Pwr v Director of Public Prosecutions (Rev1) [2022] UKSC 2 (26 January 2022)

Citation:Pwr v Director of Public Prosecutions (Rev1) [2022] UKSC 2 (26 January 2022).

Rule of thumb: If you wave the flag/name of a proscribed group are you guilty of a criminal offence evenfif you genuinely didn't know? Yes, this is a strict liability offence and it is in place for the good reason that it can cause a riot at a mass gathering and people must always check before waving a flag that the organisation they are waving is legitimate. .

Background facts:

This case invoked the subject of criminal public disorder offences. It invoked of whether certain offences should be strict liability offences or whether this was too harsh, with full mens rea (guilty mind) having to be proved.

The material facts of this case were that PWR left his house one day and was waving a flag for the ‘Kurdistan Workers Party’ - he essentially supported in Kurdistan having more employment rights to increase their pay and have better health & safety in their working environment, which he thought was a noble cause. PWR was then arrested by Police and told that he was being charged with a terrorism offence, because the Kurdistan Workers Party were a proscribed group under the UK terrorism law who had taken the pursuit of their cause too far, and it was offensive to show and glorify their name or symbols.

The prosecution argued that this terrorism offence was a strict liability one, meaning that all reasonable measures had to have been taken or else a person will have committed a crime by showing and glorifying proscribed signs and trade marks. The Prosecution argued that people are supposed to check the list of proscribed terrorist groups before they wave any flag, PWR failed to do so, and he therefore committed this strict liability offence. PWR argued that he had no idea that the Kurdistan Workers Party were a proscribed terrorist organisation. He argued that this was a genuine mistake and he did not have the mens rea for a crime – he would never have waved it if he had known of some of their practices and only supported the noble side of the cause of workers’ rights in Kurdistan and not the other darker side - he argued that it was completely absurd to suggest he had committed a terrorist criminal offence by supporting improved employment laws in Kurdistan like this law made out. PWR further argued that it was ridiculous that people were expected to look up a Government website for proscribed terrorist organisations before waving a simple flag. He argued that this offence being a strict liability offence was a human rights violation, and it violated his right to freedom of expression, and it should not be treated as a strict liability offence.

Judgment:

The Court upheld the arguments of the Prosecution and PWR was found guilty of this public disorder terrorism offence. The Court affirmed that before UK citizens wave any flag of any organisation at a political demonstration, they are supposed to check the Government website to see if the organisation they are promoting is proscribed or not, and if they do not do this, and it turns the organisation is proscribed, then they are guilty of a criminal offence.

The Court also held that this strict liability law was not a human rights violation in this instance. The Court affirmed that one person waving a flag of a terrorist group can spark massive disturbance and violence on the streets (i.e. the highly foreseeable scenario where someone who was killed/hurt themselves by the organisation in some way, naturally becomes furious seeing it glorified & feels provoked into taking violent retribution), and strict liability for the offence was introduced to try to stop this, to try to encourage citizens to be careful before waving flags, meaning this strict liability offence had a legitimate aim and was not disproportionate.

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Ratio-decidendi:

‘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. We consider that this is a sufficient justification for the restriction on freedom of expression involved in section 13. Accordingly, we take the same view in relation to section 13 as the Court of Appeal did in R v Choudary in relation to section 12 of the 2000 Act, and reject the argument that incitement to violence is necessary if a violation of article 10 by section 13 is to be avoided’, Lady Arden at 77

Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.