Tag Archives: nitrous oxide

News

The effect of the Psychoactive Substances legislation

New legislation was introduced in 2016 banning the production, sale, distribution and supply of psychoactive substances.

A review of the legislation took place earlier this year and the main findings are below.

Locally, however, it appears that such substances as ‘laughing gas’ or Nitrous Oxide remain a popular recreational drug and you can read more about a current campaign here.

What challenges have there been for the law?

There have been three main challenges.  These concern:

  • the medicinal products exemption for nitrous oxide
  • the psychoactivity of the same gas, and
  • the psychoactivity of synthetic cannabinoids.

What was decided?

In each case, the Court held that the substances were subject to the provisions of the Act.

What enforcement has been taken?

There have been around 270 prosecutions under the Act.  About 170 sentences have been imposed and 332 retailers have been identified as the ceasing sale of psychoactive substances.

Police forces have recorded 1,481 arrests and seizures up to March 2017, so it is clear that the supply of the substances has not been eliminated.

Has the new law on psychoactive substances had any effect?

The main aim of the Act was to prevent the open sale of psychoactive substances, and this has largely been achieved. There has been a fall in the use of the substances and therefore a reduction in health-related harm.

There has been an increase in the supply by street dealers, an increased use in some prison populations and amongst the homeless and there is a continued development of new substances in an aim to avoid the legislation.

 

What are the penalties?

The maximum penalty for producing, supplying, possessing with intent to supply or importing psychoactive substance is seven years. The maximum penalty for possession of a psychoactive substance in a custodial setting is two years.

The Act also introduced a scale of civil sanctions:

  • prohibition notices
  • premises notices
  • prohibition orders, and
  • premises orders

Breach of the two orders is a criminal offence.

How can we help?

Various substances are banned under the Psychoactive Substances Act 2016.  Some are now controlled under the Misuse of Drugs Act 1971.

Stronger penalties are available under the Misuse of Drugs Act.  As a result it is essential to ensure that the correct legislation is being applied. We are experts in this area and can provide you with tailored advice.

As a result, if you are arrested or know that the police wish to speak to you about a criminal offence involving controlled drugs or psychoactive substances then make sure you insist on your right to free and independent legal advice.

The advantages of such early legal advice can be found here.

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.  Legal aid may well be available to fund your defence at court.

You can read about a case that we successfully defended where automatism was the issue here.

 You can find your nearest office here.

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News

The Psychoactive Substances Act 2016 – no laughing matter?

‘Laughing gas’ is more properly known as Nitrous Oxide.  It was recently back in the news following a Court of Appeal ruling that the substance is controlled by the Psychoactive Substances Act 2016.

The Act makes it an offence to possess psychoactive substances with intent to supply.  In a certain number of limited cases, just possession a psychoactive substance alone is also an offence.

The appeals came about because of some cases reported in August 2017.  In those case, Judges had ruled that laughing gas remained exempt from control under the Act.

The issue for the appeal was whether Nitrous Oxide was a ‘medicinal product’.  If it was, then the offence could not have been committed.

In the four cases before the Court of Appeal, two appellants had been convicted after trial.  The remaining two had pleaded guilty.

Following the hearing of the appeals 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.’

So, is the matter settled?

The key words in the judgment are ‘…in the circumstances of these cases.’

So, to answer this question you need to understand a little more about the purposes of the Psychoactive Substances Act 2016. The Act applies to substances by reference to their effects.  As a result there isn’t a list made up of substances and their individual chemical composition.  The law is drafted to only criminalise their supply for the purpose of recreational drugs.

The argument has been put that because Nitrous Oxide is undoubtedly used for medical purposes, it would fall squarely within the medicinal products exemption in the Psychoactive Substances Act 2016.

The prosecution must prove an important ingredient of the offence.  This is that any defendant in question intended to supply the substance for consumption for its psychoactive effects rather than for medicinal purposes.

As a result, liability under the Psychoactive Substances Act 2016 does not depend solely on the chemical composition or the effect of the substance, but also on the intent of the person possessing it.

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.’

This 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.  This will depend on the circumstances of the individual case before the court.

Seek expert criminal advice if you are investigated for offences under the Psychoactive Substances Act 2016

These cases illustrate how complex the criminal law can be.  Headlines in newspapers or online can be confusing, particularly when even the courts can come to different conclusions on the same set of facts.  In cases such as this there will be differences of scientific opinion.  It also takes some time for an appeal court to clarify the law.

In relation to Nitrous Oxide, it may be that further appeals will follow which may again alter the interpretation of the law.

If you are being investigated for any drug allegation then you will want expert advice from a criminal law specialist who is up to date with the current law.  Please contact your nearest office to discuss your case.

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