Pwr & Ors v Director of Public Prosecutions

Section 13(1) of the Terrorism Act 2000 creates an offence of strict liability. The prosecution must prove deliberate wearing, carrying or displaying of the relevant item, but need not prove knowledge of its meaning or capacity to arouse reasonable suspicion of membership of or support for a proscribed organisation.

The offence is compatible with article 10. The Convention does not establish a bright-line rule that restrictions on expression are permissible only where the conduct incites or encourages violence. Proportionality depends on the circumstances, including the nature of the conduct, the statutory purpose and the penalty.

The appellants participated in a public demonstration and carried flags of the PKK, a proscribed organisation. They were convicted under section 13(1) of the Terrorism Act 2000 by a magistrates’ court and, on appeal, by the Crown Court at Southwark.

The Crown Court stated a case on whether section 13(1) created an offence of strict liability and, if so, whether that offence was compatible with article 10 of the Convention. The appellants argued that mens rea was required or should be read into the provision, and that the restriction was disproportionate because their conduct did not incite violence.

1. The appeals were dismissed. The Crown Court had not erred in law. Section 13(1) of the Terrorism Act 2000 creates an offence which does not require mens rea.
2. The statutory language focuses on whether the defendant wears, carries or displays an item in a way or in circumstances capable of arousing the requisite reasonable suspicion. The defendant must act deliberately in the sense of knowing that he is wearing, carrying or displaying the item. The prosecution need not prove knowledge of the item’s meaning, its connection with a proscribed organisation, or its capacity to arouse reasonable suspicion.
3. The strong common-law presumption that mens rea is required remains a principle of statutory construction. It yields where the statutory language and relevant circumstances clearly indicate a contrary Parliamentary intention. That intention was shown by the wording and purpose of section 13, the materially similar predecessor provisions, the contrasting amendments to sections 12 and 13, the absence of a statutory defence comparable to section 57, and the distinction between section 12’s intentional invitation of support and section 13’s focus on the effect of conduct on observers.
4. Article 10 was engaged, but the restriction was prescribed by law, pursued legitimate aims and was proportionate. The offence gives practical effect to the proscription of terrorist organisations by preventing conduct which may encourage support for such organisations or cause them to be viewed as legitimate.
5. The Convention authorities did not establish a rule that an interference with freedom of expression is justified only where the expression incites or encourages violence. Proportionality is fact-sensitive. The summary-only nature and maximum six-month penalty of the offence were relevant, and the appellants could express opposition to the Turkish state without displaying PKK flags.
6. The two questions stated by the Crown Court were answered Yes.

• High Court (Administrative Court), [2020] EWHC 798 (Admin): appeals by way of case stated dismissed. The Crown Court’s conclusions that section 13(1) created an offence of strict liability and was compatible with article 10 were upheld.
• Crown Court at Southwark: convictions upheld on appeal from the magistrates’ court; the court stated two questions concerning strict liability and Convention compatibility.