Nitrous Oxide - The Government's New Ban

Rhys Rosser • March 27, 2023

Since 2016, it has been an offence to supply Nitrous Oxide (also known as Laughing Gas), in plans announced today (27th March 2023), possession of the substance will also be unlawful.

The Psychoactive Substances Act 2016 had created the offence of Supplying Psychoactive Substances, this includes Nitrous Oxide also known as Laughing Gas. The Government has now announced as part of wider ranging proposals that they will mean that possession of the substance will now be an offence. The Psychoactive Substances Act provided a maximum sentence of seven years imprisonment.


The Home Office had previously asked the independent Advisory Council on the Misuse of Drugs (ACMD) to provide an opinion. As a result of their analysis, ACMD said nitrous oxide should not be banned under the Misuse of Drugs Act 1971. Despite this, the Government has proceeded to ban possession of the substance. The Drug Science Scientific Committee says a blanket ban "is completely disproportionate" and "would likely deliver more harm than good".


Scientific evidence suggests that there is around one death per year in the UK from around 1 million Nitrous Oxide users (a comparison with alcohol would be that around 28,000 deaths happen per year in around 40 million users of alcohol). Nitrous oxide is regularly used as an anaesthetic in medicine and dentistry, and as a gas for making whipped cream in cooking.


The law in respect of drugs possession has been settled since the Misuse of Drugs Act 1971. It is not widely known that in most circumstances, being under the influence of a controlled substance is not an offence - however, possessing such a substance is.


The change in the law is a useful reminder that the definition of 'possession' is regularly misunderstood.


The Courts have held that there are two elements to possession, the physical fact of possession and the mental element. The meaning of physical possession is understood as having 'custody or control'. This will include when another individual has possession of an item but it is under the Defendant's control.


By way of example, If a person orders a controlled drug, directing that it be sent by post to his or her address, the person is in possession of that drug from the time it arrives through the letter box.


A person does not possess something of which that person is completely unaware. If a drug is slipped secretly into someone’s pocket, the person is not in possession of it.


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