the current law.

Justification number 1 is usually bullshit. To be sure, it can make sense in narrow cases where the current law is mostly fine but isn’t working for some small subset of crimes, meaning the police ignore that subset. But in general, that’s not the problem. If British police can barely keep on top of hugely serious stuff like phone theft and burglaries, they’re not going to suddenly find every missing pet in the country just because parliament passed a bill. The issues here are to do with culture, resourcing, and accountability, none of which ‘ban it harder’ bills solve.

Justification number 2 makes some sense to me. As a matter of political temperament, I don’t usually like the idea of more severe punishment. But you might reasonably disagree with me, and think some criminals get off too lightly. You could just increasing the maximum sentence for all theft or all vandalism—but that’s a crude tool. Instead, you might want to see a new law that targets the specific type of theft or vandalism that you think should be taken more seriously by the courts.

But, of course, pet theft and vandalising war memorials are not actually the most important priorities here: these campaigns have succeeded because of their populist appeal and letters from the likes of Disgusted of Tunbridge Wells, not because they’ve latched onto a real problem of cat thieves getting off too lightly.

Still, there definitely are crimes that should probably be taken more seriously than they currently are. Say, strangulation. Non-fatal strangulation most often takes place within the context of an abusive relationship, and is very often the precursor to the abuser killing their victim. It is eminently reasonable to want the police, CPS, and courts to take strangulation very seriously. And, because the standard campaign playbook for these things nowadays is to ‘ban it harder’, there has thus been a major campaign to make non-fatal strangulation its own offence, and in England and Wales the campaign has succeeded: witness section 70 of the Domestic Abuse Act 2021.¹

Obviously, strangling someone was already illegal. In England and Wales, there are a number of offences that relate to (broadly speaking) the safety of other people’s bodies. Some of the key ones for our purposes, in rough order from least to most serious, are common assault, battery, assault occasioning actual bodily harm (ABH), and grievous bodily harm (GBH).² Two points to make here:

• Common assault doesn’t require any actual physical contact (depending on context, shaking your fist at someone threateningly can be assault), whereas battery, ABH, and GBH generally do.

• You can sometimes defend against a charge of battery by saying that the other person consented to the physical contact. But if the alleged offence was serious enough to be charged as ABH or GBH, consent is not a defence.³

Non-fatal strangulation (without consent) would previously have automatically been at least battery, and in many cases would have qualified as ABH or GBH.⁴ So why bother introducing a new ban? Again, the same two arguments were rolled out.

1. Without the offence, it’s too easy for perpetrators of strangulation to get acquitted: the act can leave no marks on the victim’s body, and even if it can be proven that strangulation occurred, the perpetrator can often argue that the victim consented (even if they didn’t). So police and CPS don’t focus on it enough, because they don’t expect charges to ‘stick’.

2. Without the offence, the courts generally don’t treat strangulation with the seriousness it deserves at sentencing. Especially given the correlation between incidents of strangulation and later homicide, perpetrators should get longer sentences.

I want to stress that in this case, unlike in the case of pet theft, these are reasonable arguments. They are not necessarily right (you’d need to look at evidence of how the courts sentence on these things), and certainly even if they are right they are not necessarily the full picture; but they involve real and serious considerations, not just populist nonsense.

It would be an interesting exercise to figure out whether these arguments are, indeed, right—and, if they are right, whether countervailing considerations might not also figure. But a more basic exercise might be asking whether the law succeeds on its own terms, whether it is a good idea even granting both arguments.

Starting at the start: I had thought that the whole point of the non-fatal strangulation was to get rid of the consent defence. Everyone I have spoken to about this (and, to be fair, this is a small sample: n=3) also assumed that the whole point was to get rid of the consent defence. As I said, this would be a very serious proposal, although there are definitely countervailing considerations—a non-zero number of people consensually take part in strangulation for sexual pleasure, and their freedom is important too.

But no! The law itself does nothing of the sort. Non-fatal strangulation is explicitly a two-tier offence: a distinction is drawn between strangulation that causes ‘serious harm’, and strangulation that doesn’t. If you cause ‘serious harm’ by strangulation, you don’t get to appeal to consent, but if you don’t cause ‘serious harm’, you do. And how is ‘serious harm’ defined? Serious Crime Act 2015 75A(6): strangulation is considered to cause ‘serious harm’ if it falls under the definitions of GBH or ABH.

That is to say, if the strangulation would previously have been charged as ABH or GBH, there is no consent defence; if it would previously have been charged as battery, there is a consent defence. But consent was already a defence to battery, but not ABH or GBH. Literally nothing has changed.

The other issue that was raised in argument 1 is that strangulation does not always leave marks on the victim’s body. Again, you might expect a new law to widen the type of evidence that could be accepted as relevant, to give more weight to indirect evidence from medical examinations. And again, this is a serious proposal, even if there are countervailing considerations regarding the presumption of innocence. But no: as far as I can tell, the law has changed literally nothing about evidence!⁵ It seems that whoever in the Government was tasked with drafting up the non-fatal strangulation law explicitly decided to write it in such a way that it would change absolutely nothing.

OK, so much for argument 1. What about argument 2, the sentencing side of things?

Well, where did we stand before? Battery has a maximum sentence of six months, for ABH it’s five years, and GBH can get you life—though judges generally don’t impose the maximum (for any offence) unless there are special factors in a case. But still, before the new law, the maximum sentence in principle for non-fatal strangulation was life, with ‘tiers’ reflecting the seriousness of the harms caused.

But the new non-fatal strangulation offence has a maximum sentence of five years. No matter how serious the harm that has been caused, no matter how badly it might have damaged the victim’s health, no matter if the offence could previously have been tried as GBH, the most someone could get for non-fatal strangulation is five years.

Admittedly, strangulation was previously usually tried as ABH rather than GBH, but even then, the new offence is no more strict: the maximum for ABH was five years, the maximum for non-fatal strangulation is five years, exactly the same. The only potential change is that strangulation without ‘serious harm’, which would previously have been tried as battery, could now in theory lead to five years rather than six months. But (a) the fact that there is an obvious two-tier structure to the offence means that judges will inevitably treat lower-tier strangulation less seriously; and (b) it’s somewhat pointless anyway, because the law has explicitly left open the consent defence in these cases!

To sum up. The new non-fatal strangulation law has changed literally nothing about the structure of the offence, the relevant types of defence, or the evidence that a court can consider. The only real change is that, in serious cases where strangulation has had a major impact on the victim’s health, the perpetrator can rest assured that a charge of non-fatal strangulation carries a maximum sentence of only five years, whereas GBH might have meant much more. This is not ‘ban it harder’: the campaign’s victory means non-fatal strangulation has, if anything, been banned less hard than before.⁶

I expect this is all well-known to people who work in criminal law: it’s all been well-discussed in lawyers’ forums. As I say, it really does look like the new law was deliberately drafted in order to change the criminal law as little as possible, while still allowing campaigners to feel like they’d gotten a win. But for those of us interested in criminal justice policy but who don’t actively work in the field, I think there was at least an assumption that the new law did something, even if only making things harsher. Nobody assumed it was, at most, actively lighter-touch.

While the campaign to introduce a standalone strangulation offence has succeeded in England and Wales, it is ongoing in Scotland. Scotland doesn’t have the proliferation of assault, battery, ABH, GBH, ‘GBH with intent’, and so on that you have in England and Wales. It just has a single offence of assault, which is flexible enough to ‘scale up’ with seriousness. As far as I can tell, this has bought the Scottish Government time, where it can say it is ‘seriously considering’ the law but needs time to think about how to adapt the proposal to Scotland’s different legal environment. I hope the Scottish Government continues this stalling tactic indefinitely. Knee-jerk proposals to ban something that is already illegal are bad enough; knee-jerk proposals that might actively make it harder to pursue serious sentences for the most serious crimes, while not improving any other aspect of the situation, are the worst of all worlds.

1. And in Northern Ireland, with section 28 of the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022. The Northern Irish law has many of the features of the English / Welsh law that are outlined below; but it also has the hilarious feature that you can be guilty of ‘strangulation’ even if you do not apply any pressure to any person’s neck or throat or affect their ability to breathe. I love are wee country, nobody else could draft a law so stupidly.

2. Technically, common assault is just as serious as battery (both have a maximum sentence of six months), which is not irrelevant to the actions of the police and CPS in cases where common assault is easier to prove, but my argument doesn’t turn on this.

3. None of this is legal advice, obviously.

4. Fatal strangulation (obviously) still counts as either manslaughter or murder in England and Wales. Given the logic of ‘ban it harder’, I’m actually somewhat confused as to why campaigners focussed solely on non-fatal strangulation. Why not a new fatal strangulation offence?

5. The Government denied this, but I can’t see how what they say (non-fatal strangulation ‘does not have the same evidential requirements as ABH’) could be true. The evidential standard for ABH is that ‘a person intentionally or recklessly assaults another, thereby causing actual bodily harm’. The ‘higher tier’ of strangulation (i.e., strangulation that is serious enough that consent is not a defence) requires that ‘B suffers serious harm’ and ‘A either intended to cause B serious harm, or was reckless as to whether B would suffer serious harm’; ‘serious harm’ here is defined to meet exactly the same standards as ABH. Unless I am missing something, and I am not a lawyer but still, the evidential standard is identical.

Perhaps what they meant is that the ‘lower tier’ of strangulation, equivalent to battery, has a different evidential standard to ABH. This is true, because consent is a defence to the ‘lower tier’! It will generally be more difficult to prove (because the Crown will have to prove beyond a reasonable doubt that the victim didn’t consent), not easier!

6. In practice I expect police and CPS will ignore the new law and continue to charge these serious cases as GBH. Or at least, I hope they will.

An aside: funnily enough, at the same time as the non-fatal strangulation law campaign, there was another campaign conducted by exactly the same campaign groups to also ‘ban it harder’ for the consent defence to ABH / GBH. Section 71 of the Domestic Abuse Act 2021 is also actively weaker than the existing precedent under R v Brown, and there was certainly no issue in applying this precedent: when you look down the list of cases that the campaign groups cited to argue for this new law, you’ll note that almost all of them ended in conviction with a lengthy prison sentence! This wasn’t even a case where the police or courts weren’t taking it seriously enough—it was being taken entirely seriously. Campaigners had to lean heavily on a tiny number of cases with very complicated evidence, in which the perpetrators were still found guilty (!), but of a lesser offence to make conviction a reasonable prospect.