Is the offence of administering a substance with intent to commit a sexual offence made out if the victim takes the substance of her own free will?

Att-Gen’s Reference (No. 31 of 2006) (R v Spall) (CLW/08/12/6) was an appeal against sentence but it raises interesting questions about this issue.

The offender (of “impeccable good character”), whilst at a restaurant with the victim, and having been spurned in his advances, placed a tablet of an anti-anxiety drug in her glass of wine whilst she was away from the table.

The offender had told a waiter that he wanted to “fuck her” and “bang her”, and had repeatedly attempted to persuade her to drink more wine, telling the waiter that he wanted “something strong” and to “knock her out”.

Restaurant staff saw him place the drug in the glass, and informed the victim and then the police. When she returned to the table, she noticed something fizzing at the bottom of the glass, checked with the offender that it was her glass and then took one sip. She then walked away as the police arrived.

The drug’s side-effects included light-headedness and drowsiness, and had the potential for greater adverse effects when taken with alcohol.

The offender was convicted of an offence under section 61 of the Sexual Offences Act 2003 (administering a substance with intent) and his sentence was increased from two years to three-and-a-half years by the Court of Appeal.

The court recognised that what would have happened if the offender’s conduct had gone undetected was quite uncertain, that the offender had made a determined effort to persuade and cajole the victim into participating in sexual activity with him and that he had sought to administer the drug when, notwithstanding those efforts, he was thwarted by her adamant refusal.

The court also stated that there was a public element to this case that needed to be emphasised which was the considerable public concern about the administration of drugs to young women who do not wish to participate in sexual activity in order to make them amenable or available or unable to resist undesired sexual activity.

CLW comment

The offence of which the respondent was convicted requires that the offender “administers to” or “causes to be taken by” the victim a substance, knowing that the victim does not consent, with a particular intent. On the facts as recited, there would seem to have been two difficulties in establishing this offence.

First, although the indictment apparently alleged “administration”, there clearly was no administration by the defendant of the substance to the victim. Had she drunk the glass of wine containing the substance unaware that he had put anything in it, then the offender would undoubtedly have “caused” her to take it; but she took it of her own free will. Indeed, she apparently asked the offender to pass her the glass immediately before taking a sip. This would have broken the chain of causation: see R v Kennedy (No. 2) (CLW/07/38/9) (see Police Professional, November 15, 2007, Issue 90). Secondly, it is inherent in the definition of the offence that the victim does not consent. The victim here made a conscious decision to take a sip of the wine having been informed that the offender had put something in it. In law, she consented.

Whilst an attempt to commit the offence could probably have been made out, it might have been thought that the Court of Appeal would at least have investigated these issues.