Explosives and explosive substances defined 

In this article, trainee solicitor Connor Brylczak considers the legal definitions of explosives and explosive substances, what defences are available to such offences and the types of sentences that may be imposed.

What are explosive substances?

Section 9 of the Explosive Substances Act 1883 confirms an “explosive substance” includes any materials for making any explosive substance; 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.

It is important to note that this definition is not the same as the definition of “explosive”.

What are explosives?

The case of R v Wheatly 1979 confirmed that “explosive” is still defined by section 3 of the Explosive Substances Act 1875.

What is the difference between explosives and explosive substances?

The key difference between the definitions is that “explosive substance” encompasses any devices which can be used to construct an explosive whereas an explosive is limited to anything used or manufactured with a view to produce a practical effect by explosion or a pyrotechnic effect.

In R v Bouch, the courts concluded that a petrol bomb constituted an explosive substance.

Expert evidence regarding explosive substances

Even though Explosive Personnel will typically address this, in almost every case involving explosive substances, expert evidence will be required to establish whether the articles in question form an explosive substance. The expert will be required to comment on whether the substance was explosive and whether it could have caused an explosion that would have likely endangered human life or caused serious damage to property.

Any person can be guilty of an offence involving an explosive substance if they make or knowingly have in their possession or under their control any explosive substance. The circumstances must be suspicious and where the defendant does not appear to have the substance for a lawful reason.

What defences are available to explosive substance offences?

When the prosecution establishes that the defendant’s circumstances give rise to reasonable suspicion the defendant can challenge this by attempting to prove that it was a lawful object.

The standard of proof for this is on the balance of probabilities.

In R v Copeland, the Supreme Court held that personal experimentation or self-education could be regarded as a ‘lawful object’. However, if the defendant is knowingly or recklessly putting others or property in danger then this defence cannot be established.

R v Holmes, R v Flint stressed the point in R v Copeland and took it one step further by saying:

“…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 considering if the article is a ‘lawful object’ the main conditions include, but are not limited to:

• The risk to people and/or property
• The proximity to the nearest property or person not connected to the object
• The way in which the articles were stored and if the storage methods gave heightened concerns as to their volatility

What is the sentence for an explosives substances offence?

Any offence under the Explosive Substances Act 1883 is extremely serious. They are triable only on indictment and can carry a maximum sentence of life imprisonment.

Charges can also be brought against any other individual who is concerned with assisting the primary defendant in acquiring the explosive substances.

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