Prosecuting and defending strangulation cases: 4 cases to be aware of

In June 2022 the insertion of section 75A into Part 5 of the Serious Crime Act 2015 (SCA 2015) created an offence of non-fatal strangulation (section75A(1)(a). Since then criminal practitioners have noted the the growing prevalence of strangulation cases and the succession of cases grappling with the approach to sentence. Four cases to be aware of are:

1. R v Cook (Alfie) [2023] EWCA Crim 45: Absent of any offence Sentencing Council Guidelines the correct approach to sentencing is as follows: In view of the inherent conduct required to establish this offence a custodial sentence will be appropriate, save in exceptional circumstances [Cook, 16]. Ordinarily that sentence will be one of immediate custody and the starting point will be 18 months’ custody [Cook, pp.16]. In addition to the Sentencing Council Guidelines on Overarching Principles and Domestic Violence the following two lists should be considered. Firstly non-exhaustive aggravating factors (i) history of previous violence (the significance of the history would be greater when the previous violence involved strangulation); (ii) presence of a child or children; (iii) attack carried out in the victim's home; (iv) sustained or repeated strangulation; (v) use of a ligature or equivalent; (vi) abuse of power; (vii) offender under the influence of drink or drugs; (viii) offence committed on licence; (ix) vulnerable victim; (x) steps taken to prevent the victim reporting an incident; and (xi) steps taken to prevent the victim obtaining assistance [Cook, pp.17]. Secondly non-exhaustive mitigating factors (i) good character; (ii) age and immaturity; (iii) remorse; (iv) mental disorder; (v) genuine recognition of the need for change and evidence of the offender having sought appropriate help and assistance; and (vi) very short-lived strangulation from which the offender voluntarily desisted [Cook [2023] pp.17].

2. R v Borsodi [2023] EWCA Crim 889: Borsodi elaborated on the assertion made in Cook that a custodial sentence will be appropriate, save in exceptional circumstances [and] ordinarily that sentence will be one of immediate custody [Cook, 16]. In Borsodi the Learned sentencing Judge stated “there is nothing about this case that would cause me to impose a suspended sentence order.” [5C - F of his Sentencing Remarks quitted in Borsodi, pp.14] On appeal it was held that “the Learned Judge did misinterpret the first two sentences of [16] in Cook. The first sentence makes clear that in view of the inherent conduct required to establish this offence a custodial sentence will be appropriate, save in exceptional circumstances, and such a custodial sentence may be immediate or, in appropriate cases, may be suspended. The second sentence makes clear that: "Ordinarily the sentence will be one of immediate custody". "Ordinarily" is not to be equated with "exceptional circumstances", which is where the Learned Judge fell into error.” [Cook, pp.17].

3. R v Butler (Geoffrey) [2023] EWCA Crim 800: As is common in cases where both a strangulation and an assault occasioning actual bodily harm fall to be sentenced, though fact specific, the applicable approach is: “treating the strangulation as the lead offence and increasing the sentence for that offence to reflect the overall criminality […]. 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.” [24]

4. R v Yorke [2023] EWCA Crim 1043: On an appeal against sentence the Appellant disputed the level of harm caused to the complainant [Yorke,20]. Though the sentence was ultimately reduced, the Court held, echoing the words of Cook [Cook, pp.16] that “a very significant degree of harm is inherent in an offence of intentional strangulation” citing the complainant’s fear of death at the time [Yorke, pp.24].