Skip to main content


Badly drafted legislation is no laughing matter

Under the Psychoactive Substances Act 2016, Parliament approved a change of approach in drugs control. The aim of the Act was described as ‘making legal highs illegal’. The motivating factor was the belief that existing legislation (such as the Misuse of drugs Act 1971) was too slow in reacting to the emergence of new and potentially harmful drugs. It therefore attempted to automatically ban an entire category of substances, unless particular exemptions apply. See our previous blog here.

Section 2(1) defines a psychoactive substance as “any substance which is (a) capable of producing a psychoactive effect in and (b) it is not an exempted substance”.  Section 2(2) defines a psychoactive effect if “by stimulating or depressing the person’s central nervous system, it effects the person’s mental functioning or emotional state”.

The key exemption can be found in Schedule 1 – medicinal substances i.e. “any substance or combination of substances presented as having the properties of preventing or treating disease in human beings” or “any substance that may be used by or administered to human beings with a view to (i) restoring, correcting or modifying a physiological function.... or (ii) making a medical diagnosis”.

Unlike the Misuse of Drugs Act 1971, the 2016 Act does not ban a list of specific substances, but rather says everything which can have a psychoactive effect is banned, unless an exemption applies.

The only point at which the Act is specific to particular substances is where it exempts the drugs which are commonly used by the UK population, such as alcohol, tobacco or nicotine-based products, caffeine, food and drink and medicinal products as defined in the Human Medicines Regulations 2012.  For the medicinal defence to apply it is not necessary for the particular defendant to be using the substance for medicinal purposes at all. It is simply enough that it may be used for that purpose, whether by himself or by someone else entirely.

Nevertheless, within six months of the Act coming into force, the Home Office reported over 500 arrests and that most High Street and online retailers had been cleared out or stopped selling what were previously ‘legal highs’. It was thus described as a landmark bill.

Problems have emerged though recently, due to that widely drafted medicinal exemption. In the example of laughing gas, nitrous oxide, cases at Taunton Crown Court and Southwark Crown Court were thrown out in August 2017, specifically because the defence called expert evidence that laughing gas could fall within the medicinal exemption because of analgesic effects (for some, it acts as a painkiller).  This meant that the defendants, even those who may not actually have been using it as a painkiller, could not be successfully prosecuted. The cases against them were dropped.  The key evidence came from a Professor Cowen, the Crown’s own drugs expert.

In Southwark, HHJ Tomlinson instructed the jury to find the defendant 'not guilty'.  The judge went on to state that the hearing was ‘not a test case’. However, in terms of how laughing gas is now to be policed, it plainly was a ‘test case’. If the medicinal exemption in fact applies to this substance, then how can laughing gas be dealt with any differently to, for example, paracetamol?

HHJ Tomlinson went on to say that either there was “a very lucky defendant or a number of other defendants will have their convictions quashed”. Indeed, the BBC reports that 50 people have already pleaded guilty to supplying nitrous oxide under the 2016 Act, but the above two matters were the first to be contested on the basis of medicinal exemption.

Accordingly, government is now having to conduct an urgent ‘review’ of the very legislation which it previously said had gone through “extensive Parliamentary and public scrutiny” in 2016. This law has now been thrown into considerable doubt, with defence lawyers lining up to argue, no doubt with expert evidence, that the substance found on their client in fact has an exempted medicinal use. These are the practical consequences of badly drafted legislation – uncertainty, confusion and delay. The only people smiling are the laughing gas enthusiasts.

If you are investigated or prosecuted under the Psychoactive Substances Act 2016 or in relation to any formally ‘legal highs’, contact Brett Wilson LLP at an early stage and we would be happy to assist.  Click here for further information


Legal Disclaimer

Articles are intended as an introduction to the topic and do not constitute legal advice.