the times | Wednesday February 16 2022 51
Register
The offence of wearing or carrying an
article in a public place in such a way
or in such circumstances as to arouse
a reasonable suspicion that the per-
son was a member or supporter of a
proscribed organisation, contrary to
section 13(1) of the Terrorism Act
2000, did not require proof of a men-
tal element such as knowledge or
intention (mens rea) and was thus an
offence of strict liability.
The offence was not incompatible
with the right to freedom of expres-
sion guaranteed by article 10 of the
European Convention on Human
Rights.
The Supreme Court so held in dis-
missing the appeal of the defendants,
Rahman Pwr, Ismail Akdogan and
Rotinda Demir, against the dismissal
by the Divisional Court of the
Queen’s Bench Division (Lord Justice
Holroyde and Mr Justice Swift)
([2020] 1 WLR 3623) of their appeals
by way of case stated against the deci-
sion of the Crown Court at South-
wark which, on May 8, 2019 (Judge
Bartle QC and two justices), had dis-
missed their appeals against their
convictions by the Westminster
Magistrates’ Court (District Judge
Snow) for offences under section 13(1)
of the 2000 Act. The first and second
defendants were given three-month
conditional discharges and the third
defendant received an absolute
discharge.
Joel Bennathan QC and Jude
Bunting for the defendants; Louis
Mably QC and Dan Pawson-Pounds
for the Crown.
Lady Arden, Lord Hamblen and
Lord Burrows, with whom the other
members of the court agreed, said
that the three defendants had taken
part in a demonstration in central
London on January 27, 2018, against
the perceived actions of the Turkish
state in northeastern Syria. The de-
fendants were arrested and convicted
under section 13(1) for carrying a flag
of the Kurdistan Workers Party (the
Partiya Karkeren Kurdistane, or
PKK), an organisation proscribed
under the 2000 act.
After dismissing the defendants’
appeals against their convictions, the
Divisional Court certified the follow-
Supreme Court
Published February 16, 2022
Pwr v Director of Public
Prosecutions
Akdogan and another v Same
Lord Lloyd-Jones, Lady Arden, Lord
Hamblen, Lord Burrows and Lady Rose
[2022] UKSC 2
Judgment January 26, 2022
ing questions as points of law of gen-
eral public importance: (i) whether
section 13 created an offence of strict
liability; and, if so, (ii) whether that
was compatible with the right to free-
dom of expression under article 10 of
the European Convention on Human
Rights.
It was important to emphasise, and
was common ground between the
parties, that a limited mental element
was indisputably required under sec-
tion 13(1) of the 2000 act in the sense
that the defendant had to have
known that he or she was wearing,
carrying or displaying the relevant
article.
On the facts of the present case,
each defendant had to have known
that he was carrying or displaying a
flag. Put another way, the carrying or
displaying of the flag had to be delib-
erate and not inadvertent.
If a person were to stick a flag into
or onto a defendant’s backpack with-
out the defendant’s knowledge, so
that the defendant was carrying or
displaying the flag without knowing
that he or she was doing so, the defen-
dant would not be guilty of the
offence.
The words “wears, carries or dis-
plays” necessarily imported know-
ledge of that limited kind.
In the light of previous authority,
in particular Lord Nicholls’ analysis
in B (A Minor) v Director of Public
Prosecutions ([2000] 2 AC 428), the
correct approach to determining
whether section 13(1) was an offence
of strict liability, given that the sec-
tion was silent as to the mens rea, was
to examine whether the strong
presumption of mens rea was rebut-
ted expressly or by necessary
implication.
Necessary implication was an im-
plication that was compellingly clear.
Whether that was so turned on the
words used in the light of their con-
text and the purpose (or mischief) of
the provision in question.
Examination of the words, context
and purpose of section 13(1) led inex-
orably to the conclusion that the pre-
sumption of mens rea was rebutted
and that the offence was therefore
one of strict liability.
Looking first and foremost at the
words used, the objective formula-
tion of the offence — arousing
“reasonable suspicion” — indicated
that there was no requirement of
mens rea. There was difficulty marry-
ing a subjective requirement, such as
knowledge or intention, with the ob-
jective requirement of arousing
“reasonable suspicion”.
Section 13 was one of three sec-
tions in the 2000 Act (the other twoLaw Report
Offence of carrying the flag of a
proscribed Kurdish organisation
being sections 11 and 12) which laid
down offences concerned with pro-
scribed organisations. It was clear
from the words of sections 11 and 12
that the offences in those sections
were not offences of strict liability.
They required mens rea.
Looking across the proscribed or-
ganisation offences, a rational expla-
nation for why section 13(1) created a
far less serious summary offence,
punishable by a maximum of six
months imprisonment rather than 14
years, was that, while the offences in
sections 11 and 12 required mens rea,
section 13(1) created a strict liability
offence.
To interpret section 13(1) as requir-
ing mens rea would render incoher-
ent what could otherwise be viewed
as a carefully calibrated and rational
scheme of proscribed organisation
offences.
Further, the strict liability inter-
pretation of the section 13(1) offence
was supported by the purpose, or mis-
chief, behind the offence, which was
concerned with the effect on other
people and not the intention or
knowledge of the defendant.
It was designed to deny a pro-
scribed organisation the oxygen of
publicity or a projected air of legiti-
macy and it sought to avoid others
becoming aware of, and potentially
becoming supporters of, proscribed
organisations.
It could also have a role in avoiding
public disorder that might result from
a reaction against displays of support
for proscribed organisations. More
generally, the offence was part of a ra-
tional counterterrorism strategy to
stymie the operation of proscribed
organisations
As to the second issue, it was com-
mon ground that section 13 of the
Terrorism Act 2000 constituted an
interference with the right to free-
dom of expression guaranteed by
article 10 of the Human Rights
Convention.
However, that interference was
justified for the purposes of article
10(2) since it imposed a restriction on
freedom of expression which was re-
quired by law; was necessary in the
interests of national security, public
safety, the prevention of disorder and
crime and the protection of the rights
of others; and was proportionate to
the public interest in combating
terrorist organisations. Accordingly
the section 13 offence was compatible
with article 10.
Solicitors: Birnberg Peirce Ltd
and Morgan Has Solicitors, Stoke
Newington; Crown Prosecution
Service, Appeals and Review Unit.YOU must, of course, continue faithful on
a firm and sure foundation, and must not
allow yourselves to be shaken from the
hope you gained when you heard the
gospel. It is of this gospel that I, Paul,
became a servant — this gospel which has
been preached to everybody in the world.
Colossians 1.23 (GNB)
Bible quotes are provided by the
Bible SocietyBirths, Marriages and Deaths
Deaths
ASHCROFT Dr Anthony, FRCGP, aged 97,
on 7th February 2022 in the Chocolate
Works care village in York, GP in Newcastle
upon Tyne. He was much loved and will be
greatly missed by his daughter Chris in
York and son Philip in New Zealand, his
sister Rosalind, and his extended family.
Funeral 3rd March is family only, with
streaming for those unable to attend, and
accessible live or for 28 days thereafter. No
flowers; donation in remembrance of
Anthony and Alison to St Leonard’s
Hospice in York, where Alison died in 2018.
Contact Co-op Funeralcare, Cromwell Road,
YO1 6DU, 01904 643936,
[email protected] for details of the online
link and donation.
COOK Mary Elinor, beloved wife of Ian
and mother of Judy, Chris and Buffy, was
gadding about on her buggy in
Woodbridge until early December. After a
short illness she drifted peacefully away in
the late afternoon on 7th February 2022,
aged almost 94. Cremation service to be
held for family and friends at Ipswich
Crematorium at 10.45am on Thursday 3rd
March and afterwards from midday at The
Great Hall, Seckford Hall Hotel and Spa,
Great Bealings, Woodbridge, Suffolk IP13
6NU. Family flowers only please and any
donations to causes dear to Mary: Marie
Curie, RNLI, IngaFoundation, may be sent
to Farthing Funeral Service, 650
Woodbridge Road, Ipswich IP4 4PW or
online at http://www.farthingfunerals.co.uk
IVE Dr F Adrian of Durham peacefully
passed away at home surrounded by his
family on Wednesday 2nd February 2022,
aged 86. A loving family man and a
committed doctor who will be missed by
everyone who knew him. The Funeral Mass
will take place on Wednesday 23rd
February at the Holy Trinity Catholic
Church, Baldock, at 2.30pm followed by a
committal at North Hertfordshire Memorial
Park and Crematorium at 4pm. Family
flowers only please, if desired donations in
his memory can be made via his In
Memory Page at
http://www.newlingsofroyston.co.uk or cheques
made payable to British Skin Foundation
and sent c/o Newlings of Royston, Fish Hill,
Royston, Herts, SG8 9LB. Tel: 01763 242375.
MANDER Michael Stuart. Passed away
on 8th February, aged 86. Much-loved
companion, brother and uncle. Funeral
service at St Mary’s Church, Icomb,
Gloucestershire on Saturday 26th
February at noon. No flowers. Memorial
service at St Bride’s Church, Fleet Street,
London, later in the year. Inquiries to A. L.
Sole & Son, tel: 01608 644112.NUNN Elizabeth Mary (née de
Fougerolles) on 7th February 2022, aged
84, died peacefully at home surrounded
by her family after a long illness borne
with grace and determination. Beloved
wife of Peter, loving and much-loved
mother of Kate, Suzie, Lulu and Teddy and
devoted grandmother to Imogen, Amelie
and Barnaby. Adored stepmother and
grandmother to Rachel and Andy and
their children Jeremy, Oliver, Elliot, Evan
and Isla. She will be greatly missed by her
family and many friends. A service to
celebrate her life will be held at
St Nicholas’s Church, Compton, GU3 1EG,
on 25th February 2022 at 2.30pm. No
flowers please but any donations greatly
appreciated to Phyllis Tuckwell Hospice
via elizabethnunn.muchloved.com.
Inquiries to funeral directors,
01483 799914.PATERSON Elizabeth Mary died
peacefully on 1st February 2022, aged 88.
W. Bryder & Sons, 01798 342174.
STOKES Prue (née Watling) died
peacefully on 10th February 2022, aged 92.
She will be greatly missed by her children
Jon, Janey and Simon, their spouses
Fay, Humph and Charlotte, grandchildren
Kit, Edith, Isabella, Matthew and Pete,
and by her many friends in Biddenden
and beyond. No donations or flowers,
thank you.
THOMSON Heather (Edinburgh, formerly
London), peacefully at Glencairn Care
Home, on 28th January 2022, aged 86.
Musician and music teacher (retired),
daughter of the late Stuart and Mrs Irene
Thomson and sister of the late David
Thomson (South Africa), aunt and great-
aunt. Funeral service on Friday 18th
February at Mortonhall Crematorium,
Pentland Chapel, Edinburgh, at 12.30pm.Memorial Services
COGHLAN The Memorial Mass for
Richard Coghlan, headmaster of Saint
Richard’s Prep School, will be held in
Belmont Abbey, HR2 9RZ, on Saturday 21st
May at 11.30am.In Memoriam - Private
BRYAN NEILAND 20th May 1943 — 16th
February 1997. Loved always, Eve, Adam
and Laura. Lux aeterna luceat eis.020 7782 7553
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newsukadvertising.co.ukWindsor Castle
15th February, 2022
His Excellency Mr Viljar Lubi was
received in audience by The Queen
via video link today and presented
the Letters of Recall of his
predecessor and his own Letters of
Credence as Ambassador from the
Republic of Estonia to the Court of
St James’s.
Ms Maarja Junti was also
received by Her Majesty.
His Excellency Mr José Pascual
Marco Martínez was received in
audience by The Queen via video
link this afternoon and presented
the Letters of Recall of his
predecessor and his own Letters of
Credence as Ambassador from the
Kingdom of Spain to the Court of
St James’s.
Mrs Géraldine Dufort was also
received by Her Majesty.
Sir Philip Barton (Permanent
Under-Secretary of State for
Foreign, Commonwealth and
Development Affairs) was present.
The Princess Royal, on behalf of
The Queen, held an Investiture at
Windsor Castle this morning.
Her Royal Highness, on behalf of
Her Majesty, held an Investiture at
Windsor Castle this afternoon.St James’s Palace
15th February, 2022
The Duke of Kent, Grand Master,
United Grand Lodge of England,
this morning received Mr Peter
Lowndes (Pro Grand Master).Appendix to Court Circular
15th February, 2022
The Queen has been pleased to
appoint the Reverend Matthew
Porter to be a Chaplain to Her
Majesty in succession to the
Reverend Canon Dr Nicholas
Thistlethwaite.Court Circular
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