JUDGMENT SUMMARIES

In delivering the opinion of the court, in a Crown appeal against sentence HM Advocate v CC, [2026] HCJAC 39,   Lord Beckett, the Lord Justice Clerk stated that:

“Such conduct merits severe punishment.  It is necessary to protect the public, and particularly women and children who are frequently the victims of such conduct, from people who would perform such actions.”

The court also confirmed that the actions of choking, neck compression and strangulation, whether during a sexual encounter or otherwise, constitute a serious crime and that consent is not a defence.

The Crown had appealed, in respect of two charges, a 14-month prison sentence, imposed on CC at Falkirk Sheriff Court on 7 April 2026 as being unduly lenient, after he was found guilty of assaulting two of his children over a sustained period. 

The court explained that the averments of seizing child DD by the neck and repeatedly seizing child EE by her throat, restricting her breathing and to the danger of her life were conspicuously serious features.  Restating the court’s view that strangulation constitutes a serious crime frequently posing a danger to life, the court quashed the sentence and imposed a cumulative sentence of 5 years and 6 months’ imprisonment.

Whilst sexual offences were not the focus of the appeal, , the court took the opportunity to restate the law as explained in an earlier opinion, Kirkup v HM Advocate  [2025] HCJAC 9  that in Scotland consent is not a defence to an assault.

Intentionally choking, strangling or inhibiting another person’s breathing are all forms of assault. Consent is not a defence to these acts, such conduct is always a crime.

The court noted that the seriousness of such conduct had been identified by other courts. In its opinion in HM Advocate v McMahon and Lambert [2025] HCJAC 34, the appeal court explained that to choke another person is:

““[T]o perform a seriously dangerous action with considerable risk of causing serious harm, even death.  Any act of choking another person is a serious crime with or without agreement and, for this crime, a highly aggravating feature.”

While Lord Matthews said in HM Advocate v MacDonald [2025] HCJAC 52:

“[The] offence, with its repeated feature of strangulation, could easily have resulted in the complainer’s death.  Strangulation is an all-too-common feature of assaults in modern times and the court must visit it with appropriate penalties.”

The Lord Justice General, in disposing of the sentence appeal in Kirkup v HM Advocate [2026] HCJAC 11 explained that repeated acts of seizing and compressing the complainer’s throat over a significant period of time was a particularly serious feature of Mr Kirkup’s offending.

In HM Advocate v CC, the Lord Justice Clerk endorsed and adopted the remarks of Lord Justice Stephens in giving the opinion of the Court of Appeal in Northern Ireland explaining why non-fatal strangulation is such a serious crime. LJ Stephens highlighted studies from Australia and New Zealand which found that strangulation is a significant factor in the risk assessment for homicide of women in the domestic context. He concluded that strangulation was to be treated as a substantial aggravating factor and that “the use of body force to strangle is not less heinous than the use of a weapon.”

While Scotland’s NHS Inform website explains that:

“Putting pressure on the neck in any situation can lead to serious medical complications like nerve damage or an increased risk of stroke.  It can also cause damage to the windpipe that can continue after strangulation has taken place. Strangulation is serious and there is no safe way to be strangled.  There’s a risk to life each time it’s done.”

The court therefore considered all the respondent’s conduct in HM Advocate v CC was serious. Grabbing DD by the neck and, especially, his twice choking EE and restricting her breathing to the danger of life was extremely serious. The mitigating weight attributable to an absence of previous convictions should have been weighed against offending continuing for 15 years from when DD was 3 and for more than two years from when EE was 11. 

Taking account of the gravity of the respondent’s offending, the period over which it was committed, the breach of trust involved, the vulnerability of the children given their age and situation, and such limited mitigating factors as there were, primarily the absence of previous convictions, the court was in no doubt that the sentence imposed was unduly lenient and that it was appropriate to impose a different, and longer, sentence.

The court imposed a cumulative, sentence of imprisonment for 5 years and 6 months for charges 1 and 5. As before, the sentences on charges 2, 3 and 4 were ordered to be served concurrently with it.  As before, all sentences  were to commence from 23 February 2026. 

Non- Harassment Orders

The court also considered afresh the question of non-harassment orders in favour of the complainers and on the balance of probabilities decided that it was appropriate to make such orders to protect the complainers from harassment from the respondent. The court did so on the following conditions:

The respondent must not approach, contact or communicate, or attempt to approach, contact or communicate with [DD] the complainer in charge 1, for an indefinite duration, and [EE] the complainer in charge 5 for 5 years. 

The judgment published on the Scottish Courts and Tribunals website is the only authoritative document.