Regina v Fegan: CANI 1984

The appellant was a young Roman Catholic man married to a Protestant woman, who by reason of his religion was subjected to threats of serious violence in the Protestant area in which he lived and told to move out of the district. The appellant acquired a pistol and live ammunition, maintaining that he did so to protect himself and his family. He was charged with a number of offences and was convicted at trial on three counts: possession of the pistol without holding a firearm certificate; possession of the ammunition without holding a firearm certificate; and possession of explosive substances (the pistol and the ammunition) under such circumstances as to give rise to a reasonable suspicion that he did not have them in his possession for a lawful object, contrary to section 4(1).
Held: The jury had clearly been entitled to find that limb (1) of the offence had been made out by the prosecution, but there had been a misdirection because the trial judge had not properly directed them regarding the possibility of a defence under limb (2), in relation to which there was evidence on which the jury could have found for the appellant.
Lord MacDermott CJ considered the meaning and effect of section 4(1). He explained that section 4(1) illustrates a means of meeting a legislative problem, ‘of how to curb a grave evil which postulates a guilty mind or mental element on the part of offenders, when proof of that guilty mind or mental element is likely to be a matter of inherent difficulty’. Parliament was not satisfied that the existing offences in the 1861 Act and the other offences created by the 1883 Act, involving as they did the need to prove a specific mental element, were sufficient fully to meet the risk posed by the making or possession of explosives: ‘Section 4(1) of the Act of 1883 may be said to proceed by way of compromise. It does not make it an offence to possess explosive substances for an unlawful purpose, nor does it create an absolute offence by prohibiting the mere possession of explosive substances. Instead, its two limbs provide for a dual enquiry – (1) Was the person charged knowingly in possession under such circumstances as to give rise to a reasonable suspicion that his possession was not for a lawful object? and (2) if the answer to (1) is in the affirmative, has the person charged shown that his possession was for a lawful object? If the answer to (1) is in the affirmative and the answer to (2) in the negative a conviction follows; otherwise there must be an acquittal. The first limb allows for a conviction on reasonable suspicion. The second allows what may be very much a subjective defence, with the accused and his or her spouse permitted by section 4(2) (as an exception to the then existing law) to give evidence on oath as ordinary witnesses.’


Lord Macdermott Cj


(1984) 78 Cr App R 189


Explosive Substances Act 1883 4(1)


England and Wales

Cited by:

CitedCopeland, Regina v SC 11-Mar-2020
The Court was asked whether under the 1883 Act: for the purposes of section 4(1) can personal experimentation or own private education, absent some ulterior unlawful purpose, be regarded as a lawful object? The defendant, a young man on the autistic . .
Lists of cited by and citing cases may be incomplete.


Updated: 06 August 2022; Ref: scu.680144