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Nitrous Oxide and the Psychoactive Substances Act 2016 – an Ongoing Controversy by Joy Lewis

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Nitrous Oxide and the Psychoactive Substances Act 2016 – an Ongoing Controversy by Joy Lewis Nitrous Oxide and the Psychoactive Substances Act 2016 – An Ongoing Controversy by Joy Lewis Is nitrous oxide, commonly known as ‘laughing gas’, a psychoactive substance under the Psychoactive Substances Act 2016? Although the ruling of the Court of Appeal in R v Chapman [2017] EWCA Crim 319 in November 2017 is often regarded as having dealt with the question decisively, a series of recent cases in the Crown Courts show that the question is still very much a live one. Psychoactive Substances Act 2016 Under the regime of the Misuse of Drugs Act 1971, the laws governing the supply and possession of illegal drugs have traditionally functioned by the categorisation of named substances in accordance with an assessment of harmfulness. In an attempt to keep pace with the ever-changing chemical make-up of harmful substances marketed as legal highs, the Psychoactive Substances Act 2016 (“the Act”) took a novel approach. Instead of listing banned substances by name, it created a broad prohibition on the production or supply of any ‘psychoactive substance’ which is likely to be consumed for its psychoactive effects. As defined under s.2(1) of the Act, a psychoactive substance means any substance which is capable of producing a psychoactive effect in a person who consumes it, but which is not an exempted substance. Exempted substances are set out in Schedule 1 to the Act, and include medicines and commonly consumed products such as caffeine, tobacco and alcohol. For the purposes of the Act, a substance produces a psychoactive effect in a person if, ‘by stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state’. Whilst at first glance this might appear to be a useful way to capture a new generation of harmful substances, its application to an old and largely unharmful substance has revealed the flaws in such a broad-brush definition. Nitrous Oxide Nitrous oxide, commonly known as laughing gas, was first synthesised by Joseph Priestley in 1772. By the early 19th century, nitrous oxide was widely used for recreational purposes, and its effects were memorably recorded by Humphrey Davy, who wrote that ‘I now had a great disposition to laugh…I felt a sense of tangible extension highly pleasurable in each limb.’ Although this recreational use has persisted, nitrous oxide was never categorised under the Misuse of Drugs Act, and it has not been associated with significant harms. When the Psychoactive Substances Act came into force in May 2016, the prosecuting authorities took the view that nitrous oxide is a psychoactive substance within the meaning of the Act, and a wave of arrests and prosecutions followed during the summer festival season of 2016. As cases started to reach the courts, most contested cases turned on the question of whether or not there was an intention to supply, as there is no restriction on personal possession or use of psychoactive substances under the 2016 Act. In many cases where supply was clearly made out, guilty pleas were entered, and in some cases, custodial sentences were passed. In late August 2017, two trials caught the headlines, one in Taunton and the other at Southwark Crown Court. In both cases, the prosecution case collapsed after the defence teams argued that nitrous oxide is an exempted substance, and the legal status of nitrous oxide was once again thrown into doubt. Aggrieved that they had been convicted on now doubtful charges, a number of defendants who had previously been convicted or pleaded guilty to charges relating to nitrous oxide took their cases before the Court of Appeal in the case of R v Chapman [2017] EWCA Crim 319. R v Chapman Chapman is often taken as authority that any challenge to the status of nitrous oxide as a psychoactive substance has been closed down. However, this is a misunderstanding of the judgment. The Court of Appeal rejected the appeal on the grounds that when nitrous oxide is used for recreational purposes, as opposed to medicinal purposes, it cannot fall under the exemption for medicinal products. It declined to rule on the question of whether it is to be regarded as a psychoactive substance in the first place. Subsequent trials in the Crown Courts In December 2017, I represented a defendant at Woolwich Crown Court charged with possession with intent to supply nitrous oxide after he was stopped by police on his return from a festival on the Isle of Wight, and a number of nitrous oxide cannisters were located in his vehicle. He disputed the charge on two grounds: First, that the nitrous oxide was for personal use, and not intended for supply to others; and second, that nitrous oxide is not a psychoactive substance within the definition set out at s.2(1) of the Psychoactive Substances Act 2016. Evidence was heard from Professor Cowen for the prosecution, and Professor Nutt for the defence, in what was the first trial to hear expert evidence directly on this point. In essence, Professor Cowen’s opinion was that, when one looks at the existing body of research on nitrous oxide, the only plausible explanation for the range of psychological effects caused by consumption of nitrous oxide, which include analgesic, anaesthetic, psychedelic and euphoric effects, is that nitrous oxide acts on neurotransmitters in the brain. In other words, that it acts directly upon the central nervous system. Professor Nutt argued that the current body of research, which is largely based upon studies in animals, is insufficient to conclude that the psychological effects of nitrous oxide are caused by a direct effect on the central nervous system. He draws a comparison with the substance nitric oxide, known as ‘poppers’, which are also used recreationally, but are not regarded as psychoactive substances under the 2016 Act. The jury unanimously acquitted the defendant. However, because it was open to the jury to acquit on either of the two defences advanced, we cannot know whether they found him not guilty because they were not sure that nitrous oxide is a psychoactive substance, or because they were not sure that he intended to supply it to others, or both. In contrast, in a subsequent case at Wood Green Crown Court in January 2018, a defendant was convicted by a jury after hearing expert evidence from Professor Cowen and Professor Nutt. There are further cases awaiting trial, in which the same issues will be heard in coming months. Where do we go from here? Until such a time as the Court of Appeal deals decisively with the question of whether nitrous oxide is a psychoactive substance for the purposes of the 2016 Act, it remains a live issue, and defence teams are justified in taking the point by calling expert evidence in all nitrous oxide cases, whether or not a second defence such as denial of intent to supply is available. However, this is far from a satisfactory situation, and has financial implications in a system under pressure. It is likely that it will take some time for another case to reach the Court of Appeal, and it is regrettable that the Court declined to address the point when it had the opportunity. There is also an argument that this is an issue entirely unsuitable for determination by a jury, even aided by expert evidence. How is a selection of 12 members of the public to choose between the testimony of two eminent professors of neuropsychopharmacology? As a member of my jury astutely asked in a note: Why are we deciding this? Is there not a law which says whether nitrous oxide is illegal or not? This, it seems, gets to the heart of the issue. It is not the function of a jury, nor indeed that of the Court of Appeal, to determine which substances are prohibited at law and which are not. That is a matter of public policy, the proper forum for which is Parliament. The nitrous oxide controversy has revealed the fundamental weakness in the drafting of the PSA, and until such time as Parliament takes responsibility for the resolution of the issue, the courts will continue to grapple with the interpretation of a flawed law. .
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