Spiking – overview, offences and police powersWritten by: Zoe McDonald, PNLD Legal Adviser

Not reviewed after the date of publication - 12 January 2022

The recent increase in reports of needle spiking in nightclubs and bars across the country has repeatedly been in the news over the last few months.

Legal adviser Zoe McDonald looks at the powers available to the police and offences which may be applicable in combatting this apparent trend in offending. 

Drink and needle spiking

Every year in the UK, hundreds of people are thought to be victims of drink spiking, where alcohol or drugs are added to a drink without them knowing. However, several UK police forces are also investigating possible cases of needle spiking in nightclubs and bars. The drugs used are thought to be the same, such as tranquillisers, amphetamines or GHB – also called liquid ecstasy.

According to the Alcohol Education Trust the majority of reported drink spiking incidents are not linked to any additional crime, such as sexual assault or robbery. It is often done as a prank – especially in incidents involving the addition of alcohol. Whatever the intent, drink spiking is still a serious offence and carries a maximum sentence of 10 years in prison.

The general consensus is that needle spiking is very unlikely to be a prank and therefore more likely to be linked to additional crimes. The likelihood of needle spiking in itself has divided medical experts. Some think it is a difficult thing to achieve in a night out situation for the following reasons:

  • Needles have to be inserted with a level of care - and that's when you've got the patient sitting in front of you with skin and no clothes.
  • The idea these things can be randomly given through clothes in a club is just not that likely.
  • It would also be ‘difficult’ to keep a needle in someone's skin long enough to get all of the substance in.
  • Normally you'd have to inject several millilitres (half a teaspoon) of a drug into somebody, which would hurt and people would notice.

However, others are of the opinion that:

  • Some needles are so thin you can ‘barely feel [them] going in’ and if someone's had a drink or so, they might be less inclined to feel the scratch of a needle.
  • Injections under the skin in the thigh or upper arm might be harder to feel, and the effects could take longer to kick in.
  • People without medical expertise can learn to inject, for example diabetic people inject their own insulin.
  • If someone has access to needles and syringes and can get into a club, there seems to be no reason they wouldn't be able to impact or hurt somebody in that way.

Police response

Police dealing with a complaint of spiking will need to take blood and urine samples, as most drugs leave the body within 72 hours of being taken (GHB leaves the body within 12 hours), so it’s important to carry out tests as soon as possible. This is the case regardless how the drug is believed to have been administered and the possible offences remain the same.

Offences

Attempt / Administer a substance with intent - H5811

Summary: Six months imprisonment and / or a fine not exceeding the statutory maximum.
Indictment: Ten years imprisonment

Section 61 of the Sexual Offences Act 2003 is about overpowering / stupefying a person by administering a substance, in order to make that person sexually submissive. This offence is intended to cover use of so-called ‘date rape drugs’ (e.g. chloroform, Gamma-hydroxybutyrate (GHB) and Rohypnol) administered without the victim's knowledge or consent, but also covers the use of any other substance with the relevant intention. It would cover spiking the victim by drink or needle but it would not cover a person encouraging another to get drunk so that s/he could have sex with her / him, where the other person knew that s/he was consuming alcohol (hence there is no ‘administering’).

This offence applies in cases where the defendant administers the substance to the victim or causes the substance to be taken by the victim; for example where the defendant persuades a friend to administer a substance so that the defendant can have sex with the victim. The intended sexual activity need not involve the defendant; it could be intended that the friend or any other person would have sex with the victim. The offence would be made out regardless of whether any sexual activity actually took place, for example because a friend of the victim saw what was happening and intervened to protect them.

In addition to the offence under section 61 itself, where a person engages in sexual activity with another person knowing that s/he is under the influence of stupefying drugs administered by the defendant or someone else, and this sexual activity is one of the non-consensual offences under sections 1 to 4 of this Act, it will be presumed that the complainant did not consent and that the defendant did not reasonably believe he had consented. This is provided for in the evidential presumption about consent at section 75(2)(f).

Administer poison with intent to endanger life / inflict grievous bodily harm - H2003

Indictment: Ten years imprisonment.

Section 23 of the Offences Against the Person Act 1861 makes it an offence to unlawfully and maliciously administer poison so as to endanger life or cause grievous bodily harm to another person. For the purposes of this offence:

  • Unlawful, means without excuse or justification at law; illicit. In addition the consent of the victim will not prevent an act from being unlawful (R v Kennedy 2007).
  • Maliciously, in a statutory crime, assumes foresight of consequence and requires either an actual intention to do the particular kind of harm that was done or recklessness whether such harm should occur or not (R v Cunningham 1957).
  • Noxious, can include a substance that may be harmless if taken in small quantities, but becomes noxious if administered in sufficient quantity to injure, aggrieve or annoy. The purpose which the defendant has in mind, may also have bearing on the nature of the substance in question. The court has ruled that the substance itself need not necessarily be injurious to bodily health. For example, sleeping tablets could be put into a drink in a quantity that may not cause harm where the victim remains in the home, but if the victim was to drive or operate machinery this could be an entirely different matter with potentially disastrous consequences.
Cause administer poison / noxious thing with intent to injure / aggrieve / annoy - H2002

Indictment: Five years imprisonment

Section 24 of the Offences Against the Person Act 1861 makes it an offence to administer poison or other noxious substance with intent to injure, aggrieve or annoy a person. With a lower penalty, the intention threshold is not as high as for section 23, although the terms ‘unlawful’, ‘maliciously’ and ‘noxious’ remain the same. As a result, this section creates three offences –

  • Administering a noxious thing to a person (substance is administered directly i.e. injected).
  • Causing a noxious thing to be administered to any other person (substance is administered by an innocent third party for example).
  • Causing a noxious thing to be taken by any other person (for example, if a noxious substance is put in food then the food is eaten).

Assault a person thereby occasioning them actual bodily harm - H479
Summary: Six months imprisonment and / or a fine not exceeding the statutory maximum.
Indictment: Five years imprisonment.

Assault by beating - H4302
Summary: Six months imprisonment and / or a fine not exceeding level five on the standard scale.

In some cases of suspected needle spiking, there may be evidence of a needle injury, but a substance has not been proven due to late testing etc. In such cases, and in the absence of any other evidence required for the offences above, an offence of assault under section 47 of the Offences Against the Person Act 1861 or section 39 of the Criminal Justice Act 1988 may be more appropriate to pursue.

Other powers

Where there have been reports of needle spiking in a particular area, some forces are using their powers under section 60 of the Criminal Justice and Public Order Act 1994. This section provides powers to stop and search in anticipation of, or after, violence in a particular locality for a specified period of time up to 24 hours. In order for an authorisation to be granted, an officer of or above the rank of Inspector must reasonably believe -

(a) that incidents involving serious violence may take place in any locality in his police area, and that it is expedient to give an authorisation under this section to prevent their occurrence,

(aa) that -

(i) an incident involving serious violence has taken place in England and Wales in his police area;
(ii) a dangerous instrument or offensive weapon used in the incident is being carried in any locality in his police area by a person; and
(iii) it is expedient to give an authorisation under this section to find the instrument or weapon; or

(b) that persons are carrying dangerous instruments or offensive weapons in any locality in his police area without good reason.

Once a section 60 authorisation is given, officers do not need to have suspicions regarding a particular individual prior to stopping them; though it is a requirement of PACE Code A for an officer to explain to an individual who has been stopped, that a section 60 authorisation is in place.   When implemented, this power is in addition to normal powers of stop and search and does not replace them.

These powers exist to prevent serious violence or the carrying of weapons which might lead to serious injury.

Should an authorisation be given under section 60(1), the authorisation must specify the grounds upon which it was given, ‘any locality’ in which the powers may be exercised, and the period of time for which it is in force. ‘Any locality’ is not defined in the legislation, but given that this power is one provided under the Criminal Justice and Public Order Act 1994, we believe that it is intended to cover the stop and search of persons in public places rather than inside private premises. A pub or nightclub would be deemed to be private premises. Although a pub may be accessed by members of the public, access and refusal of entry is at the discretion of the owner of each premises. Therefore, we believe that a section 60 authority could potentially be authorised to cover the locality surrounding a pub, meaning that it would cover a person in the street who is going to enter or has left such premises, but it could not be used to provide a power to stop and search a person who is inside the premises.

Searching persons on the premises above would need to be carried out under section 1 of PACE. A needle containing a harmful drug would in our view constitute an offensive weapon and therefore be a ‘prohibited article’ for the purpose of this section; furthermore, subsection (1)(a) states the power to search can be used in any place to which, at the time when he proposes to exercise the power, the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission.

Officers who are to carry out a stop and search under the authority of section 60, for the authorised purpose of finding a needle containing a harmful drug, should be provided with guidance on searching for such items, in order to protect their own personal safety. Practical advice re searching and handling may also be of interest.

Final note

The prevalence of spiking by injection is difficult to assess, whereas drink spiking is undoubtedly a problem.  However, the anxieties for young people around safety (especially women) are very real and as such, all reports of spiking by any method should be taken seriously.

It is hoped that with the increase in initiatives to improve nightlife safety by forces, that incidents of spiking do not escalate. Robust responses from police, better training for night-life staff and more initiatives like that of Manchester-based SAFE, which provides dedicated welfare staff within venues that can help people get home safely, are going someway to achieving that.