Experimentation or Self-Education Can Provide Defence For Possessing Explosives

Can the reasoning of experimentation or self-education provide defence for possessing explosives?

Expert Court Reports is experienced in providing expert court reports in criminal proceedings. In this post, we explore how experimentation or self-education can provide a defence for possessing explosives.

Defence For Possessing Explosives

Ever since the Gunpowder Plot of 1605, possession of explosives by those not required to handle them professionally has been met with suspicion and outright fear.  And for a good reason.  From the brutal IRA violence of the 1970s and 80s to the Oklahoma City bombing in 1996, to countless atrocities in the Middle East, Southeast Asia, and Africa (which do not receive the same media coverage), terrorist-detonated explosives have killed thousands of people.

Deborah Small, a psychologist at the University of Pennsylvania who studies decision making, told Vox in 2015:

“Fear causes a higher perception of risk everywhere, greater precautionary behaviour, greater favourability of action policy that prioritises safety over personal liberty.”

The delicate balance between the need to keep people safe individual freedom was illustrated in a recent Supreme Court case – R v Copeland [2020] UKSC 8

Defence For Possessing Explosives

 

The facts

The Appellant, A, who had been diagnosed with autism at 14 years of age, had purchased chemicals online.  The Court heard that A had a passionate interest in military matters, which could, as a result of his autism, tip over into obsession.  Using the chemicals, A managed to make a small quantity of high explosive, which he intended to use in small amounts in his garden to produce insignificant detonations.  A stated that after viewing the movie The Hurt Locker, he had developed an interest in bomb disposal and had made the explosive for a ‘lawful object’ within the meaning of s.4(1), namely “interest, education and experimentation” arising from an obsessional need to understand how explosives worked.

The Supreme Court’s decision

The question for the Supreme Court was whether personal experimentation or private education could, absent some ulterior lawful purpose, be regarded as a “lawful object” for the purposes of the Explosive Substances Act 1883, s.4(1), which reads:

“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 …”

At a preparatory hearing in the Crown Court at Birmingham, HH Judge Wall QC held that he was bound by the Court of Appeal authority, R v Riding [2009] EWCA Crim 892, to find that experimentation and self-education did not amount to a lawful object for the purpose of section 4(1).  Accordingly, the judge ruled in advance of trial that A’s proposed defence was bad in law.  A appealed unsuccessfully to the Court of Appeal, who considered themselves similarly bound by Riding.

In deciding what constituted a “lawful object” for the purposes of s.4(1) the Supreme Court considered the decision of R v Fegan (1984) 78 Cr App R 189.  Here, the Court of Criminal Appeal of Northern Ireland explained that s.4 (1) was passed to address gaps in other offences which required mens rea and therefore could not fully guard against the risk of someone making or possessing explosives.  The Appellant in Fegan had acquired a gun and ammunition to defend himself and his family.  This was considered a “lawful object” for the purposes of s.4(1).

In Riding, the Appellant made a pipe bomb and kept it at his home.  He was convicted of the offence of making an explosive substance, contrary to section 4(1).  He appealed against his conviction on grounds which included that the trial judge was wrong to hold that it could not be a lawful object to make the pipe bomb that he did out of no more than curiosity to see whether he could do it.  It was argued by the Appellant that s.4(1) should be interpreted as “a lawful object is the absence of any object which is criminal”.

The Court of Appeal rejected this argument.  It ruled that s.4(1) provides that if a person is found in possession of or has made an explosive substance in circumstances in which there is a reasonable suspicion that there is no lawful object, “it is an offence unless there was in fact some affirmative object which was lawful”.   Crucially, “lawful object” in limb (2) of section 4(1) does not mean “the absence of criminal purpose”, but rather requires the accused to identify “a positive object which is lawful”

Therefore, it is for the Defendant to prove, on the balance of probabilities, that the possession or control of the explosive was for a lawful object.

The Supreme Court ruled that Riding had been correct on its facts.  The Appellant claimed he wanted to see if he could create a pipe bomb.  This ambition could have been achieved without using explosives.  Lord MacDermott CJ, stated:

“Mere curiosity simply could not be a lawful object in the making of a lethal pipe bomb.”

However, the Supreme Court decided that the Court of Appeal had misinterpreted Riding as it applied to a different set of facts.  Experimentation and self-education are “objects” within the ordinary meaning of that term and can be lawful objects for the purposes of section 4(1).  This view is reinforced by the background against which section 4(1) was enacted and supported by the Explosive Substances Act 1875 under which possession of explosive substances for private experimentation and use was regarded as lawful and legitimate.

In delivering the majority decision, Lord Sales concluded:

“There is nothing unlawful about experimentation and self-education as objects, in themselves, so they are capable of being “lawful objects” within the meaning of section 4(1).

For his defence under limb (2), the appellant only had to establish that he proposed using the HMTD in his possession for the lawful objects of experimentation and self-education. The term “lawful object” in limb (2) does not require specification of the precise way in which the substance in question will be used by the accused. The appellant’s proposed defence was that he intended to use the HMTD in small amounts to produce insignificant detonations of the order to be expected from a simple domestic firework, ie at a level which was lawful. It was possible that he could have achieved this, or that he genuinely believed that he could, as he had done using other explosive substances on previous occasions. Therefore his defence under limb (2) should have been allowed to be presented at trial, rather than being ruled out at the preliminary hearing.”

The dissenting opinion

Although the Supreme Court’s decision only applies to the right of A to present his defence, which if unsuccessful, would have meant a conviction under s.4(1) regardless, you can almost feel, when reading the dissent, Lord Lloyd-Jones and Lord Hamblen’s palpable unease at the idea that personal experiment or education should receive the majority interpretation in this context.  They referred to the Court of Appeal judgment which concluded that reasonable suspicion is enough for the offence to be made out and continued:

“This accords with common sense, because possessing or controlling explosives is dangerous (see Riding at para 10) and so it is understandable that the criminal law should be engaged in cases of reasonable suspicion, it not necessarily being possible for the prosecution to establish the precise object. The obvious purpose of the statute is to protect human life and property from harm by explosions.”

Their lordships concurred that mere absence of an unlawful object was not enough to establish the statutory defence.  This had indeed been accepted by A.  They went on to say:

In our view, to say that something is done for one’s own private education is not a sufficient object for the purposes of section 4(1) defence, as it does not identify the use to which the explosives will be put in order to provide such education. Similarly, personal experimentation is not a sufficient object for this purpose as, although it identifies in very general terms what is to be done with the explosives, it does not identify any purpose for so doing.

The dissenting judgement can be summed up as follows: relying on a defence of personal experimentation and/or private education provides no indication of how the explosives will be further used or whether such use would be lawful.

Summing up

This decision may well lead to a swift change in the legislation.  It will be difficult for Parliament to stomach a law that could perhaps allow a person who planned to use explosives for an illegal purpose to have a statutory defence under s4(1) merely by arguing they possessed explosives for self-education and private experimentation.

Lord Lloyd-Jones and Lord Hamblens provided wording to close what now is effectively a legal loophole:

For the purposes of section 4(1) of the Explosive Substances Act 1883, personal experimentation or own private education, absent some ulterior unlawful purpose, cannot be regarded as a lawful object.”

Whether this amendment is enacted remains to be seen.

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