R v Copeland [2020] UKSC 8

The appellant, diagnosed with Autism Spectrum Disorder, made and possessed HMTD explosive for personal experimentation and self-education regarding how explosives work. The Supreme Court held that experimentation and self-education are capable of being lawful objects under section 4(1) of the Explosive Substances Act 1883, allowing the defence to proceed to trial.

Facts

The appellant, aged 22, had a longstanding obsessive interest in military matters and explosives, inspired by the film ‘The Hurt Locker’. He purchased chemicals online and created a small quantity of HMTD, a sensitive primary high explosive, which he kept in a garden shed used as a laboratory. He had previously experimented with other explosive substances, detonating them in his back garden. When police executed a search warrant in April 2018, they found the HMTD along with manuals and notes on making explosives. The appellant was charged under section 4(1) of the Explosive Substances Act 1883 with possession of explosive substances under suspicious circumstances.

Issues

Main Legal Question

Whether personal experimentation or own private education, absent some ulterior unlawful purpose, can be regarded as a ‘lawful object’ for the purposes of section 4(1) of the Explosive Substances Act 1883.

Judgment

Majority Opinion (Lord Sales, Lord Reed, Lord Carnwath)

The majority allowed the appeal, holding that experimentation and self-education are capable of being lawful objects under section 4(1). Lord Sales explained the statutory structure:

The object or purpose so identified by the accused under limb (2) has to be ‘lawful’ in the place in which it is to be carried into effect… ‘lawful’ has the usual sense of that term in English law, namely that the object in question is not an object or purpose which is made unlawful by the common law or statute.

Lord Sales emphasised that section 4(1) was enacted against the background of the Explosives Act 1875, which recognised the legitimacy of individuals making or possessing quantities of explosives for private experimentation:

Experimentation and self-education, including to satisfy one’s curiosity in relation to the subject of investigation, are lawful objects. As a matter of ordinary language, they are ‘objects’ every bit as much as self-defence is an ‘object’.

The majority held that the Court of Appeal had erred by setting the bar too high, requiring the accused to show precisely how the explosives would be used. Following the reasoning in R v Fegan and Attorney General’s Reference (No 2 of 1983), the accused need only identify a relatively general lawful object.

Dissenting Opinion (Lord Lloyd-Jones, Lord Hamblen)

The minority would have dismissed the appeal. They held that personal experimentation or private education did not sufficiently identify the use to which the explosives would be put:

to say that something is done for one’s own private education is not a sufficient object for the purposes of the section 4(1) defence, as it does not identify the use to which the explosives will be put in order to provide such education.

Implications

This case clarifies that the term ‘lawful object’ in section 4(1) does not require specification of the precise way in which an explosive substance will be used. The accused need only identify a lawful purpose at a general level. The decision acknowledges the long tradition of individuals pursuing self-education through private experimentation, while noting that the prosecution may still challenge whether the stated object was genuine or whether it was tainted by unlawful elements. The matter of whether the defence succeeds is ultimately for the jury to determine at trial on the evidence presented.

Verdict: Appeal allowed by majority (3-2). The question certified by the Court of Appeal was answered in the affirmative: personal experimentation or own private education, absent some ulterior unlawful purpose, can be regarded as a lawful object for the purposes of section 4(1) of the Explosive Substances Act 1883.

Source: R v Copeland [2020] UKSC 8