PWR v Director of Public Prosecutions; Akdogan and another v Director of Public Prosecutions [2022] UKSC 2 (26 January 2022)

Three appellants were convicted under section 13 of the Terrorism Act 2000 for carrying PKK flags at a London demonstration. The Supreme Court held that section 13 creates a strict liability offence requiring no mens rea beyond deliberate carrying, and that this is compatible with Article 10 ECHR.

Facts

On 27 January 2018, three appellants (Mr Pwr, Mr Akdogan, and Mr Demir) participated in a demonstration in central London against the perceived actions of the Turkish state in Afrin, Syria. Each appellant carried a flag of the Kurdistan Workers Party (PKK), an organisation proscribed under the Terrorism Act 2000 since March 2001. The appellants were convicted at Westminster Magistrates Court of offences under section 13 of the 2000 Act, which makes it an offence to wear, carry or display an article in such a way or circumstances as to arouse reasonable suspicion of being a member or supporter of a proscribed organisation.

Procedural History

Appeals to the Crown Court were dismissed after the court held section 13 was a strict liability offence. The Divisional Court affirmed this decision and held the offence compatible with Article 10 ECHR. The Supreme Court granted permission to appeal on two certified questions of law.

Issues

1. Is the offence created by section 13 of the Terrorism Act 2000 an offence of strict liability?

2. If so, is it compatible with Article 10 of the European Convention on Human Rights (freedom of expression) for the offence to be one of strict liability?

Judgment

Issue 1: Strict Liability

The Supreme Court unanimously held that section 13 creates a strict liability offence. Lady Arden, Lord Hamblen and Lord Burrows, delivering the joint judgment, applied the strong common law presumption of mens rea established in Sweet v Parsley [1970] AC 132 and B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428. However, they found this presumption rebutted by necessary implication.

“Necessary implication connotes an implication which is compellingly clear. Such an implication may be found in the language used, the nature of the offence, the mischief sought to be prevented and any other circumstances which may assist in determining what intention is properly to be attributed to Parliament when creating the offence.”

The Court identified three reasons for concluding the presumption was rebutted:

Words used: The objective formulation ‘arousing reasonable suspicion’ does not readily accommodate subjective mental elements like knowledge or intention.

Context: Sections 11 and 12 clearly require mens rea and carry maximum sentences of 14 years, whilst section 13 is summary-only with a maximum of six months. This calibrated scheme suggests Parliament intended section 13 as strict liability to explain the lesser penalty.

Purpose: The offence is designed to deny proscribed organisations publicity and an air of legitimacy, regardless of the defendant’s intention.

“The strict liability interpretation of the offence in section 13(1) is supported by the purpose (or mischief or policy) behind the offence… It is designed to deny a proscribed organisation the oxygen of publicity or a projected air of legitimacy.”

Issue 2: Article 10 Compatibility

The Court held section 13 compatible with Article 10. Examining whether the interference was prescribed by law, pursued a legitimate aim, and was necessary in a democratic society, the Court found all requirements satisfied.

The Court rejected the appellants’ submission that Strasbourg jurisprudence requires incitement to violence before speech can be criminalised:

“The essential point about section 13 is that it is a highly focused provision aimed at ensuring that proscribed organisations do not obtain a foothold in the UK through the agency of people in this country. It is about a restriction, or deterrence, designed to avoid violence, not the prevention of a situation in which there is an immediate threat of violence or disorder.”

The proportionality assessment considered: the comparatively minor criminal sanctions; the objective requirement of arousing reasonable suspicion; procedural safeguards of criminal trial; and the deproscription procedure available under sections 4-6 of the 2000 Act.

Implications

This judgment confirms that section 13 of the Terrorism Act 2000 is a strict liability offence, requiring only that the defendant deliberately wears, carries or displays the article in question, with no need to prove knowledge of its significance or intention to support the proscribed organisation. The decision endorses a context-specific approach to Article 10 proportionality assessments in terrorism cases, rejecting any bright-line rule requiring incitement to violence. The judgment affirms Parliament’s competence to make proscription effective through proportionate enforcement measures, whilst noting the limited impact of section 13 convictions compared to more serious proscription offences.

Verdict: Appeal dismissed. The Supreme Court held that section 13 of the Terrorism Act 2000 creates an offence of strict liability and that this is compatible with Article 10 of the European Convention on Human Rights.

Source: PWR v Director of Public Prosecutions; Akdogan and another v Director of Public Prosecutions [2022] UKSC 2 (26 January 2022)