Editorial
Although the technological age has brought with it numerous ways to keep abreast of legal developments, there remains something to be said for the old-fashioned newsletter (even if these days it is actually in digital format). An email alert or social media post can tell you in a sentence or two about the latest case or Guideline, but a longer-form article allows the author to explain the relevance, the impact and how you might respond in practice.
And so in this edition, three members of our Crime Team have done just that. Two of the articles focus on Sentencing Council publications, emphasising the primacy of Guidelines in sentencing practice. Sarah Regan considers the recent guidance on strangulation offences and Joseph Broadway looks at the new blackmail, kidnap and false imprisonment Guidelines which come into effect on 1st April 2025. Meanwhile, Ehsan Oarith reminds us that there is still a place for more established legal concepts with a run-through of how police should deal with situations in which modern devices blend relevant evidence closely with legally-privileged material.
Non-fatal strangulation
In terms of speed, and the proverbial wheels of justice, for acts of non-fatal strangulation and suffocation, those wheels remained not slow but static for far too long. But since the creation of two specific offences in June 2022, guidance on sentence followed swiftly in a raft of cases, culminating in R v Cook (2023) EWCA 452. Then the ushering in of the new year brought with it the coming into force of the Strangulation to Suffocation Guideline (Guideline), effective from the 1st of January 2025.
Section 70 of the Domestic Abuse Act 2021 introduced the offence of non-fatal strangulation by adding section 75A to the Serious Crime Act 2015. It came into force for any offence committed on or after the 7th of June 2022 and the offence is committed when a person intentionally strangles another person or does any other act to that person that affects the ability of the person to breathe and constitutes a battery of that person.
The maximum sentence for the offence is one of 5 years (7 if there is racial aggravation) and a Category 1A offence within the Guideline has a starting point of 36 months with a range of 2 years 4 months and 6 years. At the bottom of the offending scale, a 2C offence has a starting point of 1 year with a range of a high-level community order and 2 ½ years.
As I mentioned, prior to the issuing of the guideline, practitioners relied upon the leading of case of Cook, which grappled with the lack of an offence specific guideline and the extent to which reference could therefore be made to the guideline for offences of assault occasioning actual bodily harm. In Cook the court confirmed that in all but an exceptional case, the starting point would be 18 months custody. Under the guideline that equates to a 2B offence (which has a range of 1 to 3 years) but from the ranges set out above, it is clear that it will be an exceptional case which doesn’t result in a sentence of immediate custody.
The court in Cook also identified a non-exhaustive list of 11 aggravating factors, 7 of which have been included in the 12 “other aggravating factors” increasing seriousness in the Guideline. Two of those that weren’t taken from Cook; sustained or repeated strangulation and the use of a ligature or other item have instead been used to determine culpability and either one of those factors will make the offence a culpability A offence.
In identifying harm, the Guideline makes clear that every offence of strangulation carries with it a very high degree of inherent harm, which means that in order to satisfy a finding of the top level (Category 1) the harm must involve significant trauma over and above that already factored into the offence. The Guideline also states that a victim may experience extreme terror, fear for their life and be deeply traumatised and that harm can include a range of external and internal physical injuries and psychological impacts, immediate or delayed.
Yet, despite that long overdue acceptance that a high degree of inherent harm is a feature in every case of strangulation, anecdotal evidence suggests that practitioners are (literally) groaning under the number of such offences with comparisons being made with the volume of assault emergency worker offences being charged. However, unlike the latter, which in terms of culpability, harm and options for sentence was more than adequately covered by the offences of assaulting a police officer or common assault, until June 2022, the only offence that could be charged if an allegation of strangulation was made, was common assault. That not only carried a maximum sentence of 6 months but had the obvious pitfall that any charge was time barred from the date the offence was committed. Someone in an abusive relationship, rarely reports the first-time violence is perpetrated against them. In fact, in the vast majority of domestic abuse cases, it is not until the relationship is finally at an end that the full extent of the abuse comes out. If that account, as it usually was, came outside of the six-month charging window, a potentially life-threatening assault went uncharged.
The other difficulty was the fact that in the vast majority of cases, a perpetrator purposefully chooses strangulation or suffocation because it doesn’t result in visible injury, hence the historical low level of charge (if at all). For that reason, the new Act doesn’t require proof of injury with the absence of any reference to injury or harm being, on this occasion, a deliberate omission. For despite the lack of obvious injury, research conducted by Nancy Glass in 2008 demonstrated that non-fatal strangulation is an important indicator in determining the risk of homicide in women (because 97% of those subjected to strangulation are women), with those subjected to non-fatal strangulation being 6 times more likely to be at risk of attempted homicide and 7 times more likely to be killed.
And for those bemoaning both the offence itself and the almost inevitable sentence it carries, perhaps we should step away from the legal definition (an act that affects a person’s ability to breathe) and consider the means by which that is restriction is affected. Because the act of strangulation involves the obstruction of the blood vessels and/or the airflow in the neck resulting in asphyxia. When the carotid artery is compressed blood flow to the brain is restricted. Compression of the larynx means that no fresh oxygen is available, compression of the jugular deprives the brain of oxygen which not only carries the risk of fatal injury, but also often means the victim has no memory of the event. That means that medical practitioners have to look for signs that someone has been strangled such reports of confusion, memory loss, urination or defecation and physical signs including bruising of the neck and subconjunctival and petechial haemorrhaging.
Professor Cath White, Director of the Medical Institute for Addressing Strangulation, has been instrumental in raising the awareness of the effects of strangulation. In addition to her work at the institute, she works at a Sexual Assault Referral Centre (SARC) in Manchester, and it was there that she began to notice the numbers of women presenting with allegations of strangulation alongside a substantive sexual allegation (19% of those reporting rape by a stranger or partner also reported strangulation as part of the offence).
I mentioned above the fact that the Guideline has built into it a high degree of harm. To put that harm into perspective, Professor White’s research reveals that the pressure required to be applied to impede oxygen flow is 4 PSI to the jugular vein, 11 PSI to the carotid artery and 34 PSI to the trachea. It takes 20 PSI top open a can of coke while the average male handshake is 80 to 100 PSI. So, you can see why it is a favourite tool in the armoury of an abuser because although the amount of effort required is minimal, the result is substantial with many victims reporting a belief that they were going to die. Once they have that belief, the repeated threat strangulation is more often than not sufficient to make them me compliant in the future.
And while the pressure required to cause a loss of consciousness is one fifth that used when opening a can of coke, the effect comes within seconds. Bizarre filming of schizophrenics being strangled in the mid 1940s, showed that it took just 6.8 seconds for them to lose consciousness, 15 seconds to lose control of their bladder and 30 seconds to lose control of their bowels. Victims’ accounts of an assault very often include an account of them urinating during an assault yet that is rarely linked to the level of offending, which according to the research indicates the victim would have been unconscious long before they lose control of their bladder.
Although injury that may elevate the offence into the top category will be rare, such injury includes brain damage, stroke and fracture of the neck. But there are many injuries caused as a result of applying pressure to the neck which includes damage to the structure of the neck itself, bleeding into the muscles, temporary or permanent damage to the vocal cords, as well as damage to the nerves, thyroid and hyoid. Perhaps most worrying is the fact that restricting blood flow to the brain, even briefly, causes permanent damage to the brain, something that is seen during post-mortem but sadly not in those who live to tell the tale.
This is one offence where the law has taken a long time to catch up with the reality of the nature of the offending but first by the use of case law and now with the Guideline, it has.
Handling Legal Professional Privileged Material: Keep it or Return it?
Nowadays, digital material is present in most criminal cases in one form or another. When a defendant is arrested, it is routine for the police to seize the phone in their possession. Problems can arise if the seized phone contains material that falls within the category of Legal Professional Privilege material (LPP). The definition of LPP is set out in section 10 of the Police and Criminal Evidence Act (PACE) 1984. If police have the luxury of time in an investigation where the existence of such material is known, there can be an application to the Crown Court. But what about situations where the police seize a phone and then find out that there is legally privileged material within it? Can the phone be kept, or should it be returned?
When Police are exercising their powers under section 19 of PACE, a constable who is lawfully on any premises can seize anything on the premises if he has reasonable grounds for believing that it is evidence in relation to an offence or anything used in the commission of an offence and it is necessary to prevent it from being concealed, lost, altered or destroyed. However, this power is limited by section 19(6), and there is no power of seizure where the constable has reasonable grounds to believe that the item is subject to legal privilege.
If he has reasonable grounds to suspect that the phone contains LPP material, he will have no power to seize it. In those circumstances, it is not practicable to expect the police to download the phone there and then.
To cure that issue, sections 50 and 51 of the Criminal Justice and Police Act (CJPA) 2001 extended the powers of seizure. They are exercisable where it is not reasonably practicable to determine on the searched premises (section 50) or at the time and place of the search of a person (section 51) whether existing powers of search or seizure would entitle the person armed with the power to seize particular things found in the course of the search.
Where a device could not be seized under section 19 of PACE because it might contain material subject to legal privilege, the powers under sections 50 and 51 of CJPA can be exercised to seize the material, subject to the other statutory conditions being met, in such a situation, a written notice has to be provided under section 52 of the 2001 Act.
As per section 53 of the 2001 Act, until the material (which includes suspected LPP) seized under the CJPA 2001 has been examined, it must be kept securely and separately from any material seized under other powers. Any such material must be examined as soon as reasonably practicable to determine which elements may be retained and which should be returned.
However, the more common scenario is that the investigating officer encounters LPP material while examining it or listening to a recording. At that point, they should stop examining that material and consider the obligations under the CJPA.
In such a situation, the relevant section to consider is section 54 of the CJPA 2001, where “after” the seizure of an item, it appears that there may be material subject to legal privilege. As per subsection 54(1), there will be an obligation to return the legally privileged material unless it is inextricably linked.
The data within a phone is inextricably linked to the physical device itself (until it is downloaded).
Where there is inextricably linked property (i.e. data within a phone) under s.64(2) of CJPA, it will be the duty of the person in possession of the linked property to ensure there are arrangements in place that the linked property is not examined or copied or put to any use without the consent of the person from whom it was seized. However, such consent is not required if the examination of the material “is necessary to facilitate the use of property in any investigation or proceedings in which the inextricably linked property is comprised”, per s62(4).
The practical effect of the above provisions is to allow the download of phones that are likely to have LPP. This enables the LPP to be extracted and removed after the download is complete.
If, after considering the provisions, it is clear that the police have no power to retain the material, then an application can be made under section 59 of the CJPA. Any person with a relevant interest in the property may apply to the “appropriate judicial authority” for the return of the whole or a part of the seized property (ss.59(1) and (2). The appropriate Judicial Authority is a judge of the Crown Court.
Such an application can be made because there was no power to make the seizure in the first place or because the seized property contains items subject to legal privilege that are not inextricably linked.
Similarly, if the investigating authority wishes to retain the material that they should return, they can also apply to the Crown Court. The procedural rules for such application are set out in Crim PR, r47.38. A prosecuting authority must review seized material which is subject to an application under s.59(5) to ascertain whether the statutory criteria would be satisfied, but this can be delegated to a reliable third party, such as independent counsel: R. (Revenue and Customs Commissioners) v Maidstone Crown Court [2018] EWHC 2219 (Admin).
In applying section 59, a court has to consider whether, if the property were to be returned, it would then immediately become appropriate to issue a fresh warrant under the criteria in the Police and Criminal Evidence Act 1984. In effect, a party seeking authority to retain property seized under an invalid warrant had to satisfy the court that it would succeed in a notional application for a lawful search warrant [para 11 of R. (Revenue and Customs Commissioners) v Maidstone Crown Court).
In the recent case of R (on the application of Santos-Coelho) v National Crime Agency [2024] EWHC 875, the court refused the NCA’s application to look at the material to identify it as they already could identify the material they needed for the application. However, the court permitted the NCA to retain the laptop and mobile phone pending an application to the court under s.59 of CJPA.
While using in-house staff as ‘independent’ lawyers to determine whether the material may be covered by legal professional privilege would be unlawful, using them in a preliminary sift of documents is not (R (McKenzie) v Director of the SFO [2016] EWHC 102 (Admin)).
The best practice in such a scenario is to instruct independent counsel to advise and identify the LPP material and handle the sifting process to separate the material that may be considered LPP. If the LPP material can be separated, it can be extricated and returned to a suspect or his legal team.
The Bar Council has issued guidance for counsel acting in this capacity, and if instructed to consider LPP material, it is worth keeping the guidance in mind.
Kidnap, False Imprisonment and Blackmail – A new approach.
On the 12th of February 2025, following consultation, the Sentencing Council published two sets of new Guidelines, one dealing with the offence of blackmail and the other is a combined Guideline dealing with both kidnap and false imprisonment.
On the 1st of April 2025 these new Guidelines will come into force, and this article intends to examine the content and potential impact of these new guidelines.
Kidnap and False Imprisonment [1]
What is immediately apparent from the combined kidnap and false imprisonment Guideline is that the same sentencing considerations apply to both sets of offences.
The Sentencing Council considered and consulted on having separate Guidelines or even separate sentencing tables within a single document for these offences but settled instead on one combined Guideline.
There were a number of reasons given for this decision, not least that there is a significant amount of overlap between the two offences.
Of equal importance was the consideration that a significant amount of false imprisonment occurs within the domestic context, and to provide a separate sentencing lodestar for these offences would effectively relegate offending of a domestic nature to a lower level of punishment. This was an outcome that the Sentencing Council was at pains to avoid.
The impact of the combined Guideline is that it is highly likely that there will be some degree of sentence inflation for offences of false imprisonment.
As part of its impact assessment the Sentencing Council analysed 22 transcripts of sentencing hearings from 2021, applying the new Guideline to assess the potential effect.[2]
The average sentence across these 22 transcripts was 3 years and 9 months. It is estimated that the impact of the new Guidelines would result in an increase of around 1 year and 2 months to the average sentence, increasing the average sentence to one of 5 years.
This represents a significant increase in the likely sentence for offences of false imprisonment.
There is also a huge range of starting points within the guidelines, ranging from 26 weeks imprisonment at the bottom of the scale, up to a starting point of 11 years imprisonment.
Offences which will attract significant periods of imprisonment are those which cause serious or very serious psychological or physical harm, above and beyond that inherent in the offence, and will also include one of the following high culpability factors.
When looking at culpability within these guidelines there are three main factors to consider, these are:
- The level of any violence used.
- The length of any detention.
- Whether there has been deliberate targeting of someone who is particularly vulnerable.
Where violence is extreme or prolonged, where there is detention over a protracted period of time, or where someone who is particularly vulnerable is deliberately targeted, then offending will fall within the top category of culpability.
Though of limited use, case law decided prior to the issue of the combined Guideline has generally found that violence of a level that is akin to GBH or wounding, or crosses the line into torture, and detention that is measured in hours rather than minutes, is conduct of the kind that would attract sentences toward the upper end of these guidelines.
It is worth noting the use of the phrase “particularly vulnerable”. This implies the requirement that a victim is vulnerable above and beyond the inherent vulnerability of someone who is falsely imprisoned or kidnapped.
Where someone is targeted for their vulnerability, for example where they are targeted because of a learning difficulty (as in the case of R v R and S [2012] EWCA Crim 1459), this is a factor indicating high culpability.
Where the defendant is unaware of the vulnerability of the victim or is aware but has not targeted them for that reason, but the victim is nonetheless particularly vulnerable, then this is instead treated as a significant aggravating factor as opposed to a factor indicating higher culpability.
It is also worth noting that humiliating or degrading treatment, which in previous cases was a factor that generally resulted in more significant periods of imprisonment, is not a factor impacting the categorisation of culpability and is instead an aggravating factor, likely to justify elevation within a bracket rather than something more fundamental.
Whether this continues to be a factor which, when combined with violence, results in custodial sentences towards the top end of these guidelines remains to be seen.
That said, in cases where there is violence combined with degrading treatment, it may be difficult to distinguish this from the high culpability factor of torture or sadistic conduct, and this is phrasing that may eventually benefit from judicial guidance.
Blackmail [3]
The Sentencing Council’s analysis does not predict a similarly significant increase in the average terms of imprisonment passed for offences of blackmail.
However, one change that was identified was the impact on suspended sentences. The Sentencing Council’s analysis of 16 transcripts from 2020, and the application of the new Guideline to those transcripts, showed that it was likely that more sentences would exceed the 2-year threshold and as a result, less defendants would receive suspended sentences under the new regime.
Additionally, all starting points within the sentencing table for blackmail offences are custodial, so the presumption is that this kind of offending crosses the custody threshold in all but the least serious cases.
As with the kidnap and false imprisonment Guideline discussed above, the factors that indicate higher levels of culpability are:
- The use of violence;
- The duration of such conduct over a prolonged period; or
- The deliberate targeting of particularly vulnerable people.
The blackmail Guideline has taken the same approach to the vulnerability of victims as the kidnap and false imprisonment Guideline discussed above.
Unlike the kidnap and false imprisonment document, the level of violence used is irrelevant, and the actual use of any violence is listed as a factor indicating higher culpability.
In terms of aggravating factors, it was noted during the consultation stage of these guidelines, that offenders in these types of cases will often use an indecent image of a victim in order to extract more images and to exert control over the types of images to be provided.
Offending of this type is particularly distressing in nature for those who fall victim to it, and as a result where the intent is to obtain sexual gratification or procure sexual activity, or the property received is intimate or sexual images, these will be significant aggravating features of an offence.
However, it is likely that where such images are actually shared with others as part of the blackmail, additional offences will be committed and the court must be careful to avoid double counting.
Conclusion
Overall, these new Guidelines are likely to introduce significantly more consistent sentences for offences that can range greatly in their seriousness, impact and resulting sentence.
The Guidelines give a clearer picture as to the impact and weight of different factors that have previously been identified in case law and previously have been treated inconsistently depending on the facts of the case.
However, it seems likely that both sets of Guidelines will also increase the seriousness of consequences for those convicted of these offences, whether that be a custodial sentence where one would have previously been suspended, or imprisonment for a significantly longer period than would have previously been the case.
[1] https://www.sentencingcouncil.org.uk/offences/crown-court/item/kidnap-false-imprisonment/
[2] https://www.sentencingcouncil.org.uk/html-publication/item/kidnap-false-imprisonment-and-blackmail-offences-consultation-stage-resource-assessment/
[3] https://www.sentencingcouncil.org.uk/offences/crown-court/item/blackmail/
