Supreme Court dismisses protestors’ appeal over PKK flag conviction

3 February 2022 by

Pwr v Director of Public Prosecutions [2022] UKSC 2 — judgment here

On 26 January 2022 the Supreme Court ruled that s.13(1) Terrorism Act 2000 (“TA 2000 “) is a strict liability offence and that, whilst it does interfere with Art.10 ECHR (freedom of expression), the interference is lawful, necessary and proportionate.

BACKGROUND

S.13 provides that it is a criminal offence for a person in a public place to carry or display an article “in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation”. The offence is summary-only and carries a maximum sentence of six months imprisonment.

The three appellants in this case, Mr Pwr, Mr Akdogan and Mr Demir were convicted in the Westminster Magistrates’ Court of an offence contrary to s.13 TA 2000. All three had attended a protest in central London on 27 January 2018. The protest concerned perceived actions of the Turkish state in Afrin, a town in north-eastern Syria. The convictions related to carrying a flag of the Kurdistan Workers Party (the Partiya Karkerên Kurdistanê (“the PKK”), an organisation proscribed under the TA 2000. Mr Pwr and Mr Akdogan were given three-month conditional discharges. Mr Demir received an absolute discharge.

APPEAL TO THE CROWN COURT

The appellants appealed their convictions to the Crown Court. At a hearing at Southwark Crown Court between 4 and 6 February 2019, they made a submission of no case to answer, arguing that the prosecution had failed to establish the mens rea of the offence. Dismissing the application, HHJ Bartle QC (sitting with two lay magistrates), held that s.13 was a strict liability offence, and ultimately went on to find the offences proved.

APPEAL TO THE DIVISIONAL COURT

The case was further appealed by way of case stated to the Divisional Court, which was asked to decide:  

  1. whether s.13 TA 2000 creates an offence of strict liability; and
  2. if it did, whether it is compatible with article 10 of the European Convention on Human Rights?

Both questions were answered in the affirmative.

APPEAL TO THE SUPREME COURT

The Divisional Court refused permission to appeal but certified two questions, in essentially the same terms, as points of law of general public importance. Permission to appeal was then granted by a panel of the Supreme Court on 6 November 2020. On 26 January 2022, the Supreme Court unanimously dismissed the appeal. Lady Arden, Lord Hamblen and Lord Burrows delivered a joint judgment, with which Lord Lloyd-Jones and Lady Rose agreed.

Strict Liability

The first question is addressed at paragraphs [25]-[58]. There is a very limited mens rea, in that the defendant must know that he or she is wearing or carrying or displaying the relevant article, however beyond that all that needed to be shown were that he or she did so “in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation”. The court considered that it would be immensely difficult to read a subjective requirement, such as knowledge or intention, into the objective requirement of arousing reasonable suspicion.

The court acknowledged the strong presumption that criminal offences require mens rea, but then went on to rule in that, in this instance, that presumption was rebutted by “necessary implication” having considered the words used, the context and the purpose of the provision [58].

Freedom of expression

Having decided that the offence was essentially one of strict liability, the court turned to consider whether that made it incompatible with the right to freedom of expression guaranteed by Art.10 EHCR [59]-[79].

The offence created by S.13 quite clearly interferes with the right to freedom of expression, so the real questions were whether the restriction was:

  1. prescribed by law, an issue dealt with at paragraphs [62-63];
  2. intended for one or more of the legitimate aims set out in article 10(2) (in this case national security, public safety, the prevention of disorder and crime and the protection of the rights of others), which is considered at paragraphs [64-65]; and
  3. necessary and proportionate to the public interest in combating terrorist organisations, which is addressed at paragraphs [65-67].

The court ruled decisively against the appellants on each issue. S.13 was clearly set out in the TA 2000, which was clearly focussed on national security and the prevention of disorder. As for whether the measure was necessary and proportionate, the Court considered ECtHR jurisprudence that, under Art.10, necessity is not to be lightly found. Nevertheless, it considered that the provision was necessary to “deny a proscribed organisation the oxygen of publicity or a projected air of legitimacy” [55], and that it was consistent with the least prejudicial means of achieving this purpose. In coming to this conclusion on proportionality, the court considered that the offence is circumscribed by the requirement for reasonable suspicion and the sanctions are comparatively minor.

Samuel March is a barrister at 9 King’s Bench Walk. He tweets @Sam_Oscar_March.

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