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Wed 10th Nov 2021 - Legal Briefing

Late-night venues and the spiking pandemic by Michelle Hazlewood

This year has been, without a doubt, a disastrous year for late-night venues. First, the lengthy closures due to the pandemic, and now the adverse publicity and reputational damage emerging from an unexpected rise in spiking cases. Whether it be by adding something to a victim’s drink or the new reports of spiking via needle injections, customers’ concerns continue to rise surrounding the issue, and the media is keeping a close eye on the topic. 

Within this article, I hope to clarify the legal position regarding the offences arising from these situations, the consequences which can occur and steps that operators can take to minimise the risk. These preventative measures can also be a helpful tool to assist with mitigation should an incident occur and enforcement take place.

The National Police Chiefs’ Council reported 198 confirmed cases of drink spiking in September and October across England, Scotland, Wales and Northern Ireland, plus 24 claims of some form of injection. Detective Chief Inspector Wood, from South Yorkshire Police, said: “If you have been spiked, it is not your fault in any way and it is nothing you should feel ashamed of. The blame lies solely with those committing this type of crime. Everyone should be able to enjoy our night-time economy without the fear of being harmed.”

It is clear that those exposed to being spiked, whatever the outcome of the act, are likely to suffer from a level of anxiety. These offences make the victims and, in turn, the industry suffer. This is the biggest consequence for hospitality as fear may spread further into the victim’s networks and generate a reduced trust in the late-night economy being a safe space. It is important that action is taken to stamp out this issue and reassure the public that these venues have their best interests at heart.

If the aggressor is identified and apprehended, they could be charged with a range of different offences depending upon the circumstances of the crime. These could include common assault, actual bodily harm and administering of a substance with intent (Sexual Offences Act 2003 Section 61). The spiking may have been followed by more serious crimes such as theft, robbery, rape, sexual assault or kidnapping, which are tried predominantly in crown court.

It is highly unlikely that a prosecution in respect of the above offences could be brought against any operator unless they were complicit in the act of the aggressor. However, this does not mean the operator is wholly exempt from enforcement. A prosecution could arise under Section 136 of the Licensing Act 2003 if there were conditions on the licence regarding the searching of customers and this was shown to have been disregarded, allowing the relevant materials to enter the premises. The same would go for any other breaches which may be identified during the police’s investigation of the spiking.

With conversations regarding the use of needles and syringes on the increase, operators should remind themselves of their obligations to their staff under the Health & Safety at Work Act 1974. Systems should be amended to accommodate the new risk as a prosecution could arise if a staff member – say a cleaner or glass collector – were to be injured by a used needle and contract hepatitis or HIV. These incidents also provide the opportunity for a review of the premises’ licence for failing to promote the licensing objectives of public safety and the prevention of crime and disorder. 

There are some simple but effective steps that can be considered to improve safety, protect customers and the business asset.

Enhanced messaging: Police forces are endeavouring to identify those individuals committing such acts, but successful prosecutions will take time. Therefore, enhanced messaging to customers heightens their awareness of the potential risk. Use posters to encourage people to stay with friends and keep an eye on their drinks.

Drinks covers: Some sites are providing customers with covers to protect against offenders putting something in their drink. While some venues use more professional products, others simply offer to clingfilm the tops of cups or supply lids for a similar effect.

Searches: Review your search policies and tighten your security. Consider what these searches were originally looking for and what your door team may now need to identify. Unfortunately, syringes are unlikely to be picked up by a metal detector due to the very small element of metal. What in the past might have been dismissed as a pen may now be a hidden syringe. It is being considered that epi-pens could potentially be used for needle spiking, but door teams must find a balance between confiscation to protect and disability discrimination.

Testing kits: Some venues offer spiking test kits for drinks at the bar in case customers suspect any tampering. There are no other fool proof ways to check if a drink has been spiked, so avoid indulging in any myths such as looking out for sinking ice.

Local knowledge: Dialogue between local policing teams and operator forums such as Pubwatch are crucial at this time so that knowledge and awareness can be shared. Watch out for local specific focus groups which already exist in some cities.

Containing a crime scene: If a spiking is alleged to have happened, the area needs to be sealed off to allow forensics to undertake a full investigation and find evidence to trace the offender for prosecution.

Police liaison: For potential prosecution to be achieved, there must be increased communication with the local police forces. Even if at first judgement the allegation lacks credibility, call the police and let them decide. Of course, there is the potential for unfounded allegations and fake copycats, but I am sure all forces would agree they would rather hear about all potential incidents than miss an opportunity to apprehend an aggressor. In addition, prompt notification is the only way for toxicity tests to be secured from the victim. This data will assist them in their treatment but may also help police in identifying an attacker and/or those supplying the equipment and drugs.

I am sure that with close work with the police and these preventative measures in place, the small number of people committing this cowardly crime can be discovered, prosecuted, and sentenced. Customers’ confidence in the late-night economy will soon return, especially after seeing the hard work the sector puts into protecting public safety. We look forward to seeing people relish in late-night venues after such a long time of closure and hope the industry can bounce back from these incidents with resilience.
Michelle Hazlewood is a partner at John Gaunt & Partners

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