Keir Starmer has announced that he will introduce new legislation to make the spiking of drinks a specific criminal offence. The legal changes sound harmless, but it is entirely unnecessary.
Drink spiking is clearly illegal under section 61 of the Sexual Offences Act 2003: someone commits an offence ‘if he intentionally administers a substance to, or causes a substance to be taken by, another person’ without consent, ‘with the intention of stupefying or overpowering’ them ‘to enable any person to engage in a sexual activity’ with the victim. The offence can lead to a ten-year prison sentence, or a longer custodial term if other crimes like robbery or sexual assault are involved.
It is a common vice of governments to resort to legislation as a public display of activity and commitment
The Prime Minister knows this. He was, after all, director of public prosecutions for five years and head of the Crown Prosecution Service. A Downing Street statement was explicit about the government’s motivation: the new legislation on drink spiking ‘will send a clear signal that this is a crime, and perpetrators should feel the full force of the law, empowering victims to report offences and giving them confidence the justice system will support them’.
This is not what the law is for. It is bizarre to propose new legislation to draw attention to and promote confidence in existing statute. Starmer argues that ‘it can be incredibly difficult for victims to come forward to report this awful crime, and these cases can be very hard to prosecute’, and his solution is to make something that is already a criminal offence, a criminal offence.
No-one denies that spiking is a serious matter, nor that its victims are predominantly young women and that it often occurs in order to commit a sexual offence. The section of Labour’s election manifesto entitled ‘Take back the streets’ pledged that it would ‘no longer tolerate the violence against women and girls that stains our society’. Let us take the Prime Minister at his word when he argues that ‘cracking down on spiking is central to that mission’. But his approach is wrong, lazy and superficial.
The criminal law does not exist as an advertising campaign or a communications strategy. It creates a framework of rules defining what is acceptable and unacceptable in order to maintain the stability of society, and upholds this framework by deterring crime and punishing criminals. Acts of parliament do not always get it right, and if there is a fault or lacuna in a statute it can be amended, repealed and replaced. In this case, however, the law recognises spiking as a criminal offence and provides for substantial penalties.
Jess Phillips, the Home Office minister responsible for safeguarding and violence against women and girls, admitted that new legislation would not ‘necessarily change anything’, but argued that it would improve coordination between the police and staff in hospitality. She gave the game away by adding that the government was responding to charities working in the area which wanted clearer and more emphatic action.
Essentially, a new law and a new criminal offence are intended to advertise the fact that the government takes this issue seriously and to reassure activists. Neither motivation is necessarily dishonourable, but there are other ways of achieving the same goals: public awareness campaigns, more training and guidance for police officers, better communication with the hospitality industry.
It is a common vice of governments to resort to legislation as a public display of activity and commitment. Starmer should know better than most as a former prosecutor that it is an inappropriate method. New legislation takes up parliamentary time and effort, and requires the work of departments and of the Office of Parliamentary Counsel, the government lawyers who draft bills. And it accretes: unless there is a specific sunset clause which sets a time limit on a law, an act of parliament, once passed, stays on the statute book indefinitely. The more laws there are, the more complicated the criminal code becomes, especially if several acts deal with the same issue.
We should be seeking to simplify and streamline the statute book, not carelessly add to it to show how much we care. By all means, look for ways to improve the reporting and prosecution of drink spiking offences, for which the conviction rate remains alarmingly low. A cheap hit of publicity is no justification for a new law when the existing ones provide the tools needed.
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