Spiking - the law as it stands, and assessing the need for reform

            There has been a notable increase in public concern over spiking in recent months,[1] particularly with reference to reports of a new form of spiking- spiking by injection. This article seeks to define spiking, analyse the potential areas of criminal liability, and consider whether reform of the law is necessary.

            Spiking is generally defined as ‘when someone has added something, for example, alcohol or drugs, to your drink, without you knowing.’,[2] this activity has the potential to be covered by a variety of criminal offences. An important distinction made in the law is cases of spiking with sexual intent, which is its own criminal offence, and other forms of spiking.

            Sections 23 and 24 of the Offences Against the Person Act 1861 (OAPA) constitute two offences; administering poison with intent to injure, aggrieve or annoy (s24, five year maximum sentence), and administering poison so as to endanger life or inflict grievous bodily harm (s23, ten year maximum sentence). Both of these offences have been applied in the context of what is commonly understood as spiking. As per Holroyde LJ, a substance can be considered ‘noxious’ (and therefore a poison) under s24 if ‘in the quantity and manner in which it is shown by the evidence to have been administered, could properly be found by the jury to be injurious, hurtful, harmful or unwholesome.’[3]- this is a broad definition which Holroyde LJ noted could apply to a wide range of substances, provided there was also the necessary mens rea element to constitute the offence. Given the broad range of substances that can be considered poison for the purpose of the offence, it is likely that a substance used to incapacitate someone in an incident of injection spiking would be considered to be a poison. There is precedent for both class A drugs and prescription drugs to be considered a poison under the OAPA,[4] it is important to note that these are sometimes used in spiking.

            Section 61 of the Sexual Offences Act 2003 (SOA) creates the offence of administering a substance with intent, with a maximum sentence of ten years. The offence applies where person A intentionally administers a substance, or causes a substance to be taken by, person B, without the consent of person B and with person A having the intention of stupefying or overpower person B so that they can engage in sexual activity with person B. As per the legislative notes on the offence, it is intended to cover ‘date rape drugs’[5] such as rohypnol and ketamine, but could also apply to ‘any substance’[6] so long as the other elements of the offence were satisfied. The administration of alcohol to a person without their knowledge or without their consent, with the aforementioned intention, would fully satisfy the offence. In addition, the administration of a substance via injection without consent or without knowledge would, subject to intent being satisfied, likely amount to an offence under s61.

            It has been demonstrated that the poisoning offences under the OAPA and s61 SOA criminalise a variety of activities that are typically classed as spiking. Neither offence specifies that the substance in question must be orally ingested, a spiking by injection is therefore likely to be applicable to the offences mentioned. However, just because the criminal law already prohibits injection spiking it does not mean that creating a specific offence to address the issue would have no value or use; criminal offences also have a signalling function, shaping the public’s perception of particular issues. A new offence specifically addressing injection spiking might not be strictly necessary to prosecute those who engage in the practice, but might be beneficial in the broader realm of the public perception of the severity of the issue.

[1] Hundreds of UK drink spiking reports in the past two months | UK news | The Guardian

[2] AE2594-drink-spiking-july-2017.pdf (nth.nhs.uk)

[3] Barry Terrence Veysey, Damien Munroe, Jamie Beardshaw v The Queen [2019] EWCA Crim 1332 [26]

[4] Regina v Ramon Gantz [2004] EWCA Crim 2862

[5] Sexual Offences Act 2003 c. 42 para. 3

[6] Ibid