Criminal Law Update by Billy Torbett and Maya Hanson

Offences of Strangulation and Suffocation: Approaching the Sentencing Guidelines

Strangulation and suffocation offences were created by section 70(1) of the Domestic Abuse Act 2021 and came into force on 7^th June 2022. With the introduction of such offences brought huge confusion and uncertainty in respect of sentencing and how to apply the guidelines, or lack of guidelines.

This confusion arose due to the mere fact that there were no sentencing guidelines for these offences from the Sentencing Council. All that appeared certain was that these offences would simply carry a maximum sentence of 5 years’ custody and advocates are left to try and apply and squabble in mitigation over the appropriate sentence.

The leading case that advocates must look to and is commonly accepted is the case of Cook [2023] EWCA Crim 452.

Within the case of Cook, William Davis LJ set out the sentencing principles that should be adopted and followed:

1. A custodial sentence will be appropriate, save in exceptional circumstances;
2. Ordinarily that sentence will be one of immediate custody;
3. The starting point will be 18 months’ custody;
4. The starting point may be increased by:

• History of previous violence, especially for strangulation;
• The presence of a child or children;
• The attack being carried out in the victim’s home;
• Sustained or repeated strangulation;
• Use of a ligature or ligature equivalent;
• Abuse of power;
• Offender under the influence of drink or drugs;
• Offence on licence;
• Vulnerable victim;
• Steps taken to prevent the victim reporting an incident;
• Steps take to prevent victim obtaining assistance;
• The statutory aggravating factors referred to in the Sentencing Council’s General Guideline: Overarching Principles;

5. The Domestic Abuse overarching guideline applies which emphasises the seriousness of offending in a domestic context.

However, advocates need to be aware of the later case law of Borsodi [2023] EWCA Crim 899. This case provided some level of clarification that a custodial sentence for these types of offences may be immediate custody, or in certain appropriate cases, it may be suspended. The case of Cook essentially stated that ordinarily the sentence will be one of immediate custody” but it did not mean that there MUST be exceptional circumstances for the court to suspend a sentence. The Sentencing Guidelines for the Imposition of Community and Custodial Penalties should be applied.

The future: What can we expect?

Between May and August 2024, the Sentencing Guidelines introduced a draft guideline for consultation but there is likely to be an official Sentencing Guideline for strangulation and suffocation offences in the near future.

Guidance for Sexual Harm Prevention Orders

Dewey [2024] EWCA Crim 409

This appeal concerned the proper terms of a Sexual Harm Prevention Order (SHPO).

The Court of Appeal stated that it was ‘regrettable’ that the rules requiring service of a draft order not less than 2 business days in advance of the hearing (Crim PR rule 31.3(1)(b)) were not followed and noted that the production of a draft order is the responsibility of the prosecution. They noted that the terms of restrictive orders will always require careful consideration which is why the rules require a draft to be produced in good time.

The Court of Appeal observed that the “touchstone” when considering the precise terms of a restrictive order is always necessity and proportionality. The terms which are necessary in an individual case must be carefully considered and weighed against the facts of that case.

The Court referred to the case of Hanna [2023] EWCA Crim 33 which identified that there will be cases, where an offender has actively sought out contact opportunities with children, where a wide-ranging order will be necessary. The Court of Appeal concluded, in the present case, that it was not necessary or proportionate for a non-contact provision to be imposed as police found no evidence of any attempt at contact with children by the appellant.

The Court of Appeal endorsed the approach taken Parsons and another [2017] EWCA Crim 2163 which emphasised that any necessary restriction must be in a form that is effective, clear and realistic, “readily capable of simple compliance and enforcement” (at [5]). The Court confirmed the previous approach to blanket bans on internet access stating that such a prohibition would not be appropriate in anything other than the most exceptional cases. They Court also regarded a term giving police powers to enter any premises as unnecessarily wide and disproportionate due to the other requirements covering notification, production and inspection being sufficient.

Finally, the Court of Appeal deemed that it may be time for a new updated approach to SHPO’s stating as follows:

“the time may now be approaching where the precise wording of proportionate and realistic restrictions needs to be addressed once more, with appropriate contemporary expert evidence.”