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 and that this is compatible with the right to freedom of expression under Article 10 ECHR.
Background
On 27 January 2018, the three appellants — Mr Pwr, Mr Akdogan, and Mr Demir — participated in a demonstration in central London protesting against the perceived actions of the Turkish state in Afrin, Syria. Each was observed carrying or displaying a flag of the Kurdistan Workers Party (PKK), an organisation proscribed under the Terrorism Act 2000 since March 2001. They were convicted in the Westminster Magistrates’ Court under section 13 of the 2000 Act, which provides that a person in a public place commits an offence if they wear, carry, or display an article in such a way or in such circumstances as to arouse reasonable suspicion that they are a member or supporter of a proscribed organisation. The offence is summary-only and carries a maximum sentence of six months’ imprisonment.
Their appeals to the Crown Court were unsuccessful, the court holding that section 13 was a strict liability offence and finding the offences proved. The appellants then appealed by way of case stated to the Divisional Court, which also dismissed the appeals, confirming that section 13 imposed strict liability and was compatible with Article 10 of the European Convention on Human Rights. The Supreme Court granted permission to appeal on two certified questions of law of general public importance.
The Issues
Issue 1: Is the offence created by section 13 of the Terrorism Act 2000 an offence of strict liability?
Issue 2: If so, is it compatible with Article 10 of the Convention (freedom of expression) for section 13 to be one of strict liability?
The Court’s Reasoning
Issue 1: Strict Liability
The joint judgment of Lady Arden, Lord Hamblen and Lord Burrows (with whom Lord Lloyd-Jones and Lady Rose agreed) began by acknowledging common ground: a limited mental element was required in that the defendant must know they are wearing, carrying or displaying the article in question. The core question, however, was whether additional mens rea — such as knowledge that the flag was that of a proscribed organisation, or an intention to show support — was also required.
The Court applied the well-established common law presumption of mens rea, as articulated in Sweet v Parsley [1970] AC 132 and refined in B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428. The presumption is a strong one, rebutted only by express words or necessary implication — an implication that must be, in Lord Nicholls’ words, “compellingly clear.”
The Court found the presumption was rebutted by necessary implication for three principal reasons:
(a) The Words Used
The objective formulation of the offence — arousing “reasonable suspicion” — was found to be fundamentally at odds with the importation of a subjective mens rea requirement. The Court observed:
“the language of section 13 is … entirely clear and unambiguous … nothing in the section requires any knowledge on the part of the wearer [or carrier] of the import of the item or article, or of its capacity to arouse the requisite suspicion.”
The appellants’ counsel had immense difficulty formulating what the appropriate mens rea would be. The Court noted that reading in “knowingly” before “arouse reasonable suspicion” made little sense, as whether suspicion is aroused is outside the defendant’s control. Requiring an intention to express support would render the “reasonable suspicion” element redundant. Requiring knowledge that the organisation was proscribed would run counter to the principle that ignorance of the law is no excuse and would render the provision a “virtual dead letter.”
(b) Context
The Court examined sections 11, 12 and 13 of the 2000 Act as a coherent scheme. Sections 11 and 12 create serious indictable offences (then carrying a maximum of 10 years, subsequently 14 years) requiring mens rea. Section 13, by contrast, is a summary-only offence with a maximum of six months’ imprisonment. The Court reasoned:
“Looking across the proscribed organisation offences, a rational explanation for why section 13(1) creates a far less serious summary offence, punishable by a maximum of six months imprisonment rather than 14 years, is that, while the offences in section 11 and 12 require mens rea, section 13(1) creates a strict liability offence.”
Moreover, if mens rea were required for section 13, this would create a problematic overlap with sections 11 and 12. Carrying a flag with the intention to show support for a proscribed organisation would almost inevitably constitute the more serious offence of professing membership or inviting support. Interpreting section 13 as requiring mens rea would therefore “tend to render it redundant” and render “incoherent what can otherwise be viewed as a carefully calibrated and rational scheme of proscribed organisation offences.”
The Court also drew support from section 57 of the 2000 Act, which uses similar “reasonable suspicion” language but expressly provides a defence, and from the 2019 amendments to sections 12 and 13 which drew clear and deliberate distinctions between offences requiring mens rea and those imposing strict liability.
(c) Purpose
The Court endorsed the reasoning of Holroyde LJ in the Divisional Court on the mischief at which section 13 is aimed:
“The mischief at which it is aimed is conduct which leads others reasonably 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… The risk arises whatever the understanding or intention of the wearer.”
The purpose of section 13 is to deny proscribed organisations the oxygen of publicity and projected legitimacy, forming part of a rational counter-terrorism strategy to stymie their operations.
Issue 2: Compatibility with Article 10 ECHR
Turning to the Convention question, the Court applied the three-part test under Article 10(2): that the interference must be (i) prescribed by law, (ii) intended for a legitimate aim, and (iii) necessary in a democratic society, which includes proportionality. As to prescribed by law, the Court noted the offence was clearly stated in legislation and the list of proscribed organisations was published. As to legitimate aim, the proscription regime pursues at least two Article 10(2) aims: national security and the prevention of disorder.
The most contested element was necessity and proportionality. The appellants argued that Strasbourg jurisprudence established a “bright-line” rule that criminalising expression without requiring incitement to violence violated Article 10. The Court rejected this, endorsing the approach of the Strasbourg Court in Perinçek v Switzerland (2016) 63 EHRR 6 that the assessment is multi-factorial and “highly context-specific”:
“In all of the above cases, it was the interplay between the various factors rather than any one of them taken in isolation that determined the outcome of the case. The court’s approach to that type of case can thus be described as highly context-specific.”
The Court found that a fair balance had been struck between individual rights and the community’s interest in security. The criminal sanctions were comparatively minor; the offence was narrowly drawn by the requirement of arousing reasonable suspicion; procedural safeguards of criminal process applied; and there existed a procedure for deproscription. As the Court stated:
“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 Court endorsed the summary of Holroyde LJ:
“the section 13 offence is compatible with article 10. It imposes a restriction on freedom of expression which is required by law; is necessary in the interests of national security, public safety, the prevention of disorder and crime and the protection of the rights of others; and is proportionate to the public interest in combating terrorist organisations.”
Practical Significance
This decision is of considerable importance for counter-terrorism law. It authoritatively confirms that section 13 of the Terrorism Act 2000 imposes strict liability: no mens rea beyond the deliberate carrying or display of the article is required. The prosecution need not prove the defendant knew the article was associated with a proscribed organisation or intended to show support. The decision also establishes that this strict liability offence is Convention-compliant, rejecting the proposition that Article 10 ECHR demands proof of incitement to violence before expression associated with terrorism can lawfully be criminalised. The Court’s reasoning reinforces the coherence of the proscription offence scheme under the 2000 Act, calibrating the severity of punishment to the presence or absence of mens rea and treating section 13 as an essential enforcement mechanism for the proscription regime. The judgment also reaffirms the strength of the common law presumption of mens rea whilst demonstrating that it can be rebutted by necessary implication where the statutory language, context and purpose compellingly so require.
Verdict: The appeal was dismissed. The Supreme Court held that section 13(1) 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. The appellants’ convictions were upheld.
Source: Akdogan and another v Director of Public Prosecutions [2022] UKSC 2
