R v Copeland
| Jurisdiction | England & Wales |
| Judge | Lord Reed,Lord Lloyd-Jones,Lord Sales,Lord Carnwath,Lord Hamblen |
| Judgment Date | 11 March 2020 |
| Neutral Citation | [2020] UKSC 8 |
| Date | 11 March 2020 |
| Court | Supreme Court |
[2020] UKSC 8
Lord Reed, President
Lord Carnwath
Lord Lloyd-Jones
Lord Sales
Lord Hamblen
Appellant
Paul Bogan QC
Sarah-Kate McIntyre
(Instructed by Hodge Jones & Allen LLP (London))
Respondent
Louis Mably QC
Tom Walkling
(Instructed by CPS Counter Terrorism Division (Westminster))
Heard on 27 January 2020
( with whom Lord Reed and Lord Carnwath agree)
This appeal concerns the proper interpretation and effect of section 4(1) of the Explosive Substances Act 1883 (“section 4(1)” and “the 1883 Act”, respectively). This provides in material part as follows:
“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 …”
As originally enacted, section 4(1) provided that a person convicted of this offence was liable to penal servitude for a term not exceeding 14 years, or to imprisonment for a term not exceeding two years with or without hard labour. Currently, the maximum sentence is imprisonment for life.
The Court of Appeal certified the following point of law of general public importance: for the purposes of section 4(1) can personal experimentation or own private education, absent some ulterior unlawful purpose, be regarded as a lawful object?
The appellant is aged 22 and has no convictions. He was diagnosed with Autism Spectrum Disorder as a child. In April 2018 he was living in a terraced house in Coventry with his mother.
The appellant had been purchasing quantities of chemicals online. His explanation for this is that he had from a young age developed an obsessive interest in things military. He became interested in bomb disposal after watching the film “The Hurt Locker” about a US bomb disposal unit in Iraq and wanted to understand how explosives worked and to experiment with them.
On 24 April 2018 a search warrant was executed at the house. The chemicals the appellant had purchased were found in a garden shed which he used as a laboratory. The appellant had managed to make a small quantity, of the order of about 10 grams or less, of Hexamethylene Triperoxide Diamine (“HMTD”) from Hydrogen Peroxide, Hexamine and Citric Acid. HMTD is a sensitive primary high explosive that can easily be detonated. According to the Statement of Facts and Issues for the appeal, such a small amount of HMTD potentially carries a risk of insubstantial injury or damage. It should also be noted that the appellant might only have used part of this quantity at any one time when experimenting with it.
The HMTD was found in the form of a powdery substance in a petri dish in the shed and in another in the appellant's bedroom. Material found in the appellant's bedroom and on his computer included manuals for making explosives, notes on the making of HMTD and a video downloaded to his mobile telephone of a demonstration of the making of HMTD.
Over the previous months the appellant had made explosive substances with other chemicals on about six or seven occasions. By means of homemade initiators made from fairy lights filled with firework powder or by means of a mobile telephone signal, he had detonated or attempted to detonate these substances in his back garden and had made a video record of this on his mobile telephone. According to his explanation, his plan was to conduct similar experiments with the HMTD he had made.
The appellant was interviewed by the police over many days. He admitted his actions and gave the explanations referred to above. He was charged with a number of offences, including six counts of having possession of information likely to be useful for an act of terrorism contrary to section 58 of the Terrorism Act 2000. The two relevant charges on the indictment for present purposes are in identical terms, as counts 1 and 2, as follows:
“STATEMENT OF OFFENCE
MAKING OR POSSESSION OF EXPLOSIVE UNDER
SUSPICIOUS CIRCUMSTANCES, contrary to section 4(1)
of the Explosive Substances Act 1883Explosive Substances Act 1883
PARTICULARS OF OFFENCE
CHEZ COPELAND on 24 day of April 2018 knowingly had in his possession or under his control a certain explosive substance, namely [HMTD], in such circumstances as to give rise to a reasonable suspicion that he had not made it for a lawful object.”
As this court pointed out at the hearing, and as counsel on both sides agreed, this charge is in defective form. It elides the two limbs of section 4(1), ie (1) making any explosive substance under circumstances giving rise to a reasonable suspicion that the defendant is not making it for a lawful object and (2) knowingly having in his possession or control any explosive substance under circumstances giving rise to a reasonable suspicion that he does not have it in his possession or control for a lawful object. Mr Louis Mably QC, for the Crown, gave an undertaking to amend the charge so as to replace the words after “reasonable suspicion” with the phrase “that he did not have it in his possession or under his control for a lawful object”. Mr Paul Bogan QC, for the appellant, accepted that this amendment would not cause any prejudice to the appellant and said it would not be resisted. On the particular facts of this case, the alteration makes no material difference, since the appellant's defence would be the same whether he was charged under limb (1) or limb (2), namely that he had both made the HMTD and had it in his possession with a view to experimentation and self-education regarding its manufacture and properties, by conducting detonations with it in the garden of his home. The appeal therefore proceeded on the basis that the indictment could be taken to refer to limb (2) of the offence.
The appellant's defence statement in relation to counts 1 and 2 on the indictment was as follows:
“It is the defence case that:
1. The circumstances do not give rise to the reasonable suspicion that the defendant had not made [the HMTD] for a lawful object; and
2. The defendant made it for a lawful object.
The defendant has a longstanding obsession with the armed forces and has collected military paraphernalia over many years. More recently, and inspired by the film ‘The Hurt Locker’, he has been interested in explosives.
In pursuit of this interest he has researched manuals and recipes on the internet. He sought to understand how explosives could be made and acquired certain chemicals to do so. He experimented with the chemicals and caused small explosions to be made in the back garden of his home.
His own ambition to join the armed forces has been thwarted by a diagnosis of Autism Spectrum Disorder when aged around 14 years. He had regularly engaged in role play, dressing and purporting to behave as a member of the armed forces. The condition of Autism Spectrum Disorder has manifested itself in interests and hobbies becoming obsessional and, in the context of explosives, an obsessional need to understand how explosives work.”
By way of an addendum, in the appellant's written submissions at first instance it was asserted that, “For the avoidance of doubt the defendant's object or objects encompass interest, education and experimentation”.
On 23 October 2018 a preparatory hearing took place before His Honour Judge Wall QC in the Crown Court at Birmingham, at which it was agreed that he should determine, among other things, whether the potential defence to counts 1 and 2 on the indictment could amount to a defence in law. The judge ruled that the appellant's proposed defence that he made the HMTD and had it in his possession for a lawful object, being experimentation and self-education, was not good in law, holding that he was bound to reach that conclusion by the decision of the Court of Appeal in R v Riding [2009] EWCA Crim 892. This ruling meant that the judge proposed that he would direct the jury accordingly and would exclude evidence and prevent submissions directed to trying to support that part of the defence case.
The appellant appealed to the Court of Appeal, Criminal Division (Sir Brian Leveson P, Elisabeth Laing and Whipple JJ). The appeal was dismissed: [2019] EWCA 36 (Crim). Like Judge Wall QC, the Court of Appeal considered that it was bound by R v Riding to reach the conclusion that the appellant's proposed defence under section 4(1) was bad in law. The court certified the point of law set out above at para 3.
The Offences Against the Person Act 1861 (“the 1861 Act”) consolidated various enactments in England and Ireland relating to offences against the person, including the offences of destroying or damaging a building with gunpowder or other explosive substance, with intent to murder (section 12, now repealed), unlawfully and maliciously causing bodily injury by gunpowder or other explosive substance (section 28), unlawfully and maliciously causing gunpowder or other explosive substance to explode etc, with intent to do grievous bodily harm to some person (section 29), placing gunpowder or other explosive substance near a building etc, with intent to do bodily injury to any person (section 30) and making or having possession of gunpowder or any explosive substance etc, with intent by means thereof to commit any of the felonies set out in the Act (section 64).
In parallel with these primary provisions of the criminal law, the Explosive Substances Act 1875 (“the 1875 Act”) amended the previous regulatory regime in relation to such substances. Although the Act uses the...
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