Pwr v Director of Public Prosecutions

The Supreme Court held that section 13(1) of the Terrorism Act 2000 is an offence of strict liability. The court applied the strong common-law presumption that statutory offences require mens rea but concluded that the presumption is rebutted by necessary implication. The decisive features were the objective wording of the provision (conduct that "arouses reasonable suspicion"), the statutory context within Part II of the 2000 Act (in particular the contrast with sections 11 and 12 which expressly require mens rea, and section 57 which expressly provides a defence), and the statutory purpose of preventing proscribed organisations from gaining publicity or apparent legitimacy.

The Court further held that the strict liability form of section 13 is compatible with article 10 ECHR. The restriction on freedom of expression was prescribed by law, pursued legitimate aims (national security; prevention of disorder) and was proportionate and necessary in a democratic society given the focused objective of the provision, the relatively minor criminal sanction, and procedural safeguards.

Background and procedure. The appellants (Pwr, Akdogan and Demir) were convicted at Westminster Magistrates' Court on 3 September 2018 of offences under section 13(1) of the Terrorism Act 2000 for carrying PKK flags during a public demonstration. On appeal, the Crown Court (Southwark) rejected no-case-to-answer submissions and, after conviction, stated a case for the High Court to decide two questions: whether section 13 is a strict liability offence and, if so, whether that is compatible with article 10 ECHR. The Divisional Court ([2020] EWHC 798 (Admin)) answered both questions in the affirmative. Permission to appeal to the Supreme Court was granted and the appeal was heard on 18 November 2021.

Issues framed. (i) Does section 13(1) create a strict liability offence, or must the prosecution prove mens rea beyond the limited requirement that the act of wearing, carrying or displaying be deliberate? (ii) If strict liability, is the offence compatible with article 10 ECHR?

Facts and limited findings. The Crown Court found each appellant carried a PKK flag in such a way or circumstances as to arouse reasonable suspicion of membership or support for a proscribed organisation. The Crown Court made no findings as to whether the appellants knew what the flags were or intended to express support; the court accepted that a limited mental element necessarily exists such that the act of wearing/carrying/displaying must be deliberate.

Reasoning on mens rea. The court reviewed the presumption of mens rea as stated in Sweet v Parsley and subsequent authorities (including B (A Minor) v DPP and Nurse v Republic of Trinidad and Tobago). It held that, because section 13 uses an objective test of arousing "reasonable suspicion", that language is inconsistent with importing a further subjective mens rea in relation to the relevant effect. Contextually, sections 11 and 12 expressly require mens rea and are punished far more severely; the existence of an express statutory defence in section 57 and the 2019 amendments (which expressly set out mens rea for related conduct) indicate Parliament deliberately distinguished section 13 as a lesser, strict liability offence. The statutory purpose of preventing proscribed organisations obtaining publicity or apparent legitimacy supported strict liability. The court rejected that hypothetical unfair outcomes were a sufficient reason to read in mens rea.

Reasoning on article 10. The court accepted that section 13 interferes with freedom of expression but found the interference was prescribed by law, pursued legitimate aims (national security; prevention of disorder) and met the necessity and proportionality requirements. The court took a contextual, multifactorial approach to whether criminalisation of conduct or expression requires incitement to violence and concluded that article 10 does not impose a bright-line rule requiring incitement to violence in all cases; here the focused preventive aim, limited sanctions and statutory safeguards meant the restriction was justified.

Outcome. The Supreme Court dismissed the appeal and upheld the Divisional Court's conclusions: section 13(1) is a strict liability offence and compatible with article 10 ECHR.

The appeal was dismissed. The Court held that section 13(1) of the Terrorism Act 2000 is a strict liability offence: the presumption of mens rea was rebutted by necessary implication because the statutory wording (the objective test of arousing "reasonable suspicion"), the context within Part II of the Act, and the purpose of preventing proscribed organisations gaining publicity, together compel that construction. The Court also held that making the offence strict liability is compatible with article 10 ECHR because the interference is prescribed by law, pursues legitimate aims (national security and prevention of disorder) and is necessary and proportionate in a democratic society.

Magistrates' conviction at Westminster Magistrates' Court (3 September 2018); appeal to Crown Court, Southwark (HHJ Bartle QC) where no‑case‑to‑answer submissions were dismissed and a case was stated to the High Court; Divisional Court judgment dismissing appeals [2020] EWHC 798 (Admin); permission to appeal to the Supreme Court granted and appeal dismissed ([2022] UKSC 2).