Nitrous oxide was found not to be a ‘psychoactive substance’ (Picture: Getty/Metro.co.uk)

Laughing gas is technically still legal after a major court decision, Metro.co.uk has learned.

A court has just ruled that nitrous oxide isn’t actually covered by the Psychoactive Substances Act, the law brought in last year to tackle so-called ‘legal highs’.

The landmark ruling came after Ryan Egan, 27, and Kenan Buckley were allegedly found with nitrous oxide as they were going into Glastonbury last year.

They were both arrested and charged with one count each of possession of a psychoactive substance with intent to supply.

However, Egan and Buckley’s defence barristers argued that – under the definition given by the act – nitrous oxide doesn’t count as a ‘psychoactive substance’.

Judge P Garlick QC accepted this and threw out the case against Egan and Buckley – meaning that, technically, nitrous oxide isn’t actually illegal after all.

The case was heard at Taunton Crown Court (Picture: PA)

The lawyers – lead barrister Ramya Nagesh, co-counsel Patrick Mason and Daniel Oscroft, who was initially on the landmark case – deconstructed the Act during the hearing at Taunton Crown Court.

For something to count as a psychoactive substance under the new law, it needs to fit into two categories.

First, it needs to produce a ‘psychoactive’ effect – basically, it needs to get you high in some way.

Second – and this is the important bit – it needs to not be one of many things that are exempted, such as alcohol, food or medicine.

Obviously balloons aren’t alcohol, and you don’t really eat nitrous oxide (although it is used as a food additive). Nitrous oxide is, however, very commonly administered as medicine.

The Psychoactive Substances Act was brought in last year to tackle so-called ‘legal highs’ (Picture: Getty Images)

Ramya Nagesh, the lead defence barrister who developed the argument, told Metro.co.uk that nitrous oxide legitimately falls into one of the many exempted substances.

‘The Psychoactive Substances Act 2016 says that for a substance to be a “psychoactive substance” it has to not only have a psychoactive effect but also that it can’t fall into one of the exempted categories that the Act sets out,’ she said.

‘There are a number of these categories, and they include food, alcohol and caffeine.

‘One of these categories is medicine, because of course some medicines may have a pyschoactive effect but also are legitimately used to help people.

‘The argument was that nitrous oxide falls into this category because it can be used for various medical purposes, and so, the argument went, it is exempt from the criminal offences set out in the Act.’

The Psychoactive Substances Act doesn’t specify that the substance is only exempt while it is being used for medicinal purposes, either.

It only states that all medicines – as defined by another law, the Human Medicines Regulation 2012 – are exempt.

Dismissing the case, Judge Garlick told the court: ‘Nitrous oxide is plainly capable of coming within the definition of an exempted circumstance… and in my view, on this evidence, it plainly is an exempted substance.’

The case centred around two men allegedly found with nitrous oxide as they tried to get into Glastonbury last year (Picture: Getty Images)

Niamh Eastwood, Executive Director at drug advocacy group Release, told Metro.co.uk that the case shows how ‘flawed’ the relatively new law is.

‘Last year the Government lauded the success of the Psychoactive Substances Act, however this case demonstrates that the legislation is flawed and not fit for purpose,’ she said.

‘This is a disaster for the Home Office, who described the Act as “landmark” in their recently published drug strategy. It is yet another example of the Government’s evidence-free approach to drug policy and drug laws.

‘Release and other organisations repeatedly highlighted the unworkable nature of the legislation during the passage of the Psychoactive Substances Bill in Parliament, and the decision at Taunton Crown Court confirms our analysis.

‘The CPS should now drop all charges against people currently facing prosecution under the Psychoactive Substances Act.

‘The Act itself is an assault on our civil liberties as it seeks to ban substances based on how they interact with the central nervous system, without any reference to harm.’

The case was thrown out (Picture: Getty Images)

A Home Office spokesperson told Metro.co.uk: ”Nitrous oxide is covered by the Psychoactive Substances Act and is illegal to supply for its psychoactive effect. However, the Act provides an exemption for medical products. Whether a substance is covered by this exemption is ultimately one for a court to determine based on the circumstances of each individual case.

‘Since the Psychoactive Substances Act 2016 came into force, over 300 retailers across the United Kingdom have either closed down or are no longer selling psychoactive substances; police have arrested suppliers; and action by the National Crime Agency has resulted in the removal of psychoactive substances being sold by UK based websites.

‘These dangerous drugs have already cost far too many lives and the Psychoactive Substances Act is sending out a clear message – this government will take whatever action is necessary to keep our families and communities safe.’