Riding, R v

Under Explosive Substances Act 1883, section 4 requires a person who has made or possessed an explosive in suspicious circumstances to establish an affirmative lawful object. It is insufficient to show merely that no criminal purpose was intended. Idle curiosity about whether a lethal improvised explosive can be made is not a lawful object.

Article 6 of the European Convention concerns procedural fairness and proof. It does not alter the substantive conduct which Parliament has proscribed. The court did not decide whether section 4(1) imposes a legal or evidential burden. A custodial sentence was appropriate for keeping a live home-made pipe bomb, but the time already served justified a reduced sentence.

The defendant was convicted of making an explosive substance contrary to section 4 of the Explosive Substances Act 1883. At the age of 18, he made a viable pipe bomb using black powder from fireworks and kept it under his bed with replica firearms, knives and a knuckleduster.

He said that he had acted from curiosity and did not intend to detonate the device. He sought leave to appeal against conviction on the grounds that curiosity could be a lawful object and that section 4(1) imposed only an evidential burden. He also challenged a sentence of 12 months’ imprisonment.

The central issue was whether a lawful object means merely the absence of a criminal purpose, or instead requires a positive lawful purpose.

Disposition

1. Leave to appeal against conviction was refused. The court held that the defendant’s admitted purpose, idle curiosity about making a live pipe bomb, was incapable in law of being a lawful object under section 4 of the Explosive Substances Act 1883.

2. Section 4 is a prescriptive criminal provision. Once the making or possession of an explosive occurs in circumstances giving rise to reasonable suspicion that there is no lawful object, the defendant must show a positive object which is lawful. The statutory defence is not satisfied simply by proving an absence of criminal purpose.

3. The court regarded that construction as consistent with Attorney General’s Reference No 2 of 1983 78 Cr.App.R 183 and agreed with the persuasive observation in Fegan [1972] NIR 80. A defence based on self-defence may be capable of amounting to a lawful object only where the necessary immediacy of danger and reasonable response are established. Mere curiosity about constructing a potentially lethal device could not meet the statutory requirement.

4. Article 6 of the European Convention on Human Rights governs procedural fairness and the means of proof. It does not define the substantive conduct prohibited by the criminal law. The court therefore rejected the contention that Article 6 required “lawful object” to mean only the absence of an unlawful purpose. Since the defendant had no lawful object, it was unnecessary to decide whether section 4(1) creates a legal burden or must be read down to impose an evidential burden under Article 6(2).

5. The sentence appeal was allowed. A live home-made bomb was potentially very dangerous and required custody even for a young person of good character. However, the defendant had no intention to use it aggressively, had served about four months, and imprisonment itself was the principal punishment required. The 12-month sentence was quashed and replaced with eight months’ imprisonment, with 88 days credited for time in custody.

• Court of Appeal (Criminal Division): Refused leave to appeal against conviction, granted leave on sentence, and allowed the sentence appeal. The sentence was reduced from 12 months to eight months’ imprisonment.

• Trial court: Convicted the defendant of making an explosive substance contrary to section 4 of the Explosive Substances Act 1883 and imposed 12 months’ imprisonment. The court is not identified in the judgment.