Rahman PWR Ismail Akdogan Rotinda Demir v Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Holroyde,Mr Justice Swift |
| Judgment Date | 03 April 2020 |
| Neutral Citation | [2020] EWHC 798 (Admin) |
| Date | 03 April 2020 |
| Docket Number | Case No: CO/3538/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 798 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT DIVISIONAL COURT
ON APPEAL FROM THE CROWN COURT
AT SOUTHWARK (HHJ BARTLE QC & LAY MAGISTRATES)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Holroyde
Mr Justice Swift
Case No: CO/3538/2019
Jude Bunting (instructed by Birnberg Peirce Solicitors) for the First Appellant
Joel Bennathan QC & Russell Fraser (instructed by Morgan Has Solicitors) for the Second and Third Appellants
Dan Pawson-Pounds (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 16th January 2020
Approved Judgment
The three appellants took part in a demonstration in central London on 27 th January 2018. Each carried a flag of the Kurdistan Workers Party (the Partiya Karkeren Kurdistane — “the PKK”), an organisation proscribed under the Terrorism Act 2000. They were each charged with an offence contrary to section 13(1) of the Terrorism Act 2000, and were convicted of those offences by a magistrates' court and, on appeal, by the Crown Court. They now appeal by way of case stated against their convictions, which they contend were wrong in law. The essence of their argument is that section 13(1) of the 2000 Act does not create an offence of strict liability, and the appellants therefore could not be convicted without proof of mens rea; or alternatively, if the section does create an offence of strict liability, it is incompatible with article 10 of the European Convention on Human Rights.
The facts:
The facts are fully set out in the Case Stated, which records that two of the appellants were of previous good character, whilst the third had a single conviction which resulted in an absolute discharge. The broad purpose of the demonstration in which they took part was to demonstrate against the perceived actions of the Turkish state in Afrin, a town in north-eastern Syria.
An agreed timeline set out the sequence of relevant events, as follows:
12.30: Protesters began to gather at Langham Place outside the BBC. Images show the assembly of flags present at the BBC when speeches were given and prior to the march setting off.
12.50: Mr Pwr is seen to be standing on a wall waving a flag outside the BBC. Image shows him waving a red flag. The face on the flag is Abdullah Ocalan, who founded the PKK in 1974 and has been imprisoned in Turkey since 1999.
13.06: Police speak to organisers about PKK flags in the crowd.
13.23: Mr Akdogan is seen in crowd outside BBC with a PKK flag. He is there for several minutes. Images show Mr Akdogan with a flag in his hand.
13.30: DS Hearing enters the crowd to address issue of PKK flags.
14.00: March sets off from BBC.
14.17: DS Hearing again enters the march to address flag issues. Males waving PKK flags clearly heard shouting “We are PKK, PKK are us”. This is relayed to Inspector Barnes.
14.26: Marshals attempt to tell police evidence gatherers when and where they can film.
14.34: Regent Street south of Oxford Circus. Mr Pwr with same flag in protest marching south.
14.42: Regent Street. Mr Pwr marching south.
14.55: Piccadilly Circus. Mr Pwr marching with flag. Image shows this.
15.20: March arrives at Whitehall.
15.30: PKK flags are still being flown in the march.
15.43: Mr Demir is seen in crowd with a PKK flag.
15.48: Mr Demir is waving flag outside Downing Street. Images show him with a red flag in his hand in Whitehall.
16.06: Mr Pwr is removed from the protest outside Downing Street and was reported for the offence. Image shows him being led away.
16.12: Male addresses crowd and proclaims “Dear friends, a friend over there has just been arrested. Do you know why? Because he was flying the flag of the Partiya Karkeren Kurdistane. He has been arrested because I think, I hope you will agree with me that we will not leave here until he is freed, that we will stay here or go to the police station or do whatever we have to do to make sure this man is free”. Whilst he is saying this, someone is shouting “we are PKK we are PKK.”.
16.12: Person clearly heard to say “The British police have been trying to prevent this march all along, they are trying to arrest people and intimidate people flying the PKK flag”.
16.13: Another male addresses the crowd and says “If the PKK flag is a problem for the British police, do you remember the ISIS flag, the terrorist ISIS flag was flying by the Parliament and they haven't spoken a single word to him … Shame on the British police”.
16.13: Mr Demir in crowd when “we are PKK” is being chanted right next to him.
16.15: Person in crowd can be heard to say “The PKK have fought ISIS under this flag, you are not getting your hand on this flag”.
16.30: Protesters began to leave the vicinity of Downing Street.
16.32: Mr Akdogan is identified by PS Rooney and is spoken to by officers and reported for offence.
16.38: Mr Demir is spoken to by officers and reported for offence as he leaves the protest.
The Case Stated also summarises the evidence given by four witnesses. DS Hearing said that membership of the rally was fragmented and that, in interactions with public order officers about the flying of PKK flags, organisers had told him they could not account for the actions of all present as there were various groups on the march. He agreed that the nature of protests from his experience meant that numerous organisations might attend and that articles could be brought and distributed among people participating.
Sergeant Rooney gave evidence that he saw both Mr Pwr and Mr Akdogan carrying flags and considered that each was showing support in carrying a PKK flag. He heard the chanting of “we are PKK” but neither Mr Pwr nor Mr Akdogan was involved in that chanting. Mr Pwr was compliant when stopped and did not say anything in support of PKK. He did not speak English. Mr Demir was stopped after the march.
PC Bray gave evidence that he saw Mr Demir and took the view he was supporting the PKK by waving his flag.
An expert witness, Mr Stephens of the Royal United Services Institute, gave evidence that the flags which the appellants were carrying were PKK flags. The summary of his evidence in the Case Stated continues as follows:
“(4) The vast majority of observers of a Turkish/Kurdish background would recognise these flags as those of the PKK and know that this had been designated as a terrorist organisation. This would be particularly true of those politically aware enough to attend rallies of this nature.
(5) Given the plethora of political parties with three letter acronyms that exist in the Kurdish political space, Kurdish political parties make themselves more readily identifiable by the symbols and flags they adopt. As such, the adoption of flags and pictures of ideological forebears is central to the expression of political loyalty in Kurdistan.
(6) Many attendees at demonstration of this type have chosen not to fly such flags.
(7) Those at a march can express their sympathy by using flags which are not PKK flags.”
At the conclusion of the prosecution evidence, submissions of no case to answer were made by the appellants. Those submissions were dismissed by the Crown Court in a judgment given on 6 th February 2019, which addressed many of the authorities now cited to this court. The trial was then adjourned part heard. When it was resumed, the appellants did not give evidence. In a judgment given on 8 th May 2019, the Crown Court found that the offences were proved and convicted the appellants.
The decisions of the Crown Court:
In rejecting the submissions of no case to answer, the Crown Court was satisfied that section 13 of the 2000 Act created an offence of strict liability and that the prosecution were not required to prove mens rea. The court found the language of section 13 to be clear and unambiguous, and therefore declined to look at other Parliamentary material to establish its meaning. Although the presumption of mens rea was well established, the court could not substitute for the plain words of the statute a different provision. Although neither consideration was determinative, the court took into account that other sections of the 2000 Act do provide for mens rea and that the wording of section 13 was identical to that of two predecessor provisions.
The Crown Court accepted that the existence of the offence prima facie infringed the rights arising under article 10. It concluded that the offence was prescribed by law, so that the principal issue was as to whether section 13 was a proportionate response to the mischief at which it was aimed. The court was satisfied that it was, section 13 being part of the legislation which Parliament considered necessary to make effective the proscription of terrorist organisations. The absence of any incitement to violence as an element of the offence was relevant but not determinative. Gul v Turkey, on which the appellants relied, did not compel a conclusion that the prohibition contained within the section 13 offence amounted to a breach of article 10. It was relevant to take account of the fact that section 13 created a summary-only offence with a maximum penalty of 6 months' imprisonment.
In its final conclusions, the Crown Court noted that it was accepted that each of the appellants was in a public place carrying a flag of the PKK, a proscribed organisation. The court was sure that each had carried a PKK flag in such a way and in such circumstances as to arouse reasonable suspicion that he was...
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