12 January 2021

When is a crime not a crime?

By Will Havelock

A man grips your neck and clamps down on your windpipe.

You can’t breathe, you can’t escape, you’re about to pass out.

Once you come to, there’s no mark on your neck so your attacker can strangle you again and again. It’s a particularly insidious form of assault that abusers use to control their victims. So why isn’t choking a crime?

In fact, that’s not quite the full story. Touching someone without their consent, even if there is no physical or mental harm whatsoever, is common assault and carries a maximum sentence of six months in prison plus an unlimited fine. Where harm is inflicted, there are further offences with more severe punishments depending on whether that harm is ‘actual’ or ‘grievous’, better known as ABH and GBH. The maximum sentence for inflicting GBH is life imprisonment.

But campaigners are calling for an amendment to the Domestic Abuse Bill, going through Parliament now, to create a specific offence of non-fatal strangulation. The argument goes that it’s difficult to prove ABH or GBH with choking, which in many cases leaves no marks on the survivor, so perpetrators often end up with lesser sentences. It’s also claimed that police and prosecutors don’t take allegations of non-fatal strangulation seriously enough, so having a separate offence for it will force them to confront the crime and get convictions.

But is a new criminal offence really the answer? If the issue is one of evidence, then surely that will apply to the new offence as well. Indeed, New Zealand introduced a specific offence for non-fatal strangulation in December 2018, and while about five people per day are charged with the offence there, less than half of those charged are convicted. This suggests it may be a problem we can’t legislate our way out of. As for making police and prosecutors confront the reality of suffocation in domestic abuse, surely this could be achieved with improved training and guidance, rather than a whole new law to apply.

Looking at some recent backbench legislation introduced in Parliament, there have been proposed specific offences for causing death by dangerous cycling, for injuring a service animal and for assaulting emergency workers. Each of these acts already come with the threat of criminal prosecution, but nonetheless the legislative draftsman behind each one sought to create a completely new offence.

This trend of specific offences for every crime only adds to our already complicated criminal system. If you’ve ever tried to look up whether or not something is against the law, you’re likely to have been confused, misinformed, frustrated and disappointed. Our criminal law is spread out in legislation going back centuries and in court cases whose judgments often cannot be read for free online, all wrapped up in impenetrable, archaic legalese. If we do break the criminal law, the State has the power to deprive us of our liberty, to make us social pariahs and to appropriate our assets. The rule of law is vital for a healthy society, but in Britain today it’s far too difficult to find out what the law actually is.

As a result, when campaigners do want to make criminal law better, they resort to tinkering with the fringes of the unfair system we have. If we continue on this trajectory, we will end up with a corpus of criminal law which is fractured with a multitude of extremely specific offences. This is just trading one problem for another.

Rather, we should strike at the heart of the system and write fewer, more general laws which we understand, supplemented with detailed guidance for specific application. Fortunately, the Government has asked the Law Commission, an advisory body of senior lawyers which suggests changes to statute, to look into putting the criminal law in a single code. This would provide a single text for the public and practitioners alike to read and work out what is and is not a crime.

Even better, the Law Commission has reported back and drafted a full criminal code for England and Wales. They did so in 1989. Even though judges, police and academic lawyers at the time supported the ‘overdue’ introduction of a criminal code, Parliament has simply not got around to putting that code into law.

A criminal code won’t sort out all the problems with our criminal justice system. Far from it. But it might make the gap between the State and the citizen a bit smaller and and make the system we have a bit fairer for all of us.

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Will Havelock is a former parliamentary researcher who is now embarking on a career in the law.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.