Nitrous Oxide – Under Pressure

Our solicitor Helen Douglass received a case from Megan Fletcher, started 2019 with a unanimous not guilty verdict for her client, charged with one count of possessing a psychoactive substance with intent to supply.

Nitrous Oxide as a Psychoactive Substance

Nitrous Oxide has been a source of some debate, under the Psychoactive Substances Act 2016. The legal position does now appear to be more settled. The case of R v Chapman & others [2017] EWCA Crim 1743 held that the ‘medicinal substance’ does not apply to nitrous oxide canisters designed and intended for food use. The court held, at paragraph 32:

‘The gas no doubt modifies the physiological functions of those who inhale it, but it brings neither short term nor long-term beneficial effects to human health in these circumstances. The canisters in question were in fact manufactured for use unconnected with medical purposes, widely available and distributed for use in catering, which in itself is a strong indicator that they were not medicinal products. Furthermore, 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.’

Subsequently, a defence was raised before Wood Green Crown Court, that there was insufficient evidence that nitrous oxide’s effect on the central nervous system are derived directly from the substance rather than from secondary physiological effects such as vasodilation. However, the Court of Appeal held in R v Rochester [2018] EWCA Crim 1936 that the Psychoactive Substances Act 2016 does not require a psychoactive substance to be capable of producing its psychoactive effect by directly stimulating or depressing the central nervous system. An indirect effect of stimulating or depressing the central nervous system is sufficient.

Intent to Supply

It is not an offence under the act to possess a psychoactive substance. It is, however, an offence to possess the substance with intention to supply.

Megan’s client was a young man found in possession of 30 canisters of nitrous oxide, a dispenser, 209 balloons and in excess of £800 in cash. He was spotted by police in the company of 4 other males, one of whom was seen to inflate a balloon and hand it to another.

It was the Crown’s case that the number of canisters were themselves suggestive of an intention to supply; and that the surrounding circumstances were further evidence of such an intention. However, although the Prosecution had evidence that the number of canisters, the presence of the dispenser and the number of balloons were consistent with supply, there was no evidence that they were also inconsistent with personal use.

In particular, the Crown were unable to present any evidence as to:

  • The number of balloons one canister would fill;
  • The number of balloons or canisters one user may consume over the course of an evening or weekend; or
  • How or why the presence of a dispenser makes intent to supply more likely.

It was an agreed fact before the jury that the availability of data regarding consumption rates and amounts is minimal. The Judge confirmed in his summing up to the jury that as a result the Crown were unable to demonstrate an intention to supply through the quantity of canisters alone.

Given the significantly short-lived ‘high’ a user may experience from an inhalation, the low value of the canisters, and the apparent need for a dispenser and balloons for personal inhalation of nitrous oxide, Megan was able to demonstrate that the number of canisters was not inconsistent with personal use, and that the other circumstances were insufficient to demonstrate an intent to supply.

The acquittal demonstrates that, despite these two important interventions from the Court of Appeal in the act’s short life, there remains scope to robustly defend a client charged with possession with intent to supply nitrous oxide. Megan has developed considerable knowledge in this area and continues to achieve not guilty verdicts for her clients.

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