Kaboom!!!

Photo by Doug Maloney on Unsplash

The scenario

You’re a 22 year old man living with your mother in a terraced house in Coventry. You have been diagnosed with Autism Spectrum Disorder since childhood. You have no criminal convictions. So far, completely unremarkable.

You get yourself into serious trouble with the law. You have been purchasing quantities of chemicals online for the purpose of converting these into Hexamethylene Triperoxide Diamine (“HMTD”), which is a high explosive compound and, it should go without saying, very dangerous.

In these days of heightened awareness of terrorism and the threat from these types of activities, your behaviour is not very sensible. It is perfectly understandable that you might be viewed as a serious threat to national security – as well as a more immediate threat to the safety of your neighbours (you have been causing small explosions in your back garden).

Following a search of your home by Police (who are in possession of a warrant), you are charged under Section 4(1) of the Explosive Substances Act 1883 (legislation which also applies in Scotland).

Section 4(1) states 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 …

You claim you’re not a terrorist, but why on earth would someone like you want to manufacture a high explosive compound such as HMTD? The potential consequences for you are severe if convicted: a maximum sentence of life imprisonment.

By the way, it gets worse, because you are also charged under Section 58 of the Terrorism Act 2000 e.g. because you collect or make a record “of information of a kind likely to be useful to a person committing or preparing an act of terrorism.”

This is exactly what happened to Chez Copeland, who at one point wished to join the Armed Forces, but due to his disability was prevented from choosing such a career.

Defences?

Let’s go back to Section 4(1) of the Explosives Substances Act 1883 and examine its wording: is there any possible defence for your actions?

Perhaps. The suspect must be able to show that he has the substance in his possession or under his control for a “lawful object”.

So, the key question here is why would this young man want to have explosive materials in his possession? We’re asking a question about his mindset: does he have the necessary mens rea (guilty mind) to commit a crime? We know that the actus reus (the wrongful act) is present, but this is not a strict liability crime – it is essential for the prosecution to establish what was the intention of the accused.

In his defence, the accused provides us with some background. He was hugely influenced by the Oscar winning film The Hurt Locker (directed by Kathryn Bigelow) which is about an American bomb disposal unit operating in Iraq. Ever since seeing the film, the accused has been fascinated about the science behind explosives and bomb making. He indulges in role-playing and develops an obsessive interest in this area.

Far from being involved in terrorist or criminal activities, the behaviour of our accused is firmly grounded in good old fashioned (and honest) scientific enquiry. He is, therefore, following the well trodden path of scientific discovery and experimentation.

Preparatory Hearing at the Crown Court

Sadly, for our accused, a preparatory hearing at Birmingham Crown Court does not bode well. His Honour Judge Mark Wall QC is not minded to permit the defence that the HTMD was in the possession or under the control of the accused for a “lawful object”.

Our accused appeals to the English Court of Appeal (Criminal Division) where his proposed defence is also rejected. The Appeal Court judges (Sir Brian Leveson P, Elisabeth Laing and Whipple JJ), like Judge Wall QC, place huge significance on an earlier precedent – R v Riding [2009] EWCA Crim 892. Let us proceed further …

The Riding precedent

In Riding, the accused had made a pipe bomb because, as he stated in his evidence: “I was curious and just experimenting.” As the Court of Appeal noted in this case:

The judge ruled that the reason that the defendant gave, that is to say curiosity whether he could construct it or not, was not capable of amounting to a lawful object and he so directed the jury.”

According to the Court of Appeal, this was the correct approach taken by the judge in the Crown Court. The defendant (Riding) was therefore guilty of an offence:

The short point in the case is whether it is correct that a lawful object is simply the absence of criminal purpose. We are satisfied that that is not what the Act says. The Act requires that if you are found in possession or have 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 is, as it seems to us, an entirely unsurprising provision for a statute to make, given the enormous danger of explosive substances generally.

Appeal to the UK Supreme Court

It would appear, therefore, that Chez Copeland’s prospects of avoiding a conviction and possible prison sentence were pretty bleak – if you follow the logic of the Riding precedent.

There was one chink of light for our accused, Mr Copeland, an appeal to the UK Supreme Court (and leave was duly granted by the Court of Appeal).

Lord Sales (delivering the majority opinion of the Court – Lords Lloyd-Jones and Hamblen dissenting) held that Copeland was permitted to use the defence that his possession or control of the explosive substance was for a “lawful object”.

His Lordship then went on to detail the history of legislation which had regulated the personnel possession of gunpowder (and later explosives) by an individual. Significantly, he noted that:

In fact, there is a long and well-established tradition of individuals pursuing self- education via private experimentation in a range of fields, including with chemicals and explosives.

Interestingly, the Explosives Substances Act 1875 (predecessor of the Explosive Substances 1883 Act) acknowledged such legitimate purposes. The 1883 Act had been passed hastily to reassure a British public terrified of the actions of militant Irish Republicans.

The new Act was primarily geared towards the creation of additional criminal offences and, from my interpretation of Lord Sales’ historical summary, it’s hard to infer that the Westminster Parliament was breaking with long established tradition and thus making the mere possession of explosive material a criminal offence. If Parliament had intended this, it would have done so.

The practical regulation of the use and storing of explosives is currently addressed by the Explosives Regulations 2014 and, the Explanatory Memorandum which accompanies these, clearly acknowledge that private individuals may lawfully manufacture or be in possession of explosive substances for their own personal use. That said, individuals who are manufacturing or storing explosive materials must be aware of the relevant guidelines which are presently in force.

Critically, Lord Sales was of the view that experimentation and self-education (which includes satisfying an individual’s curiosity) are lawful objects. This is well within the ordinary and every day meaning of the words “lawful object” in the 1883 Act. A defendant (such as Chez Copeland) will, therefore, be entitled to present this defence at trial, but of course a jury will have to weigh up the evidence presented and arrive at its own conclusions.

Interestingly, Lord Sales observed that in R v Riding [2009], the Court of Appeal had correctly dismissed the defendant’s appeal on the facts – the defendant (Riding) did not have a lawful object in proceeding to build a pipe bomb. Where the Court of Appeal had fallen into error in Riding, was to approach the remark that “mere curiosity simply could not be a lawful object in the making of a lethal pipe bomb” as effectively a “proposition of law” rather than treating this as a purely factual statement.

The dissenting view

The two dissenting Justices – Lords Lloyd-Jones and Hamblen – were strongly in agreement with Judge Wall (in the Crown Court) and the Court of Appeal:

“Such detonations involve an obvious risk of causing injury and damage to property and causing a public nuisance. For such experimentation to be capable of being lawful it would be necessary to particularise how it was to be carried out so as to avoid any such risk or how it would otherwise be lawful.

Their Lordships went on to say:

We consider that the vague and generalised statements referring to personal experimentation and private education, whether considered individually or taken together, fail to provide sufficient particularity of how these claimed objects were to be carried out lawfully.”

That said, the views of Lords Lloyd-Jones and Hamblen did not prevail and Chez Copeland’s appeal was permitted to proceed.

Conclusion

The Explosive Susbtances Act 1883 and the Explosives Regulations 2014 and, the Explanatory Memorandum clearly acknowledges that private individuals may lawfully manufacture or be in possession of explosive substances for their own personal use.

In R v Copeland [2020], the UK Supreme Court has now ruled that experimentation and self-education (which includes satisfying an individual’s curiosity) are lawful objects. This is well within the ordinary and every day meaning of the words “lawful object” in the 1883 Act.

That said, individuals who are manufacturing or storing explosive materials must be aware of the relevant guidelines which are presently in force which impose upon them a heavy duty of responsibility to take care for the safety of other people and their property.

A defendant (such as Chez Copeland) will, therefore, be entitled to present the defence in Section 4(1) of the 1883 Act at a trial that explosive substances were in his possession or under his control for a “lawful object”. A jury will, of course, have to weigh up the evidence presented and arrive at its own conclusions on the facts.

Links to the Court of Appeal’s decision in R v Riding [2009] and the UK Supreme Court’s decision in R v Copeland [2020] respectively can be found below:

http://www.bailii.org/ew/cases/EWCA/Crim/2009/892.html

https://www.supremecourt.uk/cases/docs/uksc-2019-0089-judgment.pdf

A link to an article in The Independent about the UK Supreme Court’s decision can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.120320/data/9394451/index.html

Copyright Seán J Crossan, 15 March 2020

Crown Court

Photo by NeONBRAND on Unsplash

More years have passed than I care to remember, but ITV would broadcast a television series called Crown Court made by Granada (one of the ITV companies). The programme was basically involved dramatic reconstructions of criminal trials which had taken place in the real Crown Court. It was very popular with viewers – as unsurprisingly these types of dramas tend to be – running for a total of 11 series (or seasons as our North American friends might say) from 1972 until 1984. 

I’m going to say that I’m far too young to remember the original broadcasts and it was the repeats that I saw during the school lunch break when I would be at my recently retired great aunt’s house. 

If readers are so minded, there is a link below to one of the episodes on the Youtube:

https://youtu.be/ALmzO-S1Klw

The reason why I’m recalling Crown Court is due to the fact that permission will soon be granted which will permit television cameras to be used in the real Crown Court in England and Wales. This is part of a push to increase public awareness of the criminal justice system in England and Wales.

The Crown Court (Broadcasting and Recording) Order 2020 will soon be ratified by the UK Government which will permit the limited broadcasting of certain proceedings – primarily sentencing statements of judges.

Please see a link below to a press release issued by the UK Government in this regard:

https://www.gov.uk/government/news/cameras-to-broadcast-from-the-crown-court-for-first-time

I did not know until today that it has been over 100 years since cameras were allowed into an English criminal court – the trial for murder of Doctor Harvey Hawley Crippen in 1910 at the Old Bailey in London (or the Central Criminal Court).

The Crown Court is the location for trials which proceed on indictment before a jury (or as we would say in Scotland, it is a court of solemn procedure). In some respects, this court is a hybrid of the Scottish Sheriff Court and the High Court of Justiciary. 

Overseas readers – those in North America particularly – will probably shake their heads in disbelief about this story. After all, both civil and criminal cases are regularly televised in that part of the world. What’s the fuss?

I must confess that I don’t really share the excitement about this development in the Crown Court. It’s not because I have any major objections to television broadcasts of trials – subject of course to safeguards being put in place for vulnerable witnesses and victims. As someone who principally deals with Scots Law, I just have a feeling of déjà vu. In Scotland, we have been here before and our English brethren, it seems, are left playing catch up.

Back in the 1990s, BBC Scotland made a ground-breaking television series called The Trial which consisted of 6 episodes looking at a particular aspect of Scottish criminal justice. Our library had a copy of the series and I would often show a particular episode – The Loan Path Murder – to my First Year law students. It was an excellent educational tool because it involved a real murder trial consisting of court-room footage (i.e. cross-examinations of the accused and the principal witnesses); and the defence and prosecuting counsel had an input (as well as the defence solicitor for the accused). The programme makers avoided sensationalism and the viewers got a realistic and measured insight into the world of Scots criminal law.

Over the last few decades, BBC Scotland has made further forays into the Scottish legal system (with varying success it has to be remarked). That said, in January 2020, the television station has just broadcast a programme called Murder Trial: The Disappearance of Margaret Fleming. Over two episodes. the background to a murder trial involving the disappearance of a vulnerable young woman is explored with contributions from Police Scotland, the Crown prosecutor, defence counsel and journalists who covered the story. All episodes are currently available on the BBC iPlayer. 

A link to the trailer for the programme can be found below:

https://www.bbc.co.uk/programmes/p07zn7jp

In any event, sentencing statements by Scottish judges in the High Court of Justiciary are regularly available on broadcast media and I often use this as learning resource for my students when trying to explain to them how the judges decide what sentence should be imposed on the now guilty party. 

Even the UK Supreme Court has permitted cameras and no doubt many members of the public were gripped by the prorogation of the UK Parliament proceedings at Guildhall, London in September 2019.

I do want to finish on a positive note: anything that demystifies the criminal law (and the legal system more generally) is to be welcomed. The court room is still to be regarded as a serious place and, if programme makers behave sensibly and sensitively, there is no reason why this should be undermined. When I arrange visits to the High Court of Justiciary for my students, from time to time, I do remind them that court is not about entertainment and one of the ground rules that we go over is no filming or taking photographs while they are on the premises. There are limits to some things.

Links to the story about the announcement that TV cameras are to be permitted into certain Court Court proceedings can be found below on the Sky News website:

http://news.sky.com/story/tv-cameras-to-be-allowed-to-film-high-profile-cases-in-crown-courts-within-months-11909503

http://news.sky.com/story/after-a-century-long-ban-cameras-capture-courtroom-drama-again-11909487

Copyright Seán J Crossan, 16 January 2020