Written By: Leon Leon
Editor: Jenna Jokhani
R v Copeland [2020] UKSC 8
Parties: State (Prosecution), Chez Copeland (Appellant)
Justices: Lord Reed, Lord Carnwath, Lord Lloyd-Jones, Lord Sales, Lord Hamblen
Facts of the Case:
The appellant was a twenty-two-year-old male with no prior convictions. The appellant has been diagnosed with autism spectrum disorder and had purchased chemicals via the internet to make and test explosives. He claimed that his object was to understand and educate himself on explosives through his experiments, which was driven by his obsession with military paraphernalia. On 24 April 2018, a search warrant was issued and executed for the residence of the appellant and his mother. An explosive, Hexamethylene Triperoxide Diamine (HMTD) was found, as well as manufacturing equipment and instructions. The appellant had filmed previous explosives tests he had conducted in his back garden and was using his garden shed as a laboratory.
He was charged with multiple lesser offenses, as well as two counts of section 4(1) of the Explosive Substances Act (1883)* – knowingly possessing and controlling explosive substances amounting to reasonable suspicion that they were not possessed for a lawful object.
The defence statement posited that possession of the explosives for education and experimentation constituted a lawful object. In a Crown Court hearing, His Honour Judge Mark Wall QC determined that it did not; in accordance with the precedent set by R v Riding (2009) EWCA Crim 892. Following this outcome, the appellant submitted his case to the Court of Appeal, who also rejected the case on the same grounds as the Crown Court. Thus, the appeal made its way to the Supreme Court, in order to establish whether personal experimentation or private education, without other unlawful intent, was capable of being a lawful object for section 4(1) of the Explosive Substances Act (1883).
*Section 4(1) of the Explosives Act (1883):
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.
Supreme Court Findings:
The supreme court held (Lord Lloyd-Jones and Lord Hamblen dissenting) that self-education and experimentation were capable of being lawful objects in regard to section 4(1) of the Explosives Substances Act (1883).
Judgements:
Lord Sales (with agreement from Lord Reed and Lord Carnwath)
Under section 4(1), the prosecution had shown evidence for a reasonable suspicion that the defendant possessed explosive substances for an unlawful object. As such, the burden of proof rests on the defendant – he must provide the object and context for which the explosives were in his possession.
In R v Riding (2009), curiosity was not accepted as a lawful object for possession of a pipe bomb explosive. Riding did not have to construct a functioning bomb to determine if he was capable of making the device and he did not have to continue to possess it afterwards. The supreme court agrees with the outcome of Riding. However, the object of experimentation and self-education in Copeland does not fall under the same principle; the experiments were still in progress.
In the case of R v Fegan (1984) Cr App R 189, self-defence was accepted as a lawful object for possessing a pistol and ammunition (considered explosives), though the way in which they would be used was inherently unlawful. The court of appeal had incorrectly required that the defendant specify exactly how the explosives would be used and shown that it would be lawful; in Fegan’s case, he possessed them for purpose of self-defence but had not had to use them, and so could not specify how they would be used. Thus, the precedent is set that an object for possessing explosives can be lawful even if the use is not, and there is no requirement for the accused to specify exactly how the explosives will be used.
The crown court and court of appeal had not fully considered the facts of this case, and so the precedents in Riding and Fegan did not conflict with the defence in Copeland.
The prosecution submitted that experimentation and self-education are not sufficient to be considered objects. The supreme court held that they were, by definition. Furthermore, as any educational institute or commercial research facility might use explosives for the object of private experimentation and education, so should a private individual be allowed the same when arguing his defence. The matter of what the explosives would be used for, in terms of a specific plan, were not deemed relevant to whether experimentation and education are capable objects, though they may be brought up at trial.
The defence also stated that the amount of explosive to be used in the experiment would have been equivalent to a firework, which was lawful. This was not disproved by the prosecution and was possible, so the supreme court found that this could be presented in support of the defendant’s lawful object at trial.
Lord Lloyd-Jones and Lord Hamblen (dissenting opinion)
It was agreed that, as in R v Fegan (1984), while possession of explosives may be unlawful, there can be a lawful object for said possession. There was also a requirement for a specific lawful object, not merely the absence of an unlawful object, which the defence accepts.
Based on the definition of object, the court would have required the defence to specify the lawful object for possessing the explosives and what the explosives will be used for, which must also be lawful. In and of themselves, self-education and experimentation are not enough to be considered an object as it does not specify what is to be done with the explosives or why it is to be done, and therefore is too vague. This was in line with the precedent from R v Riding (2009) is that the defendant must identify a positive lawful object, not just show that there is an absence of criminal intent or an unlawful object. The way in which the explosives will be used must also be shown to be lawful.
In the case of Copeland, the nature of the experiments needed to be stated. The appellant had detonated the explosives in his back garden, and this was considered a potential risk to others, others’ property or cause nuisance. The court found that this the defence did not show how these acts would be carried out lawfully.
In R v Fegan (1984), lawful object of self-defence required that use of the explosives was reasonable (i.e. using the pistol and ammunition in response to a threat). In Copeland, experimentation and self-education do not show how the use would be lawful.
Conclusion:
The supreme court ruling in R v Copeland showcases the importance of carefully considering the implications of precedence. At first glance, it appears that Chez Copeland’s defence did not hold water due to the authoritative outcomes of previous cases. However, the Lords’ analysis and comparison of the individual contexts allowed for a different outcome – the defence was allowed to present experimentation and education as lawful objects for the case, where mere curiosity (Riding) and lawful object without lawful means (Fegan) did not previously apply. Notably, the prosecution elected not to further pursue the case in court after the judgement was given.
References:
R v Copeland [2020] 4 All ER 173 (UKSC)
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