Explosives
- Explosives
- Evidential considerations
- Public interest considerations
- Selection of charges
- Consent to prosecute
This guidance outlines key points in relation to the. This legislation concerns the most serious offending specific to explosives that the CPS is likely to prosecute. This guidance also identifies alternative offences to consider.
Explosives-related offending which may be terrorist in nature should be considered in conjunction with Counter Terrorism Division: see the Referrals, Approvals and Notifications prosecution guidance. Explosives-related incidents which are being investigated by the Health and Safety Executive should consider the Relationships with Other Prosecuting Authorities prosecution guidance.
Evidential considerations
When considering the legislation and authorities concerning the offences in sections 2, 3 and 4 ESA 1883, prosecutors should in particular note the following.
Explosive substance
Section 9 of the ESA 1883 provides the definition of “explosive substance”. This includes “any materials for making any explosive substance; also any apparatus, machine, implement, or materials used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; also any part of any such apparatus, machine, or implement.” “Explosive” is not defined in the legislation.
InR v Wheatley[1979] 1 WLR 144 it was held that “explosive” for the purposes of the 1883 Act should be construed in light of the meaning provided for by section 3 of the Explosives Act 1875:
“…gunpowder, nitroglycerine, dynamite, gun-cotton, blasting powders, fulminate of mercury or of other metals, coloured fires and every other substance, whether similar to those above mentioned or not, used or manufactured with a view to producing a practical effect by explosion or a pyrotechnic effect; and includes fog-signals, fireworks, fuzes, rockets, percussion caps, detonators, cartridges, ammunition of all description, and every adaptation or preparation of an explosive as above defined.”
The court in R v Bouch [1982] 3 WLR 673 confirmed that a petrol bomb (a bottle containing petrol with a wick) was an explosive substance.
Alternative offences, set out below, provide for their own definition of what an “explosive” (or other prohibited article) is.
Expert evidence
Expert evidence is almost always required to prove that the article in question was an explosive substance. Evidence from Explosive Ordnance Disposal personnel is likely to address this requirement, but it may come from any expert. For ESA 1883 cases this evidence should address the elements of the offence explicitly. For section 2, for instance, it should address whether the substance was explosive, and also, whether it could cause an explosion of a nature likely to endanger life or to cause serious injury to property. Expert evidence should also address, where necessary, whether an explosion (as opposed to combustion or some other form of reaction) has taken place. Care is required particularly with petrol bombs which may explode or combust, and with incendiary devices which are designed to cause fire. The Law Officers, who must consent to ESA 1883 prosecutions, must have reliable and admissible evidence addressing the relevant elements of the offence when considering a CPS application for consent. When a prosecutor is applying the threshold test, as with all threshold test cases, five conditions must be met. In relation to evidence of an explosive or explosion, prosecutors are reminded that they need to address why there are reasonable grounds to suspect the person to be charged has committed the offence, and what further evidence will become available within a reasonable time.
Expert evidence should only seek to assist with specialist knowledge and information outside the knowledge of the tribunal of fact. Proof of the offence may come, in part, from what non-expert witnesses have observed. Highly exceptionally it may come solely from non-expert witnesses where it is established that an expert cannot assist with specialist knowledge and information and where the non-expert evidence provides sufficient evidence for a realistic prospect of conviction. Prosecutors should make clear in such highly exceptional cases the position as to expert evidence in their application for consent, liaising with the AGO as appropriate prior to submission of the application. Consent applications must explain the prosecutor’s position on the question of expert evidence. In threshold test cases, this includes on what basis it is said there are reasonable grounds to suspect the person to be charged has committed the offence alleged, and what further evidence is likely to be available within a reasonable time. This will ordinarily involve providing at least preliminary expert evidence with the application.
Lawful object
In R v Copeland [2020] UKSC 8 the Supreme Court held that personal experimentation or self-education could be regarded as a “lawful object” for the purposes of the defence contained in section 4 ESA 1883. When the prosecution proves circumstances which give rise to a reasonable suspicion that the making, possession or control of an explosive substance is not for a lawful object, the defendant must prove a lawful object on the balance of probabilities. Lawful means any object which is not made unlawful by common law or statute. The prosecution may seek to show that this was not in fact the defendant’s object, or that it was not the defendant’s sole object and that the defendant’s object as correctly understood included an unlawful element. If the defendant knows or is reckless as to the risk of injury or damage from experimentation then an ostensibly lawful object is tainted by the unlawfulness inherent in it.
In R v Flint, R v Holmes [2020] EWCA Crim 1266 the Court of Appeal emphasised this:
“…given the obvious risks with using explosive substances, any experimentation involving them which gives rise to a risk of harm to other people or their property, or other unlawfulness such as causing a public nuisance, will not be capable of coming within the scope of the lawful object defence.”
When reviewing a case where the defence of lawful object on the basis of personal experimentation, self-education or similar, prosecutors should consider the evidence:
- the risk of harm to persons or property from the possession of explosives, whether or not this materialised
- as to whether the explosives were detonated and if so whether any public nuisance was caused
- whether the explosives were handled and stored responsibly and with care or whether their storage was hazardous
- whether the explosives were inert or inherently unstable
- the proximity or other persons or property not belonging to the suspect to the explosives
- any other evidence relevant to whether the ostensibly lawful object is tainted by unlawfulness
Public interest considerations
The ESA 1883 offences are serious: all carry a maximum penalty of life imprisonment. If there is sufficient evidence to prosecute, it is likely that a prosecution will be in the public interest. However, the public interest factors in the Code must be considered. Further guidance on relevant considerations can be found in other prosecution guidance, including Mental Health – suspects and defendants and Children as suspects and defendants.
As to explosives offences in general, prosecutors should consider whether or not the conduct causes a clear risk to public safety. If so, . A prosecution may not be required in cases where there has been a technical contravention, through oversight or misunderstanding, and in the absence of a risk to public safety.
Selection of charges
When applying section 6 of the Code for Crown Prosecutors, prosecutors may wish to consider the following, in particular when considering which charges reflect the seriousness and extent of the offending, give the court adequate powers to sentence and enables the case to be presented in a clear and simple way.
For more serious offending:
- consider ESA 1883 charges or charges contrary to section 28, 29, 30 or 64 Offences Against the Person Act 1861 (explosives offending involving grievous bodily harm, caused or intended – or other intent contrary to the Act)
- consider ESA 1883 of the Criminal Damage Act 1971 (intended or reckless endangerment of life) for the most serious offending directed at property.
The offence under section 2 of the 1883 Act is wider than the Offences Against the Persons Act offences because:
- it covers damage to property, risk of serious injury and risk to life
- "likely" is an objective test rather than the mens rea for intent or recklessness
This applies to non-terrorist offending. Potential Terrorism Act offences would fall to the Counter Terrorism Division to consider.
For offending of a less serious nature:
- for explosive precursors, see sections 3A to 3C Poisons Act 1972 (maximum penalty on indictment 2 years’ imprisonment but penalties vary depending on the provision)
- for fireworks, see the Fireworks Act 2003 and Fireworks Regulations 2004 (summary only offences)
- for throwing/discharging a firework in a public place, see section 80 Explosive Substances Act 1875 (financial penalty only)
- for offending involving the possession, making or storage of explosive substances, see the Manufacture and Storage of Explosives Regulations 2005 and the Explosives Regulations 2014 made under the Health and Safety at Work Act 1974 – see section 33 for offences and note the CPS role may depend on whether the Health and Safety Executive or the police investigate
- for the possession of fireworks at a musical event, see section 134 of the Policing Act 2017 (summary only offence).
Consent to prosecute
The Attorney General’s consent to prosecute is required for ESA 1883 prosecutions. See the Consent to Prosecute prosecution guidance.