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Curiosity and Experimentation as a Defence to a Charge of Possession of Explosives

Tue 5th May 2020

R v Copeland [2020]UKSC 8

Section 4(1) of the Explosive Substances Act 1883 provides:

“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 …”

The Supreme Court in Copeland was asked to rule on the following:

“Can personal experimentation or own private education, absent some ulterior unlawful purpose, be regarded as a lawful object?”

The circumstances giving rise to the appeal concerned the appellant who was aged 22, of good character and had been diagnosed with Autism Spectrum Disorder as a child. He had purchased quantities of chemicals online and in his laboratory (the garden shed) had made a small amount (10 grams or less) of Hexamethylene Triperoxide Diamine (HMTD). HMTD is a sensitive high explosive, which can be easily detonated. This and material found in his bedroom and on his computer, including manuals for making explosives, were found by the police in April 2018.

Over previous months the appellant had made other explosives and had detonated them in his back garden, recording the results on his mobile phone. During interview he admitted his actions, explaining that he had developed an obsessive interest in things military and following his viewing of the film “The Hurt Locker”, particularly in bombs.

The defence statement read: “ (i) the circumstances do not give rise to the reasonable suspicion that the defendant had not made the HMTD for a lawful object and (ii) the defendant made it for a lawful object”.

At a preliminary hearing the trial Judge felt bound by the Court of Appeal’s ruling in R. v Riding [2009] EWCA Crim 892 and ruled that the appellants defence that he had made the HMTD and had it in his possession for a lawful object, being experimentation and self-education was not good in law. The appellant appealed and the Court of Appeal followed its own ruling in R v Riding. That ruling appeared to restrict what circumstances might amount to a ‘lawful object’.

The court in Riding was following R v Fegan (1984) 78 Cr App R 189 (heard in 1972) where Lord MacDermot CJ said: the onus on the accused is specific but positive. He has to show possession for a lawful object”.

Fegan’s case concerned an appellant, who was in possession of a pistol and ammunition, he said because he had been subjected to threats by reason of his religion (he was a Roman Catholic living in a Protestant area of Belfast) and he acquired the firearm to protect himself and his family. The court allowed Fegan’s appeal as the trial judge had not left open the defence to the jury. The lawful object was self-defence, though its availability would depend on a close scrutiny of the circumstances at the time.

In Riding the court found that if a person is 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”.

That appellant had made a pipe bomb, he said out of curiosity.

The court had concluded “mere curiosity simply could not be a lawful object in the making of a lethal pipe bomb”. However there were significant circumstances. On the evidence, if curiosity was the reason, sand could have been used to fill the pipe instead of gunpowder, which would have showed whether the accused was capable of constructing it. Additionally the pipe had been made a considerable time before it was found and no attempt had been made to detonate it. The accused had therefore not made it to see if he could make it explode.

The Supreme Court found that the original ruling and the Court of Appeal (in Copeland) had given the ruling in Riding’s case wider significance that was intended and it should have been considered on its own particular facts.

The Supreme Court found that experimentation and self-education, including satisfying one’s curiosity, are themselves lawful objects (paragraph 33). The word ‘object’ should be given its own natural meaning. “There was 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)” (paragraph 37).

Thus the appellant only had to establish that he proposed using the HMTD for the lawful objects of experimentation and self-education. The term ‘lawful object’ in the section 4 did not require specification of the precise way in which the substance would be used by the accused. The appellant’s defence was that he intended to use the HMTD in small amounts to produce explosions similar to those of a firework – a level which was lawful. His defence should have been left to the jury.

This case while certainly clarifying what may amount to a defence under the section in question, perhaps will only assist a few accused who are caught in possession of explosives.

David McGonigal
5th May 2020

 

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