Home Office will continue to pursue ‘hippy crack’ cases despite failures of early prosecutions

The Home Office says it will continue to prosecute those who sell nitrous oxide, despite its own expert witness telling a court that so-called "laughing gas" was exempt from the Psychoactive Substances Act which came into force last year.

In a statement the Home Office said: "Nitrous oxide is covered by the Psychoactive Substances Act and is illegal to supply for its psychoactive effect. However, the Act provides an exemption for medical products. Whether a substance is covered by this exemption is ultimately one for a court to determine based on the circumstances of each individual case".

The Crown Prosecution Service is to review its approach to nitrous oxide cases following not guilty verdicts in two cases earlier this month (August).
In the first, the prosecution of man at Southwark Crown Court for intending to supply nitrous oxide at a music festival in Derbyshire failed after prosecution barrister told the court that the Crown's own expert witness, Professor Philip Cowen, expressed the “firm” view that nitrous oxide, as the legislation is currently worded, is an exempt substance.

A similar case at Taunton Crown Court, of two people accused of intending to supply nitrous oxide at Glastonbury Festival, failed for the same reason. Judge Paul Garlick said "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 Psychoactive Substances Act 2016, which banned what used to be called "legal highs", exempts medical products defined as "restoring, correcting or modifying a physiological function by exerting a pharmacological, immunological or metabolic action".

Figures released by the Ministry of Justice showed that 56 successful convictions had been brought under The Psychoactive Substances Act 2016 last year and that police had made more than 500 arrests. Some former legal highs, such as Spice and Black Mamba, have been re-classified as Class B controlled drugs, making possession without intent to supply illegal.