England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday 7th April 2009

1. THE VICE PRESIDENT: This defendant made a pipe bomb. He kept it in his home, along with two replica handguns, three substantial knives and a knuckleduster which he had made out of brass. He was convicted of the offence of making an explosive substance, contrary to section 4 of the Explosive Substances Act 1883. He seeks leave to appeal against his conviction on two grounds. The first is that the judge was wrong to hold that the reverse onus placed on a defendant by section 4 in relation to a defence of lawful object was a legal rather than an evidential onus. The second ground is that the 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.
2. The bomb was about six inches long, constructed of copper pipe with a substantial screw cap and a large nut on one end. The explosive contained within it was black powder drained out of a number of fireworks. A firework-type cord fuse had been inserted into one end. It was, on the scientific evidence placed before the court, a viable improvised explosive device. If it had exploded it would have had the potential to generate substantial shrapnel and thus serious injury. That it was also possible that it might do no more than function as a firework, emitting flame from one end, did not alter its danger, nor did the possibility which is inherent in most bombs that it might fail altogether to go off. On the casing the defendant had scratched the word "killer" and also the common expletive "fuck you", apparently following (according to him) the word "Delboy" which he said was a reference to himself.
3. On his own account the defendant had made this pipe bomb following a recipe which he had found on the internet. He had done it in the spring of 2006 when he was 18 and indeed the date was scratched on the casing. It was common ground that he had not attempted to detonate it. He had kept it, along with the replica firearms, the knives and the knuckleduster, under his bed in a hotel room-type domestic safe. He had, however, told a number of friends about it and some had been shown it. He had undoubtedly put a certain amount of effort into the manufacture. As the judge pointed out, he had not used an inert material such as, for example, sand, which would equally have demonstrated whether or not he was capable of constructing it. Rather, he had used explosive powder and indeed he had gone to the trouble, after wet drilling to obtain the powder, of drying it out which had the effect, of course, of restoring it to potency. It was also apparent that the knuckleduster had been carefully fashioned and padded for comfortable wearing. There was however no suggestion that it had ever been used aggressively, nor that either the guns or the knives had been either.
4. Of Mr West's two grounds of appeal it seems to us convenient to take the second first, since if the judge was right to say that the defendant's account of making the bomb for idle curiosity could not amount to a lawful object the question of the kind of onus imposed by section 4(1) simply does not arise.
5. The defendant's account of making the bomb was given to the police and he repeated it on oath in his trial. It was: "I was curious and just experimenting." He added that he did not plan to ignite it.
6. Section 4 of the Explosive Substances Act 1883 creates an offence in the following terms:

"Any person who makes...any explosive substance under such circumstances as to give rise to a reasonable suspicion that he is not making it...for a lawful object, shall, unless he can show that he made it...for a lawful object, be guilty of an offence."

7. 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.
8. Mr West's contention is that that ruling was wrong. He contends that it is a ruling which is contrary to fundamental principle. His point is succinctly and directly put in his written grounds in these terms:

"Article 6(2) [European Convention on Human Rights] is engaged here also, in that the presumption of innocence requires, in a free society, that the criminal law act prescriptively, not permissively, ie that the law operates to prescribe what one may not do, not to seek to define what one may do. By this yardstick, anything which is not an unlawful object is a lawful object."

In other words, Mr West's contention is that for the purposes of section 4 a lawful object is the absence of any object which is criminal. It is not, he contends, an offence simply to possess explosives. He has in the past instanced a manufacturer or a quarryman. On reflection those are not the best examples since there are detailed regulations covering their use of explosives, but he says it is not simply an offence to possess explosives on one's private land.

9. That is an argument which, persuasively as it may be presented, is one we are satisfied cannot succeed. We agree of course that it is the place of the criminal law to operate prescriptively rather than permissively. In this case Parliament has made a prescriptive order. It has proscribed by section 4 the making, and for that matter also the possession, of explosives in circumstances which give rise to the reasonable suspicion that there is no lawful object. It has then provided that the offence is not committed if there is in fact a lawful object. That is an example of a prescriptive provision of the criminal law.
10. 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.
11. Mr West supports his submission by the contention that at least since the passing of the Human Rights Act 1998 his construction of section 4 is necessary to render it compliant with the European Convention on Human Rights - in particular, as his briefly-stated grounds which we have already quoted indicate, in order to make it compliant with Article 6. That submission, we should make clear, confuses the first of Mr West's grounds in relation to the onus of proof with his second. There is no doubt that Article 6 is relevant to the question of whether a reverse onus is a legal or an evidential one. That is because Article 6 is all to do with procedural fairness. Article 6 has nothing whatever to do with the substantive law in the sense of having anything to do with the conduct which is prohibited by the criminal law. Consistently with the Convention, States are enabled to create offences of strict liability. There is no breach of Article 6 in doing so. The flaw in the argument in relation to Article 6 is well-illustrated by a question asked of Mr West by my Lord, King J, in the course of argument. Suppose in the present case that the existence of a motive of mere curiosity were not a matter of dispute. Suppose that it be formally admitted that the defendant had made the article out of idle curiosity and nothing else. Could Article 6 have any bearing upon the question of the construction of the statute? The answer is "no" because Article 6 is concerned with procedural fairness and the means of proof and in the example given the fact in question is admitted without the need for further proof.
12. In the end, therefore, the proposition boils down to the submission that lawful object means the absence of criminal purpose rather than a positive object which is lawful. We are satisfied that it means the latter and not the former and that is consistent with such authority as there is on the topic. In Attorney General's Reference No 2 of 1983 78 Cr.App.R 183 the defendant had made petrol bombs. This court was prepared to accept that self-defence against rioters who had run rampant on successive nights was at any rate capable of amounting to a lawful object, at least if the defendant could demonstrate that it was his sole object and that the means adopted were no more than he believed to be reasonably necessary. It is plain, however, that the court took the view that the defendant could only be within the defence if the necessary immediacy of danger and reasonableness of the response was present. There was no question of the possession of the petrol bombs being lawful unless some criminal purpose for them existed. That court approved the decision of the Northern Ireland Court of Criminal Appeal in Fegan [1972] NIR 80, now noted immediately following the report of the Attorney General's Reference. There, Lord MacDermott at page 194 explicitly addressed the question which is before us. Once again it was a case in which self-defence was asserted as the lawful object, but the learned Lord Justice said this:

"As a matter of construction a defence under the second limb of section 4(1) cannot be made by the possessor proving that he had no unlawful object. The onus resting on him is specific but positive. He has to show possession for a lawful object."

We agree that that observation may well not have been essential to the decision in the case. It was going much too far to suggest the point had not been argued, we do not know one way or the other. But it is of considerable persuasive authority and it accords entirely with our reading of the statute. Mere curiosity simply could not be a lawful object in the making of a lethal pipe bomb. It would indeed be very remarkable indeed if it could. Mr West was frank enough to accept that if the statute had used the words "good reason" instead of lawful object the defendant could not have established that he had good reason for making the bomb. We are entirely satisfied that he did not have a lawful object for it either.

13. In those circumstances it is not necessary to resolve the question of the nature of the onus placed upon a defendant in relation to the defence provided by section 4(1), that is to say it is not necessary to decide whether section 4(1) needs to be read down to an evidential onus in order to make it compliant with the European Convention on Human Rights, Article 6(2), namely the presumption of innocence. Any observations of ours on that topic would be obiter. It is a topic of some considerable intricacy and it would call for the fullest argument. We do not think that it would be of assistance to burden subsequent courts with an extempore and obiter decision upon the topic.
14. For the reasons which we have given it follows that the application for leave to appeal against conviction must be refused.
15. As to sentence, the judge imposed a term of 12 months. He did that having given careful consideration to the basis on which he passed sentence. He rejected the defendant's evidence that the bomb had been made out of mere idle curiosity because he was sure, as the evidence demonstrated, that the defendant had meant to create an active live bomb. Those two things are not necessarily mutually inconsistent. But the judge was certainly right to take careful note of the use of live explosive dried out and the creation of a potentially lethal weapon. The defendant accepted in interview that he knew he would be creating a lethal weapon. In the end the judge was simply uncertain what the defendant's motivation was, but he accepted that it did not extend to a positive intention to make any aggressive use of the weapon - the case would of course have been entirely different if that intention had been present.
16. The judge had both pre-sentence and psychiatric reports upon the defendant. Neither disclosed any particularly concerning obsession, although the extent to which that issue was directly confronted is perhaps questionable. There was some evidence of pedantry of expression and the presence together with the bomb of the other articles which we have mentioned do rather suggest at the very least an unhealthy interest in weaponry. It may well be that the defendant's motivation was appreciably nearer to that than to any form of contemplated aggression. Of course the defendant's motivation is only part of the story. The potential for harm is the other important aspect of the offence and that was not inconsiderable. Although the device was in a safe, word of it had got about it. It might have been stolen or otherwise got out into circulation.
17. The defendant was just 21 by the time he was sentenced. He had no previous conviction of any kind. He came from a respectable hard-working family. He had left school at the age of 16 with appropriate GCSE passes and after that he had worked largely in hardware stores where he had reached the position of assistant manager. His last job had been selling caravan accessories and he had lost the job because of the investigation and the publicity associated with it. At the time of making the bomb and keeping it and it being found he was living at home with his parents, but by the time he fell to be sentenced he had established a home with his girlfriend and it is the fact that they will become parents later this year. There is no adverse history in the form of alcohol or drug abuse of any kind.
18. The judge's reference to the possession of lethal firearms as the nearest analogy that could conveniently be found seems to us to be appropriate. We do not doubt that the judge was concerned about deterrence, although the facts of this case are perhaps sufficiently unusual to make that not a principal concern. It is very different from the kind of case in which the possession of this kind of object is associated with an interest in underworld or fundamentalist activity.

19. Mr West has reminded us of the course taken by this court in R v Stefan Campbell [2004] EWCA Crim. 2309 in which a variety of items including some small sticks of explosive, a crossbow, a vial of rat poison and a hunting knife had been collected by a young man and subsequently found. The judge distinguished the case by pointing out that in that case the defendant had apparently abandoned any interest in the items and left them when he moved in the home that he had previously lived in, whereas the present defendant had retained the articles. That perhaps cuts both ways. It is certainly true that this defendant retained his interest in the bomb. Equally, he kept it relatively safe, whereas Campbell allowed for his collection to become unattended and available to anybody who might find it. On the other hand, Campbell had apparently made the collection from the age of about 11 onwards and appears to have been very much younger when the offence was committed. The court in Campbell's case was persuaded that the five months or so that the defendant had served was sufficient to mark the gravity of the offence and indeed took the view that it might well have imposed a fine rather than a custodial sentence.

19. We take the view that certainly in current times the possession of a home-made bomb of this kind does require the imposition of a custodial sentence, even in a young man of otherwise good character. It is potentially really very dangerous indeed. On the other hand, we are quite satisfied that it is a case in which the fact of imprisonment is the principal and important punishment. This man has now had to serve approximately four months in prison. It will undoubtedly have been a chastening and salutary experience for him. We very much hope it is the only time he is anywhere near an institution of that kind. The time that he has served is enough. We quash the sentence of 12 months and we substitute a sentence of eight months. Against that time in custody will count, as it did before. The relevant number of days is 88. It may well be that in those circumstances he is eligible for immediate release; so be it. To that extent accordingly we give leave and we allow the appeal.
20. MR WEST: My Lord, I have placed before your clerk questions which I would seek your certification for consideration by the Lords. Have they been provided to you? (Handed)
21. THE VICE PRESIDENT: It would only be the second one, would it not?
22. MR WEST: My Lord, I would ask you to certify them both because clearly--
23. THE VICE PRESIDENT: We cannot certify the first one. It has to be involved in our decision.
24. MR WEST: The problem will be if the matter goes to the Lords that they will not know what your decision would have been on the first ground.
25. THE VICE PRESIDENT: No.
26. MR WEST: Turning to question 2. My Lord, I think as I have said already, I do not seek to waste your time any further. It is a point which has been considered by this court and indeed the Lords in pre-Human Rights Act era. Obiter in cases where it appears not to be at the centre of the case and I am thinking Attorney General Reference No 2 and Fegan and it is in my respectful submission (inaudible). The point of principle I raise about the distinction in the criminal law is one which is sufficiently important to allow me to ask you to certify this question.
27. THE VICE PRESIDENT: So be it. Thank you very much. (Pause) No, we shall not certify. Thank you very much indeed. Mr West did the Registrar make a representation order when he referred the case?
28. MR WEST: He did, my Lord.
29. THE VICE PRESIDENT: Very well.