Offence of non-fatal strangulation

Domestic Abuse Bill – in a Public Bill Committee on 16th June 2020.

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A person (A) commits an offence if that person unlawfully strangles, suffocates or asphyxiates another person (B), where the strangulation, suffocation or asphyxiation does not result in B’s death.”

This new clause will create a new offence of non-fatal strangulation.—(Jess Phillips.)

Brought up, and read the First time.

Photo of Jess Phillips Jess Phillips Shadow Minister (Home Office)

I beg to move, That the clause be read a Second time.

Photo of Karen Buck Karen Buck Labour, Westminster North

With this it will be convenient to discuss new clause 9—Offence of non-fatal strangulation in domestic abuse context—

A person (A) commits an offence if that person unlawfully strangles, suffocates or asphyxiates another person (B) to whom they are personally connected as defined in Section 2 of this Act, where the strangulation, suffocation or asphyxiation does not result in B’s death.”

This new clause will create a new offence of non-fatal strangulation in domestic abuse offences.

Photo of Jess Phillips Jess Phillips Shadow Minister (Home Office)

I apologise at the outset, because the new clause contains rather technical legalese and quite graphic language. The purpose of the new clauses is to correct the inadequate way in which the law is applied in practice on the ground. Currently, we do not criminalise behaviour that was not already criminal—obviously, it is already a crime to strangle somebody; I can confirm that in case anyone was worried that it is not. The new clauses address a systemic problem that is highly gendered, as I will demonstrate, and if the Bill presents a once-in-a-generation opportunity to make a law work for domestic abuse victims and survivors, this can make a real contribution.

It is worth mentioning that exactly the same debate has taken place in the United States, Australia and New Zealand, all of which—most recently New Zealand, in 2018—have introduced specific laws on non-fatal strangulation. I will discuss that in more detail later. Before speaking to the new clauses in greater detail, it is important to establish that what I am talking about is completely distinct from the rough sex defence dealt with in new clauses 4 and 5, which also include asphyxiation. I am talking about strangulation in the context of physical domestic violence rather than strangulation during sex. New clauses 4 and 5 deal with consent issues relating to injuries inflicted during sex. There is of course some overlap, which I will address briefly at the end of my speech.

Strangulation and asphyxiation are the second most common method of killing in female homicides after stabbing. Some 29% of female homicides in 2018— 43 women—were killed by that method, compared with only 3% of male homicides. However, the important thing to note about non-fatal strangulation is that it is generally not a failed homicide attempt, but a tool used to exert power and control and to instil fear within an abusive relationship. That has been explored in academic literature and in detailed interviews with survivors. Strangulation sends the message, “If you do not comply, this is how easily I can kill you.” Researchers have observed that many abusers strangle not to kil, but to show that they can kill, using strangulation as a tool of coercion, often accompanied by death threats. The result is compliance and passivity by the victim in the relationship in the longer term. It is worth noting that I have very rarely come across a victim of domestic violence who has not been strangled as part of their abuse.

It is widely recognised that non-fatal strangulation and asphyxiation, such as suffocation with a pillow, are a common feature of domestic abuse and a well known risk indicator. The standard risk assessment tool used by police and domestic abuse services, which is called the DASH—domestic abuse, stalking and harassment—checklist, includes a question about attempts to strangle, choke, suffocate or drown the victim. The questions in the DASH checklist were identified through extensive research on factors associated with serious domestic violence and homicide. Researchers found that a history of strangulation presents an eightfold increase in the risk of death.

Although there can often be a lack of visible injury, it is important to recognise the very serious medical consequences of strangulation, which are not immediately visible. Many of the medical effects would come as a surprise to most members of the public, including survivors of domestic abuse, who may not realise the true dangers. Strangulation or suffocation result in the blocking the flow of oxygen to the brain by preventing the person from breathing, and the flow of blood if the neck is physically constricted. Loss of consciousness can occur in 10 to 15 seconds and a lack of oxygen to the brain results in mild brain damage. Studies show that between 8.9% and 39% of those who are strangled lose consciousness.

Although there may be little or no visible injury, numerous long-term medical effects of strangulation are reported, many of them neurological problems. They include a fractured trachea or larynx, internal bleeding, dizziness, nausea, tinnitus, ear-bleeding, raspy voice, neurological injuries such as facial or eyelid droop, loss of memory, and even stroke several minutes later as a result of blood clots; there is also increased risk of miscarriage. In addition to the longer term physical impacts, reports describe strangulation as extremely painful, and the inability to breathe is obviously very frightening. It is described in one report as “primal fear”. Anybody who has not been able to breathe, for whatever reason, understands that fear and the control over you that it will have.

Not surprisingly, strangulation has been found to result in long-term mental health impacts. Post-traumatic stress disorder is closely linked to experiencing fear of imminent death. Four studies report the victim’s sense of existential threat—a firm conviction that they were going to die. Recent research included interviews with 204 woman attending an NHS sexual assault referral centre in Manchester who reported that they had been strangled. In response to open questions about how they felt, a high proportion stated that they thought they were going to die. Of those 204 women, 86, or 42%, had been assaulted by a partner or ex-partner. The others had been sexually assaulted by someone with whom they were not in a relationship, such as a first date, an acquaintance or a stranger. A survey of 13 studies of delayed psychological outcomes identifies depression, anxiety, suicidal ideation, nightmares, PTSD, dissociation and the exacerbation of existing mental health difficulties. Obviously, many of the women experiencing non-fatal strangulation were also experiencing other forms of domestic abuse, but the clear message is that strangulation certainly contributes to the psychological trauma.

Reports on prevalence of strangulation within intimate partner violence describes a hidden epidemic. A range of studies indicates that though the lifetime incidence of strangulation is between 3% and 9.7% in the adult population, that rises to 50% and 68% for victims of recurrent domestic abuse. Two studies of intimate partner violence and sexual assault where medical examinations took place found that strangulation was involved in 20% to 23% of cases respectively. Those figures vary, but one message is clear: non-fatal strangulation is widespread and a common feature of domestic abuse, not some kind of aberration.

Reports from frontline domestic abuse workers in England and Wales demonstrate a number of issues. There is a chronic undercharging and a failure by both police and prosecutors to appreciate the severity of non-fatal strangulation. That was also found in comparative studies in the United States and New Zealand. The seriousness of strangulation as a domestic abuse risk indicator is often missed. A separate category of offence would emphasise the importance of non-fatal strangulation when risk assessments are carried out by the police.

Strangulation is generally prosecuted as an assault. There may be a red mark or no physical signs at all, even after a serious assault, and the lack of observable injuries often means that offenders’ conduct is minimised, so that they are charged with common assault rather than with actual bodily harm. As Members will no doubt be aware, common assault is a summary offence, which can only be tried in the magistrates court, whereas ABH is a more serious either-way offence, which can be tried either in the magistrates or the in Crown court. All summary offences must be charged within six months—and that puts further pressure on a victim in this circumstance to deal with the issue in a certain time frame.

The Crown Prosecution Service guidance for prosecutors on offences against the person states that, when deciding whether to charge with common assault or ABH,

“Whilst the level of charge will usually be indicated by the injuries sustained, ABH may be appropriate”,

where the circumstances in which the assault took place are more serious, such as repeated threats or assaults on the same complainant, or significant violence—for example,

“by strangulation or repeated or prolonged ducking in a bath, particularly where it results in momentary unconsciousness”.

I added my own emphasis, by the way—that is not the emphasis in the CPS guidance. The guidance therefore indicates that non-fatal strangulation and suffocation offences would result in a charge of ABH rather than of common assault. However, that is not what happens in practice in a great many cases.

The Centre for Women’s Justice carries out training for local domestic abuse services around England and Wales. Over the past two years they have trained more than 32 organisations at 24 training days in London, the midlands, the north-east and north-west of England, the north and south of Wales, and the south-east. Their training includes the CPS guidance I have quoted. They state that in most if not all training sessions, domestic abuse support workers report that where cases involving strangulation are charged, this is generally as common assault. They say that they hear this consistently from support workers across the country, and therefore believe this to be a systemic issue rather than local, isolated failings.

They also interviewed the deputy district judge in the magistrates court who sits as a recorder in the Crown court and who reported that undercharging of strangulation incidents appears to be extremely common. She stated that a significant number of domestic abuse cases before the magistrates court that include some element of non-fatal strangulation are charged as a summary offence of common assault, instead of the more appropriate offence of ABH. This information is obviously anecdotal, but may not come as much of a surprise to those who work on domestic abuse cases within the criminal justice system. Undercharging has been identified as a problem in the US, Australia and New Zealand. It is an inherent problem, given that strangulation often results in no visible injuries or just a red mark, and police officers are usually focused on the severity of physical injuries when they deal with assault cases. It is a very unusual type of assault, in that serious violence does not result in the level of injury that can be seen and measured easily.

There is currently no distinct offence of non-fatal strangulation or asphyxiation. Section 21 of the Offences Against the Person Act 1861 contains an offence of attempting to choke, suffocate or strangle in order to commit an indictable offence. Therefore, this only applies when the strangulation is done in order to commit some other serious offence. For example, the Centre for Women’s Justice was told of a case in which a woman was raped and then strangled; she was told by the CPS that the section 21 offence could have been used if he had strangled her before he had raped her, as a pattern in order to rape her, but that this offence could not be used because the rape and strangulation took place in the wrong order. This is obviously ridiculous. The 2015 Law Commission report on the Offences Against the Person Act concluded that this offence was needlessly specific and should be abolished.

It is usually difficult to prove intent for an offence of attempted murder; as noted earlier, the intention is often to frighten and coerce rather than to kill, so a charge of attempted murder is not an option. Therefore, assault is generally the only option for the prosecution, either common assault or ABH.

In a very large number of cases of strangulation, suspects are not charged at all because the six-month deadline for summary offences such as common assault charges has passed. That time limit does not apply to either-way offences. When strangulation is treated as common assault rather than ABH, cases are closed by the police because the deadline has passed without referral to the CPS. If it were dealt with as an either-way offence, that would not be done, and those cases would be sent to the CPS. Police have the power to charge summary offences without a charging decision from the CPS under the director’s guidance on charging. We do not know whether in practice officers obtain input from the CPS in most of these cases.

Frontline support workers report that police officers tend to focus primarily on physical injuries when assessing domestic abuse situations. Strangulation and asphyxiation leave minimal injury, and are therefore easily dismissed as minor and relatively inoffensive. Even when cases are referred to the CPS, prosecutors are also responsible for undercharging and for undercharged cases proceeding to trial. A new offence of non-fatal strangulation must be an either-way offence rather than a summary offence, both to reflect the severity of the conduct involved and to remove time restrictions. That offence could be included in the Bill, along with a maximum sentence, if new clause 9 were added.

There are numerous side effects flowing from undercharging strangulation as common assault. Not only does the offence charged fail to reflect the gravity of the offending behaviour, but the sentencing options and potential for a custodial sentence are limited due to the initial charging decision. In addition, a summary offence deprives the victim and the defendant of the potential to benefit from the greater resources and attention devoted to the Crown court prosecution. Because the accused has an automatic right of appeal following a summary trial in the magistrates court, the victim may have to undergo the trauma of giving evidence a second time in the Crown court. That automatic right of appeal does not exist in the Crown court.

Finally, a summary conviction is inevitably given less weight than a conviction for ABH in future risk assessments and public protection decisions, including future bail applications, sentencing decisions—including dangerousness determinations—and Parole Board decisions. The underlying facts of offences are not always available when such decisions are made, and the information available to decision makers is just a list of previous convictions. A summary offence has a relatively low place in the hierarchy of criminal offending and is less likely to be fully explored. This ripple effect throughout the criminal justice system has a long-term impact on public protection, with a disproportionate impact on women. It can also affect the evidence before the family courts and decisions on contact arrangements, which are intended to prioritise the welfare and safety of children.

A separate offence of non-fatal strangulation will also help the police to identify this critical risk factor in the overall response to domestic abuse. Current risk assessments follow the DASH system, which involves 27 questions, with one asking whether the victim or assailant has ever tried to strangle, suffocate, choke or drown someone. A positive response results in one tick on a form, with 14 ticks required for an assessment of being at high risk. It is important to point out that, in the vast majority of local authority areas and in the vast majority of situations, only those who are considered the most high risk will get, for example, access to an independent domestic violence adviser. If someone has been strangled, they get one tick of a possible 14.

I have seen people who have been smashed in the face with a brick that morning and then been assessed as being at low to medium risk. Although there is room for professional judgment, domestic abuse workers report that many risk assessments by police officers are formulaic. Strangulation is treated as a single tick on a checklist, not as a red flag, as it should be, and does not usually result in a separate criminal investigation. It is just as part of the background history, assuming that the particular call-out that triggered a risk assessment was not a strangulation incident in itself. Creating a more serious offence should make this significant risk factor stand out in the assessment process, resulting in better protection. This is a real opportunity to save women’s lives.

It is well known that, on average, two women a week are killed by their partner or ex-partner. This was illustrated by the 2019 coroner’s report following the inquest into the death of Anne-Marie Neild. Anne-Marie died during a sustained assault by her partner, who had previously subjected her to non-fatal strangulation. Officers who dealt with the previous incidences failed to appreciate the significance of the strangulation as a risk factor, and graded the risk as standard, rather than high. No support was offered to her and she was not referred to a multi-agency panel. The coroner expressed concern that, at the time of the inquest, two and a half years later, there was still no reference to non-fatal strangulation in the police force’s domestic abuse policy, and that there was a lack of understanding of the issue among the officers involved.

Cases such as Anne-Marie’s have forced other countries to implement legislation recognising non-fatal strangulation as a separate stand-alone offence. In the US, 37 states introduced non-fatal strangulation offences; in Australia, the state of Queensland introduced the offence in 2016, with other states due to follow; and a new offence came into force in New Zealand in December 2018. If we pass over this opportunity to introduce a similar offence in the UK, we will be behind the majority of the rest of the English-speaking world on domestic abuse protection.

The UK has been rightly proud of its leading role on the world stage on gender-based violence over many years—for example, as far back as William Hague’s work on preventing sexual violence in conflict under David Cameron’s Government, which I believe was done through the Department for International Development, God rest it. It would be a great shame if we cannot extend basic protections for our citizens suffering serious domestic violence as other, similar countries have done. Creating a free-standing offence of strangulation or asphyxiation will require police to treat such cases with the gravity they deserve and to refer all cases to the CPS for charging decisions, and it will send a signal to the police and prosecutors about the seriousness of this form of offending, with training around the links between strangulation, asphyxiation, domestic abuse and homicide.

New clause 9 would address the situation that frontline domestic abuse workers report on the ground and would be a very welcome tool in the armoury against physical domestic violence.

Photo of Alex Chalk Alex Chalk Assistant Whip, The Parliamentary Under-Secretary of State for Justice 2:15 pm, 16th June 2020

May I begin by thanking the hon. Member for Birmingham, Yardley for a characteristically forceful argument? At the start, I acknowledge this: non-fatal strangulation is a wicked crime and deeply unpleasant. It is unpleasant for the reasons the hon. Lady set out: it is calculated to degrade and to terrify, and in the course of doing so to ensure that the victim has that profound sense that this could be it—their time could be up. That is why it is such a cruel, offensive and unpleasant crime. I also say by way of preliminary remarks that I am aware of the Centre for Women’s Justice campaign for this new offence of non-fatal strangulation. I wish to put on record my gratitude for their written evidence to the Committee.

I understand the concerns that have prompted the new clauses and I will address them directly. Before doing so, I want to say a little about the existing provisions in the law. In fairness, the hon. Lady did refer to them but there are a couple of points that would assist the Committee if they were teased out a little further.

Several offences can already cover non-fatal strangulation and they range in seriousness from common assault, also known as battery—my hon. Friend the Member for Hertford and Stortford, a magistrate, will know that well—to attempted murder. Within that spectrum, there remain a number of other offences referred to by the hon. Member for Birmingham, Yardley. Strangulation could also be part of a pattern of behaviour amounting to an offence of controlling or coercive behaviour; I shall come back to that in a moment. There is also assault occasioning actual bodily harm, grievous bodily harm, or section 20 assault, and grievous bodily harm with intent, or section 18 assault.

I want to step back for a moment to consider a non-domestic context, just to make some of this clear. For the sake of argument, suppose there is a queue outside a nightclub and somebody wishes to queue barge. He steps in and decides to grab the victim by the throat, throttle them and push them up against the wall. As the hon. Member for Birmingham, Yardley indicated, if that left no marks but the complainant was prepared to make a complaint to the police in the normal way, it is likely that would be charged as a battery. She is right that the charge would have to be laid within six months. It would be heard before the magistrates court—again, she is absolutely right—and would carry a custodial penalty. Even if no mark is left, that assault—it could be a punch on the nose but it could also be strangulation—would be covered in that way.

It is worth emphasising that, if that throttling or that strangulation was carried out in a more extreme way such as to leave marks, it is likely that would cross the threshold of harm which is more than merely transient or trifling. That might sound like rather archaic language, but that is the threshold for ABH. Why is that important? Assault occasioning actual bodily harm is not limited to being tried in the magistrates court; it can be tried on indictment in front of judge and jury and there the sentencing power is a full five years’ custody.

The reason I mention that is because if there is one advantage that has come from these things, it means people are much better able now to gather evidence than they were in the past. It used to be the case that you had to go down to the police station, the force medical examiner had to photograph you and so on. Now, people can get those photographs at the time. The mere fact that two, three, four or five hours later those marks may have gone matters not a jot. If the individual can show that the assault occasioned actual bodily harm, that can lead to trial on indictment and a very serious penalty.

To continue with my example of what happens in the nightclub queue, if the throttling went further and it led to some of the dreadful injuries the hon. Lady referred to—a fractured larynx, tinnitus, neurological injury leading to droop or PTSD—although it is a matter for the independent prosecutor, it is likely that would be charged as grievous bodily harm. If it is grievous bodily harm with intent, because all the surrounding circumstances indicated that that was intended given the harm done, the maximum penalty for that is life imprisonment, and that is an indictable-only matter.

That is the law as it exists at present, and the same legal principles apply in a domestic context as apply in the non-intimate context of a fight in a pub queue. The hon. Member for Birmingham, Yardley made the point: “Well, that’s all terribly interesting, but what about elsewhere in the world?” It is important, while we are mindful of our peers, particularly those in the common law jurisdictions, that we got ahead of the game to a considerable extent with section 76 of the Serious Crime Act 2015. It is worth taking a moment to consider what that ground-breaking piece of legislation introduced—the coercive control stuff.

We are guilty in this place of sometimes saying, “Right, we’ve passed this. Move on. What’s the next exciting and shiny piece of legislation we can pass?” Section 76 is of enormous import in terms of providing prosecutors—I will come to the hon. Lady’s point in due course about whether prosecutors are doing the right thing—with the tools that they need to protect victims. Section 76 says that if the defendant

“repeatedly or continuously engages in behaviour towards another…that is controlling or coercive”,

at a time when the perpetrator and the victim are personally connected, and the behaviour has a serious effect on the victim and the defendant

“knows or ought to know that the behaviour will have a serious effect” on the victim, that is a criminal offence, punishable by up to five years’ imprisonment.

I wish to dwell on that for a moment, because behaviour is said to have a serious effect within the meaning of that section. It can be proved in two ways. First, if it causes the victim to fear on at least two occasions that violence will be used, or it causes the victim serious alarm or distress, which has a substantial adverse effect on their day-to-day activities. I mention that point because if, as the hon. Lady says, and I am absolutely prepared to accept it, more often than not in an intimate context this is part of a pattern of behaviour—all too often an escalating pattern of behaviour—the tools exist, should the prosecuting authorities seek to use them, to seek the conviction, punishment and disgrace of the perpetrator.

The question then arises of whether police and prosecutors are using the levers available to them. That is a really important point, and it is the central message that I take from the hon. Lady’s speech, which was effectively saying: “I recognise that there are a whole load of statutory provisions here, but why don’t we create a new statutory provision to really focus minds and ensure that this appalling behaviour is prosecuted?” I understand that argument, but we have to ensure that we do not, in that sensible endeavour, risk confusion in the law.

I will say one final thing about the current state of play within the law. There is, as the hon. Lady indicated, a specific offence under section 21 of the Offences Against the Person Act 1861, which makes it an offence to

“attempt to choke, suffocate, or strangle any other person, or…to choke, suffocate, or strangle” a person in an attempt to render that person

“insensible, unconscious, or incapable of resistance” with intent to commit an indictable offence. Typically, that is strangling someone in order to rob them, to steal or whatever it may be. I am aware that there can be some evidential difficulties in prosecuting a section 21 offence, particularly if there is no evidence, or insufficient evidence, of injuries, such as reddening and minor bruising to the skin. However, that sits in a wider context of the legislation that exists. There are other options for prosecutors to fill the gap.

There is a risk too, I respectfully suggest, that creating a new offence could limit the circumstances covered, and create additional evidential burdens when compared with existing offences. In other words, we would potentially have a situation where we created a new offence, and prosecutors said, “Hang on—this look a bit like strangulation to me, so we need to look at this new offence. Do we have all the mental elements—the mens rea and the actus reus of the offence—and can we make them out? If not, we shouldn’t charge,” instead of saying, “Hang on—there are a whole load of offences that we could properly charge: common assault, assault occasioning actual bodily harm, and grievous bodily harm with intent. They might have existed for 150 years, but they do the job.”

The key issue, going back to the point that the hon. Lady raised, is whether police and prosecutors are recognising this as a serious matter, and I will come on to that briefly in a moment. Before I do, though, I wish to say something on the clause as drafted. It is always worth going back to the text. New clause 8 says:

“A person (A) commits an offence if that person unlawfully strangles, suffocates or asphyxiates another person (B), where the strangulation, suffocation or asphyxiation does not result in B’s death.”

Sometimes what is important is what is not said, as opposed to what is said. That on its own, if it suddenly came into law, would be deficient, because it says nothing about whether the offence is triable either way, is indictable only or is summary only. It does not say what the sentence would be. It would be sitting there in splendid isolation. That is not a criticism, but as it is presently drafted, that would be a problem. As I say, that is not a criticism, it is just an observation that we certainly could never pass it in its current form.

I said I would turn to the point about whether this is being taken seriously. Out of respect to the hon. Member for Birmingham, Yardley, I wanted to look this up while she was on her feet. I went to the CPS guidance on this matter and was pleased to see that it has been updated as recently as 28 April 2020. I am reading from “The Domestic Abuse Guidelines for Prosecutors”. It is a long document and I do not propose to summarise it. However, the key messages are, first, that domestic abuse allegations are in and of themselves incredibly serious. Secondly, the mere fact that a complainant might say: “Do you know what, I don’t want to pursue this case any more?”—which happens the entire time—is not a reason for the CPS in the public interest to drop a case because they recognise that that tactic from abusers is as old as the hills. They suddenly become all sweet and nice with a view to trying to obscure their offending behaviour or to pressure the victim into not proceeding with the case. The CPS is alive to that and seeks to prosecute it. Furthermore, it is an aggravating factor within the sentencing regime.

The basic point is that the new clauses are difficult in their own right because of bits that are missing, but while we remain hugely supportive of the instincts which lie behind them, the Government take the view that they risk introducing confusion in the law, which most seriously of all risks disadvantaging the very people we want to protect. For those reasons, I hope the hon. Member for Birmingham, Yardley will recognise that we take this extremely seriously and that we will always take every opportunity to remind prosecuting authorities, be that the police or CPS, of the importance of such matters. Given that, I hope the hon. Member for Birmingham, Yardley will be content to withdraw new clauses 8 and 9.

Photo of Jess Phillips Jess Phillips Shadow Minister (Home Office) 2:30 pm, 16th June 2020

I once again stand here as the right hon. and learned Member for Camberwell and Peckham and the Member for Wyre Forest. I merely speak to the new clauses, although with considerable support from myself behind them. I believe they will wish to discuss them potentially more on Report and so I will withdraw from pushing them to a vote today. I have merely probed in preparation for that. All I would say is that what is happening currently is not working. Whose responsibility that is, is potentially of no mind to the general public. They think that we, in this building, should be sorting it out, but we are not currently assessing properly the marker of strangulation when it comes to homicide. The risk element of what is occurring in every one of our constituencies—how it can be used in a way to stop homicide rather than just being the obvious path towards it—is on all of us as policy makers who have to try to break that link. I am sure this probing will not go away any time soon. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.