Pwr v Director of Public Prosecutions

Factual and Procedural Background

On 27 January 2018 a public demonstration took place in The City protesting perceived actions of the Turkish state in Afrin, Syria. The three Appellants each carried a flag identified by an expert witness as that of the proscribed Kurdistan Workers Party (“PKK”). They were arrested and subsequently convicted in Westminster Magistrates’ Court on 3 September 2018 of an offence contrary to section 13 of the Terrorism Act 2000 (“the 2000 Act”). The sentences were conditional or absolute discharges.

Appeals to the Crown Court were dismissed on 8 May 2019, the court holding that section 13 creates a strict-liability offence. Upon the Appellants’ application, the Crown Court stated a case posing two questions for the High Court: whether the offence is one of strict liability and, if so, whether that is compatible with article 10 of the European Convention on Human Rights (“ECHR”). The Divisional Court answered both questions affirmatively in April 2020 and dismissed the appeals.

The Divisional Court certified both questions as points of law of general public importance. Permission to appeal was granted and the matter came before the Supreme Court, which constitutes the present judgment.

Legal Issues Presented

1. Does section 13 of the Terrorism Act 2000 create an offence of strict liability?
2. If it does, is such strict liability compatible with the right to freedom of expression protected by article 10 ECHR (as incorporated by the Human Rights Act 1998)?

Arguments of the Parties

Appellants’ Arguments

• Invoked the strong common-law presumption that Parliament intends offences to require mens rea; argued that, read properly, section 13 should incorporate knowledge or intention.
• Suggested several potential mental elements (e.g. knowledge of arousing suspicion or intention to express support) and maintained that absence of such an element produces absurd or unfair results.
• Submitted that criminalising flag-carrying without mens rea is a disproportionate interference with article 10 ECHR, contending that Strasbourg jurisprudence requires at least incitement to violence before speech may be penalised.
• Argued that the offence lacked foreseeability because a person could be convicted without intending wrongdoing.

Respondent’s Arguments

• Emphasised the objective wording “arouse reasonable suspicion,” contending that it is incompatible with any subjective mental element beyond deliberately carrying the article.
• Maintained that requiring proof of knowledge would undermine the coherence of Part II of the 2000 Act and create overlap with the more serious offences under sections 11 and 12.
• Submitted that the strict-liability nature, coupled with a comparatively low maximum penalty, strikes a proportionate balance between individual expression and national-security concerns, satisfying article 10(2).
• Pointed to legislative context and subsequent amendments (2019 Act) demonstrating Parliament’s deliberate decision to distinguish section 13 from offences requiring mens rea.

Table of Precedents Cited

Court's Reasoning and Analysis

Issue 1 – Strict Liability

• The phrase “arouse reasonable suspicion” sets an entirely objective threshold, ill-suited to importing any subjective mental element.
• Context within Part II shows a calibrated hierarchy: sections 11 and 12 (membership/support) are indictable and explicitly require mens rea, whereas section 13 is summary only with a lesser penalty, coherently explained if strict liability applies.
• Requiring knowledge would almost wholly overlap with the more serious offences, rendering section 13 redundant and upsetting legislative balance.
• Purpose is preventative: denying proscribed organisations public visibility and legitimacy; effectiveness does not depend on the carrier’s intention.
• Consequently, the strong presumption of mens rea is rebutted by necessary implication; only knowledge of physically carrying or displaying the article is required.

Issue 2 – Compatibility with Article 10 ECHR

• The interference is “prescribed by law”: wording is clear, list of proscribed organisations is publicly accessible, and foreseeability is adequate.
• Legitimate aims include national security and prevention of disorder, directly linked to the statutory proscription regime.
• Necessity and proportionality: (i) Offence carries limited maximum penalty; (ii) Applies only where conduct objectively raises reasonable suspicion; (iii) Criminal process affords procedural safeguards; (iv) Less onerous measures would not equally prevent the publicity benefit to terrorist groups.
• Strasbourg jurisprudence does not impose a rigid incitement-to-violence requirement; proportionality is assessed contextually, and section 13 satisfies that assessment.

Holding and Implications

Holding — APPEAL DISMISSED. The Supreme Court affirmed that (1) section 13 of the Terrorism Act 2000 creates a strict-liability offence and (2) this strict liability is compatible with article 10 ECHR.

Implications: The ruling confirms the legislative scheme distinguishing between more serious terrorism offences requiring intent and the summary offence under section 13. It upholds Parliament’s preventive approach to proscribed-organisation symbolism and clarifies that freedom-of-expression challenges will not succeed absent disproportionality. No new cause of action is created, but the judgment provides authoritative guidance on interpreting objective statutory language and on article 10 proportionality in terrorism contexts.