Agenda item

Public Misuse of Nitrous Oxide Canisters

To receive an update from the Community Safety Manager, CSU and Kent Police.


The report from the Community Safety Manager (CSM) updated Members on the current situation and implications, regarding the use of nitrous oxide (NO) as a psychoactive substance across the Borough. A map detailing ‘hotspots’ in Dartford where spent nitrous oxide canisters were repeatedly dumped, was attached as Appendix A to the report.


The CSM highlighted the following principal points for Members:


·         Nitrous oxide (also known as laughing gas) was a substance with a number of legitimate uses in medicine and catering;

·         When inhaled nitrous oxide could make users feel euphoric and relaxed, with some users reporting hallucinations, and was used recreationally in a number of settings primarily amongst 16-24 year olds in clubs, private residences, parks and car parks;

·         Possession of nitrous oxide was not an offence, but the supply or offer to supply the substance to another, for other than legitimate uses was an offence, under Section 5 of the Psychoactive Substances Act 2016, but difficult to prove (see below).


The CSM said that he appreciated Members’ concerns over the misuse of nitrous oxide as a psychoactive substance by certain sections of the public in Dartford. In particular, the unsightly dumping of spent nitrous oxide canisters which impacted significantly on the public’s perception of safety within an area; defined as a ‘signal’ crime - any criminal incident that causes a change in the public’s behaviour and/or beliefs about their security.


He advised Members that the recreational misuse of nitrous oxide presented challenges to three main agencies:


·         Public Health (PH): in relation to the potentially harmful effects of the substance for recreational users. PH had been invited to send a representative to attend the proceedings to provide information on the number of A&E admissions that could be attributed to nitrous oxide ingestion. They had been unable to do so but had provided some general information. This possibly indicated the low level of concern PH held over the issue at both national and local level;

·         Police: nitrous oxide could put users at risk, but the effects of nitrous oxide inhalation to the person only lasted some 30 seconds, with traces of the substance leaving the body after 10 minutes. This made it very difficult for police officers to prove impairment, e.g. in relation to driving a motor vehicle. Possession of nitrous oxide was not an offence, and the offence of ‘supply or offering to supply [nitrous oxide] as a psychoactive substance to another person’ was difficult to prove, given that most purchases were web-based.  As a consequence, the response of the Police to 111 and 999 calls from the public regarding misuse of NO had to be prioritised against the need to deploy police resources to tackle crime;

·         The Council: in terms of littering through the discarding of spent NO canisters by misusers, seen by many communities as being associated with criminal activity (see ‘signal crime’ above).


Given this background, the Council had identified litter enforcement as the most effective weapon to combat the current fashion in the recreational use of nitrous oxide as a psychoactive substance, and its perceived impact on the community. Litter enforcement measures were supplemented by the enforcement of the Public Space Protection Order (PSPO) in operation in Town Ward since October 2017, and the Council’s CCTV surveillance operations, including in Westgate car park, a known misuse ‘hotspot’.


Detailed measures undertaken by the Council and Kent Police included:


·         The issuing of a fixed penalty notice (FPN) where a spent NO canister is seen to be discarded by Civil Enforcement Officers (including Kingdom officers operating on behalf of the Council), Police or Police and Community Support Officers. However, the modus operandi around the misuse of nitrous oxide [frequently by a group in or near a motor vehicle] was not conducive to effective enforcement and fining through CCTV evidence. In the period 1 January 2019 to 31 December 2019 two fixed penalty notices for littering had been successfully issued in Westgate car park (£75 per fine) and 1 caution for the offence in the same location. A single fly-tipping FPN for a £250 fine had been successfully issued for an offence at New Barn recycling point;

·         Where evidence of a litter offence is recorded on CCTV the Council’s environmental enforcement team will take appropriate action (e.g. no action, caution, fixed penalty ticket or court appearance);

·         Joint working by CSU officers and the Dartford Community Police team had led to the identification, mapping and monitoring of nitrous oxide ‘hotspots’ [Appendix A to the report refers]. When dumping of spent NO canisters is reported by the public, prompt clearance is effected by the Council’s waste contractor on average, within 1.77 days of notification. The ‘hotspots’ had also been subjected to a poster campaign advising against misuse of NO and the offence of supply under the Act, and the penalties such behaviour would attract.


Regarding enforcement of the Public Space Protection Order (PSPO) introduced by the Council in October 2017 for Town Ward to: prohibit the ingestion, inhalation, injection, smoking, processing or otherwise use of intoxicating substances; no prosecutions had been effected under the Act to date, and the issue of FPNs for the offence of littering therefore remained the most effective deterrent measure in the Council’s armoury.


The Chairman thanked the CSM for summarising his report for the Committee and invited Members to pose questions.


In response to specific questions from Members, the CSM, the CSO, the District Commander and the Dartford Community Police Inspector, confirmed the following points for the Committee:


·         The position of central government on the misuse of nitrous oxide was not known. Case law was being employed by local authorities and police as appropriate, given that nitrous oxide was not classed as a psychoactive substance under the Act, and misuse per se was not therefore an offence. Prosecutions for supply or intent to supply [nitrous oxide] to another under the Act, remained difficult to obtain given the preponderance of web-based sales;

·         Asking central government to prohibitively tax the sale of nitrous oxide canisters [as a deterrent to misuse] would be inappropriate, given that misuse was not an offense and legitimate users of NO canisters e.g. food retailers and businesses, would be unfairly penalised;

·         PSPOs were primarily a preventative measure, enforcement and the securing of subsequent convictions under the terms of a PSPO were notoriously difficult to obtain. The positive effect of the current PSPO was the reduction in littering in the Town Centre, as observed by Kingdom officers. All NO misuse ‘hotspots’ had benefited from a poster campaign by the Council. A further high-profile week-end ‘blitz’ of ‘hotspots’ by Council Enforcement officers [as proposed by a Member], would be expensive and would not attract PCC funding, which was currently targeted at violence reduction. The Cabinet Member for Youth, Health and Wellbeing undertook to examine the possibility of a contribution from her KCC Member’s Fund, to finance future activity to combat NO misuse;

·         Educating youngsters on the misuse of nitrous oxide was recognised as a key objective. The PCC’s initiative for a Police Cadet Unit in Dartford would help in this respect in the future. Targeting schools in Dartford through the Council’s promotion of National Litter Day was a possible intermediate measure for consideration. Dartford’s Youth Council was another forum in which to raise the topic, and the Cabinet Member undertook to add it to a future Forum agenda;

·         The publication of ‘good news’ stories relating to the effective tackling of nitrous oxide misuse in the Borough was acknowledged as a useful tool, including by social media and Twitter, in a format that Councillors could ‘re-tweet’ to their constituents.


The Chairman asked whether the terms of the present PSPO in Town Ward would be reviewed, to build-in possession of nitrous oxide in a public space as part of its measures.  It was his understanding that some London authorities had updated extant PSPOs to this effect.


The CSM assured the Chairman and Members that possession of NO in a public space was already covered in the terms of the existing PSPO. The key issue was enforcement, and the revenue to pay for enforcement measures to secure convictions. The current PSPO had been issued in October 2017, but under subsequent GDPR restrictions (May 2018), the Vehicle Licensing Authority was no longer permitted to provide third parties with personal details of vehicle owners [observed on Council CCTV cameras dumping nitrous oxide canisters] to enable ‘after the event’ enforcement. The Council had therefore concentrated its efforts on issuing fixed penalty notices (FPNs) by civil enforcement officers who observed littering offences being committed.


The Chairman next expressed his concern that Westgate car park, a known ‘hotspot’ for the misuse of nitrous oxide (and the dumping of spent canisters), would become subject to increasing levels of NO misuse during the warmer summer evenings.


He asked whether the police officers regularly deployed in the town centre to deal with disorder during the hours of the night time economy, would be using the terms of the current PSPO as a tool to address NO misuse and any consequent anti-social behaviour (ASB) in Westgate car park.


He also expressed concern over the admission of NO misusers into nearby nightclubs, and asked what responsibilities door staff at those clubs had in relation to refusing admission to patrons [under the licensing laws] whom they had observed inhaling nitrous oxide in Westgate or elsewhere.


The District Commander said that he was not able to provide police resources to specifically target NO misuse in the Westgate car park, over the need to combat criminal activity taking place during the hours of the night time economy.


The Chairman made clear that there was no expectation for the police to prioritise public misuse of NO, over the need to combat other serious criminal activities, but expressed his surprise that since its inception in 2017, the police had yet to secure a single enforcement action or prosecution under the terms of the PSPO.


In response to the Chairman’s further remarks, the District Commander confirmed that where police officers observed misuse of NO taking place (or the attendant litter offence of dumping of spent NO canisters); appropriate police action would be taken in relation to any consequent anti-social behaviour (ASB). However, police patrols would not be increased or dedicated to combating NO misuse in Westgate car park or elsewhere in the town centre.


The Community Safety Officer advised the Chairman that the door staff at the Atik nightclub [next to Westgate car park] were proactive in advising CSU staff of car registration plate numbers if they observed NO misuse and dumping of spent canisters from vehicles.


The CSM and the District Commander supported the CSO in her comments regarding the positive cooperation of door staff at the Atik nightclub. The Club was a member of D-TAC (Dartford Town against Crime) and as such, benefitted from the exchange of information with the Council’s CCTV staff, to combat crime in the town centre.


The CSM confirmed that he could explore the possibility of putting posters in known NO misuse ‘hotspots’ including Westgate car park, however this would require additional funding, and continue to work closely with Atik staff over the identification of offenders in the proximity of the nightclub. The District Commander added for Members’ clarification, that the Police had no powers of search under the terms of the PSPO.  


The Chairman thanked the CSO, CSM and the District Commander for their further points of clarification for Members, but requested that the topic of NO misuse remain on the Committee’s Work Plan, and that a further invitation be issued to Public Health Kent to attend a future meeting of the Committee, to advise Members on the public health aspects of the misuse of nitrous oxide as a psychoactive substance in the community.


The Strategic Director (External Services) acknowledged the Chairman’s request, but advised that Public Health England did not have a proactive position in relation to the misuse of nitrous oxide in the community. She commented that instances of NO misuse in Westgate car park were generally not associated with the Atik nightclub, as perpetrators of ASB were in the main, too young to gain admittance to such clubs. However, Council officers would relay Members’ concerns to the Atik, as part of their ongoing positive relationship with the club.


She added that gating Westgate car park or closing it overnight were not options open to the Council as it was utilised by nearby residents for overnight parking, and also benefitted from an electric car charging point.




1.    That Members note the contents of the report;


2.    That the topic of ‘public misuse of nitrous oxide as a psychoactive substance’ remain on the Council’s rolling Work Plan for 2020/21 and beyond;


3.    That a further invitation be issued to Public Health Kent to attend a future meeting of the Committee to brief Members on the health implications of NO misuse.


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