Case Comment by Nathan Davis – The definition of a lawful object under section 4(1) of the Explosives Substances Act 1883 – R v Copeland [2020] UKSC 8

Commentary on the recent Supreme Court Decision concerning the interpretation of section 4(1) of the Explosive Substances Act 1883 (‘section 4(1)’).

Offence:

The defendant was charged under section 4(1) which materially states:

“Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be guilty of an offence …”

Background:

The defendant, who was diagnosed with Autism Spectrum Disorder (‘ASD’), had purchased significant quantities of chemicals which was said to be due to his obsessive interest – a manifestation of his ASD – in the military, especially regarding bomb disposal.

The defendant had managed to make a small quantity of Hexamethylene Triperoxide Diamine (‘HMTD’) – an explosive substance – that was sufficient to cause only insubstantial injury/damage. He possessed information relating to making explosives and had previously made such substances and had attempted to detonate them in his backyard.

His defence was that he had made and possessed the HMTD to experiment and teach himself about its manufacture etc, through detonating it in his garden. It was argued that there was no reasonable suspicion that he had made it for a lawful object; and that he had, in fact, made it for a lawful object. At a preparatory hearing the first instance Judge held this defence was not good in law and this was upheld by the Court of Appeal based upon Riding [2009] EWCA Crim 892.

The question certified on appeal was whether, for the purposes of section 4(1), personal experimentation/education, absent some ulterior unlawful purpose, could be regarded as a lawful object.

Judgment:

The Court clarified the position in relation to the burden and standard of proof under section 4(1): firstly, it is for the prosecution to prove that the circumstances give rise to a reasonable suspicion that the making or possession/control of the explosive substance is not for a lawful object (the first limb). The burden then shifts onto the accused to show, on the balance of probabilities, that the specific object or purpose for which he made the substance or had it in his possession/control was lawful (the second limb).

By a majority of 3:2 the Court answered the certified question in the positive:

1. Riding was distinguished. Notably, in that case there was no need for the explosive substance to be used and the purported object was a ‘mere curiosity’ of whether he could build a pipe bomb;

2. Having regard to the statutory background, section 4(1) recognised the lawfulness of individuals making or possessing explosives for private experimentation;

3. There was no need for an accused under section 4(1) to show what the explosives will be used for and that this will be lawful – it was sufficient for a defendant to show that he proposed to use the explosive substance for the lawful object;

4. Because there was nothing unlawful in experimentation and self-education as objects, they were capable of being lawful objects under section 4(1).

The Court also confirmed that where there are ‘mixed objects’ and one of these is unlawful, or where unlawfulness taints a potentially lawful object, the defence under the second limb will fail – but this will usually by a matter for trial.

Comment:

There are three matters to highlight from the decision. The first is the distinction drawn with the case of Riding. The judgment creates an apparent distinction between mere curiosity which leads someone to create an explosive substance as opposed to an individual who seeks to experiment in making and detonating explosive substances.

This is a distinction which appears artificial and is perhaps indicative of the Court’s unwillingness to overrule Riding. This may be due to the facts: Riding concerned a pipe bomb which had the potential to cause serious injury; it had remained in his possession for a substantial period of time; and an explosive substance did not need to be used to discover if he could construct it. However, these facts would seem to be more apt for consideration under the second limb of section 4(1). In any event, the distinction now exists in law and should be noted by practitioners.

Secondly, the case reflects another uneasy instance of criminal law coming into conflict with an individual who has ASD, arising from a linked obsession which raises the potential for criminal liability. Although the Court’s reasoning did not focus on the defendant’s ASD, it was a significant part of the factual matrix. This is highlighted in relation to the above: if the defendant’s obsession was only in making explosives for his own curiosity then it would appear the defence would have been unavailable. This emphasises the need for practitioners to properly understand the exact nature of any obsessional need held by a defendant with ASD.

Thirdly, practitioners should note the matters stated to be of relevance under the second limb in these circumstances:

– Whether there is evidence to undermine the lawful object relied upon;

– Whether the defendant had another ‘object’ which involved an unlawful element;

– How the substance was to be used in line with the stated object/purpose (however, it does not appear this must be specified in the Defence Statement – see [42]);

– The amount of explosive substance and potential for injury/damage – the stated potential lawful object may be tainted in circumstances where risk is present (see [29]);

– Any history of like behaviour.

Nathan Davis, Pupil Barrister.

Nathan is a common law pupil currently undertaking his second six.