Nitrous Oxide – No longer a laughing matter

Laughing gas’ or Nitrous Oxide as it is properly known, had become popular on the club scene with balloons filled with the gas being sold or given away for a quick, and very giggly, high. It was, until recently, believed to be a ‘legal high’.

However a Court of Appeal ruling has now confirmed that the substance is controlled by the Psychoactive Substances Act 2016 and is illegal for to possess or supply for recreational purposes. This overturned the previous decisions of judges in 4 cases who had ruled that laughing gas was exempt from control under the Act.

The Act makes it an offence to possess psychoactive substances with intent to supply, and in limited cases, simple possession is also an offence.

The issue on appeal was whether Nitrous Oxide was a ‘medicinal product’. If it was found to be, then the offence would not have been committed.

The Court of Appeal said:

‘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 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, rather than listing individual chemical composition, and is drafted to exclude from criminal sanction their supply etc. for purposes other than as recreational drugs.

At first look, it might be thought that because Nitrous Oxide is undoubtedly used for medical purposes, it would fall squarely within the medicinal products exemption in the Act.

Importantly, however, an ingredient of the offence which must be proved by the prosecution is that the defendant in question intended to supply the substance for consumption for its psychoactive effects.

So, what we have here is a situation where liability under the 2016 Act depends not solely on the chemical composition of the product, but on the intent of the person possessing.

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.’

The case-by-case approach entails the possibility that different products with precisely the same chemical composition may fall within or outside the definition of medicinal product depending on the circumstances of the individual case.