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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Jones, R. v [2025] EWCA Crim 195 (30 January 2025) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/195.html Cite as: [2025] EWCA Crim 195

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT IPSWICH
HER HONOUR JUDGE EMMA PETERS CP Nos: 37CJ1012523 37CJ1488323, 37CJ1706723

		Royal Courts of Justice Strand London WC2A 2LL
		30 January 2025

THE VICE-PRESIDENT:

1. Section 75A of the Serious Crime Act 2015 is headed "strangulation or suffocation". The issue of law raised by this appeal is whether the section creates one offence or two.
2. Before summarising the circumstances in which that issue arose at the trial, it is convenient to refer at the outset to the relevant provisions of the 2015 Act.
3. Sections 75A and 75B appear under a cross-heading "strangulation or suffocation". They were inserted into the 2015 Act by section 70 of the Domestic Abuse Act 2021. Subsections (1) to (4) of section 75A are in the following terms:

" 75AStrangulation or suffocation

(1) A person ("A") commits an offence if—

(a) A intentionally strangles another person ("B"), or

(b) A does any other act to B that—

(i) affects B's ability to breathe, and

(ii) constitutes battery of B.

(2) It is a defence to an offence under this section for A to show that B consented to the strangulation or other act.

(3) But subsection (2) does not apply if—

(a) B suffers serious harm as a result of the strangulation or other act, and

(b) A either—

(i) intended to cause B serious harm, or

(ii) was reckless as to whether B would suffer serious harm.

(4) A is to be taken to have shown the fact mentioned in subsection (2) if—

(a) sufficient evidence of the fact is adduced to raise an issue with respect to it, and

(b) the contrary is not proved beyond reasonable doubt."

4. Section 75A(5) states the maximum penalty on summary conviction or on conviction on indictment. Subsection (6) contains a definition of "serious harm".
5. Section 75B provides for offences under section 75A committed outside the United Kingdom. Subsection (1) states:

"(1) If—

(a) a person does an act in a country outside the United Kingdom

(b) the act, if done in England and Wales, would constitute an offence under section 75A, and

(c) the person is a United Kingdom national or is habitually resident in England and Wales,

the person is guilty in England and Wales of that offence."

6. The 2015 Act does not contain any definition of the words "strangulation" or "suffocation". For the purposes of this case it is unnecessary to attempt a comprehensive definition of those words. We observe, however, that both words relate to conduct which by its nature is likely to interfere, or which does in fact interfere, with the victim's breathing or circulation of blood. 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.
7. The material facts of the case can be stated briefly. The appellant was charged with a number of offences against two women. We shall refer to the numbering of counts in the original indictment.
8. In relation to events on 4 January 2023 involving the first complainant, the appellant was charged with assault occasioning actual bodily harm (count 1), intentional strangulation (count 2) and theft (count 3). In interview under caution about those events he denied that he had strangled the complainant and said he had acted in self-defence.
9. In relation to events on 31 May 2023 involving the second complainant, the appellant was charged with assault occasioning actual bodily harm (count 4). Further charges in relation to the second complainant (but this time in respect of events on 23 August 2023) were attempted robbery (count 5), intentional strangulation (count~6) and assault occasioning actual bodily harm (count~7). When interviewed under caution about those matters the appellant made no comment.
10. In each of counts 2 and 6 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 concerned.
11. The appellant pleaded guilty to count 3. He pleaded not guilty to the other counts and stood trial in the Crown Court at Ipswich before Her Honour Judge Peters and a jury. Each of the complainants gave evidence. So too did the appellant. In essence, he asserted that he had at all times been acting in self-defence, and he specifically denied any act of strangulation.
12. The judge gave her directions of law both orally and in writing. The directions included the following:

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

(1) Intentionally strangle a person; or

(2) 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."

13. At the time those directions were given, both counsel were content with them. As sometimes happens however, the jury during their retirement sent a note which prompted second thoughts.
14. The note read:

"If force is applied to the chest which affects the ability to breathe, does this still fall within the strangulation definition?"

15. The judge discussed with counsel her proposed answer to that question. Miss Rodio, then as now representing the appellant, submitted that section 75A creates two offences, with different elements, and that the directions which the judge had given were wrong in law. She helpfully provided the judge with written submissions setting out her argument.
16. The judge heard submissions in response from Mr Gair, representing the prosecution at trial as he does before us.
17. The judge having considered these submissions brought the jury back into court. She reminded them of the terms of the question they had asked and answered it as follows:

"Of course there's no evidence that the pressure is to the chest. The evidence you've heard from each of the complainants is that the force was applied to the neck and so all I can do is point you again to the question which is the question I put in the directions which is, 'Are we sure that the defendant intentionally applied any force to the complainant which affected their ability to breathe?' That's the question you must answer and ... if this issue still troubles you, do let me know but bear in mind of course, the evidence - there's no evidence of it being to the chest. The evidence from both complainants is that the force was applied to the neck and that's the question for you to answer. 'Are you sure that the defendant intentionally applied any force to the complainant which affected their ability to breathe?'

All right. I hope that answers the question. That is the evidence and that is the question, so please consider it in the evidential context that you have rather than looking at other evidential context which neither complainant has said about the chest. They have both said about the neck."

18. The jury subsequently convicted the appellant of all six offences. The judge later imposed concurrent sentences of imprisonment of 28 months on counts 1 and 2, two months on count 3, 36 weeks on count 4, four months on count 5 and 18 months on count~6, and a consecutive sentence of 20 months' imprisonment on count~7. Thus the total sentence was four years' imprisonment.
19. In her commendably focused and clear oral and written submissions, Miss Rodio puts forward a single ground of appeal for which she has the leave of the single judge. It is in these terms:

"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."

20. At the core of Miss Rodio's submissions is the proposition that section 75A(1) creates not one offence but two. Miss Rodio submits that in relation to strangulation, the section requires the intentional application of pressure to the neck, whereas it is possible to commit the suffocation offence by a reckless act which amounts to a battery. She points to that feature of the two different forms of conduct as supporting her argument that they are two distinct offences. From that starting point, Miss Rodio goes on to argue that the appellant was only charged with non-fatal strangulation, and that accordingly pressure on the chest could not be a basis for conviction. In any event, she notes, there was no evidence of pressure on the chest. She submits that the convictions on counts 2 and 6 are unsafe because in the light of what we will call the judge's final direction there is a real possibility that the jury convicted on the basis of non-fatal suffocation, an offence which Miss Rodio submits was not charged.
21. Alert to the case of R v Hughes [2024] EWCA Crim 593, Miss Rodio submits, first, that that case can be distinguished on its facts; secondly, she invites this court to conclude that that decision (to which we shall refer in a moment) fell into error of law and this constitution of the court should depart from it.
22. The appeal is resisted by Mr Gair. He agrees that each of the complainants had alleged strangulation and confirms that that was the way the case was always presented by the prosecution. Mr Gair suggests that with hindsight the direction initially given by the judge was in some respects imperfect; but, he says, even if it was, any imperfection was cured by the final direction which set out the position to the jury entirely clearly.
23. We are grateful to counsel for their assistance.
24. In our judgment the answer to the question which we posed at the start of this judgment is 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) and 1(b). That, in our view, is the plain meaning of the words of the section. The fact that one of the two ways of committing the offence requires a specific intention, whereas the other may be committed by a reckless act, does not in our view point to a conclusion that the section creates two distinct offences. If Parliament had wanted to create two distinct offences, it could easily have done so by assigning a separate section of the Act to each of them.
25. Our reading of section 75A is consistent with section 75B which, as we have noted, speaks of an act which if done in England and Wales would constitute an offence under section 75A.
26. It is also consistent with the explanatory notes to the Domestic Abuse Act 2021. In those notes, the commentary on provisions of the Act included the following paragraphs relating to section 70:

"315 Section 70 creates a new offence of the non-fatal strangulation or suffocation of another person.

316 This section inserts new sections 75A and 75B into the Serious Crime Act 2015.

317 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)).

318 'Strangulation' or 'strangles' are not specifically defined and have their ordinary meaning. Battery in this section is a reference to the common law offence of battery. An act that affects the ability of the other person to breathe and constitutes a battery can include, but is not limited to, suffocation." (emphasis added)

27. The conclusion which we have reached was also reached by this court, differently constituted, in the case of Hughes to which we have already referred. The appeal in that case was heard on a date after the trial in the present case, so the judge and counsel in the present case did not have the benefit of it.
28. The appellant in Hughes had been convicted of intentional strangulation contrary to section 75A. The complainant had given evidence that the appellant had grabbed her round the throat, using both hands, causing her to lose consciousness and leaving her with bruising around her neck. She also said that whilst holding her down the appellant had tried to put his fingers into her mouth.
29. The judge had directed the jury that if they were sure the appellant had put his hands around the complainant's throat and strangled her, they would find him guilty and need go no further. If they were not sure of that but they were sure he had put his fingers down the complainant's throat, and were also sure that that was a battery which caused interference to her breathing, then that would be an offence under section 75A.
30. On appeal, this court held at paragraph 19 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. The court noted at paragraph 20 that the prosecution had only put its case on the basis of intentional strangulation. The judgment continued:

"The particulars of the offence on the indictment were therefore limited to an allegation that the appellant intentionally strangled the victim. That was how the case was opened. Nevertheless, if the evidence justified this course, and if it involved no unfairness to the appellant, the judge was entitled to leave the case to the jury on a basis other than that advanced by the prosecution."

31. On the facts of that case, the court held that the complainant's evidence did not support an alternative basis for conviction, but that the conviction was nonetheless safe because the jury had clearly accepted the case on strangulation.
32. We respectfully agree with that decision and endorse the statement of principle in the last sentence which we have quoted from paragraph 20.
33. For those reasons, persuasively though it was made, we are unable to accept Miss Rodio's principal submission. Nor is there any basis for departing from the recent decision of this court in Hughes.
34. We note in passing that the form of the indictment in Hughes appears to have been somewhat different from the form adopted in this case. We would suggest that in future the particulars of the offence could properly be charged simply as intentional strangulation, or intentional strangulation or suffocation, contrary to section 75A(1) of the Serious Crime Act 2015. Under either of those forms the jury would in our view be entitled to convict if the evidence made them sure that the accused had acted in one of the ways proscribed by section 75A(1).
35. In the present case, as the judge made emphatically clear, the prosecution case was based on intentional strangulation. The judge was nonetheless correct in law to rule that if the jury, as the tribunal of fact, were sure that the appellant had committed some other act against a complainant which amounted to a battery and affected her ability to breathe, then the offence charged would be proved.
36. It follows from our decision that provided that all the jurors, or a sufficient majority of them, are sure that an accused committed an act which amounts to strangulation or suffocation within the meaning of section 75A(1)(a) or (b), it will only exceptionally be necessary for them to agree on the route by way they reach that conclusion. The rare situations in which it may be necessary to give a direction that the jury must agree on the precise nature of the act of strangulation or suffocation will be those discussed at paragraph 63 of R v Chilvers [2021] EWCA Crim 1311. None of those situations arose in the present case.
37. We would add finally this. With the benefit of hindsight, of the decision in Hughes and of the assistance this court has had in the present case from the detailed submissions of counsel, it would be possible to suggest improvements to the judge's initial direction to the jury. Nonetheless, none of those improvements would affect the simple point that her direction was not wrong in law.
38. The judge's final direction to the jury caused no unfairness to the appellant. She repeatedly emphasised the need for the jury to focus on the evidence, which specifically alleged intentional strangulation of each complainant by the application of force to the neck, and did not include any specific allegation of another act which affected a complainant's ability to breathe.
39. We are therefore satisfied that the judge made no error of law and that the convictions of counts 2 and 6 are safe. This appeal accordingly fails and is dismissed.