This podcast episode deals with the second part of the Supreme Court's unanimous dismissal of the appeal in this case which considers whether if section 13 of the Terrorism Act 2000 creates an offence of strict liability, is that compatible with article 10 of the European Convention of Human Rights.

On behalf of the appellants it was submitted that article 10 was another reason to regard section 13 as not being a strict liability offence on the grounds that to criminalise the mere carrying of a flag of a proscribed organisation, without requiring relevant mens rea, was an unjustified interference with the right guaranteed by article 10.

It was common ground that section 13 was an interference for the purposes of article 10(1). The question was: was it justified for the purposes of article 10(2) of the Convention.

To be justified under article 10(2), an interference with the right to freedom of expression must have been (i) prescribed by law, (ii) intended for one or more of the legitimate aims set out in article 10(2) and (iii) necessary in a democratic society to achieve that aim or aims: see Perinçek v Switzerland .

“A norm could not be regarded as a ‘law’ unless it was formulated with sufficient precision to enable the person concerned to regulate his or her conduct: he or she needed to be able – if need be with appropriate advice – to foresee, to a degree that was reasonable in the circumstances, the consequences that a given action could entail.

“However, the Court went on to state that these consequences did not need to be foreseeable with absolute certainty, as experience showed that to be unattainable.” (Perinçek v Switzerland ).

The law clearly stated what the appellants must and must not do, and a legal adviser would have been able to explain it to them. Moreover, the list of proscribed organisations was published so that they would have been able to discover that PKK was a proscribed organisation.

Secondly, the restriction pursued legitimate aims, in that it was necessary in the interests of national security, public safety, the prevention of disorder and crime and the protection of the rights of others.

This was apparent from the provisions of the 2000 Act which set out when the Secretary of State could proscribe an organisation and the definition of terrorism.

The Secretary of State could not declare an organisation to be proscribed unless he or she believed that it was concerned in terrorism.

In addition to the fact that an offence under section 13 was summary only and carried a maximum penalty of six months’ imprisonment, while it was concerned to combat terrorism by proscription of organisations, it was regarded as less serious than other offences concerned to achieve the same aim.

Third, the restriction was necessary in a democratic society and proportionate to the legitimate aims pursued. Even taking into account the jurisprudence of the European Court of Human rights that under article 10, necessity was not to be lightly found, section 13 struck a fair balance between the right of freedom of expression and the need to protect society by preventing terrorism. In particular, the offence was circumscribed by the requirement for reasonable suspicion and the sanctions were comparatively minor.

An offence may not be demonstrably wider than was necessary. As the Strasbourg Court very recently put it in Yefimov v Russia :

“43. It is normally not sufficient that the interference was imposed because its subject matter fell within a particular category or was caught by a legal rule formulated in general terms …

“46. … the containment of a mere speculative danger, as a preventative measure for the protection of a democracy cannot be seen as pursuing a ‘pressing social need’.

“62. … severe measures limiting Convention rights must not be resorted to lightly; more particularly, the principle of proportionality requires a discernible sufficient link between the application of such measures and the conduct and circumstances of the individual concerned. The authorities are required, when they decide to restrict fundamental rights, to choose the means that cause the least possible prejudice to the rights in question.”

The Supreme Court rejected the appellants’ submission that the ECtHR considered that expressive acts could only be criminalised where the expression included an incitement to violence.

The Court of Appeal regarded the narrow scope of section 12 (belonging to a terrorist organisation) as relevant to proportionality since it did not criminalise the expression of opinion, only the invitation of support for the proscribed organisation.

The Supreme Court agreed with the Divisional Court that the appellants had not been able to point to any unequivocal statement of principle to the effect that a restriction on freedom of expression could only be justified where expression included an incitement to violence.

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 this country. 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.

The Court agreed with the conclusion of the Divisional Court essentially for the reasons given by 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.”

You can read a summary of this Podcast episode with case citations under the title Article 10 ECHR and Unjustified Interference in the News Section at www.barrybaines.co.uk