Pwr and Others v Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Neutral Citation | [2022] UKSC 2 |
| Year | 2022 |
| Court | Supreme Court |
2021 Nov 18; 2022 Jan 26
Crime - Terrorism - Wearing, carrying or displaying article showing support for proscribed organisation - Defendants carrying flags of proscribed organisation at protest - Whether offence of strict liability - Whether offence compatible with Convention right to freedom of expression -
The defendants took part in a demonstration in central London against the perceived actions of the Turkish state in north-eastern Syria. Each carried a flag of the Kurdistan Workers Party, an organisation which was proscribed under the Terrorism Act 2000F1. The defendants were each convicted in the magistrates’ court of carrying an article in such a way or in such circumstances as to arouse suspicion that he was a member or supporter of a proscribed organisation, contrary to section 13(1) of the 2000 Act. The Crown Court dismissed the defendants’ appeals, holding that section 13(1) created an offence of strict liability and was not incompatible with the right to freedom of expression under article 10 of the Convention for the Protection of Human Rights and Fundamental FreedomsF2. The Divisional Court of the Queen’s Bench Division dismissed the defendants’ appeal by way of case stated.
On the defendants’ further appeal—
Held, dismissing the appeal, (1) that a limited mental element was indisputably required under section 13(1) of the Terrorism Act 2000 in the sense that the defendant had to know that he or she was wearing or carrying or displaying the relevant article; that, however, an examination of the words, context and purpose of section 13(1) led to the conclusion that the strong common law presumption of mens rea was rebutted by necessary implication, with the consequence that section 13(1) was a strict liability offence with no extra mental element required over and above such knowledge; that, in particular, (i) the words of section 13(1), which imposed an objective requirement of arousing “reasonable suspicion”, did not readily lend themselves to the importation of a subjective element, such as knowledge or intention, (ii) the context showed that section 13(1) would be redundant if mens rea were required, since then anyone who committed an offence under section 13(1) would almost inevitably be committing an offence under sections 11 or 12 of the 2000 Act, which both required mens rea and carried much higher maximum sentences, and (iii) the purposes of section 13(1) were to avoid others becoming aware of proscribed organisations and to avoid the public disorder that might result from reaction against displays of support for such organisations, neither of which were concerned with the defendant’s intention or knowledge; and that, accordingly, on its true construction section 13(1) did not require that the defendant had “knowingly” or “intentionally” aroused reasonable suspicion that he was a member or supporter of a proscribed organisation, or intended to express support for a proscribed organisation, or known that the organisation in question was a proscribed organisation (post, paras 26, 29, 34–38, 44–45, 55, 58, 80).
(2) That, as was common ground, section 13(1) of the 2000 Act constituted an interference with the right to freedom of expression guaranteed by article 10 of the Human Rights Convention; that, however, such interference was justified for the purposes of article 10(2) since (i) it was prescribed by law, in that section 13(1) was expressed in clear terms and formulated with sufficient precision to enable an individual to foresee the legal consequences that a given action would entail, (ii) it pursued two of the legitimate aims set out in article 10(2), namely the interests of national security and the prevention of disorder and (iii) it was necessary in a democratic society to achieve those aims and proportionate to those aims, striking a fair balance between the position of the participants in the prohibited activity and the proper interest of the community in its security; that, further, the jurisprudence of the European Court of Human Rights did not contain any principle that a restriction on freedom of expression could only be justified where the expression included an incitement to violence; and that, accordingly, the offence under section 13(1) was compatible with article 10, notwithstanding the fact that it was an offence of strict liability (post, paras 60–64, 66, 68, 77, 79, 80).
The following cases are referred to in the judgment of Lord Hamblen, Lord Burrows JJSC and Lady Arden:
Alekhina v Russia (Application No 38004/12) (
B (A Minor) v Director of Public Prosecutions [
Bank Mellat v HM Treasury (No 2)
Nurse v Republic of Trinidad and Tobago
O’Moran v Director of Public Prosecutions [
Perinçek v Switzerland (Application No 27510/08) (
R v Choudary
R v Lane
R v Rowe
R (Lord Carlile of Berriew) v Secretary of State for the Home Department
Sweet v Parsley [
Yefimov v Russia (Application Nos 12385/15 and 51619/15) (unreported) 7 December 2021,
The following additional cases were cited in argument:
Arslan v Turkey (Application No 23462/94) (
Baskaya v Turkey (Application Nos 23536/94 and 24408/94) (
Erdogdu v Turkey (Application No 25723/94) (
Gallagher, In re
Gül v Turkey (Application No 4870/02) (
Hoare v United Kingdom (Application No 31211/96) [
Karataş v Turkey (Application No 23168/94)
R v Brown (Richard)
R v Muhamad
R v Zafar
Sheldrake v Director of Public Prosecutions
Sunday Times v United Kingdom (Application No 6538/74) (
Sürek v Turkey (No 1) (Application No 26682/95)
Sürek and Özdemir v Turkey (Application Nos 23927/94 and 24277/94) (
Taş v Turkey (No 2) (Application No 6813/09) (unreported) 10 October 2017,
Tasdemir v Turkey (Application No 38841/07) (unreported) 23 February 2010,
Wingrove v United Kingdom (Application No 17419/90) (
Zana v Turkey (Application No 18954/91) (
APPEAL from the Divisional Court of the Queen’s Bench Division
On 3 September 2018 the defendants, Rahman Pwr, Ismail Akdogan and Rotinda Demir, were convicted by the Westminster Magistrates’ Court (District Judge Snow) of carrying or displaying an article (a flag), in such a way or in such circumstances as to arouse reasonable suspicion that they were members or supporters of a proscribed organisation, contrary to section 13(1) of the Terrorism Act 2000. The first and second defendants were given three-month conditional discharges and the third defendant received an absolute discharge. The defendants appealed against their convictions to the Crown Court at Southwark which, on 8 May 2019 (Judge Bartle QC and two justices) dismissed the appeals, rejecting a submission that there was no case to answer.
The defendants appealed by way of case stated. The case stated by the Crown Court asked: (1) whether the offence created by section 13 of the 2000 Act was one of strict liability; and (2) if so, was that compatible with article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, incorporated into Schedule 1 to the Human Rights Act 1998. On 3 April 2020 the Divisional Court of the Queen’s Bench Division (Holroyde LJ and Swift J) [2020] EWHC 798 (Admin); [
With permission granted by the Supreme Court (Lord Lloyd-Jones, Lord Kitchin and Lord Leggatt JJSC) on 6 November 2020 the defendants appealed. The issues in the appeal, as set out in the agreed statement of facts and issues, were: (1) whether the offence created by section 13 of the 2000 Act was an offence of strict liability; and (2) whether the defendants’ convictions for offences under section 13 were compatible with article 10 of Schedule 1 to the Human Rights Act 1998.
The facts are stated in the judgment of Lord Hamblen, Lord Burrows JJSC and Lady Arden, post, paras 6–11.
Joel Bennathan QC and Jude Bunting (instructed by Birnberg Peirce Ltd and
Louis Mably QC and Dan Pawson-Pounds...
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