Rudi Fortson K.C.

In an important judgment handed down today by the Court of Appeal (Criminal Division)(England and Wales) – R v Chapman and others [2017] EWCA Crim 319 – the Court held that canisters of nitrous oxide (“nox”, or N2O) designed and intended for food use and not for a medicinal purpose, are not “medicinal products” (within the meaning of the Human Medicines Regulations 2012) for the purposes of the Psychoactive Substances Act 2016.  The result is – I suggest – correct, and it accords with the reasons given in my earlier blog and article on the PSA 2016: see “The Psychoactive Substances Act 2016“, R. Fortson, Criminal Law Review [2016] Crim L R 303.  N2O is used for many commercial purposes (rather than medicinal).  The Court said [LINK] (at para.32):

“The gas no doubt modifies the physiological functions of those who inhale it, but it brings neither short term nor long-term beneficial effects to human health in these circumstances. The canisters in question were in fact manufactured for use unconnected with medical purposes, widely available and distributed for use in catering, which in itself is a strong indicator that they were not medicinal products. Furthermore, the purpose for which it was intended to supply the canisters was purely recreational with nothing whatsoever to do with health. This last feature coupled with the fact that the gas was intended to be used in circumstances which were not beneficial to health, indeed import some risk to health, was sufficient to take it outside the definition of medicinal product whatever label may have been on the boxes in which the canisters were originally packed.”  

A number of countries (but not yet the UK) have permitted or tolerated the establishment of “Drug Consumption Rooms” – sometimes called “Safe Injecting Sites” – being medically supervised places where drug addicts can ingest certain drug substances (albeit illicitly obtained).  These facilities are not so-called “shooting galleries”.  The aim of a DCR, as described by the EMCDDA, is primarily “to reduce the acute risks of disease transmission through unhygienic injecting, prevent drug-related overdose deaths and connect high-risk drug users with addiction treatment and other health and social services” [Link].  Such facilities are contentious, but a strong case can be made for at least piloting such a facility in the UK.  Whether a DCR will be established in the UK remains moot [see the piece by BBC’s Mark Easton [Link].  See also an article by the “Irish Examiner” (31st October 2017) [Link]; and by Caroline Lucas MP in the Argus [Link].

News broke today that two cases, brought under the Psychoactive Substances Act 2016, collapsed in respect of “nitrous oxide” contained in small cartridges of the kind intended to be used in dispensers for (e.g.) whipping cream (see The Metro [link] and the BBC [Link]).   It was reported that in one case, prosecuting counsel informed the Crown Court that  its own expert witness….is “expressing the firm view that nitrous oxide, as the legislation is currently worded, is an exempt substance”.   The PSA does indeed exempt from the legislation “medicinal products” as defined by reg.2 of the Human Medicines Regulations 2012 (S.I. 2012/1916). 

The main problem here, I suggest, is in the definition of “medicinal product”, which is ambiguous, but which has been the subject several decisions of the ECJ.  The solution might be to give that definition a purposive meaning.  Reg. 2 broadly mirrors  the wording of art.1(2) of Council Directive 2001/83 (as amended).  In the ECJ decision of  D and G,  (C-358/13) EU:C:2014:2060; [2014] P.T.S.R. 1217, the Court said: “… the answer to the question referred is that article 1(2)(b) of Directive 2001/83 must be interpreted as not covering substances, such as those at issue in the main proceedings, which produce effects that merely  modify physiological functions but which are not such as to have any beneficial effects, either immediately or in the long term, on human health, are consumed solely to induce a state of intoxication and are, as such, harmful to human health.”  

The test, perhaps, of whether a product is a “medicinal product” or not, is whether it was designed or intended for medicinal or therapeutic use.  It is surely inconceivable that those who produced or supplied cartridges of N2O for food use, have produced/supplied “medicinal products”!

For a detailed article on the PSA 2016, see “The Psychoactive Substances Act 2016“, R. Fortson, Criminal Law Review [2016] Crim L R 303.

On a wider note, this commentator  warned more than once that the PSA 2016 was flawed in its drafting (not least in relation to the exemptions) and liable to give rise to definitional and scientific problems.

An interesting article regarding the two cases appears in “The Independent” (by Lizzie Dearden, Home Affairs Correspondent, 30.8.17) [Link]

[Addendum to the Post]: As to whether these cases represent a drug policy that is working or failing, see a cogent discussion by Professor Harry Sumnall (Substance use, the Public Health Institute, Liverpool John Moores University) -“The laughing gas verdicts represent a failure of Britain’s drug policy“, Guardian, 1st September 2017 [Link].  In an unrelated piece, in the Islington Tribune (31.8.17), another N2O case has come to light, but where the jury convicted [Link].

On Saturday, the 12th August 2017, I attended the BoomTown Festival near Winchester.  My purpose was not to hear the music but to visit a harm-reduction facility run by “The Loop” at which drug substances were tested to determine what they were and (among other things) whether they had been adulterated or mis-described by the supplier.   The substances were passed to a team of volunteer chemists at The Loop, under the guidance of  Professor Fiona Measham, Director of The Loop and Professor of Criminology in the School of Applied Social Sciences at Durham University.  Over 1200 persons attended the facility.  Each person anonymously submitted a substance for testing and received the result an hour or so later.  The substances were not returned to them.   The attendees were invited to participate in a 15-20 minute non-judgemental ‘intervention talk’ with a staff member, which included the question of whether the attendee had ever accessed support from a treatment service for their drug or alcohol use.  There was an instance when a substance was given to a tester by a para-medic who had obtained it from a person seeking medical assistance or advice.   According to a news item in The Independent (19th Aug 2017 [link]), analysts found “plaster of paris, monosodium glutamate, creatine, lactose, sugar and anti-malarial pills sold as drugs”.   Samples of the unpleasant, but highly potent, n-ethylpentylone, sold as Ecstasy, were discovered.  The Loop points out that it does not encourage or condone ‘recreational’ drug use, and it does not assert that such use is ‘safe’.  The facility was larger than I had anticipated, but I came away impressed by what I had seen.  The para-medic I spoke with was clearly relieved that The Loop was there to provide the services that it did.   It seems that some 10%-20% of those who attended the facility destroyed their entire batch of drug rather than risk adverse effects.  The facility will doubtless have its critics, but if one takes as a given that, for centuries – and for whatever reason – people have chosen (and will continue) to takes substances for their psychoactive effect (including alcohol), then harm-reduction schemes have their place.  No drug-related deaths at the BoomTown Festival were reported for 2017.   According to The Independent, welfare and medical professionals on site “reportedly saw far fewer serious drugs-related health issues than previous years, and attributed this to the presence of The Loop“.  Drug testing has taken place in other countries such as Sweden, Spain, and Austria.  On-site drug testing is not to be undertaken lightly .  The Loop’s strength lies in its multiple-agency approach – hence “Multi Agency Safety Testing” (MAST) [Link]

The BBC news report that at least 60 people have died in the UK in the last eight months after taking the strong painkiller fentanyl, is shocking [link].   But, even more shocking is a subsequent BBC report, based on ONS statistics, which reveals that deaths involving cocaine rose by 16% to 371, while overall there were 3,744 deaths from legal and illegal drugs [link].   The purity of cocaine distributed at street level can be high, and there is a wealth of evidence that super-potent ‘Ecstasy’ is in circulation.  For an explanation of fentanyl see the DrugScience website [link].   It is not just fentanyl that is a problem.  The case for at least piloting a Drug Consumption Room somewhere in the UK is overwhelming.   Such rooms  (not to be confused with so-called “shooting galleries”) exist in many countries.  Unfortunately, the UK Government has recently stated that it has “no plans to introduce drug consumption rooms” but it asserts that is “….committed to taking action to prevent the harms caused by drug use and our approach remains clear: we must prevent drug use in our communities, help dependent individuals recover, while ensuring our drugs laws are enforced” (Government Response to the ACMD, Annex B, para.7, 12th July 2017. [Link], and see [Link].  It is plain from the statistics that more needs to be done.