The defendant sent through the post parcels each of which contained a device designed to ignite and set fire to the address label
HERE ITS ATTACHED THE DOCUMENT WITH THE CASE AND IN THE END THERE IS THE QUESTIONS; 12 QUESTIONS IN TOTAL
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R. v Margelis (Ovidijus), [2021] 3 W.L.R. 1411 (2021) |
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For educational use only
*1411 R v Margelis
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No Substantial Judicial Treatment |
Court
Court of Appeal (Criminal Division)
Judgment Date
3 August 2021
Report Citation
[2021] EWCA Crim 1215
[2021] 3 W.L.R. 1411
Court of Appeal
Males LJ , Goose , Cutts JJ
2021 July 28; Aug 4
Crime—Explosive substances—“Pyrotechnic effect”—Defendant posting parcels containing devices designed to ignite and set fire to address labels—Whether devices “explosive substances”—Whether devices used or manufactured with view to producing “pyrotechnic effect”— Explosives Act 1875 (38 & 39 Vict c 17), s 3 1 — Explosive Substances Act 1883 (46 & 47 Vict c 3), s 4(1) 2 — Pyrotechnic Articles (Safety) Regulations 2015 (SI 2015/1553), reg 3(1) 3
The defendant sent through the post parcels each of which contained a device designed to ignite and set fire to the address label on the parcel so that it could not be delivered, thus enabling the defendant to make a fraudulent claim that expensive items had been lost in the post. The devices used consisted of composite material shaved from the heads of safety matches which was connected to a circuit on a timer and a battery. When the timer went off, the circuit would complete and heat up, causing the composite match-head material to ignite. The defendant was charged with making explosive substances, contrary to section 4(1) of the Explosive Substances Act 1883 . Having examined some of the devices, an expert stated that the sudden triggering of the ignition of the match-head composite produced an exothermic reaction producing (at least) heat and light. Shortly before the trial, the judge ruled that, on the assumption that the expert evidence was unchanged by the end of the trial, he would direct the jury that the devices made by the defendant amounted to “explosive substances” within the meaning of section 4(1) of the 1883 Act . In the light of that ruling, the defendant changed his plea to one of guilty. The defendant appealed against conviction, contending that the judge had been wrong to rule that the devices were explosive substances within the meaning of section 4(1) . It was common ground on the appeal that this question depended on whether the devices had been used or manufactured with a view to producing a “pyrotechnic effect” within section 3 of the Explosives Act 1875 .
On the appeal—
Held , dismissing the appeal, that, when considering the meaning of “pyrotechnic” as used in section 3 of the Explosives Act 1875 Act, it was legitimate to have regard to the Pyrotechnic Articles (Safety) Regulations 2015 ; that, in particular, the expression “pyrotechnic” had a recognised scientific meaning which Parliament had had in mind when it amended certain other provisions of the 1875 Act by reference to the meaning set out in the Regulations; that the central feature of the definition of “pyrotechnic article” in regulation 3 of the 2015 Regulations was that the article should be designed to produce heat, light, sound, gas or smoke or a combination of such effects through a self-sustained exothermic (i e energy-releasing) chemical reaction; that it followed that a “pyrotechnic effect” within section 3 of the 1875 Act occurred when, as a result of a sudden triggering event, heat, light, sound, gas, smoke or a combination of those effects was produced through a self-sustained exothermic chemical reaction; that it was not the case that an effect would only qualify as “pyrotechnic” if it involved a significant amount of heat or light, such as was produced by a firework, or that particular danger to life or property was required; that, therefore, on the assumption that the expert evidence in the present case remained unchanged, the devices in *1412 question had been used or manufactured with a view to producing a “pyrotechnic effect” within the meaning of section 3 of the 1875 Act and were therefore “explosive substances” within the meaning of section 4(1) of the Explosive Substances Act 1883 ; and that, accordingly, the judge’s ruling was correct (post, paras 10–21, 56–60).
R v Wheatley [1979] 1 WLR 144 , CA applied.
R v Bouch [1983] QB 246 , CA considered.
The following cases are referred to in the judgment of the court:
R v Bouch [1983] QB 246; [1982] 3 WLR 673; [1982] 3 All ER 918; 76 Cr App R 11 , CA
R v Galbraith [1981] 1 WLR 1039; [1981] 2 All ER 1060; 73 Cr App R 124 , CA
R v Harvey [2018] EWCA Crim 755; [2019] 1 Cr App R (S) 23 , CA
R v Wheatley [1979] 1 WLR 144 ; [1979] 1 All ER 594 ; 68 Cr App R 287 , CA
The following additional case was cited in argument:
The following additional case, although not cited, was referred to in the skeleton arguments:
R v Chalkley [1998] QB 848; [1998] 3 WLR 146; [1998] 2 All ER 155; [1998] 2 Cr App R 79 , CA
APPEAL against conviction
The defendant, Ovidijus Margelis, was charged with having made explosive substances, contrary to section 4(1) of the Explosive Substances Act 1883 . On 11 February 2021 in the Crown Court at Kingston upon Thames, on an application for dismissal of the charge, Judge Barklem ruled that the devices made by the defendant were to be characterised, as a matter of law, as “explosive substances” within the meaning of the 1883 Act. On 15 February 2021, in the same court before Judge Barklem, the defendant pleaded guilty to the charge. The defendant was sentenced to 21 months’ imprisonment.
The defendant appealed against conviction on the grounds that: (1) the judge had been wrong to rule that the devices in question were explosive substances within the meaning of the 1883 Act ; and (2) the judge should have limited his ruling to a decision that the devices were capable of producing a “pyrotechnic effect” within the meaning of section 3(1) of the Explosives Act 1875 , leaving it to the jury to determine whether they did so as a matter of fact.
The facts are stated in the judgment of the court, post, paras 23–29
Tom Wainwright (assigned by the Registrar of Criminal Appeals) for the defendant.
Dominic Hockley (instructed by Crown Prosecution Service, Appeals Unit ) for the Crown.
The court took time for consideration.
4 August 2021. MALES LJ
handed down the following judgment of the court.
1. On 15 February 2021, in the Crown Court at Kingston upon Thames, the defendant Ovidijus Margelis changed his plea to guilty on a count of making explosive substances, contrary to section 4(1) of the Explosive Substances Act 1883 . He did so following a ruling by Judge Barklem that a device concealed in a parcel sent through the post which would ignite and cause a fire was an “explosive substance” within the meaning of the Explosive Substances Act 1883 .
2. The ruling was made on an application to dismiss the week before the trial was due to take place and the judge applied the principles in the well-known case of Galbraith ( R v Galbraith [1981] 1 WLR 1039 ). Applying those principles, the judge held that the device was an explosive substance and that, if he were to be the trial judge (which was the intention, although uncertainties due to the pandemic meant that the trial would not necessarily take place as planned) he would direct the jury accordingly if the expert evidence remained unchanged by the end of the trial. In the event the trial was listed for 15 February 2021 and Judge Barklem was the trial judge. He was invited to and did confirm that his ruling remained unchanged, whereupon the defendant changed his plea to guilty. He pleaded guilty also to counts of fraud and possession of articles for use in frauds.
3. The sentences imposed were concurrent, 21 months’ imprisonment for making an explosive substance and 17 months for fraud. There was no separate penalty for possession of articles for use in frauds.
4. The defendant now appeals, with the permission of the full court, contending that the judge’s ruling was wrong in law and that, as a result, the conviction is unsafe.
5. There are two grounds of appeal. The first is that the judge was wrong to rule that the devices in question were explosive substances within the meaning of the 1883 Act . It is common ground that, on the facts here, this depends upon whether they were “used or manufactured with a view to produce … a pyrotechnic effect”, an expression taken from the Explosives Act 1875 .
6. The second ground of appeal is that the judge ought to have limited his ruling to a decision that the devices were capable of producing a pyrotechnic effect, leaving it to the jury to determine whether they did so as a matter of fact.
The Explosive Substances Act 1883
7. The defendant was charged on count 1 of the indictment with making explosive substances, contrary to section 4(1) of the Explosive Substances Act 1883 . This provides:
“Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be guilty of an offence.”
8. An offence under this section now carries a maximum sentence of life imprisonment (increased from 14 years by the Criminal Justice and Courts Act 2015 ).
9. The meaning of the expression “explosive substance” is expanded (“shall be deemed to include”) in section 9 of the Act :
“The expression ‘explosive substance’ shall be deemed to include any materials for making any explosive substance; also any apparatus, *1414 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 such apparatus, machine, or implement.”
10. This section ensures that the expression “explosive substance” extends to materials for making an explosive substance or apparatus, etc, for causing an explosion, but does not help to define what an explosive substance or explosion actually is for the purpose of the Act .
11. However, it was held in R v Wheatley [1979] 1 WLR 144, 147 , that the 1883 Act should be interpreted in the light of the definition of “explosive” in the Explosives Act 1875 :
“Looking at the two statutes, at the nature of the provisions which they both contain, and in particular at the short and long titles of both statutes, it appears to this court that clearly they are in pari materia, and that conclusion alone would seem to us to be sufficient to justify the conclusion which the learned judge reached that the definition of the word ‘explosive’ found in the Act of 1875 is available to be adopted and applied under the provisions of the Act of 1883.
“But if that conclusion were anyway in doubt, it is, in our judgment, put beyond doubt by the express provisions of section 8 of the Act of 1883, which provides: ‘ Sections 73, 74, 75 , 89 , and 96 of the Explosives Act 1875 (which sections relate to the search for, seizure, and detention of explosive substances, and the forfeiture thereof, and the disposal explosive substances seized or forfeited), shall apply in like manner as if a crime or forfeiture under this Act were an offence or forfeiture under the Explosives Act 1875 …’
“Here is Parliament in terms providing that certain powers in relation to explosive substances under the Act of 1875 shall be applied for the purposes of the Act of 1883. That, as it seems to us, shows Parliament assuming of necessity that what is an explosive substance essentially under the one Act will be the same as under the other.”
12. The definition of “explosive” in section 3 of the Explosives Act 1875 is as follows:
“ This Act shall apply to gunpowder and other explosives as defined by this section.
“The term ‘explosive’ in this Act —
“(1) Means gunpowder, nitro-glycerine, dynamite, gun-cotton, blasting powders, fulminate of mercury or of other metals, coloured fires, and every other substance, whether similar to those above-mentioned or not, used or manufactured with a view to produce a practical effect by explosion or a pyrotechnic effect; and
“(2) Includes fog-signals, fireworks, fuzes, rockets, percussion caps, detonators, or cartridges, ammunition of all descriptions, and every adaptation or preparation of an explosive as above defined.”
13. The definition gives examples of substances which are to be regarded as explosive (gunpowder, nitro-glycerine, etc) and in addition extends to substances which are used or manufactured with a view to producing “a practical effect by explosion or a pyrotechnic effect”. *1415
14. We should also refer to section 104 of the 1875 Act . This provides that:
“any substance which appears to Her Majesty to be especially dangerous to life or property by reason either of its explosive properties, or of any process in the manufacture thereof being liable to explosion, shall be deemed to be an explosive within the meaning of this Act …”
15. Accordingly there are three possible routes by which a substance may be categorised as explosive for the purpose of the 1875 Act and therefore the 1883 Act . First, it may be one of those expressly listed in section 3 of the 1875 Act . Second, it may be the subject of an order under section 104 of the 1875 Act 4 5 . Third, it may be a substance which, although not specifically listed as an explosive, was used or manufactured with a view to producing one of the stated effects, either “a practical effect by explosion” or “a pyrotechnic effect”.
16. In the present case it was common ground by the conclusion of the submissions before the judge that the device in question was not (or did not contain) any of the listed explosive substances, was not the subject of an order under section 104 , and was not manufactured with a view to producing a practical effect by explosion. Rather, the prosecution case was that it amounted to an explosive substance for the purpose of the 1883 Act because it was a “substance … used or manufactured with a view to produce … a pyrotechnic effect”. Whether it did, or was capable of doing so, is the critical question in this appeal.
17. The expression “pyrotechnic effect” is not defined in either the 1875 or the 1883 Act , but the expression “pyrotechnic article” has been defined in the Pyrotechnic Articles (Safety) Regulations 2015 (“the 2015 Regulations”). These Regulations were made pursuant to European Union legislation.
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