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Psychoactive substances

Government says nitrous oxide is still illegal despite prosecution failures

Judges have ruled against a government move to ban nitrous oxide under the Psychoactive Substances Act, in an attempt to control ‘legal highs’.

Two separate cases brought by the Crown Prosecution Service (CPS) related to the supply of nitrous oxide, commonly known as ‘laughing gas’, for recreational use have been dismissed by judges on the grounds that nitrous oxide may not be a banned substance.

The government moved to ban nitrous oxide under the Psychoactive Substances Act, which came into force last year to deal with the growing problem of ‘legal highs’. The Act banned the production and supply of all psychoactive substances, but includes a list of exemptions including food, alcohol, tobacco, nicotine, caffeine and medical products as defined by the Human Medicines Regulations 2012.

The two cases heard this month [August], which were dismissed, involved defendants going to music festivals who were charged with possession of a psychoactive substance with intent to supply under the new Act. The first case, heard at Southwark Crown Court, was dismissed part way through the trial after an expert witness for the prosecution expressed the view that nitrous oxide was an ‘exempt substance’ as the legislation is currently worded. The judge in the second case, heard at Taunton Crown Court, came to the same conclusion — that nitrous oxide was exempt from the Act.

A CPS spokesperson said: “These cases were charged in accordance with the Code for Crown Prosecutors. Following evidence and representations in court, the cases were dismissed by the judges.”

The spokesperson added that the CPS will consider the outcome of these cases and the potential impact on future prosecutions, but any review of legislation was a matter for the Home Office.

There are no current plans to tighten the Act. A spokesperson for the Home Office said: “Nitrous oxide is covered by the Psychoactive Substances Act and is illegal to supply for its psychoactive effect. However, the Act provides an exemption for medical products. Whether a substance is covered by this exemption is ultimately one for a court to determine, based on the circumstances of each individual case.”

Citation: The Pharmaceutical Journal DOI: 10.1211/PJ.2017.20203495

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