Scottish Government Consultation.

Children and Young People’s Commissioner Scotland

August 2026

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

Under existing laws, spiking is not a standalone offence, the offence of spiking is criminalised under a number of different provisions.  This includes the common law offence of ‘drugging’ and S11 of the Sexual Offences (Scotland) Act 2009. Spiking could also constitute an offence of assault or of culpable and reckless conduct.

Spiking is a very complicated offence which can be committed in a variety of ways and for a great many nefarious purposes. Most notably instances of spiking are thought to be related to the commission of sexual offences, but young people are also vulnerable to spiking in situations involving bullying or other types of abuse. It is important that the offences available to prosecute these crimes are able to tackle the complex range of circumstances and intentions that relate to spiking to protect children and young people and uphold their rights. There are potentially gaps within the current law and available offences.

Conviction rates under these available offences have been extremely low, namely 4 convictions between 2021-2023 and no convictions in 2024/2025.[1] This is despite 67,000 people reporting in a survey that they had been the victim of drink spiking in 2025 alone. There is a great deal of underreporting of such instances to the police and even when they are reported, conviction rates are very low. Properly critiquing the current law and assessing its suitability to prosecute these offences is important.

A survey carried out by the Alcohol Education Trust found that 15% of women surveyed had been the victim of spiking, but only 8% of those who had been spiked had reported it to the police or a doctor.[2] An additional survey of 23,000 students found that 11% of them had been spiked.[3]

The requirement of intent in the available offences creates specific complexities:

• The offence of ‘drugging’ requires proof that there was intent to cause ‘stupefaction or to overpower’.
• S 11 of the 2009 Act requires proof, by corroboration, that the person administers a substance ‘for the purpose of stupefying or overpowering B, so as to enable any person to engage in a sexual activity.’

While it is important that there are sufficient safeguards in place to ensure fairness in the criminal justice system, it could be argued that this presents too high a bar for convictions to be met. It may not realistically capture the range of behaviour and motivations involved in spiking instances.

The common law offence of ‘drugging’ is somewhat outdated to tackle this behaviour and keep up with the range of new techniques used by perpetrators. It is defined as ‘… when drugs are feloniously administered with intent to produce stupefaction’ – the mens rea for this offence is drawn more widely but conviction rates remain low.

Further detailed analysis should be carried out on the potential gaps in these laws – to assess whether they fit with the experiences of spiking and are effective. There are multiple barriers resulting in low reporting and conviction rates in respect of spiking relating offences and it should be further explored whether the current laws present an inherent barrier.

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

It is not clear whether a new standalone offence would be more effective in tackling instances of spiking. Conviction rates are low for several reasons including lack of awareness, underreporting and evidential difficulties. A stand-alone offence would not necessarily resolve any of these issues.

A properly constructed  standalone offence might be capable of dealing with the significant complexities in these cases. A stricter liability offence, where there is less consideration of the exact intent behind the spiking, could be considered.

However, there are inherent benefits in the use of a common law offence over the formulation of a standalone offence. The common law offers flexibility and the ability to adapt and develop the law when applied through the courts.

We would welcome a full legal analysis of any intended proposal. Consideration should be given to the wording of the new criminal provision in England which is drawn more widely, and its effectiveness[4].

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?

Crimes are the responsibility of the perpetrator of such offences; perpetrator-based prevention measures should be taken. This includes consent education and efforts to tackle misogyny. At the same time, girls should be empowered to understand their own boundaries, bodily autonomy, and always feel like they can come forward to report such instances.

A great deal of pressure is put on women and girls to protect themselves from gender-based violence, including sexual offences and spiking. It is, of course, important that young people know about the risks, but putting emphasis on self-protection can create a feeling of responsibility for victimhood when crimes are committed. This can lead to internalised self-blame, shame and in turn lead to under reporting. Women and girls are regularly told how to change their behaviour to prevent attacks – this is unhelpful, care needs to be taken not to place the onus of responsibility in the wrong place.

‘Educating victims about how to avoid being spiked also does nothing to address underlying cultural issues in the context of gender-based violence. The responsibility for spiking (and related offences, such as rape and sexual assault) must be placed on perpetrators, and more must be done in terms of prevention and education campaigns to shift the focus back to perpetrator’s behaviour.’[5]

It is important that young people are taught about how to recognise when they or a friend has been spiked and how to seek help.[6] This should be covered in education settings and reliable sources of information for children and young people made available online.

Awareness raising is important for professionals and for those working in places where spiking might take place. For young people, this is more likely to be in the home environment (at house parties for instance) or in the local community rather than in nightclubs or pubs.

Underreporting can occur for a number of reasons including a fear that they will not be taken seriously or believed, it is important that those responding to spiking instances are affirming and trained well enough to take appropriate and speedy action. This includes health professionals and teachers.

There is a clear lack of confidence in the ability of the justice system to properly deal with instances of spiking and protect victims. Low conviction rates and the response from professionals within the criminal justice system contribute towards this. There is an often negative perception of the justice system and its ability to impose further trauma on victims.

There should be focus on building confidence in public services responding to spiking. There should be awareness, understanding and an ability to effectively investigate and respond to such incidents without imposing blame or fault on the victim. It is important that waiting times for court cases being dealt with are reduced to limit the trauma involved with waiting years for a case to be concluded.

Question 9: Do you agree to COPFS being given a power to make an NHO against a person when offering an alternative to prosecution?

We agree that giving COPFS this power would be useful but only on the basis that, as foreseen, it would be used in limited cases prosecuted at summary level.

Non-harassment orders are an essential part of protecting victims of domestic abuse from further abuse, however, generally speaking these are only issued against the named complainer in a criminal case. This will usually be the female partner of the perpetrator and not include the names of any children in the family. We would urge that a more meaningful consideration is given to tools to protect children who are experiencing domestic abuse within their family home. Despite attempts to improve recognition of the impact on children through the Domestic Abuse (Scotland) Act 2018, children are still not considered to be victims in their own right.

A non-harassment order granting protection to the mother will usually mean the perpetrator is prevented from going to the family home, but it would not prevent him from going to the child’s school. While this might afford some layer of protection it won’t provide protection for children and young people as individuals. In many cases there is a stronger need for protection of such children and the use of non-harassment orders could be helpful if effectively applied.

There are many more protections that need to be afforded to victims of domestic abuse, including children, for example ensuring that the long overdue provisions from the Domestic Abuse (Protection) (Scotland) Act 2021 are put into force.

Question 12: Do you agree with the Scottish Government proposal for a creation offence?

Making or creating an indecent image relating to a child is already an offence under S52 of the Civic Government (Scotland) Act 1982. The proposed creation offence described here would only extend to adults.

Question 13: Do you agree with the proposal for a requesting creation offence?

Requesting someone to make or create an indecent image relating to a child is already an offence under S52 of the Civic Government (Scotland) Act 1982. The proposed creation offence described here would only extend to adults

Question 14: Do you agree with the proposal for a new production, supply and offering to supply offence?

The use of ‘nudify apps’ and AI technology to generate intimate images is an increasing concern for children and young people. These technologies facilitate child sexual abuse by allowing perpetrators to ‘nudify’ children or to generate AI images of children. It must be clear that even generating sexualised or intimate images of children which are not ‘real’ are still serious sexual offences which cause harm to children and young people.

We support this extension of the criminal law to include criminalising the production, supply and the offering to supply of digital tools and services designed solely or principally to generate intimate images. We do have some concerns that a defence to such an offence might be easy to establish – much of the technology that allows this can be used for non-illegal purposes and it may be difficult to prove that it was ‘designed solely or principally’ for that purpose. We would encourage consideration of an alternative wording to avoid a potential loophole which might render the offence ineffective.

Where individual offences are being investigated, there needs to be sufficient focus on challenges of investigations and resources needed to secure evidence. This includes training and awareness raising.

Question 16: Do you have any views to offer on further steps to reduce online and technology-facilitated harm?

In our response to OFCOM’s consultation on the draft Code of Practice to accompany the Online Safety Act 2023, we outlined the importance of ensuring that regulation effectively protects children and young people from online harms.[7] This includes ensuring that regulation extends to services based out with the United Kingdom.

Children and young people have expressed to us great concern regarding online harm, they are often very worried about how vulnerable they might be to a range of potential abuses. However, solutions to this are too aften focused on taking children offline rather than making the online world a safer space.

We agree that ‘Steps to reduce and eliminate harm that can arise online must be prioritised, especially protections for women and girls in an online space where abuse and misogyny is rife.’ Young people have the right to engage with online spaces without fear of abuse – for school, for work, for health information, for socialisation. Abuse limits their ability to do this.

We are concerned that the proposed social media ban for under 16s will not, in fact, improve children’s safety online, calling instead for restrictions on harmful features and functionalities. There is a risk that blanket restrictions move responsibility from platforms to individual children and young people.[8]

Ongoing meaningful participation work, with children and young people, should be at the core of law and policy making. It is important that their actual experiences of online harms and interactions with the criminal justice system are understood and used to inform policy making.

Question 19: Do you have any views on potential impacts of the proposals in this consultation on children and young people as set out in the UN Convention on the Rights of the Child (UNCRC)?

Article 19 of the UNCRC requires Governments to make laws to keep children safe from all forms of violence, physical or mental abuse, neglect, and bad treatment by parents or others. If new offences are introduced, then they would have the potential to uphold children’s rights under the UNCRC. However, this is only if they are properly implemented and enforced. It is important that a CRIA is completed in relation to any proposals. It is important that the CRIA consider any potential unintended consequences or adverse effect on the full range of children’s rights and outline steps to mitigate these.

For further information, please contact Kit Thompson, Policy Officer at kit.thompson@cypcs.org.uk

[1] Scottish Tories call for new offence of drink-spiking despite it already being a crime | Scottish Legal News

[2] Drink-spiking is at ‘epidemic’ levels in UK, campaigners tell MPs | Alcohol | The Guardian

[3] Spiking by injection: what are your rights? | News/Blog | Scottish Women’s Rights Centre

[4] The new English provision is contained in the Crime and Policing Act 2026 which amends S24 of the Offences Against the Person Act 1861

[5] Spiking by injection: what are your rights? | News/Blog | Scottish Women’s Rights Centre

[6] Public urged to be vigilant against spiking ahead of summer events

[7] https://www.cypcs.org.uk/resources/ofcom-july24/

[8] https://www.cypcs.org.uk/news-and-stories/not-enough-evidence-to-show-social-media-ban-will-protect-childrens-rights-says-commissioner/