Harvey, R. v

For an offence under section 4 of the Explosive Substances Act 1883, sentence must reflect the offender’s background and motivation, the explosive substance’s potential for harm, and the strong need for deterrence. Potential harm remains relevant even where there was no intended detonation.

Sentences for firearms offences may provide the nearest analogy, but they do not displace the fact-sensitive assessment required in each case. A sentence must properly reflect aggravating features, mitigation, public impact, and the need to deter further offending.

The appellant pleaded guilty at the Crown Court at Manchester to making an explosive substance in circumstances giving rise to a reasonable suspicion that it was not made for a lawful object, contrary to section 4 of the Explosive Substances Act 1883. A charge of making an explosive substance with intent to endanger life was not pursued.

He had made a small functional explosive device and suspended it beside his neighbours’ property to frighten them into moving. The device could have caused alarm and minor injury to persons nearby. The sentencing judge imposed three years and four months’ imprisonment and a restraining order.

The appeal against sentence concerned the relevance of firearms sentencing by analogy, the guidance available from earlier section 4 cases, and whether the sentence was excessive.

1. Appeal allowed. The court quashed the sentence of three years and four months’ imprisonment and substituted a sentence of 28 months. The restraining order remained in force.
2. In sentencing an offence under section 4 of the Explosive Substances Act 1883, the court must consider the offender’s background and motivation, the potential harm posed by the substance even if its use was not intended, and the strong need for deterrence. The absence of a sentencing guideline did not remove the need for a structured, fact-sensitive assessment.
3. The court applied the approach in R v Riding [2009] EWCA Crim 892. It was permissible to use firearms sentencing as the nearest analogy. However, the individual sentence in Riding was determined by its own facts and was not particularly helpful beyond that analogy.
4. The offence was well above the immediate-custody threshold. The appellant had made a viable explosive device to frighten his neighbours. It had a potential to injure persons nearby, frightened a family including young children, and led to a diversion of public resources shortly after the Manchester Arena bombing. Strong deterrence was required, including deterrence of further offending against the neighbours.
5. Having weighed those aggravating features against the appellant’s mitigation and guilty plea, the appropriate notional sentence after trial was 42 months rather than five years. Applying full credit for the timely plea produced a sentence of 28 months.

• Court of Appeal (Criminal Division): allowed the appeal against sentence and substituted 28 months’ imprisonment: [2018] EWCA Crim 755.
• Crown Court at Manchester: on 5 December 2017 imposed three years and four months’ imprisonment and a restraining order following the appellant’s guilty plea to an offence under section 4 of the Explosive Substances Act 1883.