The Novel Psychoactive Substances Act has taken its first major blow as a court ruled that nitrous oxide could be defined as a medicine, and is therefore legal. For many users of the drug hearing such news many might induce nitrous oxide type effects, a short bout of laughter, rush of euphoria and amusement before returning to reality. Although I am not sure it was the Government’s intention to provide a safer alternative to laughing gas through creating such a confusing bill, it is however, an innovative example of harm reduction.
Last year at Glastonbury festival Ryan Egan and Kenan Buckley were allegedly found with nitrous oxide, and subsequently charged with one count each of possession of a psychoactive substance with intent to supply. Pleading not guilty, the pair’s legal team argued that although nitrous oxide has a psychoactive effect, it is used medicinally under the Human Medicines Regulation act 2012, which according to the Novel Psychoactive Substances act makes the drug completely exempt.
For a drug to be classified as a psychoactive substance it must fit into two categories. The first is that it must induce a psychoactive effect, which essentially means it needs to make you feel different and affect your brain chemistry in some way. This element of the bill is controversial, as technically, giving someone a placebo could induce a psychoactive effect, as could smiling at someone or just being nice to them. But let’s not complicate the issue, as today’s decision has caused enough confusion.
The second rule is that the drug must not be identified and exempt from the bill by being a legally sold psychoactive drug (like alcohol, sugar, caffeine, tobacco etc), food or medicine. The interesting element to this part of the act is that it automatically bans any other drug, even should it be classed as less harmful than an existing legal substance. Any drug that is psychoactive and not recognised is banned under the act. Yet another bone of contention for many who feel drug policy should be based on evidence and study before decisions are made with regardless to legality.
This recent ruling from Judge P Garlick QC will no doubt leave a strong aftertaste in the Government’s mouth, as it essentially for the time being at least legalises the drug and prevents prosecution . Judge Garlick agreed with the defence barristers that ‘Nitrous oxide is plainly capable of coming within the definition of an exempted circumstance… and in my view, on this evidence, it plainly is an exempted substance.’
Yesterday’s ruling might have just legalised nitrous oxide, and put the ball back in the Governments court with regards to what they want to do. The CPS could appeal the judgement to a high court, which could involve a further legal case and debate as to whether nitrous oxide really is except. This would however be both costly, time consuming and could result in the same decision being made in the court of appeal, making the whole process a waste of time.
The second option is for the Government to alter the wording of the act and so that any substances which do qualify as medicines are illegal to sell for non-medical purposes, this again could take a great deal of time and result in a formal debate and vote in the commons. The final option is for the Government to classify nitrous oxide as a classified substance under the misuse of drugs act.
For now, nitrous oxide has managed to evade the law, although for how long remains to be seen. The reality is that this ruling is a serious blow for the Government and raises some serious questions regarding the practicality of the act.
Drug policy should be clear, informed and based on evidence. The Novel Psychoactive Substances Act was heavily criticised for its unclear terminology and confusing message. It is a bill in dire need of reform and debate, with this latest court case openly exposing its fragility for all to see.
Paul North is an Addiction and Treatment Advisor at Volteface. Tweets @Paul_North