You are here:       
Kenya Law / Blog / Case Summary: Section 13 offence of the Terrorism Act 2000, that imposes a restriction on freedom of expression, is compatible with article 10 of the European Convention on Human Rights that provides for the freedom of expression

Section 13 offence of the Terrorism Act 2000, that imposes a restriction on freedom of expression, is compatible with article 10 of the European Convention on Human Rights that provides for the freedom of expression

Pwr, Akdogan & Another v Director of Public Prosecutions [2022]

Case UKSC 76 of 2020

The Supreme Court of the United Kingdom

Lord Lloyd-Jones, Lady Arden, Lord Hamblen, Lord Burrows, Lady Rose, SCJJ

January 26, 2022

Reported by Faith Wanjiku and Bonface Nyamweya

Download the Decision

Criminal Law- offences-essentials of offences-mens rea- whether section 13(1) of the Terrorism Act 2000 on the prohibition of wearing an item of clothing or carrying or displaying an article in such circumstances as to arouse reasonable suspicion that a person was a member or supporter of a proscribed organisation created an offence of strict liability- whether the appellants’ carrying of the PKK flags in the demonstration amounted to a violation of section 13(1) of the Terrorism Act, 2000- The Terrorism Act, 2000, section 13 (1).

Statutes-interpretation of statutory provisions-section 13 (1) of the Terrorism Act, 2000 -strict liability offences-offenceof a person in a public place carrying or displaying an article in such a way or in such circumstances as to arouse reasonable suspicion that he was a member or supporter of a proscribed organisation- whether interpreting section 13 of the Terrorism Act, 2000, as being a strict liability offence would be compatible with article 10 of the Schedule I of the Human Rights Act, 1998 and article 10 of the European Convention on Human Rights- The Terrorism Act, 2000, section 13; the European Convention on Human Rights, 1953, article 10; Human Rights Act, 1998,article 10 of Schedule I.

Brief facts The appellants had been convicted for the offence of aperson in a public place carrying or displaying an article in such a way or in such circumstances as to arouse reasonable suspicion that he was a member or supporter of a proscribed organisation under section 13(1) of the Terrorism Act 2000 (the 2000 Act) in the Westminster Magistrates’ Court. The particulars of the charge were that the appellant intentionally carried a flag of the Kurdistan Workers Party (the Partiya Karkeren Kurdistane- the PKK) an organization proscribed under the 2000 Act.

That occurred during a demonstration in central London against the perceived actions of the Turkish state in Afrin, a town in north eastern Syria. The Crown Court dismissed their appeals, holding that section 13(1) created an offence of strict liability meaning that the offence did not require a person to have any knowledge of the import of the article that he or she was wearing, carrying or displaying, or of its capacity to arouse reasonable suspicion that he or she was a member or supporter of a proscribed organisation. The Crown Court also held that section 13(1) was not incompatible with the right to freedom of expression under article 10 of the European Convention on Human Rights (the Convention). The appellants thereafter appealed to the Supreme Court.

Issues:

i. Whether the offence of a person in a public place carrying or displaying an article in such a way or in such circumstances as to arouse reasonable suspicion that he was a member or supporter of a proscribed organisation created by section 13 of the Terrorism Act, 2000 was one of strict liability.

ii. Whether interpreting section 13 of the 2000 Act as being a strict liability offence would be compatible with article 10 of the Schedule I of the Human Rights Act, 1998 and article 10 of the European Convention on Human Rights.

Relevant provisions of the law
Terrorism Act, 2000
Section 13- Uniform

(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.

Counter-Terrorism and Border Security Act, 2019

Section 13

(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).

Human Rights Act, 1998

Article 10

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.

Held

1. A limited mental element was indisputably required under section 13 (1) of the 2000 Act in the sense that the defendant had to know that he/she was wearing or carrying or displaying the relevant article. Each defendant therefore had to know that he was carrying or displaying a flag.

2. The presumption of mens rea was an illustration of the principle of legality and that it was dealing with a fundamental or constitutional right. The presumption would be rebutted only by express words or necessary implication.

3. Examination of the words, context and purpose of section 13 (1) of the 2000 Act led inexorably to the conclusion that the presumption of mens rea was rebutted and that the offence was one of strict liability.

4. In considering the objective formulation of the offence as arousing reasonable suspicion, it was evident that there was no requirement of mens rea. There was difficulty in making a subjective request such as knowledge of intention, with the objective requirement of arousing reasonable suspicion.

5. If one thought that the relevant mens rea might be the intention to arouse reasonable suspicion, that too would be problematic. There would seem to be no point in the suspicion having to be reasonable if there was an intention to arouse suspicion.

6. It was the role of the Supreme Court to interpret correctly what Parliament had enacted. But it was not the role of the court, in applying the law on the presumption of mens rea, to rewrite the statute, still less to do so in a way that contradicted the express words used. That would be falling outside the judicial role for the Supreme Court to accept the High Court’s invitation to embark on a speculative exercise to divine what Parliament could have intended as mens rea.

7. Sections 11 and 12 of the Terrorism Act 2000 required mens rea while section 13 imposed strict liability. It evinced Parliament drawing clear and deliberate distinction between the ingredients of related but distinct offences.

8. The strict liability interpretation of the offence in section 13 (1) was supported by the purpose or mischief or policy behind the offence. Although there was nothing to assist in the explanatory notes to the Terrorism Act 2000, the offence was concerned with the effect on other people not the intention or knowledge of the defendant. It was designated to deny a proscribed organisation the oxygen of publicity or a projected air of legitimacy. It sought to avoid others becoming aware of, and potentially becoming supporters of, proscribed organisations. It could also be regarded as having a role in avoiding public disorder that could result from reaction against displays of support for proscribed organisations. More generally, the offence was part of a rational counter-terrorism strategy to stymie the operation of proscribed organisations.

9. Section 13 was an interference for the purpose of article 10 (1) of the European Convention on Human Rights (Convention) and that was justified for the purpose of article 10 (2) of the Convention. To be justified under article 10 (2) of the Convention, an interference with the right to freedom of expression had to be:

a) prescribed by law;

b) intended for one or more of the legitimate aims set out in article 10(2); and

c) necessary in a democratic society to achieve that aim or aims.

The concept of necessity in a democratic society included the concept of proportionality.

11. The essential point about section 13 was that it was a highly focused provision aimed at ensuring that proscribed organisations did not obtain a foothold in the UK through the agency of people in the UK. It was about a restriction, or deterrence, designed to avoid violence, not the prevention of a situation in which there was an immediate threat of violence or disorder. That was a sufficient justification for the restriction on freedom of expression involved in section 13.

Appeal dismissed.

Relevance to Kenya’s legal system

Article 33 of the Constitution of Kenya, 2010 (the Constitution), provides for the freedom of expression. Article 36 talks about the freedom of association and article 37 elaborates on the freedom of assembling, demonstration, picketing and petitioning. However, in article 33 (2) (b) of the Constitution, the right to freedom of expression is limited not to extend to incitement to violence.

The Penal Code, 1986, in section 66A (3) makes it clear that the freedom of expression under article 33 of the Constitution shall be limited as specified under that section for the purposes of limiting the publication or distribution of material likely to cause public alarm, incitement to violence or disturb public peace.

The Prevention of Terrorism Act, 2012, in section 24 states that a person who is a member of, or professes to be a member of a terrorist group commits an offence and is liable, on conviction, to imprisonment for a term not exceeding thirty years. Also, section 27 is eloquent that a person who publishes, distributes or otherwise avails information intending to directly or indirectly incite another person or a group of persons to carry out a terrorist act commits an offence and is liable, on conviction, to imprisonment for a term not exceeding thirty years. These two sections are related with section 13 of the Terrorism Act, 2000.

In Kahiu and Another v Mutua and 2 Others (2020) eKLR, the High Court held that the right to freedom of expression under article 33 of the Constitution was not absolute and was subject to limitation but only to the extent and in the circumstances provided under article 24 of the Constitution.

The High Court in Republic vs PPARB Exparte Rongo University (2018) eKLR, noted that the task of the court in evaluating whether a decision was illegal was essentially one of construing the content and scope of the instrument conferring the duty and power upon the decision maker. The instrument would normally be a statute or a regulation. The courts when exercising their power of construction were enforcing the rule of law by requiring administrative bodies to act within the four corners of the powers or duties.

The ratio decidendi of the UK case dialogues with articles 33, 36, and 37 of the Constitution of Kenya, 2010. It further echoes section 66A (3) of the Penal Code; the Judicature Act, 1967, in section 3 (1) (b); the Prevention of Terrorism Act, 2012, section 24 and 27. It also resonates with the ratio in Kahiu and Another v Mutua and 2 Others, and that of Republic v PPARB Exparte Rongo University (2018).

 

Write a comment:

*

 

captcha

Please enter the CAPTCHA text

 

© 2022 National Council for Law Reporting (Kenya Law) is ISO 9001:2015 Certified | Creative Commons | Privacy Policy & Disclaimer