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A ‘spike’ in legislation?

29/06/2022

Rape Crisis defines “Spiking” as:

“when someone puts alcohol or drugs into another person’s drink or their body without their knowledge and/or consent.”[1]

On 26 January 2022, Richard Graham MP introduced a bill that would make the act of spiking a criminal offence in it’s own right.

Mr Graham said:

“Spiking is already a considerable issue and getting worse, and spiking by injection needs more research and investigation.

We can send a clear message to support the work of all local authorities, the angst from student groups from St. Andrew to Truro, MPs from across the country, Love Island contestants and parents everywhere.

That’s what we want to do, to enlist a more open partnership with communities.”[2]

Priti Patel MP, the Home Secretary, has ordered a review into the issue of spiking. An amendment to the Police, Crime, Sentencing and Courts Bill in the Lords was passed and received Royal Assent on 28 April 2022, committing the Government to a review of spiking under the Sexual Offences Act.[3]

The review is expected to last for one year, however it has been conceded that legislation may be passed before the conclusion of the review.[4]

Deputy chief constable Jason Harwin gave evidence to the Home Office Select Committee on 26 January 2022 and said:

‘My personal view is that we need a separate offence for it because it highlights the importance of this crime, and secondly for me, importantly, it shows the importance that we see in terms of we need to do everything we can to stop it in the first place.’[5]

There is no doubt that the practice of spiking is highly dangerous as it leaves the victim highly vulnerable and possibly very ill. It is often committed in the context of sexual offences, or extreme examples such as that of Darren Burke, the married, father-of-one who was convicted recently for spiking the drink of his pregnant lover with an abortion drug[6] and sentenced to 45 months in custody.

Spiking already is illegal?

The issue is that, arguably, the offence of spiking is already covered by legislation that is already in existence. 

Section 61 of the Sexual Offences Act 2003 states that person A commits an offence if he or she intentionally administers a substance to, or causes a substance to be taken by, person B, person B does not consent, and person A intends to overpower person B in order to engage in sexual activity with the person B.

Of course, it is right that people could have other motives for spiking another that is not with the intention of committing a sexual offence against their victim, leaving one believing there to be a gap in the legislation.

Unfortunately, that’s not right; the Victorian legislators got in there first.

S23 of the Offences Against the Person Act 1861 makes it an offence to unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing so as thereby to endanger their life or cause Grievous Bodily Harm.

This clearly is an extreme example and is limited only to endangering life or serious harm, and therefore its relevance is limited.

However, s24 of that Act makes it an offence to do the same act, however the intent is amended to “injure, aggrieve, or annoy any other person”. This is significant as no consequential harm or endangerment is required compared to s24.

S24 has been employed very broadly in the past. For example, the case Hill[7] where the Defendant was convicted of administering slimming pills to young boys in order to keep them awake. The House of Lords subsequently held that the Defendant had been properly convicted under the legislation.

Therefore the offence of “spiking” is already an offence in Law. It is therefore difficult to see the need for Priti Patel to introduce new legislation to deal with an offence which is already an offence in law.

In reality, it is not difficult to see why this is being introduced in the very public way that it is.

This is not the first time that populism has trumped proper, legislative purpose.

Examples include the introduction of Harper’s Law and the Assaults on Emergency Workers Act 2018 which were introduced after intense press attention.

However, these examples are different somewhat. Harper’s Law altered the position in relation to sentencing manslaughter offences involving Emergency Workers, introducing mandatory life sentences for the offence, unless unjust, where previously this was not the position.

I have written on the Assaults on Emergency Workers Act 2018 previously here. The introduction of this legislation effectively did away with the offence of Assaulting a Constable in the execution of their duty by expanding the offence to allow emergency workers to act unlawfully and mean that a Defendant could still be committing offence, despite the actions of the emergency worker.

These examples are where populism has led to legislative change.

Legislating in this way is inherently dangerous, as it is a process not routed in principle but reactive, and in the case of Harper’s Law, reactive to the dissatisfaction to a verdict and specific sentencing exercise.

Without sounding too philosophical, that is why our Criminal Justice System entrusts the trial and sentencing process to independent parties.

The Spiking Bill and final legislation has yet to find its final form, so there may be some helpful way in which it adds to and/or clarifies the current legislative state, but given past similar examples, I remain sceptical.

The eventual introduction of this legislation also could lead to a trend of new offences being charged. Any person accused of such an offence should take legal advice urgently.


[1] https://rapecrisis.org.uk/get-informed/types-of-sexual-violence/what-is-spiking/

[2] https://www.gloucestershirelive.co.uk/news/gloucester-news/gloucester-mp-introduces-law-make-6552610

[3] https://www.parliament.uk/business/news/2021/september-2021/lords-debates-police-crime-sentencing-and-courts-bill-at-second-reading/

[4] https://www.dailymail.co.uk/news/article-10531725/Spiking-drinks-criminal-offence-new-law-planned-Priti-Patel.html

[5] https://www.thejusticegap.com/police-chief-calls-for-new-spiking-offence/

[6] https://www.bbc.co.uk/news/uk-england-london-61829967

[7] (1986) 83 Cr App R 386

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