Explosives
Code for Crown Prosecutors - Considerations
If sufficient evidence exists to support a realistic prospect of conviction for an offence under the Explosive Substances Act 1883, and a lesser offence is not appropriate, a prosecution will normally be in the public interest due to the risk to public safety and/or national security. However, since the Attorney General must give consent for such a prosecution consideration of the public interest is a matter for him, not The CPS.
The Explosives Act 1875 is concerned with health and safety offences relating to the manufacture, storage, sale and use of explosives. Due to the need to preserve public safety, prosecution will generally be in the public interest.
A prosecution for an offence under sections 28,29 or 30 of the Offences Against the Persons Act 1861 will normally be in the public interest due to the risk to public safety and/or national security.
The same public interest considerations apply to minor explosions which are charged as criminal damage under the Criminal Damage Act 1971 as to other instances of that offence. <Criminal Damage, elsewhere in this guidance>
The Law
The consent of the Attorney General is required for all prosecutions brought under the Explosive Substances Act 1883 and for prosecutions brought by reference to section 4(1) of the Suppression of Terrorism Act 1978 <refer to Consents to Prosecution, elsewhere in this guidance>
The Explosive Substances Act 1883
The Explosive Substances Act 1883 <Archbold, 23-62> creates offences of:
- Section 2 - Causing an explosion likely to endanger life or cause serious injury to property;
- Section 3(1)(a) - Doing any act with intent to cause, or conspiring to cause, an explosion by means of an explosive substance likely to endanger life;
- Section 3(1)(b) - Making, possessing or controlling an explosive substance with intent to cause an explosion likely to endanger life;
- Section 4 - Making or possessing explosives under suspicious circumstances.
The Explosives Act 1875
The Explosives Act 1875 <Stones, 8-14000> creates offences of:
- Section 4 - Unauthorised manufacture of gunpowder and other explosive substance;
- Section 5 - Unauthorised possession of gunpowder and other explosive substances;
- Section 30 - Selling gunpowder on the highway or in a public place;
- Section 31 - Selling gunpowder to children apparently under 16;
- Section 80 - Throwing fireworks on the highway or in a public place;
- Section 39 of the 1875 Act applies to offences relating to gunpowder to all other explosives.
The Offences Against the Person Act 1861
The Offences Against the Person Act 1861 <Archbold, 19-232> creates offences of:
- Section 28 - Causing grievous bodily harm by the unlawful explosion of gunpowder or other explosive substance;
- Section 29 - Unlawfully causing gunpowder or some other explosive substance to explode with intent to cause grievous bodily harm;
- Section 30 - Unlawfully placing, or throwing, in, into, upon, against or near any building, ship or vessel any gunpowder or other explosive substance with intent to do bodily injury to any person;
- Section 64 - Possessing, making or manufacturing explosives to enable another person to commit any indictable offence under the OAPA.
Proof of an Explosion
Sections 28 or 29 of the Offences Against the Person Act 1861 and Section 2 Explosive Substances Act 1883 require proof that an explosion has actually occurred. Evidence of an explosion must be distinguished from evidence of some other form of reaction, such as an act of combustion. Particular care should be taken with regard to incidents involving petrol bombs in this context, as they may either explode or combust. It is also necessary to distinguish incendiary devices that are designed to cause fire (Arson/Criminal damage offences), not to explode.
Positive proof that an explosion, as opposed to an act of combustion, occurred will require expert evidence. Expert evidence will also be required whenever the manufacture, possession or use of any explosive substance is alleged in order to fully identify the articles in question.
Other relevant offences
Other relevant offences are:
- Possessing articles for suspected terrorist purposes contrary to S.57 Terrorism Act 2000
- Damaging property contrary to S.1 Criminal Damage Act 1971 <Archbold, 23-1>
Definition of "explosive" and "explosive substance": <Archbold, 23-84>.
Offences Committed Abroad
Under Section 4(1) of the Suppression of Terrorism Act 1978 certain offences are triable in the United Kingdom if committed by any person in a country which is a party to the European Convention on the Suppression of Terrorism <Archbold, 25-153>. Those include offences under Section 28,29 and 30 of the Offences Against the Person Act 1861 and Section 2 and 3 of the Explosive Substances Act 1883.
Charging Practice
Because of the enormous potential for causing severe personal injury or substantial damage to property the use, possession or manufacture will always be regarded as potentially serious matters and the appropriate charge carefully selected.
In theory, when the explosive substance is intended to cause injury, possession in a public place within the meaning of section 1 of the Prevention of Crime Act 1953 could be charged. However, such a charge is inappropriate, having regard to the alternative statutory offences specifically concerned with explosives.
Explosive Substances Act 1883
Under Section 2 Explosive Substances Act 1883, proof that the explosion is of a nature likely to endanger life or cause serious injury to property, is an objective element in the offence.
Charges under Sections 3 and 4 Explosive Substances Act 1883 should be restricted to instances where the public safety has been endangered by the act complained of to the extent that a substantial sentence of imprisonment would be appropriate. If the circumstances of the offence do not warrant such a sentence an alternative and lesser charge under Sections 4 or 5 of the Explosives Act should be considered.
Explosives Act 1875
If there is evidence that the defendant has manufactured or kept the explosive in question and the sentencing powers are considered adequate, a charge under either Section 4 or 5 Explosives Act 1875 should be preferred. Such a decision can properly be taken where an offender has acted in a spirit of reckless curiosity, rather than with any criminal motive.
Offences Against the Person Act 1861
The use of Section 28 instead of Section 18 <OAPA section in this guidance>(which carries the same maximum sentence), will emphasise to the court the cause of the injuries which were sustained.
Section 29 contains a subjective requirement that the offender intends to do bodily harm by means of the explosion.
No explosion need have occurred, however, for the purposes of completing an offence under section 30 Offences Against the Person Act 1861.
Terrorism Act 2000
Where possession of an explosive substance is linked to a reasonable suspicion that it is for a purpose connected with an act of terrorism, an overlap occurs between Section 57 and other offences.
Note that the requirement within the 1883 Act that an offender must knowingly have an explosive substance in his possession is absent from the 2000 Act.
There is no limit to the type of article to which Section 57 can apply. Where an offender is found in possession of not only an explosive substance but also other items which fall outside the definition of an explosive substance, and the circumstances give rise to the statutory suspicion under Section 57 a charge under this section is likely to be the appropriate charge with regard to all the articles.
Refer also to <Terrorism, elsewhere in this guidance>.
Criminal Damage Act 1971
Where a minor explosion causes damage the public interest can properly be served by proceeding with a charge under Section 1 of the Criminal Damage Act. Such a decision can properly be taken where an offender detonates explosives in a spirit of reckless curiosity, without the intent necessary for more serious offences. <Criminal Damage, elsewhere in this guidance>
Where such a person remains in possession of explosive substances and associated apparatus, charges under Sections 4 or 5 of the Explosives Act 1875 may also be appropriate.
If damage to property occurs as a result of combustion of an article the appropriate charge will be one of arson, with or without an intent to endanger life. <Criminal Damage, elsewhere in this guidance>
Procedure - pre-trial
Consent
The consent of the Attorney General is required for all prosecutions brought under the Explosive Substances Act 1883 and for prosecutions brought by reference to Section 4(1) of the Suppression of Terrorism Act 1978 <Consents to Prosecute, elsewhere in this guidance>
By virtue of Section 38 Health and Safety at Work Act 1974, DPP consent is also required for a prosecution under Sections 2 or 3 of the Explosives Act 1875. <Consents to Prosecute, elsewhere in this guidance>
DPP consent is also required for a prosecution under Section 57 Terrorism Act 2000.
Referral Criteria
Cases involving terrorism must always be referred to Casework Directorate as must any case where there has been a Security Service, SIS or GCHQ involvement, and any case which has caused widespread public concern. <refer to Casework Location, elsewhere in this guidance>
Joint Prosecutions
Joint prosecutions with the Health and Safety Executive for offences under Explosives Act 1875 regularly occur. In that event you should refer to the protocol for liaison between HSE, the police and CPS. <refer to Relations with Other Prosecuting Agencies: Protocol, elsewhere in this guidance>
Useful Links
<Guidance on DPP Consent>
<Guidance on A-G Consent>
<OAPA 1861>
<Criminal Damage>
<Relations with Other Prosecuting Agencies: Protocol>
Archbold 19-232
Archbold 23-1
Archbold 23-62
Archbold 23-84
Archbold 25-153
Stones 8-14000
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