Commentary on Sections Part 3: Chapter 1: Prevention Orders Chapter 2: Causing or risking serious harm Section 28: Offence of non-fatal strangulation or asphyxiation
This section creates a new offence of non-fatal strangulation or asphyxiation of another person.
Subsection (1) states that a person (“A”) commits an offence if the conditions set out in subsections (2) and (3) are met.
The conditions are that A:
	intentionally applies pressure on or to the throat or neck of another person (“B”), or does some other act amounting to battery of B; and
	intends to affect B’s ability to breathe or the flow of blood to their brain, or is reckless in this regard.
Subsection (4) provides that the offence is committed irrespective of whether B’s ability to breathe or flow of blood to the brain is in fact affected.  This means that a victim does not need to prove injury for the offence to be committed:  the necessary components of the offence are the application of pressure or battery in combination with the perpetrator’s intention or recklessness as set out in subsections (2) and (3).
Subsection (5) makes clear that it does not matter how the act is done, so, for example, the person may use their hands, another part of their body or an object to apply the pressure or inflict the battery.
Subsections (6) to (8) make provision for a limited defence of consent to the offence.  The defence is not available where:
	B suffers "serious harm" as a result of the act; and
	serious harm is intended by A, or A is reckless in this regard.
This reflects the 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 results in anything less than serious injury, their consent is a valid defence for the person who did the act.
Subsection (9) makes it an offence triable in Northern Ireland, as if it occurred in Northern Ireland, for a person who is a United Kingdom national or is habitually resident in Northern Ireland to do an act in a country outside the United Kingdom that amounts to an offence under the section.
Under subsection (10) the offence is triable in either a magistrates’ court or in the Crown Court. The maximum penalty on summary conviction in a magistrates’ court is 2 years’ imprisonment and/or a fine not exceeding the statutory maximum. On conviction on indictment in the Crown Court the maximum penalty is 14 years’ imprisonment and/or an unlimited fine.
Subsection (11) is an interpretive provision, defining “the 1861 Act“, "serious harm" and “United Kingdom national”.