A drugs advice charity is urging anyone convicted for selling nitrous oxide since the Government banned legal highs last year to challenge their convictions as the legislation is set to be reviewed.
Kirstie Douse, the head of legal services for Release, made the call on the BBC’s Today Programme on Thursday after two separate trials of people accused of selling laughing gas at music festivals were halted.
The decisions also prompted former government drugs adviser David Nutt to call for legal high laws be scrapped.
The courts heard the drug, synonymous with dental procedures but recreationally used by thousands of Brits, is not banned under the Psychoactive Substances Act as it falls under the definition of a medial product. The law exempts alcohol, tobacco or nicotine-based products, caffeine, food and drink and medicinal products as defined in the Human Medicines Regulations 2012.
The Act, which came into force in May 2016, was designed to combat a wave of new manufactured drugs, like Spice, by banning any substance which “by stimulating or depressing the person’s central nervous system... affects the person’s mental functioning or emotional state”.
However, reports since then suggest that while the Act has been successful in shutting down high street head shops, the market has been driven underground, substances have become more dangerous and few prosecutions have occurred.
The cases that have brought the failings of the act into sharp focus occurred at Southwark and Taunton crown courts. On Wednesday a man was tried at Southwark for intending to supply nitrous oxide at a music festival in Derbyshire. The case failed after prosecuting barrister Adrian Fleming told the court that the Crown’s own expert witness, Professor Philip Cowen, “is expressing the firm view that nitrous oxide, as the legislation is currently worded, is an exempt substance”.
The second case, involving two people on trial for intending to supply nitrous oxide at Glastonbury Festival, failed for the same reason. According to the BBC, Judge Paul Garlick told the court: “Nitrous oxide is plainly capable of coming within the definition of an exempted substance… and in my view, on this evidence, it plainly is an exempted substance”.
The cases have prompted a full review by the Crown Prosecution Service, which Release’s Douse said was not surprising given the charity had warned that the Act was “completely unworkable” from the outset.
She told the Today Programme that while the three accused in the most recent cases had “the confidence” to challenge their charges, around 50 other people had been convicted under the Act. Those people, Douse said, should “contact their solicitor for legal advice”, especially “anyone on the nitrous oxide side of the legislation”.
Release’s executive director, Niamh Eastwood, has separately urged the CPS to “urgently drop” all prosecutions under the Act and to review all cases where defendants have previously pleaded guilty.
Professor David Nutt went a step further telling HuffPost UK on Thursday that the Act - based on “flawed analysis of use and harms and was lazily drafted” -should be scrapped.
He added: “Even if they plug the loophole of medicines the proof of psychoactivity is so difficult that I suspect future cases will fail on this test. It should be discarded.”
Former deputy drugs tsar Mike Trace told the Today Programme that when legal challenges are successful against a “carefully drafted Act, then that’s going to put the cats amongst the pigeons”. Trace admitted, “some of this was foreseen”, before the Act came into effect, “that there are definitions within the Act that will be open to challenge... and this is just one of them”.
Trace said the government were right to consider how they could get around “the conundrum of trying to pass a law for each individual drug” by trying to cover them - legal highs - by much broader definitions, but conceded that was always going to lead to “difficult definition issues”.
Douse said of the Act’s failings: “To try and bring in legislation that tries to ban everything that has a potentially psychoactive effect on a person is at very best, difficult... at the very worst, impossible.
“And it’s not like the government wasn’t aware of the difficulties prior to the introduction of the legislation.”
She added that given research had clearly shown that the level of law enforcement had no impact on supply (Ireland and Poland introduced similar legislation and it had no impact on levels of use), “we all must take a step back and look at different things”.
Douse said if the authorities are attempting to protect people from harm, “then we need to protect them from the harm of criminalisation”. One option to do this, she said, was for sellers to be approved and controlled by the government.
While admitting that authorities needed to “look and learn”, Trace warned that “very big leaps” should not be undertaken without considerable evaluation and consideration.
Home Office crime survey figures published last month suggest 840,000 people in England and Wales used nitrous oxide in 2016-17. During the last decade 19 deaths have been linked to the drug, although some are understood to have been suicides.
The BBC said the Home Office was now pinning its hopes on a new scientific experiment conducted in a test tube. The test, the broadcaster said, was designed to demonstrate whether a product binds to a particular receptor in the human body, affecting mental functioning or emotional state.
Some experts, the broadcaster said, had dismissed the test validity, believing that the only way to demonstrate a substance is psychoactive is to scan the brain of a human as they take it.