Flag waving during a demonstration in public in central London was an offence in Pwr v DPP [2022] UKSC 2 (26 January 2022).
Legislation, described at [2], made it an offence for a person to carry or display an article in a public place “in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation”. The offence is summary only and the maximum penalty is six months’ imprisonment.
Apart from the carrying or displaying having to be done knowingly, which was not in issue here, the prosecutor did not have to prove that the defendants (appellants) intended to arouse the necessary suspicion required for the actus reus.
The judgment illustrates the established approach to statutory interpretation in determining whether an offence is one of strict liability, applying it here to the language of the provision, the statutory context, and the purpose of the provision creating the offence.
Here, if mens rea was required, what would it be? Answering that was a task of “immense difficulty” [37].
A second aspect of the decision is determination of compliance with the law on limitation of the right of free speech. The decision involved consideration of factors (which were not criteria) and their interrelationship in the context of the circumstances of the case. It was not necessary for the defendants to have incited violence before the specific limitation on their flag-waving created by the relevant offence was justified.
How delightful it was to see Smith and Hogan, Criminal Law, 5th and 6th eds referred to at [51]. I can report that the passage quoted there also occurs in my older copy (I have it before me now), the 4th ed (1978) at p 816, discussing s 2(1) of the Prevention of Terrorism (Temporary Provisions) Act 1976.
Also delightful to see Sweet v Parsley [1970] AC 132 cited [29]. Almost makes one nostalgic for law school. Not quite, though.
