Part 6: Offences involving violent or abusive behaviour Section 70: Strangulation or suffocation
Section 70 creates a new offence of the non-fatal strangulation or suffocation of another person.
	This section inserts new sections 75A and 75B into the Serious Crime Act 2015.
	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)).
	"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.
	New section 75A(2) makes clear that it is a defence for a person accused of the offence to show that the other person consented to the strangulation or other act that affected their ability to breath. This reflects the current law as set out in the case of R v Brown [1993] 2 W.L.R. 556 and subsequent cases, that where a person consents to an act that amounts to no more than a battery, consent of the victim is a valid defence for the person who committed the battery. This subsection has however to be read in conjunction with new section 75A(3).
	New section 75A(3)(a) provides that the defence set out in new section 75A(2) would not apply when the person suffers "serious harm" as a result of the strangulation or other act that affects their ability to breathe. "Serious harm" is defined in new section 75A(6) as amounting to grievous bodily harm or wounding within the meaning of section 18 of the Offences against the Person Act 1861 or actual bodily harm under section 47 of the 1861 Act. New section 75A(3) reflects the law as set out in R v Brown and subsequent cases, which means that where a person consents to an act that causes serious harm, by which is meant injury that constitutes actual bodily harm or more serious injury, the consent does not give rise to a valid defence. In short, a person cannot validly consent to having serious harm inflicted upon them.
	New section 75A(3)(b) clarifies that serious harm must be intended by the perpetrator, or that the perpetrator is reckless as to the other person suffering serious harm. This means that where a person intends to inflict harm that amounts only to a battery and the other person consents to that act, but where serious harm occurs, a valid defence of consent would only be available where the prosecution cannot prove they intended to cause serious harm or were reckless as to serious harm being caused.
	New section 75A(4) provides that for the consent defence in new section 75A(2) to be made out sufficient evidence that there was consent has to be provided by the defendant to raise the issue and the contrary is not then proved beyond reasonable doubt by the prosecution.
	The new offence is triable in either a magistrates’ court or the Crown Court. New section 75A(5) sets out the penalties for the offence. The maximum penalty on summary conviction in a magistrates’’ court is 12 months imprisonment (but this should be read as six months’ until such time as provisions in the Sentencing Act 2020 come into force) and/or an unlimited fine. On conviction on indictment in the Crown Court the maximum penalty is five years’ imprisonment and/or an unlimited fine.
	New section 75A(6) defines "serious harm" for the purposes of new section 75A(3) with reference to existing offences of causing grievous bodily harm, wounding and causing actual bodily harm under sections 18 and 47 of the Offences Against the Person Act 1861.
	Section 70 also inserts new section 75B into the Serious Crime Act 2015. New section 75B makes it an offence triable in England and Wales for a person who is a United Kingdom national (as defined in new section 75B(2)) or is habitually resident in England or Wales to do an act in a country outside the United Kingdom that amounts to an offence under section 75A if it occurred in England and Wales.