Carrying a Flag in Support of a Proscribed Organisation: A Strict Liability Offence?: Pwr and others v Director of Public Prosecutions [2020] EWHC 798 (Admin)
| Author | Neil Parpworth |
| DOI | 10.1177/0022018320946886 |
| Published date | 01 August 2020 |
| Date | 01 August 2020 |
| Subject Matter | Case Notes |
Case Note
Carrying a Flag in Support of
a Proscribed Organisation:
A Strict Liability Offence?
Pwr and others v Director of Public Prosecutions
[2020] EWHC 798 (Admin)
Keywords
Demonstration, proscribed organisation, carrying flags, s.13(1)(b) of the Terrorism Act 2000,
strict liability offence, Article 10 of the ECHR
The three appellants took part in a demonstration in central London on 27th January 2018, during which
each carried a flag of the Kurdistan Workers Pa rty (the Partiya Karkeren Kurdistane or PK K), an
organisation proscribed under the Terrorism Act 2000. The purpose of the demonstration was to protest
against the perceived actions of the Turkish state in Afrin, a town in north-eastern Syria. Each appellant
was charged with an offence contrary to s.13(1) of the 2000 Act. They were convicted by a magistrates’
court and, on appeal, by the Crown Court. Before the Crown Court, a submission of no case to answer
was rejected. That Court was satisfied that on the basis of the clear and unambiguous wording of the
statute, s.13 created an offence of strict liability. It had therefore felt it unnecessary to consult Parlia-
mentary material to establish the meaning of s.13. It had, however, taken in to account the fact that other
penal provisions in the 2000 Act did require the prosecution to establish mens rea, and that the wording
of s.13 was identical to that of two predecessor provisions. Whilst the Crown Court accepted that the
existence of the s.13 offence prima facie infringed the rights of the appellants under Article 10 of the
ECHR, it concluded that since the infringement was prescribed by law and proportionate, no breach of
Article 10 had occurred. It therefore found the three appellants guilty of the s.13 offences.
In this further appeal by way of case stated, two questions were identified for the opinion of the
Divisional Court: (i) whether s.13 of the 2000 Act creates a strict liability offence; and (ii) if it does,
whether that was compatible with Article 10 of the ECHR.
It was submitted on behalf of the appellants that in reliance on Sweet v Parsley [1970] AC 132 and
later cases, there is a strong presumption that mens rea is an ingredient of every criminal offence, and
that there was nothing in either s.13 or the legislative history to suggest that Parliament must have
intended to create a strict liability offence. Thus, in order to render s.13 compatible with Article 10, it
was submitted that the court should read-in a requirement of knowledge on the part of the accused who
must therefore carry or display an article ‘with the intention of giving the impression that he is a member
or supporter of a proscribed organisation’ in order to be guilty of the offence. It was suggested that if s.13
did create an offence of strict liability, a person would be guilty of an offence even if they did not know
the meaning of the article they were carrying, had no knowledge that an organisation was proscribed, or
were unaware that they were in possession of the article.
With regard to Article 10 of the ECHR, it was submitted that unless a mens rea requirement was read
into s.13, the provision would offend against the principle of legality and so would not be ‘prescribed by
law’ for the purposes of Article 10(2). In particular, it was contended that it would cover the activities of
a person who could have no idea that they were committing an offence and therefore they would be
The Journal of Criminal Law
2020, Vol. 84(4) 396–400
ªThe Author(s) 2020
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DOI: 10.1177/0022018320946886
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