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Case Comment by Nathan Davis – Pwr and others v Director of Public Prosecutions [2020] EWHC 798 (Admin) – is an offence under section 13(1) Terrorism Act 2000 a strict liability offence?

Pwr and others v Director of Public Prosecutions [2020] EWHC 798 (Admin) – is an offence under section 13(1) Terrorism Act 2000 a strict liability offence?

Offence:

The appellants were charged under section 13(1) of the Terrorism Act 2000 (‘section 13(1)’) which materially states:

(1) A person in a public place commits an offence if he –

(a) wears an item of clothing, or

(b) wears, carries or displays 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.

Facts:

In January 2018 the appellants had taken part in a demonstration against the perceived actions of the Turkish state in Arfin. Each carried a flag of the Kurdistan Workers Party (the Partiya Karkeren Kurdistane – “the PKK”), which is an organisation proscribed under the Terrorism Act 2000.

The Crown’s case relied on the appellants carrying the flags and expert witness evidence that the flags they carried were PKK flags. The appellants did not give evidence.

They were found guilty of the section 13(1) offence after trial in the Magistrates’ and on appeal at the Crown Court. The Crown Court held that section 13(1) was a strict liability offence and although article 10 European Convention on Human Rights (‘ECHR’) was engaged, section 13(1) was a proportionate response.

The questions for the Court to address from the cases stated were:

1) Is section 13(1) an offence of strict liability;

2) If so, is that compatible with article 10 of the ECHR?

Judgment:

For 5 reasons the Court held that section 13(1) did create an offence of strict liability (see [50 – 60]):

1. The language of section 13(1) is clear and unambiguous. Although it requires the wearer of the article in question to know that he is wearing, carrying or displaying the item or article, it only requires that this is done in a way, or in circumstances that are, capable of arousing reasonable suspicion;

2. The mischief section 13(1) is aimed at remedying is conduct which “leads others reasonable to suspect the wearer of being a member or supporter of a proscribed organisation, that being conduct which gives rise to a risk that others will be encouraged to support that proscribed organisation or to view it as legitimate”. This is a risk created regardless of the wearer’s intent;

3. The predecessor to section 13(1) was drafted in similar terms and Parliament had not taken the opportunity to expressly indicate a requirement of mens rea;

4. The amendments to the Terrorism Act 2000 which inserted section 13(1A) and section 12(1A) were indicative – Parliament had chosen not to amend section 13(1), section 13(1A) was drafted in similar terms and section 12(1A) required an element of recklessness;

5. The Terrorism Act 2000 created other offences which require mens rea and there is no express defence to section 13(1), such as within section 57, having regard to the purpose of the accused.

The Court also found that section 13(1) was compatible with article 10 ECHR (see [63 – 72]:

– The restriction is sufficiently prescribed by law;

– Section 13(1) pursues a legitimate aim as it is a “necessary part of the appropriate mechanism” for preventing the activities and/or spread of terrorist organisations;

– There is no apparent lesser alternative means of prohibiting conduct which creates the stated risk;

– Section 13(1) is not disproportionate because it is not limited to circumstances where the expression incites violence – this is only a factor to consider under the proportionality analysis;

– The maximum penalty for section 13(1) cannot be regarded as severe in comparison to other terrorism-related offences;

– The appellants had no need to display the flags of PKK and there was no substantial interference with their article 10 rights;

– Although section 13(1) could be committed without someone knowing their conduct arises the necessary suspicion, that would not be likely to happen in practice.

Comment:

The judgment is significant because the Court was prepared to rebut the strong presumption and find that Parliament had created an offence of strict liability despite the absence of an express statement. The Court particularly emphasised that in these cases, where the presumption of a mens rea requirement is rebutted on the basis of necessary implication, the dicta of Lord Nicholls in B (a minor) v DPP [2000] 2 AC 428 is of particular guidance and, therefore, Courts must focus on whether the implication is ‘compellingly clear’ having regard to (see p463H – p464A):

1. The language used;

2. The nature of the offence;

3. The mischief sought to be prevented; and

4. Any other circumstances which may assist in determining what intention is properly to be attributed to Parliament when creating the offence.

It is important to note that the Court relied upon the totality of the 5 considerations above, rather than that any one of them alone were sufficient.

The effect of the Court’s judgment is to focus on the need for the relevant item or article to be worn, carried or displayed in such a way or in such circumstances as to arouse the requisite reasonable suspicion. The Court found that the wearer must know that they are doing so and, therefore, a person who has such an item unwittingly placed upon them, such as where an image is attached to a person’s backpack unbeknown to them (see [50]), would not be liable under section 13(1).

In focusing upon reasonable suspicion in this case, the Court indicated the following were of significance:

– Whether the accused has an innocent explanation;

– Whether other people would reasonably form that suspicion –in this case there was expert evidence that the majority of observers would have recognised the flags as those of the PKK and that this had been designated as a terrorist organisation;

– Where the accused’s expression is stated to be for a non-proscribed organisation, whether this expression could have been carried out without wearing the item or article that gives rise to the reasonable suspicion.

Nathan Davis

Pupil Barrister

Nathan is a common law pupil who is currently undertaking his second six.