Nitrous oxide and powers of seizure

09 November 2020

Not reviewed after the date of publication

Question: 

There has been an increase in our ward regarding the use of legal highs, particularly nitrous oxide.

Please can you confirm our powers in regards to such?

Answer:

Please find below, information on the law relating to nitrous oxide and powers of seizure:

The Psychoactive Substances Act 2016 (the Act) governs uncontrolled substances that are intended to mimic the effect of controlled drugs.

Section 2 of the Act provides the definition of a psychoactive substance as:

'Any substance which -

(a) is capable of producing a psychoactive effect in a person who consumes it, and
(b) is not an exempted substance (see section 3)'.

The case of R v Chapman 2017 confirms that nitrous oxide is classed as a 'psychoactive substance'.

Whilst it is accepted that nitrous oxide is a 'psychoactive substance', simple possession for personal use is not an offence. The possession offences that do exist under the Act are as follows:

Section 7 - possession with intent to supply psychoactive substance

Section 9 - possession of a psychoactive substance in a custodial institution

The power to seize a psychoactive substance comes from section 43 of the Act. It provides a general power to seize but only when conducting a search under that Act. Where a person is to be stopped and searched, the search power comes from section 36 of the Act. For a search to be lawful under section 36 the officer has to have reasonable grounds to suspect that the person has committed, or is likely to commit, an offence under any of sections 4 to 9 or section 26 of that Act.

As already stated above, simple possession is not an offence. However, if you suspect a person of possession with intent to supply and carry out a search under section 36, during which you find a small amount of psychoactive substances (indicative of personal use), it is our view that you can still seize the substances. Section 43(5) states that anything found during the course of a search can be seized, if it is relevant evidence of an offence under the Act, or it is a psychoactive substance (whether or not it is relevant evidence). In our view, despite it not being an offence to simply possess a psychoactive substance, if the search was conducted because the offence of supply was suspected but all that was found in the end was enough for personal use only, then this may still be seized under section 43(5)(b)(ii).

The below link may also be of interest to you:

https://www.cps.gov.uk/legal-guidance/psychoactive-substances

To read more legislation about this, login to the legal database. 

Back to Legal Questions