QUEEN'S BENCH DIVISION
ON APPEAL FROM THE CROWN COURT
AT SOUTHWARK (HHJ BARTLE QC & LAY MAGISTRATES)
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE SWIFT
| RAHMAN PWR
|DIRECTOR OF PUBLIC PROSECUTIONS
Joel Bennathan QC & Russell Fraser (instructed by Morgan Has Solicitors) for the Second and Third Appellants
Dan Pawson-Pounds (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 16th January 2020
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email, released to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 10:30 on the 3rd April 2010.
Lord Justice Holroyde:
12.30: Protesters began to gather at Langham Place outside the BBC. Images show the assembly of flags present at the BBC when speeches were given and prior to the march setting off.
12.50: Mr Pwr is seen to be standing on a wall waving a flag outside the BBC. Image shows him waving a red flag. The face on the flag is Abdullah Ocalan, who founded the PKK in 1974 and has been imprisoned in Turkey since 1999.
13.06: Police speak to organisers about PKK flags in the crowd.
13.23: Mr Akdogan is seen in crowd outside BBC with a PKK flag. He is there for several minutes. Images show Mr Akdogan with a flag in his hand.
13.30: DS Hearing enters the crowd to address issue of PKK flags.
14.00: March sets off from BBC.
14.17: DS Hearing again enters the march to address flag issues. Males waving PKK flags clearly heard shouting "We are PKK, PKK are us". This is relayed to Inspector Barnes.
14.26: Marshals attempt to tell police evidence gatherers when and where they can film.
14.34: Regent Street south of Oxford Circus. Mr Pwr with same flag in protest marching south.
14.42: Regent Street. Mr Pwr marching south.
14.55: Piccadilly Circus. Mr Pwr marching with flag. Image shows this.
15.20: March arrives at Whitehall.
15.30: PKK flags are still being flown in the march.
15.43: Mr Demir is seen in crowd with a PKK flag.
15.48: Mr Demir is waving flag outside Downing Street. Images show him with a red flag in his hand in Whitehall.
16.06: Mr Pwr is removed from the protest outside Downing Street and was reported for the offence. Image shows him being led away.
16.12: Male addresses crowd and proclaims "Dear friends, a friend over there has just been arrested. Do you know why? Because he was flying the flag of the Partiya Karkeren Kurdistane. He has been arrested because I think, I hope you will agree with me that we will not leave here until he is freed, that we will stay here or go to the police station or do whatever we have to do to make sure this man is free". Whilst he is saying this, someone is shouting "we are PKK we are PKK.".
16.12: Person clearly heard to say "The British police have been trying to prevent this march all along, they are trying to arrest people and intimidate people flying the PKK flag".
16.13: Another male addresses the crowd and says "If the PKK flag is a problem for the British police, do you remember the ISIS flag, the terrorist ISIS flag was flying by the Parliament and they haven't spoken a single word to him Shame on the British police".
16.13: Mr Demir in crowd when "we are PKK" is being chanted right next to him.
16.15: Person in crowd can be heard to say "The PKK have fought ISIS under this flag, you are not getting your hand on this flag".
16.30: Protesters began to leave the vicinity of Downing Street.
16.32: Mr Akdogan is identified by PS Rooney and is spoken to by officers and reported for offence.
16.38: Mr Demir is spoken to by officers and reported for offence as he leaves the protest.
"(4) The vast majority of observers of a Turkish/Kurdish background would recognise these flags as those of the PKK and know that this had been designated as a terrorist organisation. This would be particularly true of those politically aware enough to attend rallies of this nature.
(5) Given the plethora of political parties with three letter acronyms that exist in the Kurdish political space, Kurdish political parties make themselves more readily identifiable by the symbols and flags they adopt. As such, the adoption of flags and pictures of ideological forebears is central to the expression of political loyalty in Kurdistan.
(6) Many attendees at demonstration of this type have chosen not to fly such flags.
(7) Those at a march can express their sympathy by using flags which are not PKK flags."
The decisions of the Crown Court:
"First, each defendant was carrying the same PKK flag for a prolonged period: (1) Mr Pwr for over 2 hours (2) Mr Akdogan for over 2 hours (3) Mr Demir was holding the flag aloft in Whitehall for a continuous period of at least 5 minutes
Second, in respect of all three defendants: (1) he was part of a highly visible demonstration in central London; (2) the flag he was carrying was unfurled, held aloft and, on occasion, waved; in the case of Mr Demir, vigorously at 10:24, 12:20 and 13:20 of the timeline; and (3) the flag that each was carrying was different from the vast majority of other flags at the rally.
Third, all three defendants looked up at the flag that he was carrying at the following times in the timeline: (1) Mr Pwr at 02:12, 02:44 and 03:14; (2) Mr Akdogan at 06:15, 06:27, 07:24 and 08:06; (3) Mr Demir at 10:32, 10:38, 10:44 and 10:59.
Fourth, as to Mr Pwr, (1) at 12:20 he took a "selfie" image of himself carrying the flag, with the rally in the background; (2) his body language throughout the footage demonstrated pride in holding the flag; (3) at 01:33 he made a "V" for victory gesture whilst carrying a PKK flag.
Fifth, the most natural and likely reason for a person to display a flag at a public rally is to demonstrate support for the organisation represented by that flag, and any objective, informed and reasonable bystander witnessing the conduct of the three defendants would have had a reasonable suspicion that he was a member or supporter of that organisation."
The questions for this court:
"1) If section 13 of the Terrorism Act 2000 creates an offence of strict liability;
2) If section 13 of the Terrorism Act 2000 creates an offence of strict liability, is that compatible with article 10 of the European Convention on Human Rights?"
The legislative framework:
(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.
(2) A constable in Scotland may arrest a person without a warrant if he has reasonable grounds to suspect that a person is guilty of an offence under this section.
(3) A person guilty of an offence under this section shall be liable on summary conviction to
(a) imprisonment for a term not exceeding 6 months,
(b) a fine not exceeding level 5 on the standard scale, or
"(1A) A person commits an offence if the person publishes an image of
(a) an item of clothing, or
(b) any other article,
in such a way or in such circumstances as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation.
(1B) In subsection (1A) the reference to an image is a reference to a still or moving image (produced by any means)."
"(1A) A person commits an offence if the person
(a) expresses an opinion or belief that is supportive of a proscribed organisation, and
(b) in doing so is reckless as to whether a person to whom the expression is directed will be encouraged to support a proscribed organisation."
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
Relevant case law:
"Our first duty is to consider the words of the Act: if they show a clear intention to create an absolute offence, that is an end of the matter. But such cases are very rare. Sometimes the words of the section which create a particular offence make it clear that mens rea is required in one form or another. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such cases there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy for what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea."
" firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary.
It is also firmly established that the fact that other sections of the Act expressly require mens rea, for example because they contain the word "knowingly", is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute offence. In the absence of a clear indication in the Act that an offence is intended to be an absolute offence, it is necessary to go outside the Act and examine all relevant circumstances in order to establish that this must have been the intention of Parliament."
"The intention of Parliament is expressed in the words of an enactment. The words must be looked at in order to see whether either expressly or by necessary implication they displace the general rule or presumption that mens rea is a necessary pre-requisite before guilt of an offence can be found. Particular words in a statute must be considered in their setting within the statute and having regard to all of the provisions of the statute and to its declared or obvious purpose."
"But one must remember that normally mens rea is still an ingredient of any offence. Before the court will dispense with the necessity of mens rea it has to be satisfied that Parliament so intended. The mere absence of the word "knowingly" is not enough. But the nature of the crime, the punishment, the absence of social obloquy, the particular mischief and the field of activity in which it occurs, and the wording of the particular section and its context, may show that Parliament intended that the act should be prevented by punishment regardless of intent or knowledge."
"As habitually happens with statutory offences, when enacting this offence Parliament defined the prohibited conduct solely in terms of the proscribed physical acts. Section 1(1) says nothing about the mental element. In particular, the section says nothing about what shall be the position if the person who commits or incites the act of gross indecency honestly but mistakenly believed that the child was 14 or over.
In these circumstances the starting-point for a court is the established common law presumption that a mental element, traditionally labelled mens rea, is an essential ingredient unless Parliament has indicated a contrary intention either expressly or by necessary implication. The common law presumes that, unless Parliament has indicated otherwise, the appropriate mental element is an unexpressed ingredient of every statutory offence."
"The question, therefore, is whether, although not expressly negatived, the need for a mental element is negatived 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 question, whether the presumption of law that mens rea is required applies, and, if so, whether it has been displaced, can be approached in two ways. One approach is to ask whether the act is truly criminal, on the basis that, if it is not, then the presumption does not apply at all. The other approach is to recognise that any offence in respect of which a person may be punished in a criminal court is prima facie sufficiently 'criminal' for the presumption to apply. But the more serious the offence, the greater the weight to be attached to the presumption, and conversely, the less serious the offence, the less weight to be attached. It is now clear that it is the latter approach which, according to our domestic law, must be applied."
"Whilst the principle is not in doubt, and is of great importance in the approach to the construction of criminal statutes, it remains a principle of statutory construction. Its importance lies in it ensuring that a need for mens rea is not inadvertently, silently, or ambiguously removed from the ingredients of a statutory offence. But it is not a power in the court to substitute for the plain words used in Parliament a different provision, on the grounds that it would, if itself drafting the definition of the offence, have done so differently by providing for an element, or a greater element, of mens rea. The principle of Parliamentary sovereignty demands no less. Lord Reid was at pains to observe that the presumption applies where the statute is silent as to mens rea, and that the first duty of the court is to consider the words of the statute."
" the presumption on which the appellants here rely is a principle of statutory construction, which must give way to either the plain meaning of the words, or to other relevant pointers to meaning which clearly demonstrate what was intended. It follows that the Court of Appeal in the present case did not fall into the error suggested, of wrongly starting with the words of the Act. On the contrary, that is the inevitable first port of call for any issue of construction, as Lord Reid's statement of the principle in Sweet v Parsley  AC 132 expressly stated."
"The principle of legality requires the court to address itself to three distinct questions. The first is whether there is a legal basis in domestic law for the restriction. The second is whether the law or rule in question is sufficiently accessible to the individual who is affected by the restriction, and sufficiently precise to enable him to understand its scope and foresee the consequences of his actions so that he can regulate his conduct without breaking the law. The third is whether, assuming that these two requirements are satisfied, it is nevertheless open to criticism on the Convention ground that it was applied in a way which was arbitrary because, for example, it has been resorted to in bad faith or in a way that is not proportionate."
"42. The Court observes that, by shouting these slogans, the applicants did not advocate violence, injury or harm to any person. Furthermore, neither in the domestic court decisions nor in the observations of the Government is there any indication that there was a clear and imminent danger which required an interference such as the lengthy criminal prosecution faced by the applicants.
44. In view of the above findings, the Court is of the view that the applicants' conduct cannot be considered to have had an impact on 'national security' or 'public order' by way of encouraging the use of violence or inciting others to armed resistance or rebellion, which are essential ingredients to be taken into account."
"The Court reiterates that there is little scope under Art.10(2) of the Convention for restrictions on political speech or on debate of questions of public interest. Where the views expressed do not comprise incitements to violence in other words, unless they advocate recourse to violent actions or bloody revenge, justify the commission of terrorist offences in pursuit of their supporters' goals or can be interpreted as likely to encourage violence by expressing deep-seated and irrational hatred towards identified persons Contracting States must not restrict the right of the general public to be informed of them, even on the basis of other aims set out in art.10(2)."
"We would only add that, contrary to the principle contended for it has been held permissible in article 10 terms to criminalise speech which does not involve any incitement to violence albeit in rather different circumstances. See for example Hoare v United Kingdom  EHRLR 678 (obscenity) and Wingrove v United Kingdom (1996) 24 EHRR 1 (blasphemy)."
"Nevertheless, it certainly remains open to the competent State authorities to adopt, in their capacity as guarantors of public order, measures, even of a criminal nature, intended to react appropriately and without excess to such remarks. Finally, where such remarks incite to violence against an individual or a public official or a sector of the population, the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of expression."
Thus, like the Court of Appeal in R v Choudary and Rahman, the ECtHR does not, for article 10 purposes, prescribe any bright line between speech that incites to violence and other speech. Although the State may be afforded a wider margin of appreciation for criminal laws which regulate the former, the latter may still be the subject of a criminal offence so long as what is provided is "appropriate" and "without excess".
i) it wrongly treated as decisive the fact that the words of section 13(1) were found to be clear and unambiguous, and included no element of mens rea;
ii) it wrongly refused to look at Parliamentary material, and instead focused only upon the words of the statute;
iii) it wrongly relied on the fact that other sections of the 2000 Act create offences which do expressly require mens rea; and
iv) it wrongly attached weight to the fact that the provisions of earlier statutes, which were in effect replaced by section 13 of the 2000 Act, had themselves been silent as to mens rea.
Mr Bunting submits that, the section being itself silent as to mens rea, there is a clear presumption that Parliament intended mens rea to be an essential ingredient. There is nothing in the statutory provision or in the legislative history to suggest that Parliament must have intended to create an offence without mens rea. To apply the presumption would bring section 13 into line with other offences in the 2000 Act, there being no logical basis for distinguishing between section 13 and those other offences. Although the offence created by section 13 is summary only, it is a "truly criminal" offence which can result in up to six months' imprisonment and which carries the serious social stigma of support for terrorism. Mens rea is expressly required by other provisions of the 2000 Act which create offences, including some which are triable only summarily. For example, section 51 creates a summary offence, punishable with a maximum of 3 months' imprisonment, of parking a vehicle in breach of certain prohibitions or restrictions, or failing to move it when ordered to do so: sub-section (3) provides that it shall be a defence for the accused to prove that he had a reasonable excuse for the act or omission in question.
"(1) A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism.
(2) It is a defence for a person charged with an offence under this section to prove that his possession of the article was not for a purpose connected with the commission, preparation or instigation of an act of terrorism."
"It was the likely effect of the conduct on those who witnessed it with which Parliament was chiefly concerned. What is likely to cause someone to break the peace is his feeling that he has been threatened or abused or insulted, and this will be so whether or not the words or behaviour were intended to threaten or to abuse or to insult."
"the nature and severity of the penalties imposed are also factors to be taken into account when assessing the proportionality of an interference with freedom of expression"
and went on to conclude that the lengthy criminal proceedings and the sentence were disproportionate.
Mr Justice Swift: