Improving protections in the justice system for women and girls: consultation

Spiking

The issue

This section explains the Scottish Government’s longstanding multi-agency approach to tackling the incidence of spiking; provides details of how relevant laws operate in Scotland; and how this relates to the current legal changes being progressed in England and Wales to create a standalone offence and the reasons behind those changes.

The harm caused to women and girls

Spiking is when someone is given alcohol or drugs without their consent. Spiking can take different forms. It could be someone adding drugs or extra alcohol to your drink or spiking by injection. We are also aware of increasing concerns that vapes and food may be used for spiking, although the evidence to that effect is limited and in the case of vaping, interlinked to the content of the vape and illegal sales. Drink spiking is the most common form of spiking and can take place in private spaces and social events as well as in bars and nightclubs.

Based on cases reported to Police Scotland, it is widely recognised that the majority of victims of the crime of spiking are female. In response to an increase in incidents of spiking - and to ensure the Scottish Government’s response is robust and effective - a multi-agency group chaired by the Minister for Victims and Community Safety was established in November 2021 and continues to meet on a regular basis.

Over the last 12 months, there has been great progress made in addressing the reporting pathway between police and health professionals. We have now ensured that there is a consistent national approach to make sure that individuals who present to Accident & Emergency (A&E) receive clear and uniform advice regarding the roles of health professionals and the police when they report incidents of spiking, which will reassure victims about the service they will receive. This approach has been endorsed by the Royal College of Emergency Medicine.

In addition, and in recognition of a need to have an increased understanding of the potential number of incidents, processes have been introduced to allow the recording on the NHS system of those victims presenting to A&E and, in time, to correlate this data with the numbers who report to Police Scotland. This is first initiative of its kind across the UK.

The context of the issue being raised

The UK Government’s manifesto for the 2024 general election included a commitment to create a new criminal offence to help the police better respond to incidents of spiking.

Although UK Government Ministers accept that there is no gap in the current law that needs to be filled, and that a range of offences already exist to deal with spiking - including the specific offences at sections 23 and 24 of the Offences Against the Person Act 1861 and the offence at section 61 of the Sexual Offences Act 2003 - they have introduced draft provisions within the Crime and Policing Bill.

The drivers for change have, in part, been in relation to inconsistencies in practice across police forces in England and Wales, as well as concerns about the number of convictions and public confidence in reporting. More widely, there has been significant stakeholder support for such an approach in England and Wales.

Consequently, there have been some comments that a similar approach should be progressed in Scotland.

The current law

Spiking can be prosecuted in Scotland under the common law offence of drugging, which is a broad offence covering all types of drink spiking. Other common law offences that may be relevant, depending on the individual facts and circumstances of each case, are the offences of assault and of culpable and reckless conduct. There is also a more specific statutory offence contained in section 11 of the Sexual Offences (Scotland) Act 2009 called “administering a substance for sexual purposes”.

Key considerations

Unlike the UK Government, we have not received the same level of demand for a specific spiking offence (either from operational partners or wider stakeholders). In parallel, however, we have looked at how the narrative around the criminal justice statistics could be clearer in relation to incidence of spiking and will be making changes in that respect.

The multi-agency approach in Scotland has enabled an informed approach to how we tackle the incidence of spiking and attendance has been widened to included colleagues from the UK Government Home Office so that lessons can be learned and for a more collaborative approach to be taken where appropriate.

Unlike the position in England and Wales, the law on spiking in Scotland is spread across crimes at common law and under legislation. If an approach was taken to try and consolidate the existing law into a single statutory offence, it could result in the loss of flexibility that the common law offers in respect of those crimes and the ability of the courts to adapt and develop the law as required.

Scottish Government view

Spiking is illegal and can put people at risk. Through Scots Law it can be prosecuted under the common law offence of drugging - which is a broad offence covering all types of drink spiking - and the common law offences of assault or culpable and reckless conduct, depending on the individual facts and circumstances of the case, and also the more specific statutory offence contained in section 11 of the Sexual Offences (Scotland) Act 2009 called administering a substance for sexual purposes.

Efforts to coordinate a national response to spiking is managed through a Scottish Government Ministerial Group, with membership from a range of stakeholders including health, justice, the night-time industry, hospitality and support organisations. The group’s work has included the development of clear guidance to any potential victim of spiking who present themselves to health professionals on how they will be treated and the separate and distinct route to reporting a potential criminal activity.

Question 5: Do you have views on how the offence of spiking is addressed under existing laws?

There has been some suggestion that a consolidated spiking offence would improve public confidence in reporting incidents of spiking to the police and would ensure a consistent national approach.

Question 6: Do you have views on the benefits of developing a standalone spiking offence?

Question 7: Do you have any views on (a) how public awareness can be improved as to the dangers of spiking and (b) how to encourage individuals to report a spiking offence?