The Home Office is being called on to review the legal position on the so-called ‘legal high’ Nitrous Oxide.

More commonly known as ‘laughing gas’, nitrous oxide was included in last year’s Psychoactive Substances Act 2016 which banned the production and supply of all psychoactive substances – but came with a list of exemptions including medicinal products defined by the Human Medicines Regulations 2012.

Conviction under the Act often carried a jail sentence.

Last week, a Crown Court judge dismissed a case in which two men were both charged with possession of a psychoactive substance with intent to supply, ruling that nitrous oxide was not actually covered by the Act.

Ryan Egan and Kennan Buckley were arrested in 2016 on their way into Glastonbury festival, and last Friday appeared at Taunton Crown Court.

Defence counsel Ramya Nagesh, of No5 Barristers’ Chambers, argued that under the definitions of the Act, nitrous oxide does not meet the criteria to be banned as a psychoactive substance.

In order for a substance to be banned under the Act, it must be identified as being psychoactive – capable of making a person feel ‘high’ – and critically, must not appear on the list of exemptions.

As nitrous oxide is used as a medicine, most commonly as a pain relief during childbirth, Ms Nagesh concluded that it was an exempt substance.

In dismissing the case, Judge Paul Garlick QC said that on the evidence he heard, nitrous oxide ‘plainly is an exempted substance’.

Despite the collapse of another similar case at Southwark Crown Court this week, the Home Office maintains that nitrous oxide is illegal under the Psychoactive Substances Act.

Ms Nagesh said: “This decision seems to indicate that nitrous oxide falls through the cracks of the Psychoactive Substances Act.

“Although neither of these recent cases sets a legal precedent, the very fact that two judges have drawn the same conclusion is persuasive authority at other Magistrates’ and Crown Courts.

“The Home Office cannot simply continue to say this substance is illegal: somebody needs to take a close look at the legislation.”

Ramya Nagesh was barrister for the defence for Mr Egan, who was represented at an earlier hearing by Daniel Oscroft, Patrick Mason was for Mr Buckley.