Nitrous Oxide is a drug if you possess it with intent to use it
‘Laughing gas’ one of many psychoactive drugs is back in the news. It is more properly known as Nitrous Oxide or in street slang “NOS”. This follows a Court of Appeal ruling that the substance is controlled by the Psychoactive Substances Act 2016. It is an offence to possess psychoactive substances with intent to supply, Simple possession is also an offence in some cases.
The appeals came about following some cases where Judges ruled that laughing gas is exempt from control under the Act. The Court of Appeal had to decide whether Nitrous Oxide was a ‘medicinal product’. If it was the offence would not have been committed. In the 4 cases before the Court of Appeal, two appellants were convicted after trial; the other two had pleaded guilty.
The court ruled.
‘We are satisfied that in the circumstances of these cases the nitrous oxide in question could not be categorised as a medicinal product and therefore was not an exempted substance. In our judgment, the matter is clear on existing authority.’
The judgement
The key words in the judgment are ‘…in the circumstances of these cases.’ To answer the question, we need to understand a little more as to the purpose of the 2016 Act. The 2016 Act applies to substances by reference to their effects. This is as opposed to their individual chemical composition. It is not an offence to supply NOS for medicinal or catering reasons. It might be thought that because Nitrous Oxide is undoubtedly used for some medical purposes, it would fall within the medicinal product’s exemption.
Intent is important
However, an ingredient of the offence which must be proved is that the defendant in question intended to supply the substance for its drug effects. So, what we have here is a situation where liability under the 2016 Act depends on the intent of the person possessing.
Control is important
They also of course have to have not only possession of the NOS cylinders but also control of them. The silver cannisters are often used as propellants for cream. You buy them in a catering pack online. If you are having a party with home made cream éclairs and an aerosol squirt cream machine you may have a defence. If you work in a restaurant you may have a defence. Otherwise, you have a problem.
Other drugs cases
There is a case concerning cannabis R v Carver 1978 where we would argue that possession of small amount of cannabis was not illegal because it was not “usable” for the purpose the Misuse of Drugs Act intended to prohibit. In other cases, we succeeded in calling expert evidence whether a substance was or was not cannabis. We achieved not guilty results on that basis. It all depended on whether certain botanical features were present or not. The law is always developing. It is well worth consulting expert drugs solicitors to see if there is a defence that you were not aware of.
In one of the appeals, the court held.
‘…the purpose for which it was intended to supply the canisters was purely recreational with nothing whatsoever to do with health. This last feature coupled with the fact that the gas was intended to be used in circumstances which were not beneficial to health, indeed import some risk to health, was sufficient to take it outside the definition of medicinal product whatever label may have been on the boxes in which the canisters were originally packed.’
Drugs treated on a case by case basis
The case-by-case approach entails the possibility that different products with the same chemical composition may fall within or outside the definition of medicinal product. Depending of course on the circumstances of the individual case.
Conclusion
These cases are complex. Scientific opinion changes and it takes time for an appeal to clarify the law. It may be that further appeals will follow, particularly if scientific opinion shifts over time. Our specialist drug solicitors Jamie Ritchie or Keith Hollywood will give expert advice on 0208 986 8336. Or use the contact form below.
Jamie Ritchie one our drugs specialist partners
Keith Hollywood one of our drugs specialist solcitors