The Psychoactive Substances Act was lauded by the government as a ‘landmark Bill’, having gone through ‘extensive Parliamentary and public scrutiny’. The Act was arguably created to specifically prevent the supply of Nitrous Oxide. The Act has been criticised by many as being unworkable and not fit for purpose, and their concerns appear now to have come to fruition.
The Act makes it an offence to supply or to possess with intention to supply psychoactive substances. It does not make simple possession an offence.
A psychoactive substance is defined by the Act, section 2(1), as ‘any substance which a) is capable of producing a psychoactive effect in a person who consumes it and b) is not an exempted substance.’ A substance produces a psychoactive effect, section 2(2), in a person if, ‘by stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state’.
Nitrous Oxide (also known as laughing gas) has a number of uses, including the dispensing of whipped cream from canisters, in chemical manufacturing, in auto racing engine injection and as an analgaesic or anaesthetic in both medical and dental applications. It is also used by some for recreational purposes because of the euphoric effects it produces in the human body. Those who attend festivals may have seen the gas being sold in balloons, from which it is then inhaled.
Is Nitrous Oxide a Psychoactive Substance under the Act?
In bringing prosecutions for the supply of Nitrous Oxide under the psychoactive substances act, the Crown Prosecution Service has relied upon a statement prepared by Professor Phillip Cowen for the Home Office. The statement provides a description of the effect Nitrous Oxide has upon the central nervous system and states that it is ‘capable’ of having a psychoactive effect and is therefore likely to be subject to the Act.
However, Professor Cowen recently confirmed that Nitrous Oxide is also capable of being an exempted substance as defined by the Act. Schedule 1 of the Act makes ‘medicinal products’ exempted substances. It states ’medicinal products’ has the same meaning as in the Human Medicines Regulations 2012 (S.I 2012/1916).
The Regulations define ‘medicinal products’ as 2(1)(a) ‘any substance or combination of substances presented as having properties of preventing or treating disease in human beings’ or 2(1)(b) ‘any substance of combination of substances that may be used by or administered to human beings with a view to- i) restoring, correcting or modifying a physiological function by exerting a physiological function by exerting a pharmacological, immunological or metabolic action, or ii) making a medical diagnosis’.
The Act does not provide that Nitrous Oxide (or indeed any other medicinal product) is only exempt whilst it is being used for medicinal purposes.
According to the BBC, The Crown Court at Southwark was informed that the Crown’s own expert, Professor Cowen, was of the firm view that Nitrous Oxide is an exempted substances under the current wording of the Act, within the medicinal products exception. The Judge instructed the jury to find the defendant not guilty.
The Crown Court at Truro heard submissions from defence counsel that Nitrous Oxide fell within the medicinal products exception. The Judge accepted the submissions.
The Home Office have responded by stating that Nitrous Oxide is covered by the Act and that it remains illegal to supply or intend to supply the substance for its psychoactive effects. However, these new cases strongly suggest otherwise.
There is no reporting to suggest that either case referred to above has been appealed by the Crown on the basis that the terminatory ruling was incorrect, although these cases are very recent.
My Client has been Charged under this Act- what can I do?
Pressure may be applied to CPS reviewing lawyers in the wake of the above cases, to discontinue matters against defendants charged with the supply or intention to supply Nitrous Oxide under the Act. If this does not succeed then an application to dismiss in the Crown Court will be worthwhile pursuing.
Thus far the Crown have sought to rely on a statement from Professor Cowen when proceeding in such cases, given his recent evidence whether the Crown seek to rely on him or not disclosure requests should be made in respect of his recent evidence which undermines or clarifies, depending on your view, what is in that statement.
The Act in Action
My recent experience of the Act both in the Magistrates’ Court and in the Crown Court is that the CPS are struggling to grapple with the poorly drafted legislation. Defence practitioners may find some use in the Home Office Forensic Strategy, published in support of the Act. The Forensic Strategy provides details of the evidence required from experts when determining whether a substance is psychoactive and therefore subject to the Act.
There is also some dispute as to how many canisters of Nitrous Oxide a person might be expected to have in their possession for personal use, particularly the apparently fleeting impact an inhalation would have on a person’s senses.
Despite the government’s protestations that the Act is fit for purpose, in that it does cover Nitrous Oxide, it is likely that they will review the Act and may amend or clarify the medicinal purposes exception.
Relevant media coverage –