Strangulation as an Inherently Grave Assault: Severe Sentencing, No Consent Defence, and Robust Use of Non-Harassment Orders

Court: High Court of Justiciary (Appeal Court), Scotland
Citation: [2026] HCJAC 39
Date: 28 August 2026
Appeal: Crown appeal against sentence (undue leniency; failure to impose non-harassment orders)

1. Introduction

This Crown appeal arose from sentencing in the sheriff court following a jury trial. The respondent (a father) was convicted of, among other matters, prolonged assaults against two of his children: DD (beginning when DD was about 3 years old and extending into adolescence) and EE (aged about 11–13). The most serious conduct included repeated violence and, in EE’s case, manual strangulation/neck compression with an aggravation that it was “to the danger of life”.

The sheriff imposed an overall sentence resulting in 14 months’ imprisonment on the two principal assault charges, alongside concurrent shorter sentences on other charges. The Crown appealed on two grounds:

  • the custodial sentence was unduly lenient; and
  • the sheriff erred in declining to impose non-harassment orders (NHOs) under the Criminal Procedure (Scotland) Act 1995, s 234A.

2. Summary of the Judgment

The Appeal Court allowed the Crown appeal. It held that the sentence on the two main assault charges was unduly lenient, emphasising that: (i) strangulation/neck compression is an inherently grave and dangerous form of assault requiring sentences that reflect its seriousness; and (ii) sustained child abuse within a parental relationship involves profound aggravations of vulnerability, breach of trust, repetition and harm.

Re-sentencing afresh on the two key charges, the court stated that appropriate individual sentences would have been:

  • Charge 1 (DD): 2 years’ imprisonment; and
  • Charge 5 (EE): 5 years’ imprisonment, consecutive.

Applying what it described as the “Fergusson proportionality adjustment”, the court imposed a cumulo sentence of 5 years and 6 months’ imprisonment (with other sentences remaining concurrent as previously). The sentences were to run from 23 February 2026.

The court also imposed NHOs:

  • DD: NHO for an indefinite duration; and
  • EE: NHO for 5 years,

prohibiting the respondent from approaching, contacting or communicating (or attempting to do so) with each child.

3. Analysis

3.1 Precedents Cited and Their Influence

(a) The “unduly lenient” test and appellate restraint

The court reaffirmed the well-established test for undue leniency from HM Advocate v Bell 1995 SCCR 244: an appeal court does not intervene merely because it would have imposed a higher sentence; it interferes only where the sentence falls outside the range reasonably open to the sentencing judge. The court also reiterated that weight is normally given to the first-instance judge’s advantage in having seen and heard the evidence—particularly after a trial.

The respondent relied on HM Advocate v Bell 1995 SCCR 244 and HM Advocate v Fergusson [2024] HCJAC 22, 2024 JC 376 to argue for deference to the sheriff’s assessment. However, the Appeal Court considered that the sheriff’s report contained inaccuracies and omissions about important aspects of the evidence and consequences, weakening the usual “first-instance advantage”.

(b) Strangulation/neck compression as a materially aggravating feature

The judgment is particularly significant for its firm restatement and consolidation of Scottish appellate authority that choking/strangulation/neck compression is inherently grave, often life-endangering, and must be treated as a major aggravation in sentencing.

  • HM Advocate v McMahon and Lambert [2025] HCJAC 34, 2026 JC 1: the court’s description of choking as “seriously dangerous” and a “highly aggravating feature” was adopted and reinforced.
  • HM Advocate v MacDonald [2025] HCJAC 52, 2026 JC 102: cited for the proposition that strangulation can easily cause death and must attract “appropriate penalties”, reflecting its prevalence.
  • Kirkup v HM Advocate [2025] HCJAC 9, 2025 JC 135 and Kirkup v HM Advocate [2026] HCJAC 11, 2026 SCCR 240: relied upon as Scottish authority emphasising the seriousness of seizing/compressing the throat and restricting breathing, including as relevant to sentence.

(c) UK-wide alignment on the seriousness of strangulation

The court drew support from other UK appellate courts:

  • R v Cook [2023] EWCA Crim 452, [2023] 4 WLR 71 (England and Wales): strangulation “inevitably” creates a real and justified fear of death; real harm is inherent.
  • R v Allen [2020] NICA 25 (Northern Ireland): adopted and “endorsed entirely” for its detailed explanation of strangulation’s physiology, hidden injury profile, dominance/control dynamics, and risk escalation (including as a homicide risk factor), and its statement that body-force strangulation is not less heinous than use of a weapon.

(d) Child victims and “severe punishment” for assaulting children

On child victims as an aggravation, the court cited Walker v HM Advocate 1987 SCCR 345, emphasising authoritative confirmation that anyone who assaults a child to injury or severe injury “must expect severe punishment”. This supported the court’s approach to both DD and EE as highly vulnerable victims, compounded by the parental relationship and sustained offending.

Although HM Advocate v Boyle [2009] HCJAC 89, 2010 JC 66 concerned murder sentencing guidance, it was used illustratively: offences against children can attract markedly higher penal responses than superficially similar conduct against adults.

(e) Repetition/sustained offending and avoiding “double counting”

The court gave a structured reminder about how sustained and repeated offending should be handled within sentencing methodology, warning against “double counting” where the same feature might inflate both culpability and harm. It referred to the Scottish Sentencing Council’s Sentencing process guideline and contrasted treatment of repetition in other guideline contexts, citing: HM Advocate v Macgregor [2025] HCJAC 28, 2025 JC 358, HM Advocate v JT, and HM Advocate v Cooperwhite [2013] HCJAC 88, 2013 SLT 975.

(f) Crown “unsuccessful appeal” decisions as benchmarks

Where the Crown cited HM Advocate v CJB [2019] HCJAC 45 (an unsuccessful Crown appeal), it acknowledged the caveat in HM Advocate v TJ [2023] HCJAC 23, 2024 JC 1 (approved in HM Advocate v MacGregor [2025] HCJAC 28, 2025 JC 358) that unsuccessful Crown appeals are not benchmarks and must be treated with caution. This serves as a practical reminder for sentencing submissions: “no-interference” decisions do not necessarily indicate the appellate court’s view of the ideal sentence; they often reflect the narrower “unduly lenient” threshold.

(g) NHO competence and procedural irregularity

The Crown argued that the sheriff erred in treating the NHO motion (made after sentence was announced) as “too late” and in effect treating herself as functus. The Appeal Court’s “impression” was that s 234A allows an NHO application even once sentence is pronounced, because the statutory language suggests an NHO is not itself the “sentence” (even though appeal routes treat it “as if” it were a sentence for certain purposes: s 234A(3)).

In any event, the court highlighted s 300A of the 1995 Act (power to excuse irregularities), observing that it was “difficult to understand” why neither prosecutor nor sheriff considered it, given the failure to move timeously was plainly a “mistake or oversight”. Although the court did not require to decide the precise first-instance competence point (as it re-made the decision on NHOs), its observations will likely influence practice in sheriff courts.

3.2 Legal Reasoning: Why the Sentence Was “Unduly Lenient”

(a) Centrality of strangulation danger and prevalence

The court treated manual strangulation/neck compression as a conspicuously serious feature, stressing:

  • its inherent danger and unpredictability;
  • its frequent lack of visible injury (risking under-assessment);
  • its role in asserting dominance and control (particularly in domestic contexts); and
  • the need for sentencing to deter “prevalent, insidious” conduct that is “always extremely dangerous”.

It also relied on NHS Inform material to underline that there is “no safe way to be strangled”, reinforcing the court’s insistence that sentencers must grasp the medical reality and the risk of serious harm or death.

(b) A categorical restatement: consent is not a defence to assault in Scotland

The court “take[s] the opportunity to restate” that in Scotland, consent is not a defence to an assault, and therefore intentionally choking, strangling, or inhibiting breathing “in any context, sexual or otherwise” is always criminal.

While the instant case concerned assaults on children (where consent would in any event be legally and factually inapposite), the court deliberately used the sentencing appeal to reassert a broader doctrinal point from Kirkup v HM Advocate [2025] HCJAC 9, 2025 JC 135—likely because “consensual strangulation” arguments can arise in other factual settings. The court’s formulation is unqualified and intended to close off ambiguity.

(c) Compounding aggravations: children, breach of trust, duration, head kicks, deterrence of reporting

Beyond strangulation, the court identified multiple aggravations:

  • Child victims, with offending starting at about age 3 for DD and 11 for EE;
  • Breach of trust inherent in parental violence within the family home;
  • Sustained and repeated offending over many years;
  • Head kicks as particularly grave violence;
  • Deterrence of reporting (threats of disbelief, invoking police “friends”);
  • Presence of another child (GG) witnessing violence and distressed by it.

The court weighed the limited mitigation (notably absence of previous convictions) against the prolonged and serious nature of the offending. It was also influenced by the justice social work material describing victim-blaming, denial, and the assessment that the respondent could not be safely managed in the community until he accepted responsibility.

(d) Consecutive sentencing for separate victims

The court rejected the notion that offending against two children should be concurrent simply because it occurred in a shared household. It reasoned that two victims increase both culpability and harm, and that the danger-to-life finding on charge 5 required particular weight. This supported the consecutive approach (2 years + 5 years) before arriving at the final cumulo sentence.

3.3 Impact

(a) Stronger sentencing signals for strangulation/neck compression

The judgment is an explicit policy-facing warning to courts that, if not already doing so, they “must recognise” the gravity of choking/strangulation/neck compression and impose severe punishment to deter an act described as “prevalent” and “always extremely dangerous”. This is likely to be cited frequently in:

  • domestic abuse prosecutions involving non-fatal strangulation;
  • sentencing where “danger to life” is libelled and proved;
  • cases where injury appears limited but risk was profound; and
  • Crown appeals alleging undue leniency in strangulation cases.

(b) Reinforcement (and broader broadcast) of the “no consent defence” position

Although grounded in earlier authority, the court’s unequivocal restatement—“Such conduct is always a crime”—will likely be deployed to resist attempts to minimise strangulation as “contextual” (including in sexual settings) and to frame sentencing submissions around inherent seriousness rather than visible injury.

(c) Practical consequences for NHO practice

The court’s observations encourage a more robust approach to NHOs:

  • Prosecutors should move timeously (fairness requires defence opportunity to respond).
  • Courts should not lightly treat late motions as incompetent; s 234A’s structure suggests post-sentence motion may remain competent.
  • Even if there is a procedural defect, s 300A should be considered to excuse oversight where the interests of justice require protection of victims.

In child protection contexts, the court’s willingness to impose an indefinite NHO (DD) and a multi-year NHO (EE) underscores NHOs as a core protective mechanism, not a mere add-on.

4. Complex Concepts Simplified

  • Unduly lenient: Not “a bit low”, but outside the reasonable range a sentencing judge could select, applying proper factors (HM Advocate v Bell 1995 SCCR 244).
  • Danger to life: An aggravation reflecting that the conduct created at least a serious risk of death; it can substantially increase sentence severity.
  • Consecutive vs concurrent: Consecutive sentences run one after another (increasing total time); concurrent run at the same time. The court favoured consecutive sentencing here because there were two child victims and distinct harms.
  • Cumulo sentence: A single overall sentence imposed to reflect multiple offences and totality/proportionality considerations.
  • Double counting: Wrongly using the same feature (e.g., repetition over time) to increase sentence more than once under different headings (harm and culpability), producing an unfairly inflated result.
  • Non-harassment order (NHO): A criminal court order under s 234A requiring the offender not to contact/approach the victim, for a fixed or indeterminate period, where necessary to protect the victim from harassment.
  • Functus: A judge has finished a procedural stage and cannot revisit it. The court suggested the sheriff likely still had power to entertain an NHO motion even after announcing sentence.
  • s 300A “excusing irregularities”: A statutory safety-valve allowing courts to forgive certain procedural mistakes/oversights if it is in the interests of justice—relevant where a late motion risks denying victim protection for purely procedural reasons.

5. Conclusion

[2026] HCJAC 39 is a forceful sentencing decision that (1) treats strangulation/neck compression as an inherently grave, life-endangering form of assault requiring severe punishment; (2) reasserts in categorical terms that consent is no defence to assault in Scotland, and thus choking/strangling conduct is always criminal; and (3) supports robust, victim-protective use of NHOs, including attention to s 300A where procedural missteps might otherwise defeat protective orders.

Practically, the judgment strengthens the Crown’s hand in sentencing submissions in strangulation cases, provides clear appellate language for trial courts to adopt, and signals that prolonged intra-familial violence against children—particularly involving strangulation and danger to life—will attract very substantial custodial sentences and stringent post-conviction protective measures.