Pwr v Director of Public Prosecutions

An offence under section 13(1) of the Terrorism Act 2000 is one of strict liability. The defendant must deliberately wear, carry or display the relevant article, but need not know its import, intend to express support, or know that the organisation is proscribed.

The strong presumption of mens rea is rebutted by necessary implication. The objective requirement of arousing reasonable suspicion, the statutory context and the provision’s counter-terrorism purpose make that implication compellingly clear.

The offence is compatible with article 10. Its focused objective, reasonable-suspicion threshold, comparatively minor penalty and procedural safeguards strike a fair balance between freedom of expression and national security. Incitement to violence is relevant to proportionality, but is not an indispensable condition for restricting expression.

The three appellants carried flags of the PKK, a proscribed organisation, during a demonstration in central London. They were convicted in Westminster Magistrates’ Court of offences under section 13(1) of the Terrorism Act 2000. The Crown Court upheld the convictions without finding that the appellants knew what the flags represented or intended to support the PKK.

On an appeal by case stated, the Divisional Court held that section 13(1) imposed strict liability and was compatible with article 10 of the Convention: [2020] EWHC 798 (Admin); [2020] 1 WLR 3623. The Supreme Court considered whether the offence required any further mental element beyond deliberate wearing, carrying or display and, if not, whether the resulting interference with freedom of expression was justified.

1. Appeal dismissed unanimously. Lady Arden, Lord Hamblen and Lord Burrows gave the joint judgment, with which Lord Lloyd-Jones and Lady Rose agreed. Section 13(1) of the Terrorism Act 2000 creates a strict-liability offence, and that offence is compatible with article 10 of the Convention.

2. The common-law presumption that Parliament intends mens rea is strong. Where an offence is silent, it is rebutted only by express words or necessary implication. Necessary implication means an implication which is compellingly clear. The inquiry focuses on the statutory language, context and purpose. The presumption remains a principle of statutory interpretation and does not authorise a court to rewrite Parliament’s words.

3. Section 13(1) nevertheless contains a limited mental element. The defendant must know that he or she is wearing, carrying or displaying the article, so the conduct must be deliberate rather than inadvertent. No further knowledge or intention is required. In particular, the prosecution need not prove knowledge of the article’s import, an intention to support the organisation, an intention to arouse suspicion, or knowledge that the organisation is proscribed.

4. The objective expression “arouse reasonable suspicion” does not readily accommodate a subjective mental requirement. The surrounding provisions reinforce that conclusion. Sections 11 and 12 expressly or necessarily require mens rea and create more serious offences. Treating section 13 as requiring similar mens rea would produce substantial overlap and undermine the rational calibration of the statutory scheme. The absence of a defence corresponding to section 57(2), and the language of the later section 13(1A), provide further contextual support.

5. The provision addresses the effect of the display on others. It denies proscribed organisations publicity and projected legitimacy, discourages support and may prevent public disorder. Those risks arise irrespective of the defendant’s understanding or intention. The statutory words, context and purpose therefore rebut the presumption of mens rea by necessary implication.

6. The interference with expression was prescribed by law and pursued national security and the prevention of disorder. It was also necessary and proportionate. Section 13 is narrowly directed to conduct which objectively arouses reasonable suspicion of membership or support. Its sanctions are comparatively minor, criminal-procedure safeguards apply, and statutory mechanisms permit deproscription.

7. Article 10 does not establish a bright-line rule permitting criminalisation only where expression incites violence. Incitement is one factor in a context-specific assessment. The focused preventive purpose of section 13, its reasonable-suspicion threshold and the fair balance achieved between individual expression and community security made the offence Convention-compliant.

1. United Kingdom Supreme Court: Dismissed the appeal unanimously and affirmed that section 13(1) of the Terrorism Act 2000 is a strict-liability offence compatible with article 10: [2022] UKSC 2.
2. Divisional Court: Answered both questions in the affirmative and dismissed the appeals: [2020] EWHC 798 (Admin); [2020] 1 WLR 3623.
3. Southwark Crown Court: Dismissed the appellants’ appeals from conviction. It held that section 13 imposed strict liability and found the offences proved.
4. Westminster Magistrates’ Court: Convicted each appellant of carrying a PKK flag contrary to section 13.