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The issues considered in New Zealand’s Kempson v R echo calls for urgent law reform in England and Wales through the Domestic Abuse Bill and a standalone strangulation offence, write Susan Edwards and Kris Gledhill
On 2 December 2018, in Auckland, New Zealand, Jesse Kempson murdered Grace Millane (a British backpacker) by strangulation. On 3 December 2018, a new s 189A of the Crimes Act 1961 (NZ) came into effect to provide that:
189A Strangulation or suffocation
Everyone is liable to imprisonment for a term not exceeding 7 years who intentionally or recklessly impedes another person’s normal breathing, blood circulation, or both, by doing (manually, or using any aid) all or any of the following:
(a) blocking that other person’s nose, mouth, or both:
(b) applying pressure on, or to, that other person’s throat, neck, or both.
This provision recognises the risk of such assaults, their prevalence in the intimate partner context, and their lethality potential. Echoing cases that have led to calls for urgent law reform in the United Kingdom, Kempson admitted strangulation but contended that death was an accident, a situation of consensual sex play going wrong.
Clause 65 of the Domestic Abuse Bill (7/7/20) HL Bill 124 as introduced provides that consent is not a defence where a person inflicts ‘serious harm’ on another for the purposes of obtaining sexual gratification. ‘Serious harm’ means an offence under the following sections of the Offences Against the Person Act 1861, s 18 grievous bodily harm with intent, s 20 wounding or causing grievous bodily harm, or s 47 actual bodily harm. This was a response to R v Broadhurst [2019] EWCA Crim 2026 (in which the prosecution accepted a plea to gross negligence manslaughter) where the defendant had alleged that the deceased had consented to acts of violence against her person in the course of sexual conduct, even though the House of Lords in its former judicial capacity had ruled in R v Brown [1994] 1 AC 212 that consent was no defence to such assaults.
During the reading of the Domestic Abuse Bill in June 2020 Jess Phillips MP proposed that non-fatal strangulation be made an offence by adding that ‘A person (A) commits an offence if that person unlawfully strangles, suffocates, or asphyxiates another person (B) to whom they are personally connected as defined in s 2 of this Act, where the strangulation, suffocation or asphyxiation does not result in B’s death’ (16 June). This was rejected by the government, but Baroness Newlove urged further consideration when the matter was debated in the House of Lords on 5 January 2021; and Lord Lucas commended the NZ provision. After debate on 3 February 2021, amendments proposed by Baroness Newlove did not proceed, but Clause 65 remains and the government promised further consideration.
The New Zealand legislative position, the policy for which is clear, is now supplemented by the ruling of the New Zealand Court of Appeal in Kempson v R [2020] NZCA 656 that consent is no defence where the defendant has a mens rea that suffices for murder, which in New Zealand law turns primarily on having either intention as to death or recklessness based on knowledge that the injury is likely to cause death. As s 63 of the Crimes Act 1961 also provides that there can be no consent as to death (a recently enacted euthanasia law, the End of Life Choice Act 2019, does not change this general proposition), the jury was told that evidence relating to consent was only relevant should they reach the question of manslaughter. On appeal from the murder conviction, one argument of appellate counsel was that consent should have been left to the jury in relation to reckless murder, and that the prosecution had to prove the absence of consent to the risky conduct. The jury had asked a question about reckless murder, and so it might have been the basis for their conviction. The judge’s view in sentencing gave some support for this (Kempson v R [2020] NZCA 656, [38]).
The trial judge also intimated that consent might be a defence to reckless murder in some circumstances. The New Zealand Court of Appeal determined that consent was never relevant in a murder case since, first, s 63 reflected the Victorian common law, which precluded consent to an injury known likely to kill (ibid [85]). Secondly, while New Zealand did not follow Brown, it was a feature of the case law that there could rarely be consent to grievous bodily harm, and that would apply more strongly where death was likely. Thirdly, there was the public policy of upholding the sanctity of life; and fourthly, there were other policy factors, centring around expense, such as the risk of seriously injured people becoming a charge on the state, and the complexity of judicial processes when there was a death.
Whereas Brown prohibits consent once there is actual bodily harm, this is subject to multiple exceptions. In R v Lee [2006] 3 NZLR 42 the New Zealand Court of Appeal took a different approach: personal autonomy is respected unless its value and any social utility in an activity is outweighed by public policy reasons. On the facts, consent to strangulation to rid the body of demons during an exorcism meant that there was not an unlawful act manslaughter when the balancing approach was followed. However, s 63 and Kempson mean that no balancing is needed if death is the aim or is foreseen as likely.
If consent is available, limited to a manslaughter scenario, the effect of Lee is a focus on the scope of the consent. Here, the evidence is important. In Lee, there were others present at the exorcism, but in Kempson, as the Court of Appeal noted, the evidence was likely to be one-sided in sexual settings. The starting point, however, will be the unlikelihood that anyone will consent to anything beyond minor harm. Moreover, what emerges from Kempson, as part of meeting the suggestion of a consensual accidental death, is the difficulty of that happening without the mens rea for at least recklessness as to death being formed.
Expert evidence was adduced that death by strangulation could follow from obstructing the trachea and preventing the passage of air to the lungs (requiring significant force), obstructing the jugular veins so as to prevent blood getting from the brain to the heart (which could be achieved with lesser force but would require several minutes), obstructing the carotid arteries so as to prevent blood and oxygen getting to the brain (about which there was dispute about how long it would take to cause death, but the lowest time given was 90 seconds), and applying pressure to the vagus nerve so as to reduce the heart rate (which usually requires a lengthy pressure, except in rare cases, but is unlikely to be the mechanism in a manual strangulation). The court held that the judge had fairly summarised the evidence of the experts, noting that the ‘critical point for the jury’ was whether recklessness as to death could be inferred from the length of time this force was applied and maintained. In short, absent very unusual facts, the mens rea for murder will be present and so consent will not be relevant.
Mr Kempson’s attempted false narrative impacted on his sentence. New Zealand sentencing law has a presumptive life sentence for murder and a tariff of at least 10 years: but this rises to 17 years if various aggravating circumstances apply, including a level of callousness in the killing or of vulnerability in the victim: the sentencing judge applied this provision and the Court of Appeal determined that this was correct.
In the absence of a guilty plea, there could be no discount on this tariff, nor any narrative that might have minimised the aggravation. Counsel defending those accused of murder have a difficult task in light of the sentence that will follow: but the message from Kempson is that death by strangulation is not a credible accident, and the benefit of a guilty plea is the best that can be expected.
To return to the starting point of this article: the new offence of strangulation in New Zealand does not set out any express provision as to the role for consent. The Law Commission preferred to apply the general law relating to consent rather than having a specific defence, and the Explanatory Notes to the Bill that introduced the offence were to similar effect. This will permit consensual strangulation in situations such as organised sports (eg wrestling), and possibly in situations such as exorcism and in breath play in a sexual context. But it will be a very unusual factual situation for the scope of consent to extend to any situation in which death is risked or eventuates.
The risk of death is, of course, the concern of both the New Zealand legislature and those pressing for reform of the law in the UK. In England and Wales, the consent provision in the Domestic Abuse Bill will preclude the defence, and where death occurs a defence of manslaughter/accident/no intent will remain open but consent will not be allowed to be adduced as part of the defence case. As to non-fatal strangulation, as in New Zealand, public pressure from academics, campaigners and frontline domestic abuse practitioners will hopefully succeed in introducing a standalone offence of strangulation. Reports that Ministers have U-turned on this and are looking at a specific offence for non-fatal strangulation in the Police and Sentencing Bill are welcomed.
On 2 December 2018, in Auckland, New Zealand, Jesse Kempson murdered Grace Millane (a British backpacker) by strangulation. On 3 December 2018, a new s 189A of the Crimes Act 1961 (NZ) came into effect to provide that:
189A Strangulation or suffocation
Everyone is liable to imprisonment for a term not exceeding 7 years who intentionally or recklessly impedes another person’s normal breathing, blood circulation, or both, by doing (manually, or using any aid) all or any of the following:
(a) blocking that other person’s nose, mouth, or both:
(b) applying pressure on, or to, that other person’s throat, neck, or both.
This provision recognises the risk of such assaults, their prevalence in the intimate partner context, and their lethality potential. Echoing cases that have led to calls for urgent law reform in the United Kingdom, Kempson admitted strangulation but contended that death was an accident, a situation of consensual sex play going wrong.
Clause 65 of the Domestic Abuse Bill (7/7/20) HL Bill 124 as introduced provides that consent is not a defence where a person inflicts ‘serious harm’ on another for the purposes of obtaining sexual gratification. ‘Serious harm’ means an offence under the following sections of the Offences Against the Person Act 1861, s 18 grievous bodily harm with intent, s 20 wounding or causing grievous bodily harm, or s 47 actual bodily harm. This was a response to R v Broadhurst [2019] EWCA Crim 2026 (in which the prosecution accepted a plea to gross negligence manslaughter) where the defendant had alleged that the deceased had consented to acts of violence against her person in the course of sexual conduct, even though the House of Lords in its former judicial capacity had ruled in R v Brown [1994] 1 AC 212 that consent was no defence to such assaults.
During the reading of the Domestic Abuse Bill in June 2020 Jess Phillips MP proposed that non-fatal strangulation be made an offence by adding that ‘A person (A) commits an offence if that person unlawfully strangles, suffocates, or asphyxiates another person (B) to whom they are personally connected as defined in s 2 of this Act, where the strangulation, suffocation or asphyxiation does not result in B’s death’ (16 June). This was rejected by the government, but Baroness Newlove urged further consideration when the matter was debated in the House of Lords on 5 January 2021; and Lord Lucas commended the NZ provision. After debate on 3 February 2021, amendments proposed by Baroness Newlove did not proceed, but Clause 65 remains and the government promised further consideration.
The New Zealand legislative position, the policy for which is clear, is now supplemented by the ruling of the New Zealand Court of Appeal in Kempson v R [2020] NZCA 656 that consent is no defence where the defendant has a mens rea that suffices for murder, which in New Zealand law turns primarily on having either intention as to death or recklessness based on knowledge that the injury is likely to cause death. As s 63 of the Crimes Act 1961 also provides that there can be no consent as to death (a recently enacted euthanasia law, the End of Life Choice Act 2019, does not change this general proposition), the jury was told that evidence relating to consent was only relevant should they reach the question of manslaughter. On appeal from the murder conviction, one argument of appellate counsel was that consent should have been left to the jury in relation to reckless murder, and that the prosecution had to prove the absence of consent to the risky conduct. The jury had asked a question about reckless murder, and so it might have been the basis for their conviction. The judge’s view in sentencing gave some support for this (Kempson v R [2020] NZCA 656, [38]).
The trial judge also intimated that consent might be a defence to reckless murder in some circumstances. The New Zealand Court of Appeal determined that consent was never relevant in a murder case since, first, s 63 reflected the Victorian common law, which precluded consent to an injury known likely to kill (ibid [85]). Secondly, while New Zealand did not follow Brown, it was a feature of the case law that there could rarely be consent to grievous bodily harm, and that would apply more strongly where death was likely. Thirdly, there was the public policy of upholding the sanctity of life; and fourthly, there were other policy factors, centring around expense, such as the risk of seriously injured people becoming a charge on the state, and the complexity of judicial processes when there was a death.
Whereas Brown prohibits consent once there is actual bodily harm, this is subject to multiple exceptions. In R v Lee [2006] 3 NZLR 42 the New Zealand Court of Appeal took a different approach: personal autonomy is respected unless its value and any social utility in an activity is outweighed by public policy reasons. On the facts, consent to strangulation to rid the body of demons during an exorcism meant that there was not an unlawful act manslaughter when the balancing approach was followed. However, s 63 and Kempson mean that no balancing is needed if death is the aim or is foreseen as likely.
If consent is available, limited to a manslaughter scenario, the effect of Lee is a focus on the scope of the consent. Here, the evidence is important. In Lee, there were others present at the exorcism, but in Kempson, as the Court of Appeal noted, the evidence was likely to be one-sided in sexual settings. The starting point, however, will be the unlikelihood that anyone will consent to anything beyond minor harm. Moreover, what emerges from Kempson, as part of meeting the suggestion of a consensual accidental death, is the difficulty of that happening without the mens rea for at least recklessness as to death being formed.
Expert evidence was adduced that death by strangulation could follow from obstructing the trachea and preventing the passage of air to the lungs (requiring significant force), obstructing the jugular veins so as to prevent blood getting from the brain to the heart (which could be achieved with lesser force but would require several minutes), obstructing the carotid arteries so as to prevent blood and oxygen getting to the brain (about which there was dispute about how long it would take to cause death, but the lowest time given was 90 seconds), and applying pressure to the vagus nerve so as to reduce the heart rate (which usually requires a lengthy pressure, except in rare cases, but is unlikely to be the mechanism in a manual strangulation). The court held that the judge had fairly summarised the evidence of the experts, noting that the ‘critical point for the jury’ was whether recklessness as to death could be inferred from the length of time this force was applied and maintained. In short, absent very unusual facts, the mens rea for murder will be present and so consent will not be relevant.
Mr Kempson’s attempted false narrative impacted on his sentence. New Zealand sentencing law has a presumptive life sentence for murder and a tariff of at least 10 years: but this rises to 17 years if various aggravating circumstances apply, including a level of callousness in the killing or of vulnerability in the victim: the sentencing judge applied this provision and the Court of Appeal determined that this was correct.
In the absence of a guilty plea, there could be no discount on this tariff, nor any narrative that might have minimised the aggravation. Counsel defending those accused of murder have a difficult task in light of the sentence that will follow: but the message from Kempson is that death by strangulation is not a credible accident, and the benefit of a guilty plea is the best that can be expected.
To return to the starting point of this article: the new offence of strangulation in New Zealand does not set out any express provision as to the role for consent. The Law Commission preferred to apply the general law relating to consent rather than having a specific defence, and the Explanatory Notes to the Bill that introduced the offence were to similar effect. This will permit consensual strangulation in situations such as organised sports (eg wrestling), and possibly in situations such as exorcism and in breath play in a sexual context. But it will be a very unusual factual situation for the scope of consent to extend to any situation in which death is risked or eventuates.
The risk of death is, of course, the concern of both the New Zealand legislature and those pressing for reform of the law in the UK. In England and Wales, the consent provision in the Domestic Abuse Bill will preclude the defence, and where death occurs a defence of manslaughter/accident/no intent will remain open but consent will not be allowed to be adduced as part of the defence case. As to non-fatal strangulation, as in New Zealand, public pressure from academics, campaigners and frontline domestic abuse practitioners will hopefully succeed in introducing a standalone offence of strangulation. Reports that Ministers have U-turned on this and are looking at a specific offence for non-fatal strangulation in the Police and Sentencing Bill are welcomed.
The issues considered in New Zealand’s Kempson v R echo calls for urgent law reform in England and Wales through the Domestic Abuse Bill and a standalone strangulation offence, write Susan Edwards and Kris Gledhill
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