BSQ Briefing - Personal Possession of Nitrus Oxide aka Laughing Gas Criminalised
Laughing gas is one of the most used drugs in the UK particularly amongst young people between the ages of 16 and 24. Now, as part of its antisocial behaviour action plan the Government has outlawed the personal possession of nitrous oxide, commonly known as laughing gas. The new regulations, effective since November 8, 2023, categorize nitrous oxide as a Class C drug under the Misuse of Drugs Act.
Nitrous oxide, inhaled from balloons or canisters, induces euphoria and is also used in medicine with oxygen as anesthesia. However, heavy use has shown long-term health problems, exemplified by recent media reports of an unnamed premiership footballer seeking treatment for nitrous oxide addiction.
Explaining the decision the levelling up Minister Michael Gove commented that “We are doing this because if you walk through any urban park you will see these little silver cannisters which are the evidence of people regarding public spaces as arenas for drug taking. It is unacceptable. People should feel those spaces are being looked after in a way which means they are safe for children”. Gove went on to say that the drug had an “intoxicating and potentially damaging effect on young brains and young nervous systems".
Not everyone agrees that the harmful effects of nitrous oxide justify criminalising person possession of the drug. Under the old law, nitrus oxide was not classified as a controlled substance under the Misuse of Drugs Act but treated as a psychoactive substance. It was lawful to possess nitrous oxide but the supply and possession with intent to supply of the drug were offences under the Psychoactive Substances Act 2016.
The decision to outlaw possession and enhance the legal status of the drug came despite the recommendations of the Advisory Council on the Misuse of Drugs (ACMD). When asked to review the law on laughing gas the AMCD concluded in March 2023 that the existing law “remains appropriate legislation.” The AMCD were concerned that the criminal penalties for the possession offence were disproportionate compared to the low level of harm posed by moderate use of the substance as were the potential burdens created for lawful users of it.
The Home Office also brushed aside criticism of the lack of consultation on the changes, issuing a statement that this would be superfluous as it was already “minded to introduce the ban.”
Other critics such as Steve Rolles, senior policy analyst at the Transform Drug Policy Foundation, support the MCD’s concerns and point to the danger these changes will “criminalises users and will hand control of the product to criminal gangs.”
In 2017 Mr Gove notoriously commented that "I think the people of this country have had enough of experts.” This decision can be seen as further evidence of a worrying trend where expert opinions are overlooked in favour of political priorities.
BSQ do not anticipate huge numbers of prosecutions for the possession offence. First time offenders should be diverted away from Court, by way of a warning, reprimand or caution as would be the case with other Class C possession drug offences. But, as Prof Adam Winstock, an addiction medicine specialist and founder of the Global Drug Survey has commented, for the unfortunate few young people that are prosecuted getting a criminal record may cause “far greater harm than the risks for the vast majority of people using nitrous oxide.”
If you need help with this charge or one related to other banned substance offences, see how our drug charges solicitors can help give you the best defence. Our criminal defence solicitors are highly experienced, with a reputation for achieving the best outcomes for our clients.