Court of Appeal clarifies the law relating to strangulation and suffocation

In the recent case of R v Jones [2025] EWCA Crim 195, the Court of Appeal looked at the law on strangulation and suffocation and confirmed the position relating to the offence.

The law

Section 75A of the Serious Crime Act 2015 was inserted into the Act by section 70 of the Domestic Abuse Act 2021. It creates an offence by virtue of subsection (1), namely:

• A person (“A”) commits an offence if:
• A intentionally strangles another person (“B”), or
• A does any other act to B that –
• Affect’s B’s ability to breathe, and
• Constitutes battery of B

The Act does not contain any definitions of “strangulation” or “suffocation”, although the Court of Appeal stated “In our view, strangulation refers to, or at least includes, compression of the victim’s neck, whether by the pressure of a hand or a ligature around the neck, or by the pressure of a body part or an object across the neck. That of course is conduct which by its nature is likely to, and usually will, restrict the victim’s ability to breathe. Suffocation, we think, refers to actual interference with the victim’s ability to breathe by means other than compression of the neck.”

The facts

The appellant was charged with a number of offences against two complainants. Of note, he was charged with two counts of intentional strangulation, one relating to each complainant. In each count, the statement of offence was pleaded as “intentional strangulation contrary to section 75A(1)(a) and (5) of the Serious Crime Act 2015” and the particulars of offence alleged that on the relevant date the appellant had “intentionally strangled” the complainant.

When giving her directions to the jury, the Judge included the following:

“A defendant is guilty of intentional strangulation if they either:

• • Intentionally strangle a person; or
  • They intentionally apply any force to that person which affects that other person’s ability to breathe.

There is no requirement in a charge of this sort that there be any injury caused to the complainant or that there be any visible sign of that application of force thereafter. There is no requirement of any minimum duration that the breathing is affected for – any duration of time in which their ability to breathe was affected would suffice. If you are sure the complainant in question is being accurate when [they] tell you that the defendant put a hand or an elbow on their throat and affected their ability to breathe then he is guilty of the charge you are considering.

[The appellant] denies that he did anything to either complainant which affected their ability to breathe. He denies that each of them is being accurate and truthful when they each tell you that he did. You must consider the evidence and decide just one question in respect of each of these charges (again separately):

Q1. Are we sure that the defendant intentionally applied any force to the complainant which affected their ability to breathe?

If your answer is yes then the defendant is guilty of the charge you are considering. If your answer is no then he is not guilty of the charge you are considering.”

When out deliberating, the jury sent a note asking if force is applied to the chest which affects the ability to breathe, does that fall within the strangulation definition? The Judge directed that there was no evidence that force was applied to the complainants’ chests; the evidence was that force was applied to the neck.

The appellant was subsequently convicted.

The appeal

The appellant appealed on the basis that section 75A(1) creates two separate offences; one of non-fatal strangulation and one of non-fatal suffocation. The single ground of appeal was as follows:

“The Judge failed to properly direct the jury on the elements of non-fatal strangulation under section 75A(1)(a) of the Serious Crime Act 2015, by including elements that fall under section 75A(1)(b), namely non-fatal suffocation, which was not charged.”

The appellant argued that in relation to strangulation, intentional application of pressure to the neck is required, whereas it is possible to commit the suffocation offence by a reckless act which amounts to a battery. The appellant argued that his convictions for these offences were unsafe because there was a real possibility that the jury convicted on the basis of non-fatal suffocation, an offence which he submitted was not charged.

The Court of Appeal disagreed, stating that section 75A creates a single offence of non-fatal strangulation or suffocation, which may be committed in either of the ways specified in subsection 1(a) or 1(b). The fact that one of the two ways of committing the offence requires a specific intention and the other way may be committed by a reckless act does not point to a conclusion that there are two distinct offences. If Parliament intended there to be two distinct offences, it could have easily created them by assigning a separate section of the Act to each of them.

The Court of Appeal also stated that the explanatory notes to the Domestic Abuse Act 2021 also suggest that section 75A Serious Crime Act 2015 creates one offence, as follows: “new section 75A(1) sets out that a person commits the offence if the person ‘intentionally strangles’ another person (new section 75A(1)(a)) or they commit another act that affects the other person’s ability to breathe and that act constitutes a battery of the other person (new section 75A(1)(b)).”

This was also consistent with the Court of Appeal’s decision in R v Hughes [2024] EWCA Crim 593, which held that there are two ways in which “the offence” under section 75A may be committed: by intentional strangulation or by an act constituting a battery which affects the victim’s ability to breathe. Further, it held that even if the Prosecution had only put the case on the basis of a strangulation, if the evidence justified it, the judge was entitled to leave the case to the jury on a basis other than that advanced by the Prosecution.

The Court suggested that in future, the particulars of the offence could properly be charged simply as intentional strangulation, or intentional strangulation or suffocation.

Consequently, the convictions were ruled as safe and the appeal was dismissed.

Comment

The Court of Appeal was clear, therefore, that there is just one single offence of “strangulation or suffocation”. This appears consistent with previous cases and the intention of Parliament.

However, arguably, this makes it relatively easy for someone to be convicted of this offence, as all the Prosecution has to do is adduce evidence that the accused either strangled the complainant or applied force to the complainant in any way that affected their ability to breathe. Even if the Prosecution has not adduced such evidence, if on the basis of the evidence before the jury they could be sure the accused strangled or applied force to the complainant affecting their ability to breathe, they are entitled to convict them. This can have serious consequences, with someone found guilty of this facing a custodial sentence up to a maximum of five years. However, if the law is needing to be changed, that is a matter for Parliament and not the courts.