Halpin [2019] EWCA Crim 892

Following searches at a music festival the appellant was found in possession of 1,709 canisters of nitrous oxide in various locations. Enquiries revealed he had been in the vicinity of five other music festivals that summer and £6,200 had been deposited into his bank account. He pleaded guilty on the basis that £4,000 was criminal property. In mitigation it was put that he held the mistaken though honest belief that nitrous oxide was not regarded as a psychoactive substance.

He appealed against a suspended sentence of 12 months’ imprisonment. The grounds of appeal were that the offending did not cross the custody threshold, and that as the judge declined to adjourn for an expert report on the degree of harm which nitrous oxide was capable of causing, that he should have sentenced on the basis that it was one of the least harmful psychoactive substances. 

Held: the sentencing judge treated the nitrous oxide as posing a risk of even less harm than a Class C drug, it was doubtful whether advice from the Advisory Council on the Misuse of Drugs would have affected the judge’s view.  In light of his view he cannot be criticised for not adjourning the hearing for an expert report on the issue. The fact the offending took place at music festivals was highly significant, as was the number of canisters and the money he could have made. The starting point was just in the circumstances of the offending but there was a need to correct an arithmetical error on the discount for the guilty pleas. The sentence was quashed and replaced with a suspended sentence of 11 months on each count to be served concurrently.