Portsmouth police have come under fire after wrongfully arresting a teenager at last weekend’s Victorious Festival.
The 19-year-old was arrested at the music festival on Southsea Common on suspicion of possession of a psychoactive substance – nitrous oxide, commonly known as laughing gas – with intent to supply and has since been released on bail.
However, two court cases have independently ruled that nitrous oxide is exempt from the new law banning so-called legal highs.
The Psychoactive Substances Act was introduced last year to deal with the problem of new manufactured drugs.
Nitrous oxide, also known as laughing gas, is taken by hundreds of thousands of people every year as a recreational drug. But the gas is also used by doctors for its pain-relieving properties.
A subsection of the Psychoactive Substances Act exempts medical products defined as “restoring, correcting or modifying a physiological function by exerting a pharmacological, immunological or metabolic action”.
A man was tried at Southwark Crown Court on Wednesday for intending to supply nitrous oxide at a music festival in Derbyshire.
But 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”.
Meanwhile a judge at Taunton Crown Court, where two people were on trial for intending to supply nitrous oxide at Glastonbury Festival, came to the same conclusion.
In that second case, 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 was designed to deal with a wave of new manufactured drugs, often called legal highs, by banning any substance which “by stimulating or depressing the person’s central nervous system… affects the person’s mental functioning or emotional state”.
The law specifically exempts alcohol, tobacco or nicotine-based products, caffeine, food and drink and medicinal products as defined in the Human Medicines Regulations 2012 – it is that last exemption that led the cases to collapse.
The drug charity, Release, has described the law as “fundamentally flawed”.
Its executive director, Niamh Eastwood, said, “The CPS must urgently drop all prosecutions under the Psychoactive Substances Act and review cases where defendants have previously pleaded guilty.”
Officers will now be forced to drop the case against the Portsmouth teenager, under instruction from the CPS, for the rather simple reason that he has not broken any law.