Joe Robertson: The law has a huge ‘prank spiking’ loophole – it must be amended

Joe Robertson is Conservative MP for Isle of Wight East and a former solicitor

Spiking is about to become its own criminal offence, but the legislation is lacking in one crucial way: it forgets about people who spike as part of a reckless prank.

It should be good news that we are finally getting a specific spiking law. Placing it on the statute book as a simple wide-reaching offence should ensure no case slips through the net.

But as I sat on the Crime and Policing Bill committee, going through line-by-line scrutiny after it passed its second reading in the Commons, it became clear that it missed legislating against an obvious reason behind the crime: pranking.

We heard evidence about spiking as a sexually motivated crime or for facilitating robbery, but it was Colin Mackie, who told us about how he lost his son Greg in a suspected spiking incident, who revealed a gaping loophole in the new law – and it is one that desperately needs closing. 

Mackie, who has since set up Spike Aware UK to raise awareness of the issue, told the committee: “‘Pranking’ is probably the one [often forgotten reason]. That is what people will do – it is totally random, and there is no reason for a lot of what they do.”

The proposed new law requires proof that a perpetrator had specific intent to injure, aggrieve or annoy. But acting recklessly or being grossly negligent (like pranking), in the absence of intent, is not covered; despite recklessness being a well-established principle in criminal law. Assault leading to actual bodily harm can arise from an intentional or a reckless act, for example. Manslaughter can arise from something done deliberately, or from a reckless act so negligent that there was an obvious and serious risk of death.

The Government itself has already recognised that pranking can be a motivation in spiking, and in its guidance from December 2023 wrote: “There is a need for more research into why people do this. Sometimes, people do it ‘for fun’.”

Picture this very real-life scenario: it starts with two drunk people and cheap drugs in a bar. The pair are not necessarily sure what the drugs are, but nevertheless they have been taking them. They see an empty drink left unattended and think it would be ‘fun’ to put one in and ‘see what happens’. The drink gets drunk, and someone gets hurt.

At trial their defence barrister pleads, ‘my clients know they were foolish, they didn’t intend any harm and regret it’, and – as the current draft of the law stands – my concern is a jury will struggle to convict because they cannot find, beyond reasonable doubt, any intent to injure, aggrieve or annoy. Reckless behaviour is not covered.

It means that if the victim died, the accused could be successfully prosecuted for gross negligence manslaughter, but if the victim is recklessly harmed, the new law would be so defective they could walk free and their victims denied justice. Just one of these cases emerging because of a badly drafted law would be inexcusable.

That is why I have tabled an amendment to the Bill that would include spiking by a reckless act. It has cross-party support, including Labour, Liberal Democrat and Green MPs. Rupert Lowe has also backed it, as has the chair of the Home Affairs committee and fellow Tory MP Karen Bradley.

We cannot allow bad law to leave victims, often young women – the average age of a spiking victim being 26-years-old and almost three quarters women – exposed.

I hope Ministers are listening, but if efforts are unsuccessful in the Commons this week I will work with Peers and take the campaign through the House of Lords.