On 1 November 2017, the Court of Appeal in Chapman  EWCA Crim 1743, upheld convictions of possessing a psychoactive substance with intent to supply. This was because although nitrous oxide (laughing gas) could be used for medicinal purposes, the applicants had intended it for recreational use.
On 31 August 2017, the Independent published news that Judge Paul Garlick QC, sitting at Taunton Crown Court, had ruled nitrous oxide was an exempted substance under the Psychoactive Substances Act 2016. It was argued that the Act does not make it clear if the substance is exempt only when it is used for medicinal purposes and it does not specify the form nitrous oxide should take to fall under the Act.
At the time, a spokesperson for the Home Office said:
"Nitrous oxide is covered by the Psychoactive Substances Act and it is illegal to supply for its psychoactive effect, However, the Act provides an exemption for medicinal products. Whether a substance is covered by this exemption is ultimately one for the court to determine based on the circumstances of each individual case".
The Court of Appeal in Chapman endorsed this. It is also clear from the debates on the making of the Act that this was Parliament's intention (Public Bill Committee 27 October 2015).
The Law on Psychoactive Substances
The Psychoactive Substances Act 2016 banned what were once called "legal highs", this includes nitrous oxide.
Offences created by the Act include:
Producing a psychoactive substance
Supplying, or offering to supply a psychoactive substance
Possession of a psychoactive substance with intent to supply it
Importing or exporting a psychoactive substance
It is not an offence to possess nitrous oxide for personal use, unless it is in a custodial institution.
The maximum sentence for possession with intent to supply is 7 years imprisonment or an unlimited fine. There are no sentencing guidelines which deal specifically with psychoactive substances offending.
The Act does not apply to:
Nicotine and tobacco products
And controlled drugs within the meaning of the Misuse of Drugs Act 1971
Facts in Chapman
Four applicants sought leave to appeal convictions at the Crown Court for possession with intent to supply nitrous oxide.
All four applicants had been found in possession of canisters of nitrous oxide. One applicant said that he had intended to use the substance for his catering business, in particular for making whipped cream. The others were found in possession of it at fairs and festivals. They each claimed possession for personal recreational use.
The issue was whether nitrous oxide was an exempted substance for the purposes of the 2016 Act.
Decision in Chapman
The applications for appeal were refused. The canisters in question were manufactured for use unconnected with medicinal purposes. They were widely available. The purpose of supplying was purely recreational.
The Court of Appeal ruled:
"We are satisfied 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".
The key words are "in the circumstances of these cases". This case-by-case approach means that there is a possibility that a substance with the exact same chemical composition may fall within or outside of the definition of a medicinal product depending on the circumstances of the individual case.