Flint & Anor, R v

For the defence of lawful object under section 4(1) of the Explosive Substances Act 1883, an accused must identify an affirmative and lawful object. The object may be relatively general. Experimentation, self-education and curiosity can in principle be lawful objects.

However, an ostensibly lawful object is not wholly lawful where its pursuit involves an obvious risk of injury, property damage or other unlawfulness. Knowledge of, or recklessness as to, that risk taints the object. A breach of explosive-licensing regulations is evidence relevant to the issue, but does not by itself preclude the defence.

Two applicants sought exceptional leave to appeal out of time against convictions under section 4 of the Explosive Substances Act 1883. Holmes had been convicted after a jury trial of possessing explosive substances. Flint had pleaded guilty to two such offences after accepting that his curiosity and interest could not amount to a lawful object.

Both relied on the later Supreme Court decision in R v Copeland [2020] UKSC 8. They contended that experimentation, self-education and curiosity could potentially be lawful objects. The central issue was whether either applicant could show substantial injustice and an unsafe conviction in light of the proper scope of that defence.

1. The applications for exceptional leave were refused. Both convictions were safe. The applicants could not establish a wholly lawful object on the undisputed facts.

2. Under section 4(1) of the Explosive Substances Act 1883, the accused must show an affirmative object that is lawful. Applying the majority reasoning in R v Copeland [2020] UKSC 8, the object need not specify every intended use. A relatively general object is sufficient if use of the explosive substance for it was reasonably contemplated and could lawfully occur. Experimentation, self-education and curiosity may therefore qualify in principle.

3. An apparently lawful object is nevertheless tainted where its pursuit involves an obvious risk of harm to others or their property, or other unlawfulness. If the accused knew of, or was reckless as to, that risk, the object is mixed and not wholly lawful. The court emphasised that experimentation using explosives, rather than inert materials, will commonly present this difficulty.

4. Holmes’s jury had wrongly been directed that his lack of an appropriate licence made his asserted object incapable in law of being lawful. A regulatory breach is relevant evidence but is not determinative. The error was already apparent from R v Fegan (1984) 78 Cr App R 189, so it was not a change in the law. In any event, Holmes’s repeated detonations caused a public nuisance and property damage. His object was partly unlawful.

5. Flint could understandably have read R v Riding [2009] EWCA Crim 892 as excluding curiosity generally. Under Copeland, however, its observation about curiosity had to be read in the factual context of making a lethal pipe bomb. Flint’s construction and use of IED components, dangerous storage, detonation in a lock-up, and transport of explosives in public while intoxicated went beyond lawful experimentation and created obvious risks.

6. Applying R v Johnson and others [2016] EWCA Crim 1613, exceptional leave founded on a correction or clarification of law requires substantial injustice. The decisive consideration was whether the development could realistically have made a difference. It could not in either case.

• Court of Appeal (Criminal Division): Applications for exceptional leave to appeal against conviction out of time refused: [2020] EWCA Crim 1266.
• Crown Court at Teesside: Flint pleaded guilty to two offences under section 4 of the Explosive Substances Act 1883 on 9 December 2019 and was sentenced on 16 December 2019.
• Crown Court at Aylesbury: Holmes was convicted by a jury on 13 December 2018 of five offences under section 4 of the Explosive Substances Act 1883.