9KBW Law

Understanding the Offence of Non-Fatal Strangulation – “Ordinary Meaning” and recent CPS Legal Guidance

Section 75A(1)(a) Serious Crime Act 2015 creates an offence when “A intentionally strangles another person” (i.e. non-fatal strangulation). However, the Statute provides no definition of “strangulation” and there is no criminal case law that clarifies its meaning. Nonetheless, the usual legal directions to a jury on the definition of “strangulation” follow these principles:

1. Strangulation has its ordinary meaning.
2. It is the obstruction or compression of the neck so impeding normal breathing if it is not necessarily causing a total restriction of the airways.
3. It does not require a particular level of pressure or force or to cause any injury.

The Crown Court Compendium states the dictionary definition is, “the action or process of stopping respiration by compression of the air passage especially by a sudden and violent compression of the windpipe”.
Previous CPS charging guidance for prosecutors was 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”. The guidance also provided common examples of acts which may be charged as non-fatal strangulation, such as:

• One or two hands held around the person’s neck;
• Chokehold or head lock – external pressure applied by an arm around the neck;
• Ligature – for example a scarf or belt tightened around the neck;
• Pressure on the neck from a foot or knee.

However, in December 2024, CPS legal guidance has been updated so that “strangulation does not require a particular level of pressure or force within its ordinary meaning, it does not require any injury and it does not require proof of a consequence such as impeded breathing or circulation”.
This definition of strangulation appears to encompass such actions as holding the back of the complainant’s neck or circumstances where there is an unsupportive complainant and the jury are being asked to convict principally on CCTV evidence or the account of a witness, i.e. evidential material which goes to the use of some force on the neck but not necessarily the consequence of a restriction of breathing.
Efforts to broaden the scope of strangulation will no doubt prove contentious. The updated CPS legal guidance appears to frame the ordinary meaning of strangulation not only as a physical act but also as a specific coercive tactic. From a prosecution perspective, any intentional and unlawful force on the neck, however minimal, becomes a power and control tactic within domestic abuse or equivalent circumstances, as well as a strong indicator of escalating violence.
In total, the substantial wrongdoing of strangulation does not have to be a material restriction of breathing. The coercive significance of even targeting the back of the neck  should not be underestimated and more than justifies the robust Sentencing Council guidelines published this January.  By comparison, some instances of sexual assault may involve a limited physical act but amount to a grave violation of the complainant’s personal autonomy and bodily integrity.
From a defence perspective, however, the CPS guidance defies the ordinary meaning of strangulation by removing reference to impeding breathing. Furthermore, the question arises as to whether the offence of non-fatal strangulation can be reduced to “battery on the neck”. Unlike for non-fatal suffocation, statute does not specify that battery is an element of strangulation. However, in so far as battery/assault by beating is at, a basic level, any physical touching of a person that they do not want, battery is by necessity an implied element of the offence. If non-fatal strangulation is no more than a defined form of battery then that would mean strangulation is not actually a new offence and there is no inherent alternative of battery in the circumstances where restriction on breathing is not proved.
The meaning of strangulation requires clarification from the Court of Appeal to ensure a consistent and fair application of the law.
 
Atticus Blick
Barrister – 9KBW
With thanks to Piers Walter  (Barrister – 9KBW)
21 February 2025

Marcin Prawdzik v Regional Court of Bialystok, Poland

How to approach Article 8 cases with arrest warrants containing both conviction and accusation matters?

Claire Stevenson represented the Respondent in the High Court for an appeal which considered how to approach Article 8 and hybrid arrest warrants. The appeal was dismissed.

Facts

The Appellant was requested on an arrest warrant (“AW”) issued by the Respondent on 17 February 2022.
 
The AW contained two conviction matters and one accusation matter. 
 
With regards to the conviction matters, both: were decisions of the same District Court in Poland; involved offences of the Appellant driving under the influence of alcohol; and resulted in custodial sentences. The Appellant appeared in person at the trial for one of the conviction matters, but not the second. 
 
Although the Appellant did not appear in person for the second conviction matter, the AW stated that the summons for the trial was sent to the address provided by the Appellant and was served on his wife, who was obliged to hand over the writ to the Appellant. 
 
The accusation matter related to two charges. First, using a forged British driving licence. Second, driving while under the influence of alcohol. There was no restriction on the Appellant leaving Poland and no obligation to report a change of address for this matter.

Procedural history

The Appellant was arrested on the AW on 6 October 2022 and was produced at Westminster Magistrates’ Court on the same day. 
 
The extradition hearing was on 28 June 2023. Article 8 was one of the issues pursued.
 
Judgment was handed down on 13 July 2023. The Appellant’s extradition was ordered.
 
The District Judge made a number of findings. In particular, finding that the Appellant was a fugitive in relation to the conviction matters only, and not the accusation matter.
 
The District Judge set out factors in favour for and against extradition, weighed them up, and concluded that it would not be a disproportionate interference with the Appellant's Article 8 rights to order extradition. 
 
The Appellant appealed. 
 
Permission to appeal was granted.

Appeal

The Appeal Court framed the issue as follows:
 
“The primary issue on this appeal is the approach to be taken by the Court when dealing with a request for extradition based on an arrest warrant which is both a conviction and accusation warrant, where the facts and relevant legal tests are not common to the different matters.

Discussion

As the issue and facts applicable to the conviction and accusation matters were not common to one another, it was considered that a different approach should be adopted to ensure a proper analysis has been conducted. 
 
After a District Judge has made their findings of fact, when conducting the Article 8 balancing exercise, the factors for and against extradition should be considered for one set of matters first, and then the other set. Once the separate analysis has been conducted, the District Judge can look at both matters together in the round.

Ratio

“Thus, where the Court decides – having applied the relevant test to the facts of the different matters separately – the balancing of factors favours extradition on one set of matters (eg the conviction matters), but not for the other set of matters (eg the accusation matters), the Court should go on to consider the impact that extradition in one set of matters will have on the analysis for the other set of matters, and proportionality should be looked at in the round. If extradition is the proper outcome for the conviction matters, this may impact on the way in which the accusation matters should be analysed as the requested person's private life will be disturbed in any event as a result of that extradition. This may affect the overall question of proportionality.”
 
After applying that analysis to the facts of this case, Sheldon J found that the District Judge did not follow this approach. 
 
After considering the conviction and accusation matters separately, Sheldon J considered that extradition was well founded for all aspects of the warrant

Disposal

The appeal was dismissed.

Comment

This appeal provides essential guidance for Article 8 cases involving arrest warrants containing both conviction and accusation matters. 
 
Written by Claire Stevenson

Fitzgerald v CPS

Sam March successfully statedsuccessfully stated a case to the High Court, quashing a DDO imposed by the magistrates’ court and upheld by the Crown Court. Samuel satisfied the High Court that the decision of the court below was so unreasonable that no reasonable person could have come to it. The case raised points of wider application concerning the approach to be taken to undisputed expert evidence in Dangerous Dogs Act cases.

Atticus Blick, has peer-reviewed article published in the Journal of Criminal Law on the whole life order sentencing regime

In the wake of cases such as the Sarah Everard murder, our pupil barrister, Atticus Blick, has a peer-reviewed article in the Journal of Criminal Law setting out a practitioner friendly overview of the whole life order sentencing regime and its implications for human rights domestic and international law. Read the Article 
Here