Laughing gas has been used as a recreational drug for centuries and is what is more commonly referred to as a “legal high”. You might be most likely to encounter it today at a music festival where stalls are set up allowing you to inhale the gas, technically known as Nitrous Oxide, from a balloon. As the name might suggest, the gas often induces feelings of elation in those that take it and can cause people to become hysterical. However, there can be serious detrimental effects to inhaling the substance too.

The Psychoactive Substances Act 2016 was brought into force to clamp down on the supply of so called legal highs, such as Nitrous Oxide, which are not caught by the Misuse of Drugs Act 1971. The 2016 Act stipulates that a Psychoactive Substance is “any substance which is capable of producing a psychoactive effect in a person who consumes it and is not an exempted substance”. A substance is considered to have a “psychoactive effect” if it stimulates or depresses the person’s nervous system or affects their mental functioning or emotional state.

It seems to be accepted that Nitrous Oxide is a psychoactive substance. However, Defendants have recently tried to argue that Nitrous Oxide is in fact a medicinal product and therefore exempt from the Psychoactive Substances Act. Whilst it is true that Nitrous Oxide does indeed have many uses in modern medicine, for example it is given as pain relief to women during childbirth, the Court of Appeal have recently ruled that it is NOT an exempt substance under the Act.

Whilst being in possession of this substance for your own use is not illegal, as soon as you:

• intend to supply it to someone else;

• to be consumed (either by that person or someone else) for its psychoactive effects; and

• you know or suspect it to be a psychoactive substance

you are committing a criminal offence. People often mistakenly believe that to be guilty of supplying a substance you must effectively be a drug dealer selling a substance for profit. This is not the case. Supplying can be as simple as handing something over to another person.

So, beware, if you are intending on handing out balloons filled with laughing gas, or even if you hand over your balloon of laughing gas to your friend for them to use – you have supplied them with a psychoactive substance and you are guilty of an offence which could land you in prison for up to 7 years…and you won’t be laughing then.

For further information or advice, please get in touch with our Crime Team.

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