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Explosives

Principle

The main explosives offences relate to:

  • explosives endangering life or causing damage to property
  • the safety, manufacture of and storage of explosive substances in the workplace
  • explosive articles for suspected terrorist purposes; and
  • the sale and use of fireworks.

This Guidance is not intended to be exhaustive. Rather it is designed to provide a quick reference point to the main offences under the relevant statutes and regulations or other parts of the Guidance.

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Guidance

Preliminary Considerations - Code for Crown Prosecutors

A prosecution will generally be in the public interest where there is a clear risk to public safety.

A prosecution may not be required, or alternative diversionary procedures may be appropriate, where the contravention is technical and there has been no risk to public safety and the offence resulted from an oversight or misunderstanding

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The "Explosives Acts"

Explosive offences are found in the following main statutes:

  • Offences against the Person Act 1861;
  • Explosives Act 1875;
  • Explosive Substances Act 1883;
  • Criminal Damage Act 1971;
  • Health and Safety Act 1974;
  • Terrorism Act 2000;
  • Terrorism Act 2006; and
  • Fireworks Act 2003.

The key offences in each are listed below.

Offences Against the Person Act 1861

Section 28 of the 1861 Act makes it an offence for any person to cause grievous bodily harm by the unlawful explosion of gunpowder or other explosive substance.

Section 29 of the1861 Act makes it an offence to unlawfully cause gunpowder or some other explosive substance to explode with intent to cause grievous bodily harm.

Section 30 of the 1861 Act makes it an offence to place explosives near buildings or ships with intent to do grievous bodily harm.

The Explosives Act 1875

Section 23 of the 1875 Act makes it an offence to fail to take all reasonable precautions to prevent access to explosives

Section 30 of the 1875 Act makes it an offence to sell gunpowder on the highway or in a public place.

Section 31 of the 1875 Act makes it an offence to sell gunpowder to children apparently under 16.

Section 80 of the 1875 Act makes it an offence to throw fireworks on the highway or in a public place (See below reference to associated offences involving fireworks under the Fireworks Act 2003). This offence is within the Penalty Notice for Disorder Scheme.

Note: Where the term "gunpowder" is used section 39 of the Act makes that term applicable to all other explosives covered by the Act.

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The Explosive Substances Act 1883 (ESA)

The 1883 Act is the principal legislation for offences of causing explosions or possessing explosives with intent to endanger life or to cause serious injury to property.

Section 2 of the 1883 Act makes it an offence to cause an explosion likely to endanger life or cause serious injury to property.

The section 2 offence is wider than the OAPA offences because:

a. it covers both damage to property risk of serious injury and risk to life and
b. "likely" is an objective test which does not involve the arguments concerning intent (or recklessness).

Section 3(1)(a) of the 1883 Act makes it an offence to do 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) of the 1883 Act makes it an offence to make, possess or control an explosive substance with intent to cause an explosion likely to endanger life.

Section 4 of the 1883 Act makes it an offence to make or possess explosives under suspicious circumstances.

Section 9 of the 1883 Act contains a useful extension to the definition of "explosive substance" to include "any materials for making any explosive substance; also any apparatus, machine, implement ,or materials used, or intended to be used, or adapted for causing ... an explosion in or with any explosive substance; also any part of any such apparatus... " This would enable a prosecution to proceed in respect of a collection of chemicals suitable for the production of explosives. It is not clear, however, that it would extend to the possession of information, such as a manual or internet download (In these circumstances, the Special Crime and Counter Terrorism Division may consider charges under Section 57 0r 58 of Terrorism Act 2000).

The line between an ESA offence or an offence under Terrorism legislation is not always clear. Advice and guidance should be sought from the Special Crime and Counter Terrorism Division (SCCTD) whenever the charging of an indictable ESA offence is being considered where there may possibly be a terrorist link.

All prosecutions under the Terrorism Acts must be handled by SCCTD.

Where explosives are used, or there is a threat to use them, and there is evidence that the use or threat is made for the purpose of advancing a policitical, religious, racial or ideological cause (whatever that cause may be), the conduct may fall within the definition of terrorism and SCCTD must be consulted.  [Note that where there is the use or threat of use of explosives, it is not necessary to prove that the action is designed to influence the government or to intimidate the public or a section of the public, as is the case with other terrorist offences.

If your case is one that potentially fits into the above category SCCTD can be contacted during office hours on 020 3357 0690 / 0699 / 0686.  An out of office hours rota system is in place and is available via CPS Direct.

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Consent to Prosecute under the Explosive Substances Act 1883

Offences under the 1883 Act require the consent of the Attorney General to prosecute and it is important that you notify AGO about any case.  In all cases where you are charging an ESA offence, please notify AGO at consents@attorneygeneral.gsi.gov.uk

In these cases, as set out above Area and CPS Direct Lawyers should immediately make contact with the Counter Terrorism Division (CTD).

Other relevant offences and legislation

Criminal Damage Act 1971

Section 1 of the 1971 Act may be the appropriate offence where a minor explosion causes damage. An example of when such a decision can properly be taken is where an offender detonates explosives in a spirit of reckless curiosity, without the intent necessary for more serious offences. If damage to property occurs as a result of combustion of an article the appropriate charge may be one of arson, with or without intent to endanger life. For further information see the guidance on Criminal Damage.

Health and Safety at Work Act 1974

The regulations made subsequently under the 1974 Act (and certain sections of the 1875 Act) are concerned with offences and breaches of regulations, relating to health and safety, manufacture, storage, security, sale and certain unlawful uses of explosives.

Normally, the CPS will not have primacy in relation to offences under the 1974 Act, but where a CPS prosecutor has associated criminal matters outside the scope of the 1974 Act, it may be appropriate for the 1974 Act offences and associated criminal matters to be dealt with together by the CPS.

See Relations with Other Prosecuting Agencies, elsewhere in the Legal Guidance.

Section 38 of the 1974 Act requires the consent of the DPP before proceeding with offences under the 1974 Act. For further information see the guidance on Consents to Prosecute.

Fireworks Act 2003

See regulations: Fireworks Regulations, 2004 (SI 1836: 2004) as amended by Fireworks (Amendment) Regulations, 2004 (SI 3262:2004).

Offences under the Fireworks Regulations, 2004 are:

  • Regulation 4 makes it an offence for anyone under the age of 18 to be in possession of adult fireworks in a public place.
  • Regulation 5 makes it an offence for a person to be in possession of category 4 fireworks.
  • Regulation 7 makes it an offence to use certain fireworks at night other than during a permitted fireworks night.
  • Section 27(1) of the Consumer Protection Act 1987 defines the enforcement duty for possession and use for the above offences.

The above regulation offences are within the Penalty Notice for Disorder Scheme. Regulation 12 makes these regulations enforceable by the police.

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Evidential Factors to Consider

Proof of Explosive or an Explosion

Expert evidence will be required to identify that it is an explosive and what type.

Evidence of an explosion must be distinguished from evidence of some other form of reaction, such as combustion. Particular care should be taken with regard to incidents involving petrol bombs as they may either explode or combust, and with incendiary devices which are designed to cause fire.

Positive proof of an explosion, as opposed to combustion will also 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.

Prosecutors must ensure, even when charging under the Threshold Test, that they have at the very least an initial statement or report from either the Forensic Explosive Laboratory (FEL) at Fort Halstead or from Explosive Ordnance Disposal (EOD) military personnel confirming that the device came within the ESA definition of an explosive substance, and setting out what that substance was. Such evidence, even in draft form, will be required in order for the Attorney General to properly consider the giving of consent.

Definition of Explosive

Whilst there are definitions of "explosive" and "explosive substance" found in the Explosives Act 1875 section 3 and the Explosive Substances Act 1883, section 9 it is important to consider the particular definition of explosive in the relevant legislation creating the offence under consideration as the definitions vary between the various different Acts and Regulations. Prosecutors cannot rely on a definition in one Act as applying across to another Act or Regulation.

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Charging Practice

Where consideration is being given to the application of the legislation to a particular explosive, advice from an explosives expert may be of assistance.

Overlaps can occur between the various more serious offences of possessing/using explosives for crime outlined above. It is important that the indictment is not unnecessarily overloaded but also that it does accurately reflect the full extent of the criminality alleged.

Consideration may need to be given to the severity of Regulation 9 of the Control of Explosives Regulations, 1991 where minor offences are involved (see section on Sanctions, below).

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Sanctions

Offences Against the Person Act 1861 include:

  • Sections 28 and 29: imprisonment for life
  • Section 30: imprisonment not exceeding 14 years

Sections 28, 29 and 30 are specified violent offences within Schedule 15 to the Criminal Justice Act 2003.

Explosives Act 1875 includes:

  • Section 30: Fine not exceeding the statutory maximum
  • Section 31: Fine not exceeding the statutory maximum
  • Section 80: Fine not exceeding the statutory maximum

Explosive Substances Act 1883 includes:

  • Section 2: Imprisonment for life.
  • Section 3: imprisonment for life and forfeiture of the explosive substance. (Sections 2 and 3 are specified violent offences within chapter 5 of Part 12 of the Criminal Justice Act 2003).
  • Section 4: imprisonment not exceeding 14 years and forfeiture of the explosive substance.

Regulation 9 of the Control of Explosives Regulations, 1991 stipulates that where there is a conviction under the ESA (even if a custodial sentence is not imposed) a lifetime prohibition is imposed on the defendant from working in an employment where he handles explosive substances or restricted substances. See section on Charging Practice, above.

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Other related Prosecution Agencies

The CPS does not necessarily have primacy in cases where an appropriate enforcing authority under the 1974 Act should properly deal with the case. For example the Health and Safety Executive ("HSE") has authority to prosecute all cases involving licensed and also unauthorised manufacture of explosives (see Annex C for list of other Enforcing Authorities, below).

In the event of a joint prosecution with the HSE, CPS prosecutors should refer to the protocol for liaison between HSE, the police and CPS. See section on Relations with Other Prosecuting Agencies, elsewhere in the Legal Guidance.

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Annexes

Annex A - The Manufacture and Storage of Explosives Regulations 2005 ("MSER")

MSER came into force 26 April 2005. It creates a number of requirements for manufacture and storage of explosive substances, breaches of which constitute offences contrary to section 33 of the 1974 Act. These are:

  • Failure by any person who manufactures or stores explosives to take appropriate action to prevent fire or explosion; limit the extent of fire or explosion including measures to prevent the spread of fire and communication of explosions from one location to another; and protect persons from the effects of fire and explosion Regulation 4.
  • Failure to provide the appropriate separation distances Regulation 5.
  • Failure by any person to dispose of explosives safely Regulation 6(1).
  • Failure by any person who decontaminates explosive contaminated articles to ensure they are decontaminated safely Regulation 6(2).
  • Failure to ensure persons between 16 and 18 years working in explosives manufacture or storage are under appropriate supervision Regulation 7.
  • Person, without permission of the occupier, enters any explosive store, building used for manufacturing explosives or any explosive site with clearly marked boundaries (that is operating under a license or registration) Regulation 8(1)(a).
  • Person, having entered any of the above, refuses to leave when requested by a Constable, the occupier, their employee or agent Regulation 8(1)(b).
  • Manufacturing explosives without a license Regulation 9.
  • Storing explosives without a license Regulation 10.
  • Failure to comply with the conditions of a license Regulation 9(1) or 10(1).
  • Manufacturing, storing or importing prohibited explosives Regulation 24.
  • Acquisition of over 50 kilograms of fireworks in contravention of the requirements provided Regulation 25(1).
  • Selling over 50 kilograms of fireworks in contravention of the requirements provided - Regulation 25(2).

Note: There is an Approved Code of Practice ("ACoP") produced in relation to MSER which has special legal status and document may be cited in allegations relating to breaches of MSER. It is for the duty holder to satisfy the court that what has been done was the equal or in excess of the requirements in the ACoP.

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Annex B - The Control of Explosives Regulations, 1991 ("COER")

COER regulates any person (including a body corporate) who acquires; has access to; possession of or control over any explosives, save those explosives specifically exempted from COER. These regulations create a number of requirements, breaches of which constitute offences contrary to section 33 of the 1974 Act. These are:

  • Acquiring and or keeping Explosives without an explosive certificate Regulation 7
  • Transferring explosives to a person not authorized Regulation 8
  • Knowingly employing a "Prohibited Person" (as defined in Regulation 2) Regulation 9(1)
  • A "Prohibited Person" acquiring, handling or having control over explosives Regulation 9(2)
  • Failure to keep records Regulation 12
  • Failure to report loss of explosives Regulation 13.

Annex C - Enforcing Authorities where CPS does not have primacy

Health and Safety at Work Act 1974

The HSE has primacy. Although the Health & Safety (Enforcing Authority) Regulations 1998 (LAC 24/4 (rev 2)) makes provision for authorities other than the HSE to be enforcing authorities for certain regulations or parts of those regulations made under the 1974 Act. This includes Inspectors appointed under section 19 of the 1974 Act.

Enforcing authorities appoint duly qualified persons to act as inspectors under the 1974 Act to carry into force the responsibilities under the particular regulations that the authority has been charged with enforcing. The appointed inspectors can only exercise the powers in their warrant of appointment. These powers may include the institution of proceedings in accordance with section 38 or section 39 of the 1974 Act and they may prosecute before a Magistrates court for offences under the relevant statutory provisions.

All Chief Officers of Police have appointed section 19 inspectors within their forces. These are generally the holders of the post as Explosive Liaison Officer. In exercising the powers under the 1974 Act, these appointees do not act under the Police Acts and are personally liable for the decisions and enforcement action they take.

The Control of Explosives Regulations 1991 (COER)

The Chief Officer of Police is the enforcing authority in relation to all regulatory provisions except that HSE is the enforcing authority for offences that are:

a. Under Regulation 11 (Duty of occupier at HSE licensed site);
b. For any area outside Great Britain;
c. Against a police force or any member of a police force.

The Manufacture and Storage of Explosives Regulations 2005 (MSER)

HSE is the enforcing authority for offences under MSER unless the offence:

a. relates to storage up to 2,000 kilograms where any of the explosives do not appear in Schedule 1 to COER , in which case it is The Chief Officer of Police; or
b. relates to storage to up 2,000 kilograms where all of the explosives appear in Schedule 1 to COER in which case it is the Local Authority.

Annex D - The Explosives Act, 1875

For the purposes under section 23 the appropriate enforcing authority is the same as that under MSER.

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