A man who made a small quantity of homemade explosive said that he did so only to experiment and to teach himself how explosives worked. The trial judge and the Court of Appeal ruled that this could not be a “lawful object” under section 4(1) of the Explosive Substances Act 1883, so a jury could not consider it. The Supreme Court, by a majority, held that personal experimentation and private self-education can be a lawful object, and that the defence must be allowed to go to trial.
What the statute requires
Section 4(1) of the Explosive Substances Act 1883 applies where a person makes an explosive substance, or knowingly has it in his possession or under his control, in circumstances giving rise to a reasonable suspicion that this is not for a lawful object. The prosecution need only prove that suspicion. The defendant must then show, on the balance of probabilities, a positive lawful object. It is not enough to prove that he had no unlawful purpose. The maximum sentence is life imprisonment. The Court of Appeal certified whether personal experimentation, or a person’s own private education, can be such an object if there is no ulterior unlawful purpose.
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The proposed defence
Mr Copeland said that his purpose in possessing the substance was private experimentation and self-education. The issue at this stage was whether that explanation, if believed, could count as a lawful object.
The particulars of the two section 4(1) counts mixed the making limb with the possession or control limb. The Crown undertook to amend them so that they alleged possession or control not for a lawful object, and the appellant did not resist. On these facts his defence would have been the same either way: he had made and kept the HMTD for experimentation and self-education by detonating it in his garden. His defence statement and written submissions described objects of interest, education and experimentation. This appeal did not decide the separate charges of possessing information likely to be useful for an act of terrorism, contrary to section 58 of the Terrorism Act 2000.
Why the defence was stopped
At a preparatory hearing on 23 October 2018, Judge Wall QC ruled that experimentation and self-education could not be a defence in law. He held that he was bound by R v Riding, and proposed to direct the jury accordingly and to exclude evidence and submissions on that part of the case. The Court of Appeal, Sir Brian Leveson P, Elisabeth Laing and Whipple JJ, also considered itself bound by Riding and dismissed the appeal.
The majority
Lord Sales, with whom Lord Reed and Lord Carnwath agreed, held that Riding had been read too widely. There the defendant had made a pipe bomb and kept it at home out of curiosity as to whether he could construct it. He had not tried to detonate it, and it was not his case that he wanted to see whether he could make it explode. An inert filling such as sand would have tested whether he could build it. On those facts, mere curiosity was not a lawful object. That was not a rule that experimentation or self-education can never be one.
The majority followed R v Fegan and Attorney General’s Reference (No 2 of 1983). The defendant must identify a positive object, but it may be stated at a general level. In those cases self-defence was capable of being a lawful object even though no one could know whether a later use would actually be justified, and even though making or keeping the explosive involved other offences. The object is not made unlawful merely because it can be fulfilled only by unlawful means. If there is also an unlawful object, or if unlawfulness taints the object relied on, the defence fails.
Experimentation and self-education, including curiosity about the subject being investigated, are objects in ordinary language. Relying on R v Berry, Lord Sales treated “object” as an ordinary word meaning purpose, distinct from the precise conditions in which something might be done. That reading fitted the background of the Explosive Substances Act 1875, which allowed a small quantity of explosive to be made for chemical experiment and not for practical use or sale, and allowed a private person to keep explosive for private use. Materials published with the Explosives Regulations 2014 showed that private manufacture and possession for personal use were still expected. An object is lawful if the common law or statute does not make it unlawful. The defendant need not prove exactly how the explosive will be used, or guarantee that every future use will be lawful.
The majority considered the proposed defence capable of being left to a jury. An educational interest was capable of being a positive object. The remaining question was what the defendant actually proposed to do and whether his purpose was wholly lawful.
The majority did not decide that it would succeed. The prosecution may still contend that the stated object was not his real or sole object, or that the proposed use involved so obvious a risk to other people or their property that the object was mixed and not wholly lawful. Knowledge that the use would injure others or damage their property, or recklessness about that risk, would taint an ostensibly lawful object. Those issues are normally for the jury. A separate complaint that the defence statement lacked detail was outside this appeal; Lord Sales also considered that it gave fair notice under section 6A of the Criminal Procedure and Investigations Act 1996.
The dissent
Lord Lloyd-Jones and Lord Hamblen agreed that a positive lawful object is required, but held that the defence statement did not identify one. In their view the defendant must identify the intended use with enough particularity to show that it may be lawful. Private education does not identify a use, and experimentation is too general. Detonations in a garden involve an obvious risk of injury, damage to property and public nuisance, and the statement did not explain how that risk would be avoided. They distinguished the self-defence cases, where the intended use was limited by a belief that force was necessary and reasonable. They would have answered the certified question in the negative and dismissed the appeal.
Verdict: The Supreme Court allowed the preparatory appeal by three votes to two. Personal experimentation or private education was capable of being a lawful object under section 4(1). The jury still had to determine the facts. The Court did not acquit Mr Copeland or approve a particular experiment.
