Prosecutors could in future decline to bring charges against people suspected of crimes linked to laughing gas after two cases collapsed when courts heard the substance was exempt from the law designed to ban it.

The Crown Prosecution Service has indicated that it is considering the effect of the two failed prosecutions on its future charging decisions. But the government insisted that despite the cases, nitrous oxide is illegal under the 2016 Psychoactive Substances Act.

“Obviously, we have had two cases with similar outcomes, so we are considering the implications for future cases after those,” the CPS said on Thursday. While no decision has been taken on whether to change the way charging decisions are made, the cases raise the prospect that one may follow.



Although the judge in one of the cases stressed that it did not set a legal precedent, there have been calls to review the dozens of convictions under the act.

A case at Southwark crown court in London was thrown out this week after the court heard that an expert witness for the prosecution defined nitrous oxide as not being covered by the act, which was brought in to ban what were formerly known as legal highs.

That followed the collapse of a case against two people charged with intending to supply the substance at Glastonbury this year. The judge at Taunton crown court, Paul Garlick QC, said nitrous oxide was “plainly an exempted substance” on the evidence put before him, according to Metro.

The defence teams successfully argued that nitrous oxide, which can be used for pain relief, was covered by an exemption allowing medicinal products, various reports said.

The judge sitting in Southwark, David Tomlinson, said it was not a test case, the BBC reported. And the Home Office stressed this point, saying it believed that the act still banned nitrous oxide and each case would have to be decided on its individual circumstances.

“Nitrous oxide is covered by the Psychoactive Substances Act and is illegal to supply for its psychoactive effect,” a spokesman said.

“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.

“Since the Psychoactive Substances Act came into force, more than 300 retailers across the UK have either closed down or are no longer selling psychoactive substances. Police have arrested suppliers and action by the National Crime Agency has resulted in the removal of psychoactive substances being sold by UK-based websites.

“These dangerous drugs have already cost far too many lives and the act is sending out a clear message: this government will take whatever action is necessary to keep our families and communities safe.”

According to the BBC, the drugs charity Release said: “The CPS must urgently drop all prosecutions under the Psychoactive Substances Act and review cases where defendants have previously pleaded guilty.”

The Liberal Democrat MP Tom Brake said his party had always argued that the blanket ban on all psychoactive substances was unworkable.

“This latest failure reeks of government incompetence. They have brought forward a law that is both unnecessary and undeliverable. It is time the government started to look at the evidence. We must follow what works, not ham-fistedly force through draconian laws,” he said.

“The war on drugs has been a disaster from its inception. Drug use should be dealt with as a health issue. Users should be treated, not locked up, freeing up valuable police resources to tackle the dealers.”