Following a Court of Appeal judgement that the chemical is controlled under the Psychoactive Substances Act 2016, ‘laughing gas,’ also known as Nitrous Oxide, has resurfaced in the news. Possession of psychoactive substances with the intent to supply is illegal under the Act, and simple possession is illegal in some circumstances.
The appeals stem from a few cases in which judges concluded that laughing gas is exempt from the Act’s jurisdiction.
On appeal, the question was whether Nitrous Oxide constituted a’medicinal product,’ and if it was, the charge would not have been committed.
Two appellants were found guilty after a trial in the four instances before the Court of Appeal; the other two had pleaded guilty.
The court ruled as follows:
‘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.’
So, is the matter settled?
The key words in the judgment are ‘…in the circumstances of these cases.’
To answer the question, we need to know a little more about the 2016 Act’s purpose. The 2016 Act applies to substances based on their effects rather than specific chemical makeup, and is meant to exempt their supply and use for purposes other than recreational drugs from criminal consequence.
On the surface, it appears that because Nitrous Oxide is clearly utilised for medical reasons, it would fall squarely inside the Act’s medicinal products exception.
Importantly, however, one element of the offence that the prosecution must prove is that the defendant intended to offer the chemical for use for its psychoactive effects.
So, under the 2016 Act, liability is based not merely on the chemical content of the substance, but also on the intent of the person who has it.
The court ruled in one of the appeals:
‘…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.’
Because of the case-by-case approach, various items with the exact same chemical makeup may fall within or outside the definition of medicinal product depending on the circumstances of each case.
These examples highlight the intricacies of criminal law, scientific disagreements, and the reality that it can take a long time for an appeal court to explain the law.
In the case of nitrous oxide, it’s possible that more appeals will be filed, especially if scientific opinion changes over time.
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