Kay (FC) (Appellant) v Commissioner of the Police of the Metropolis (Respondent)
Lord Phillips of Worth Matravers
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Michael Fordham QC
(Instructed by Friends of the Earth Rights and Justice Centre)
David Pannick QC
(Instructed by Metropolitan Police Directorate of Legal Services)
20 OCTOBER 2008
WEDNESDAY 26 NOVEMBER 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Kay (FC) (Appellant) v Commissioner of Police of the Metropolis (Respondent)
 UKHL 69
LORD PHILLIPS OF WORTH MATRAVERS
- The facts of this case raise issues of public importance as to the ambit of section 11 of the Public Order Act 1986. It is unfortunate that both before the Court of Appeal and this House the appellant was content to found his case on one narrow issue that is fact specific and much less significant than the wider issues. Those wider issues were canvassed in argument, though Mr Pannick QC for the respondent made the point that he had not come prepared to deal with them. Your Lordships will on this appeal resolve the narrow issue. I propose however to make some provisional observations on the wider issues so that the effect of the decision in this case is not misconstrued.
- The appellant is an environmental educator and performing artist who is a regular participant in the monthly Critical Mass Cycle Ride (“Critical Mass”). The nature of Critical Mass is central to both the narrow and the wider issues. It has been agreed between the parties in the following terms:
“Critical Mass is not an organisation but the name given to a recurrent event. It takes place in central London on the evening of the last Friday of every month, as it has done since April 1994. Similar events take place on the last Friday of every month in many other cities throughout the world. Critical Mass starts at the same location (the South Bank, near the National Theatre) at the same time (6 pm). It is featured in Time Out magazine. It is in the nature of Critical Mass that there is no fixed, settled or predetermined route, end-time or destination; where Critical Mass goes, where and what time it ends, are all things which are chosen by the actions of the participants on the day”
- These agreed facts represent an advance from the position before the Administrative Court. Giving the judgment of that court, Sedley LJ commented “there is not complete agreement as to whether the choice of route is truly spontaneous.”(  EWHC 1536 (Admin), para 6). It may be that there were organisers who planned the original Critical Mass in April 1994. Today, however, the agreed facts suggest that it is an event that takes place spontaneously without any advance planning or organisation by any individual or individuals. The spontaneity of the event and, in particular, of the route that it takes, is an important feature of Critical Mass. Another feature that has been assumed for the purpose of these proceedings is that most who join Critical Mass share a common intention in doing so, which can perhaps be shortly described as promoting cycling.
- The following are the relevant provisions of the 1986 Act:
“11 Advance notice of public processions
(1) Written notice shall be given in accordance with this section of any proposal to hold a public procession intended –
(a) to demonstrate support for or opposition to the views or actions of any person or body of persons,
(b) to publicise a cause or campaign, or
(c) to mark or commemorate an event, unless it is not reasonably practicable to give any advance notice of the procession.
(2) Subsection (1) does not apply where the procession is one commonly or customarily held in the police area (or areas) in which it is proposed to be held or is a funeral procession organised by a funeral director acting in the normal course of his business.
(3) The notice must specify the date when it is intended to hold the procession, the time when it is intended to start it, its proposed route, and the name and address of the person (or of one of the persons) proposing to organise it.
(4) Notice must be delivered to a police station—
(a) in the police area in which it is proposed the procession will start, or
(b) where it is proposed the procession will start in Scotland and cross into England, in the first police area in England on the proposed route.
(5) If delivered not less than six clear days before the date when the procession is intended to be held, the notice may be delivered by post by the recorded delivery service; but section 7 of the Interpretation Act 1978 (under which a document sent by post is deemed to have been served when posted and to have been delivered in the ordinary course of post) does not apply.
(6) If not delivered in accordance with subsection (5), the notice must be delivered by hand not less than six clear days before the date when the procession is intended to be held or, if that is not reasonably practicable, as soon as delivery is reasonably practicable.
(7) Where a public procession is held, each of the persons organising it is guilty of an offence if—
(a) the requirements of this section as to notice have not been satisfied, or
(b) the date when it is held, the time when it starts, or its route, differs from the date, time or route specified in the notice.
(8) It is a defence for the accused to prove that he did not know of, and neither suspected nor had reason to suspect, the failure to satisfy the requirements or (as the case may be) the difference of date, time or route.
(9) To the extent that an alleged offence turns on a difference of date, time or route, it is a defence for the accused to prove that the difference arose from circumstances beyond his control or from something done with the agreement of a police officer or by his direction.
(10) A person guilty of an offence under subsection (7) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
12 Imposing conditions on public processions
(1) If the senior police officer, having regard to the time or place at which and the circumstances in which any public procession is being held or is intended to be held and to its route or proposed route, reasonably believes that—
(a) it may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or
(b) the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do,
he may give directions imposing on the persons organising or taking part in the procession such conditions as appear to him necessary to prevent such disorder, damage, disruption or intimidation, including conditions as to the route of the procession or prohibiting it from entering any public place specified in the directions.”
- These proceedings were initiated by the appellant in response to a circular letter handed to participants in Critical Mass by Superintendent Gomm of New Scotland Yard which included the following assertions:
“Organisers of public processions are required by law to notify police at least six days before the event occurs of the date, time, proposed route and name and address of an organiser. Failure to do so makes the event unlawful.
. . .
These cycle protests are not lawful because no organiser has provided police with the necessary notification. Your participation in this event could render you liable to prosecution. Police policy in facilitating these events is currently under review.”
- The narrow issue is whether Critical Mass is a “procession [which is] commonly or customarily held in the police area (or areas) in which it is proposed to be held”, so that it falls within the exemption granted by section 11(2). The wider issues raise the question of whether, and if so how, section 11 of the 1986 Act applies to events such as Critical Mass.
The decision of the Administrative Court
- In giving the judgment of the Administrative Court, Sedley LJ rejected the argument that section 11 of the 1986 Act could not apply to Critical Mass because it had neither an organiser nor a proposed route capable of being notified under section 11(3). He said (paras 13 and 14)
“None of the conditions for the giving of notice is the prior existence of a planned route or an organiser: these things are assumed. We are unable to accept Mr Fordham’s reverse argument that a procession with no planned route and no organiser cannot be subject to a requirement to give notice…Nor can we accept Mr Fordham’s argument that the want of a planned route, or for that matter an organiser, makes it in terms of section 11(1) not reasonably practicable to give the requisite notice.”
The appellant succeeded however on the narrow issue. He contended, successfully, that the monthly ride by Critical Mass was a procession which was “commonly or customarily held” within the exemption in section 11(2).
- Sedley LJ proceeded on the basis that Critical Mass had an intention that fell within section 11(1). He held that it was by its intention that a notifiable procession was defined. Continuity of intention was necessary to give the procession the common or customary character necessary to attract the protection of section 11(2). He commented that
“an unbroken succession of over 140 of these collective cycle rides, setting out from a fixed location on a fixed day of the month and time of day and travelling, albeit by varying routes, through the Metropolitan Police Area, cannot by now sensibly be called anything but common or customary.” (para 27).
The decision of the Court of Appeal
- The Respondent appealed. The appellant did not cross-appeal on the issues on which he had lost. The appeal thus turned on the narrow issue of whether Critical Mass was a procession that was commonly or customarily held in the Metropolitan Police Area. On this issue the Court of Appeal was divided. The reasoning of the majority, allowing the appeal, was not identical. The essence of the decision of Leveson LJ appears in the following passage:
“any procession is active and takes its regularity from an examination of all the features that make it up. A procession cannot, in my judgment, become common or customary if no route or end point is ever the same.
32. This interpretation avoids any problem of seeking to constrain a procession which is truly commonly or customarily held to the precise route previously adopted. I could certainly visualise commonly held processions that start at the same point at the same time and end up in the same place albeit travelling by different routes. Similarly, processions which are held at different times or dates but follow the same route would not, in my judgment, necessarily cease to be commonly or customarily held. Thus, for instance, a Remembrance Day parade remains the same procession even if, for some reason, the organisers choose a different route from church to war memorial, or, indeed, a slightly different starting or end point in any particular year provided that, having regard to all the circumstances, the procession remains the same: in each case, it will be a question of fact and degree. No single feature is determinative.”
- This reasoning owed little, if anything, to the context in which the relevant wording is set. For Sir Mark Potter, P, however, this was very significant. His approach was that the words had to be given a meaning that would make sense of the exemption given by the first part of section 11(2). This appears from the following passages of his judgment:
“the provisions of section 11(3) of the 1986 Act involve the statutory assumption of a route. That being so, it appears to me that, when considering whether or not a procession is “commonly or customarily held”, which is the requirement for exemption under section 11(2) from the notice provisions in section 11(1), it is necessary to take into account the route which it follows.
69. That is the point at which I, like Leveson LJ, depart from the reasoning of the Divisional Court. While, as a matter of express words, it is correct to say that there is nothing in section 11 as a whole which defines “a procession” in subsection (2) by its route (see para 20 of the judgment) it none the less assumes that it has one: see section 11(3)…
The first part of [section 11(2)] seems to me to be directed to processions, the identity, nature and route of which are of sufficient consistency and longstanding to enable the police readily to anticipate the nature and extent of regulation which may be required along the route of the procession. In no sense can the monthly rides of Critical Mass be so described, give the entirely random nature of the route followed.”
- In a powerful dissent Wall LJ challenged the suggestion that the police had to know the route that Critical Mass was going to take if the exemption afforded by section 11(2) was to make sense. Over a period of 10 years they had managed without that knowledge. He considered that the absence of a fixed route was a common feature which formed a material part of the customary nature of the event. He expressed concern, however, as to whether Critical Mass was a procession that fell within section 11 at all, concluding that in the absence of a cross-appeal this was not a question that was open to the court.
The narrow issue
- Is Critical Mass a “procession [which is] commonly or customarily held” in the Metropolitan Police Area? It has throughout been common ground that each Critical Mass cycle ride constitutes a procession, in respect of which it is open to the police to exercise the powers granted to them by section 12 of the 1986 Act. While that proposition might be open to doubt, I am prepared to proceed on the basis that it is correct. The narrow issue is, in fact, an amalgam of two questions: (i) is the Critical Mass ride that takes place each month the same procession and (ii) is that procession “commonly or customarily held” in the Metropolitan Police Area. The two questions are not the same, but they are closely interrelated. To identify one procession with another it is necessary to identify common features of each. The fact that the Critical Mass ride takes place at regular monthly intervals and starts at the same place are common features that are relevant to the question of whether one can identify each event as being the same procession. They are also relevant to the question of whether the procession is commonly or customarily held in the Metropolitan Police Area.
- Mr Pannick QC accepted that over the last 10 years a procession has set off from the same place within the Metropolitan Police Area and at the same time at regular monthly intervals. He accepted that if one described this occurrence as an event, it was one that occurred commonly or customarily. He accepted, as he had to, that the group of cyclists that set off on each occasion constituted a procession. His argument was, however, that it was not the same procession that set off every month but, on each occasion, a different procession. This was because, unless the procession followed the same route, it could not be described as the same procession.
- Mr Pannick sought to support his submission both by reference to authority and by reference to the purpose of the relevant provision. The former consisted of the following passages in the judgment of Lord Goddard CJ in Flockhart v Robinson  2 KB 498, 502-503
“A procession is not a mere body of persons: it is a body of persons moving along a route. Therefore the person who organizes the route is the person who organizes the procession. That is how I approach this case. It seems to me clear that, at any rate from the time when these people reached Piccadilly Circus, the defendant was organizing the route for the procession to follow, and that they followed it.
. . .
He was organizing the procession because, although he did not organize the body of people, he organized the route. There is no other way of organizing a procession, because a procession is something which proceeds. By indicating or planning the route a person is in my opinion organizing a procession.”
- I can readily accept that a procession must move along a route. I can also accept that if at regular intervals a procession takes place along the same route, that fact alone will be material to the question of whether it is the same procession that takes place on each occasion. I do not accept, however, that you can only identify one procession with another if each follows the same route. If there are sufficient similar features of processions that take place at regular intervals, albeit over different routes, it can be natural to describe what occurs as being the same procession.
- I am in no doubt that the Critical Mass cycle rides that take place month after month have so many common features that any person would consider that each month the same procession takes place and, giving the English language its natural meaning, that it is a procession that is “commonly or customarily held” in the Metropolitan Police Area. I would identify the common features as follows:
– The procession is made up of cyclists;
– The procession starts at the same place;
– The procession takes place in the Metropolitan Police Area;
– The procession starts at 6pm on the last Friday of every month;
– Those who join the procession do so with a common intention;
– The procession is recognised and publicised by a single name, “Critical Mass”.
– The procession chooses its route on a follow-my-leader basis.
- There is a difficulty about the last common feature. It is, as I shall explain in due course, Mr Pannick’s submission that section 11 requires the processions to which it applies to have a predetermined route, so it is questionable whether it is appropriate to treat the element of spontaneity as a factor that brings Critical Mass within the exception in section 11(2). If it were the case, however, that both the leader and the route that he followed were planned in advance, this would not affect my conclusion that it is natural to describe Critical Mass as a procession “commonly or customarily held” in the Metropolitan Police Area.
- Must one, as Mr Pannick suggests, depart from the natural meaning of section 11(2) in order to give it a construction that makes sense, having regard to its statutory purpose? In order to demonstrate the purpose of section 11 of the 1986 Act Mr Pannick referred to both the Green Paper ‘Review of the Public Order Act 1936 and related legislation’ (Cmnd 7891) published in April 1980 and the White Paper ‘Review of Public Order Law’ (Cmnd 9510) published in May 1985. These demonstrate that an object of the legislation was to give the police advance notice of marches and processions so as to enable them to take any necessary measures to prevent them from resulting in public disorder and, possibly, traffic disruption.
- Mr Pannick submitted that in order to achieve this purpose it was necessary for the police to know the proposed route of the procession, which was one of the matters that had to be set out in the notice required by section 11. The reason for the exception in the first part of section 11(2) was to obviate the need to give the police information that they would already have. If, however, a procession “commonly or customarily held” could follow a different route on each occasion, the police would need to be informed of the route before each procession. For this reason the exception could only sensibly apply to processions that had the same route, and should be so construed.
- There are flaws in this argument. It is of value for the police to have advance notice of when and in what police area a procession is to be held, even if they do not know the route that it will follow. The evidence adduced in this case shows that, because the police know when Critical Mass takes place and where it starts, they are usually able to police it without difficulty. Furthermore there is a more significant reason why section 11(2) is not robbed of utility if it is given a meaning that is capable of embracing processions that do not follow the same route. This is that most customary processions do follow the same route. The spontaneity of Critical Mass is an unusual feature. In most cases, the exclusion will apply to processions whose routes are known to the police.
- Section 11 does not require notice to be given of every procession that is capable of creating a disturbance. The fact that, on their natural meaning, the words of section 11(2) are wide enough to exclude some processions in respect of which the police do not have all the information that they would wish is no reason to give those words an unnatural meaning. They should be given their natural meaning so as to apply to Critical Mass as a procession that is commonly or customarily held. For this reason I would allow this appeal.
The wider issues
- I observed at the outset that because of its spontaneous nature and because those who take part in it know where and when it is to start, it seems unlikely that Critical Mass now involves any advance planning or organisation. If that is the true position I do not see how section 11 can have any application to Critical Mass. The obligation under that section is imposed in relation to “any proposal to hold a public procession” (section 11(1)). An offence under section 11 will be committed by the organisers of the procession only if there has not been compliance with that obligation (section 11(7)). No offence can be committed unless a procession takes place pursuant to an antecedent proposal to hold it. Nor, indeed, can an offence be committed if there are no organisers of the procession. Section 11 can have no application in such circumstances. I consider that the Administrative Court was wrong to hold to the contrary.
- If these provisional observations are correct the narrow issue does not arise. An important general issue does arise, however. What is the position where there are organisers who are proposing to hold, for the first time, a procession such as Critical Mass that has no predetermined route. Such events are now quite common around the world and it is certainly possible that organisers might wish to inaugurate one elsewhere in the United Kingdom. It was Mr Pannick’s submission that they cannot lawfully do so. He submitted that section 11 required notice to be given of the proposal to hold such a procession and that the notice had to include a proposed route. Even if the organisers gave notice of the proposal to hold the procession, the notice would be defective if it did not specify a proposed route, rendering the organisers liable to prosecution if the procession took place.
- I am unable to give section 11 this draconian effect. The Green and White Papers to which I have referred were at pains to underline the importance of the right to hold processions and the need for any restrictions to respect this right. It is inconceivable that Parliament could have intended by a sidewind to outlaw events such as Critical Mass, had they been within their contemplation. The first such event was, in fact, held after the 1986 Act was enacted. It was Mr Pannick’s suggestion that the approach of your Lordships’ House in R (Quintavalle) v Secretary of State for Health  2 AC 687 brings events such as Critical Mass within the ambit of section 11. I beg to differ.
- There are a number of possible constructions of section 11 that do not involve outlawing a procession such as Critical Mass:
(i) The notification obligation does not apply to a procession that has no predetermined route;
(ii) There is no obligation to give notice of a procession that has no predetermined route because it is not reasonably practicable to comply with section 11(1).
(iii) The notification obligation is satisfied if a notice is given that states that the route will be chosen spontaneously.
It is not necessary to select between these, nor appropriate to do so without hearing argument on them. Any one would, however, be preferable to the construction urged by Mr Pannick.
- If these observations are correct there is a more fundamental basis for allowing this appeal. I would, however, allow it simply on the narrow issue raised by the appellant.
LORD RODGER OF EARLSFERRY
- “Critical Mass” is the name given to a movement which began in San Francisco in 1992 and has since spread to cities in many parts of the world. The idea is that cyclists gather at a certain place and set off in a group for a ride through the city, the group being sufficiently large to impose itself on the other traffic – hence the name. The route for the ride is not predetermined but evolves as the trip proceeds, with those at the front of the group (with or without some input from other participants) choosing which way to go. While many of those who take part doubtless do so for the sheer pleasure of cycling with fellow enthusiasts, the general idea behind the movement seems to be to show support for cycling as an environmentally friendly way of travelling around cities and to campaign for better provision for cyclists. As the Divisional Court pointed out, according to a Critical Mass website, some participants may intend to get their own back on motorists, to demonstrate opposition to car culture and to cause disruption.
- In the United Kingdom, Critical Mass rides take place, or have taken place, in a variety of cities, including Birmingham, Glasgow, Manchester and Cardiff. This appeal concerns the London ride which starts from the South Bank at about six o’clock in the evening on the last Friday of every month. The ride has taken place each month since April 1994. For the purposes of the appeal, the House has to assume that the rides are indeed intended to show support for the kinds of view which I have outlined or to publicise the cause of urban cycling. Since cyclists are by no means universally popular with other road users, it is foreseeable that any more militant displays by participants may meet with opposition from motorists and other road users. That appears to have happened with the London ride from time to time.
- The question for decision in this appeal arises out of section 11 of the Public Order Act 1986, which has been set out by my noble and learned friend, Lord Phillips of Worth Matravers. The section is loosely modelled on section 62 of the Civic Government (Scotland) Act 1982. In broad outline, it requires the police to be given six days’ notice (subsections (4)-(6)) of any proposal to hold a “public procession” with one of the intentions set out in subsection (1). It is significant that the requirement is confined to these kinds of procession. The limitation means that if anyone proposed to hold a mass cycle ride simply for the joy of cycling, or a mass roller skate trip through the city streets, again simply out of sheer joie de vivre, he would not need to give notice in terms of section 11(1). Since the possible interference with other traffic would be exactly the same, whatever the motivation for the ride, in my view the essential purpose of section 11(1) is not so much to warn the police of possible interference with traffic as to warn them of a procession whose aim might provoke opposition and so give rise to public order problems. This is, of course, consistent with the provision being included in a Public Order Act.
- The requirement to give notice does not apply “where the procession is one commonly or customarily held” in the police area or areas concerned: subsection (2). A similar exception is found in section 62(7) of the Scottish Act. It is common ground that the purpose of the exception is to remove the obligation to give advance warning in the case of processions which the police know about anyway and so can take appropriate steps to control. In recent years the Critical Mass rides have been policed by officers on cycles joining the group and riding with the participants.
- In a letter dated 29 September 2005 Superintendent Gomm of the Public Order Branch of the Metropolitan Police reminded the London Critical Mass riders of the obligations imposed by section 11 and indicated that, in the absence of prior notification, “these cycle protests” were not lawful and participation in the event could render the riders liable to prosecution.
- As Sedley LJ pointed out, at para 25 of his judgment in the Divisional Court, much of the letter is based on a flawed legal analysis. It is enough, however, to notice the assumption on which the letter proceeds, and on which the Commissioner takes his stand in these proceedings: that the monthly cycle ride is “a procession in a public place” and so constitutes a “public procession” in terms of sections 11 and 16 of the 1986 Act. Again, for the purposes of the appeal, the appellant is prepared to adopt that assumption.
- On that assumption, the appellant contended that, by September 2005 – and, a fortiori, by now – the monthly procession of cyclists, which had been taking place since 1994, had become “one commonly or customarily held in the police area (or areas)” concerned. So the proposal to hold the procession there was exempted from the notification requirement by section 11(2). The Commissioner countered that argument by founding on the fact that, although all the rides began from the South Bank, they did not follow a fixed route but went to different places and down different streets from month to month. So the processions were all different and it could not be said of any given procession that it was “one commonly or customarily” held in the area. Therefore the exemption in section 11(2) did not apply. That argument was accepted by the majority of the Court of Appeal.
- As I have already indicated, the rival contentions proceed on a number of important, but largely untested, assumptions. It is assumed that the ride constitutes a “procession” for the purposes of section 11. It is assumed that, but for section 11(2), section 11(1) would apply to an intended ride. It is assumed that section 11(3) would apply for the purposes of subsection (1), even if no route could be specified in advance precisely because a defining characteristic of the ride was that the route was to be determined only as the participants went along. The appellant has not challenged Sedley LJ’s view that the exception in subsection (1) to the requirement to notify, when “it is not reasonably practicable to give the requisite notice”, deals only “with the practicalities of timing, not with the feasibility of giving the required details”: para 14 of the judgment of the Divisional Court. Similarly, it is assumed that an organiser could be guilty of an offence under section 11(7)(a) even though the route would not have been determined by the time any notice would have had to be given. All these assumptions are, at least, open to question. Counsel were understandably concerned, however, to stick to the point of law relating to section 11(2) which had been identified in the petition for leave to appeal. But I have found it impossible to deal with that point without straying into some of these other areas.
- Mr Pannick QC accepts that, if someone were to inquire whether a procession of cyclists “commonly or customarily” goes through the streets of London, following no fixed route but always starting from the South Bank about six o’clock on the last Friday of the month, the answer would be Yes. In other words, he accepts that, speaking generally, there is nothing incongruous about the idea of a procession of cyclists being common or customary, even though one of its essential characteristics is that the procession follows no predetermined route and the actual route varies from month to month.
- But, Mr Pannick says, that takes the appellant nowhere since the question does not arise in general conversation. What matters is whether, in the context of section 11(2), any proposed procession of cyclists from the South Bank on the last Friday evening in the month is “one commonly or customarily held” in the police area or areas. That is, of course, correct. On the other hand, it is for Mr Pannick to explain why the correct answer to the general inquiry becomes the wrong answer for purposes of subsection (2). His explanation is that, for the purposes of section 11, a procession must have a predetermined route. Therefore it cannot be held “commonly or customarily” under subsection (2) unless it always follows the same predetermined route, allowing only for de minimis variations. There is, of course, no express obligation in section 11 for a procession to have a predetermined route. Mr Pannick submits, however, that the obligation is implied.
- It is certainly not an immutable characteristic of a “procession”, for the purposes of public order legislation, that it should follow a predetermined route or even that it should have a predetermined destination. Generally, of course, the kinds of procession mentioned in section 11(1) will do so, if only because the route and destination, especially if announced in advance, may well be designed to attract the attention of the public, while the same elements will often be chosen for their associations with the aims of the procession. But the route of the Union Movement procession in Flockhart v Robinson  2 KB 498 seems to have been determined by Mr Flockhart, the person at its head, on the spur of the moment as he went along. Nevertheless, Lord Goddard CJ held, at p 502, that, for purposes of section 3(4) of the Public Order Act 1936, a procession “is a body of persons moving along a route” and that, by choosing the route which the group then followed, Mr Flockhart was organising a prohibited procession. Indeed any conclusion, that a procession was not a “procession” in terms of section 12 or 13 of the Public Order Act 1986 unless it followed a predetermined route, would risk significantly curtailing the scope of those provisions.
- Not surprisingly, therefore, Mr Pannick’s argument was based on the particular terms and purposes of section 11. The obligation to give notice of the proposal to hold a procession was designed to alert the police so that they could take any appropriate action. In extreme cases this might involve banning the procession, sometimes it might involve imposing conditions, in other cases it would just be a question of a senior officer making suitable arrangements to police the procession. But, in order to achieve the aim of the legislation, the notice would have to tell the police which route the procession would follow – and that was therefore one of the elements of the notice prescribed by section 11(3). Also consistently with that intention, section 11(7)(b) provided that, if the procession took a different route from the one specified in the notice, any organiser or organisers would be guilty of an offence, unless he or they did not know of, and neither suspected nor had reason to suspect, the difference of route.
- At the hearing, members of the committee tried to tempt Mr Pannick with various forms of notification of an undetermined route which, it was suggested, might meet the requirements of section 11(3) – for example, notice that the procession would follow a route to be determined by a particular individual on the day, or that it would follow a route to be determined by the leader or leaders of the group from time to time. Mr Pannick politely but firmly rejected all these offers: the notice had to specify an actual route which would be followed since only in this way would the senior officer concerned be able to make suitable arrangements if, for example, the procession was going to pass through an area where opposition might be expected.
- Mr Pannick was right to decline the offers: as he said, while there might in fact have been little trouble with the Critical Mass processions and so, in their case, the lack of any notice of a predetermined route did not appear to have caused serious difficulties for the police, the provision is a general measure that cannot be construed by reference to experience with Critical Mass processions. A notice which does not specify the route in a form that allows the police to know in advance where the procession will go does not serve the aims of the section. Similarly, in my view, the offence in section 11(7)(b), which is committed when the actual route differs from the route specified in the notice, presupposes that the notice sets out the intended route in a form which allows a court to determine that the actual route was different.
- From all this Mr Pannick deduced not merely that section 11 had been drafted on the assumption that all processions would have a predetermined route (an easy deduction), but also that the section impliedly imposed a requirement that all processions falling within the scope of section 11(1) should have a predetermined route. In other words, by setting up this notification system, Parliament had in effect decreed that there could no longer be any such processions which, like the Critical Mass processions, simply follow a route that is determined as they go along. There had to be a predetermined route and it had to be notified. So if a procession of that kind took place without a predetermined route and, accordingly, without any route having been notified in advance, anyone who might be regarded as an organiser of the procession, say, by regularly taking the lead for a spell and choosing part of the route, would be guilty of an offence under section 11(7)(a). In practice, as Mr Pannick acknowledged, such processions could no longer take place.
- My Lords, if Parliament had actually intended to use the Public Order Act 1986 to outlaw processions of that kind without a predetermined route, then it would not have done so by a side wind in a section creating a system of notification: it would have done so specifically. Section 13 contains a carefully crafted measure which allows councils, with the consent of the Secretary of State, to prohibit public processions in certain specified circumstances. Where the Act contains a specific provision prohibiting certain processions, there is no room for implying into another provision a requirement which would have the effect of prohibiting a different type of procession by exposing the organisers to a criminal conviction and fine.
- I conclude that section 11 cannot be interpreted as meaning that all subsection (1) processions must have a predetermined route. Therefore, there can still be processions of that kind which are characterised by having no predetermined route. The preferable view may well be that, drafted – as it is – on the assumption that all processions have a predetermined route, section 11 simply does not apply to processions without one.
- Confining myself to the narrower point identified by the parties, however, I reject Mr Pannick’s argument that, by virtue of section 11, a procession must have a predetermined route. It follows that I also reject his argument that a procession, whose characteristic is that it has no predetermined route, cannot “commonly or customarily” be held in a police area or areas in terms of subsection (2). On the assumption, therefore – and for me it is a big assumption – that the notice requirement in section 11(1) would otherwise have applied, I am satisfied that, by reason of section 11(2), it does not now apply to the Critical Mass rides from the South Bank.
- For these reasons I would allow the appeal.
BARONESS HALE OF RICHMOND
- It is not only cycle rides that can take a somewhat random route, ending up in a place which was not determined at the start. Legal proceedings may do so too. These proceedings were prompted by a letter from Superintendent Gomm of New Scotland Yard, dated 29 September 2005, and handed out to people taking part in the Critical Mass Cycle Ride that day. Among other things it told them that:
“Organisers of public processions are required by law to notify police at least six days before the event occurs of the date, time, proposed route and name and address of an organiser. Failure to do so makes the event unlawful. . . .
These cycle protests are not lawful because no organiser has provided police with the necessary notification. Your participation in this event could render you liable to prosecution.”
These passages were apparently based upon section 11 of the Public Order Act 1986, set out by my noble and learned friend, Lord Phillips of Worth Matravers at para 4 of his opinion. If so, they were misleading. Section 11 does not make the procession itself, or mere participation in it, unlawful. Only the organisers commit an offence, if they fail to comply with the notice requirements or the procession actually held differs from the procession notified. Yet the object of the letter must have been to deter everyone involved from taking part.
- The letter also proceeded on the basis of several assumptions, some or all of which are questionable for the reasons which others of your lordships have given: first, that the cycle ride was a “public procession” at all for the purpose of section 11; second, that it was held with one of the three intentions listed in section 11(1); third that it was reasonably practicable to give advance notice of the procession; and fourth that it was not a procession “commonly or customarily held in the police area” within the meaning of section 11(2).
- The crucial fact about the Critical Mass Cycle Ride (CMCR) is that it has no organiser and no pre-determined route. The Commissioner relies upon the lack of a pre-determined route to argue that it cannot therefore be a procession which is “commonly or customarily held”. But he also denies that the lack of such an organised route robs it of its character as a public procession, or makes it not reasonably practicable to give any advance notice of the procession, or that the notice might specify a “route to be chosen as the ride proceeds”. The inevitable consequence of this stance is that the CMCR cannot continue in its present form in the places where it is already established and cannot establish itself anywhere new. When passing section 11, it is said, Parliament intended effectively to prohibit all processions formed with one of the section 11(1) intentions if they did not have a predetermined route. I cannot think that that is so and for that reason alone would allow this appeal.
- Judicial review proceedings were launched to challenge the decisions which had led to the Gomm letter and were repeated in a letter dated 21 October 2005 from the Director of Legal Services of the Metropolitan Police. All of the above issues relating to section 11 were potentially raised in these proceedings. But the Divisional Court declined to decide whether or not section 11 applied at all, whether because the CMCR was not a procession, or because it had none of the relevant intentions, or because it had no organisers, or because it had no proposed route, or indeed because section 11 was never intended to apply to impromptu events such as this. The Court did decide that the lack of a proposed route did not mean that it was “not reasonably practicable” to give the required notice: this proviso had “to do with the practicalities of timing, not with the feasibility of giving the required details” (para 14).
- The claimant has not appealed against that holding or indeed against any other aspect of the reasoning of the Divisional Court. This may not be surprising because the parties agreed that the Court’s judgment should be treated as declaratory in itself: no formal declarations or orders were made. It is difficult (to say the least) to appeal against an aspect of the Court’s reasoning which was not central to the decision in fact made. I note that, in granting permission to appeal, Carnwath LJ suggested that the Court of Appeal might wish to consider “whether it was an appropriate case for a ‘declaratory judgment’; and the precise legal effect of such a judgment without a formal order”.
- The Divisional Court decided that, on the basis of the information available, the exception for processions which are “commonly or customarily held” did apply to the London CMCR. It was against this decision that the Metropolitan Police appealed successfully to the Court of Appeal, where once again there was no formal order or declaration other than an order allowing the appeal. Carnwath LJ, in granting permission to appeal, had also pointed out that “although the proposed appeal is limited to section 11(2) it may be difficult to reach a conclusion on that aspect without considering the other aspects of the section”.
- Thus it is that a lawsuit which raises several important issues about the scope and coverage of section 11 of the 1986 Act reaches us on only one point which, on one view of the section, would not fall for decision at all. I am content to decide it upon that point, although I would have welcomed the opportunity to reflect upon the notice points as well. It would be an entirely sensible and practical solution to hold that notice should be given of the date, time and starting point of a new CMCR but that it was not reasonably practicable to give notice of its route. But it is not open to us to decide that now.
- I am also hesitant about expressing a view upon whether the London CMCR is a public procession at all, if only because this might then raise an issue under section 132 of the Serious Organised Crime and Police Act 2005. The Gomm letter included a warning that “Demonstrations within a designated area around Parliament must also be notified and anyone taking part in an unauthorised demonstration commits an offence”. That is a correct statement; mere participation in such demonstrations is an offence: see section 132(1)(b). It does appear from the letter of 21 October 2005 that some of the police concerns about the London CMCR (which does not seem to have caused them any significant problems in its previous 11 years) arose because it sometimes rode through the designated area. However, there is an exception “if the demonstration is (a) a public procession of which notice is required to be given under subsection (1) of section 11 of the Public Order Act 1986 or of which (by virtue of subsection (2) of that section) notice is not required, or (b) a public procession for the purpose of section 12 or 13 of that Act”: see section 132(2). I would not, by taking the London CMCR out of the frying pan of section 11, wish to thrust it into the fire of section 132.
- For these reasons, in addition to those given by my noble and learned friends, Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, and Lord Carswell on the narrow issue before us, I too would allow this appeal. It would in my view be preferable if our decision could be embodied in a formal declaration.
- The ability to balance the freedom of citizens to hold protests and processions with the amount of regulation necessary to preserve order and protect the rights of others is one of the distinguishing features of a developed democracy. The Government recognised the importance of this principle in the 1985 White Paper Review of Public Order Law (Cmnd 9510), para 1.7. It goes together with skilful and tolerant control by those in authority, a hallmark of good policing in this country.
- The starting place and time of the Critical Mass cycle ride are well known and do not vary. It has become traditional that the route and destination are not known in advance, but will be determined by the direction taken by the participants who happen to be riding at the front. They will decide spontaneously as they travel which way they will go, and the other riders follow their lead, wheeling like a flock of starlings preparing to roost. This creates an inescapable difficulty for those seeking to police the ride and minimise the possibility of disruption or disorder. It is to the credit of the Metropolitan Police officers who have been in charge of this operation that they have consistently been able to do so with a fair degree of success.
- Until September 2005 the police did not attempt to require the participants in the Critical Mass cycle ride to comply with section 11 of the Public Order Act 1986. The litigation which has resulted in this appeal is the product of the attempt then made to impose a notification requirement under this provision. The issue before the House is, as your Lordships have remarked, a narrow one, resolution of which leaves unanswered the questions discussed by my noble and learned friend Lord Phillips of Worth Matravers in the concluding paragraphs of his opinion. One cannot escape the conclusion that the difficulty in answering these questions arises from the fact that section 11, and in particular the exception contained in subsection (2), is an inapposite provision for regulating an event such as the Critical Mass cycle ride.
- It is obvious from the terms of section 11 that Parliament envisaged that processions of the type described in subsection (1) would ordinarily have organisers, as indeed the very large majority will have. But the Critical Mass rides do not have organisers, yet their nature is such that they partake of many of the features of conventional public processions, consisting of a number of people sharing a common aim and proceeding in the public street in a body along the same route. It is not an easy question to determine whether they are to be classified as processions at all, or whether they constitute an exceptional type of procession, without an organiser who can give notice of the route and who may be made amenable when no notice is given (I am inclined to agree with Sedley LJ that the exception in section 11(1) deals only with the practicalities of timing, not with the feasibility of giving the required details). Your Lordships are not called upon to decide this question, for the only issue before the House is whether it is a necessary characteristic of a procession commonly or customarily held that it has a fixed route. It was accepted for the purposes of the appeal by the appellant’s counsel that the cycle ride was covered by section 11(1), and I do not propose to offer an opinion on the point.
- Some emphasis was placed by the police upon the importance of having notice of the route of a procession. It may create traffic problems on an undesirable scale if it takes one route rather than another. It may give rise to confrontation and the risk of public disorder if it passes through one area, whereas it would meet with no opposition if it went by a different route. The police require notice of the route so that they may judge the extent of policing and traffic control required, and in order to determine whether conditions should be imposed under section 12 of the 1986 Act or steps should be taken to seek the prohibition of the procession under section 13.
- The exceptions to the notice requirement created by section 11(2) were designed to reduce the number of unnecessary notifications (see para 4.5 of the White Paper). The paradigm of processions commonly or customarily held is the annual religious or commemorative procession – in this country Remembrance Day parades and in some countries Good Friday processions. This type of procession is generally held at the same time each year and follows the same route between the same two points. The police will readily know that it is to be held and will be aware of the type and extent of police presence required. The organisers of such processions are generally known and can readily be contacted if required and the processions rarely present any significant problems relating to public order. The Critical Mass cycle rides do not fit this paradigm, but does the absence of a fixed route prevent them from qualifying as processions commonly or customarily held?
- I find it very difficult to suppose that a fixed route is an essential characteristic of a procession commonly or customarily held. There are processions in Northern Ireland, such as Orange Order parades held on 1 July (the “Wee Twelfth”) and 12 July, which by any standard must be regarded as customarily held. Yet the routes of these parades commonly vary from year to year, the common feature being the starting and finishing point. They are governed by different legislation in Northern Ireland, under which notice has to be given, but they still form a striking example of a species of customary procession which lacks a fixed route. Remembrance Day parades throughout the United Kingdom are similarly likely to have a fixed starting and finishing point, yet the route may at times vary. Doubtless other examples of such processions may be found around the country. These processions must be regarded as coming within the terms of section 11(2), yet they lack the characteristic of a fixed and known route.
- I therefore agree with your Lordships that it cannot be said that a fixed and known route is an essential characteristic of a procession commonly or customarily held. That is sufficient to determine the appeal before the House, and I shall make no attempt to reach a resolution of the other problems apparent on consideration of the legislation or to solve the conundrum of how a procession newly instituted in a police area can become one which can be described as commonly or customarily held.
- I would allow the appeal and answer the question posed in the negative.
LORD BROWN OF EATON-UNDER-HEYWOOD
- Critical Mass cycle rides take place in many cities around the world. Essentially they express the desire felt by many cyclists to assert their rights as a legitimate part of urban traffic in what they regard as a generally hostile motorised environment. Individually cyclists feel threatened; en masse they feel in control. There is nothing intrinsically unlawful about these events, inconvenient though they sometimes are to other road users.
- Critical Mass rides have been held in London regularly every month for the past 12 years. If, however, the judgment of the majority of the Court of Appeal is to stand, they will be found to have been unlawful and certainly will be unable to continue. Others of your Lordships have set out the relevant statutory provisions which the respondent Commissioner of Police invokes with a view to banning these rides in future. I say banning them because, although ostensibly the Commissioner asks only that he receive advance notification of them, in truth this is impossible. Regularly though these rides are held, it is of their very essence that their route varies infinitely. They do not follow a predetermined path; rather they follow whatever impromptu course is taken by whoever happens to be leading. Spontaneity is at their heart. To insist upon a settled route would be to destroy their character and purpose.
- Are impromptu cycle rides of this nature outlawed by section 11 of the Public Order Act 1986? That ultimately is the question for your Lordships’ determination. It is all very well identifying as the sole issue on appeal a question formulated by reference to the section 11(2) exemption for processions “commonly or customarily held in the [relevant] police area”. But unless it be the case that, taken individually, each of these monthly rides is a public procession held with one of the stipulated intentions, and that before it takes place there is at least someone of whom it can properly be said that he or she proposes to organise it, we are wasting our time addressing the issue. In any event, the question whether “the procession is one commonly or customarily held” requires one to understand what is meant by “the procession” in the first place.
- To my mind the real question here is whether these cycle rides are prima facie notifiable processions at all within the meaning of section 11. And the answer is that they are not. Their very nature as impromptu rides to my mind takes them out of the section altogether. The Commissioner understandably stresses the importance of the fact that each ride takes a different route when seeking to refute the contention that they are “commonly or customarily held”. This feature of the rides is, he submits, critical. I too regard the random nature of the route taken as of central relevance in this case but it seems to me relevant to the altogether more fundamental and logically prior question whether the rides are in any event notifiable processions in the first place.
- I am prepared to assume that, if notice were otherwise required, these rides could properly be described as processions. I am further prepared to assume that those participating in them do so with one of the stipulated intentions. But that is where the case for requiring their notification and outlawing them if unnotified in my opinion breaks down. These processions, so far from being organised (as they would need to be before section 11 could have any application), seem to me inherently disorganised, above all as to their route. No doubt when first set up the event itself required some basic organisation. Whoever decided to start Critical Mass cycle rides in London presumably had to decide when and where those wishing to participate should assemble. What they organised was the event, the gathering together of the participants (itself undoubtedly a public assembly within the meaning of section 14 of the 1986 Act); it was assuredly not the actual procession which was then to follow. That, as I have endeavoured to demonstrate, by its very nature was not organised, least of all as to the route it took.
- It may be doubted whether, 12 years on, there is nowadays anyone who could properly be said to be organising even the monthly assembly of those participating in the London rides. They are well established, and well known, without the need for any further organisation or publicity. But my point is more basic. In my judgment there never was a time when anyone organised one of these processions. And that is all important when one comes to consider the position which would arise if an individual or group wished to start up one of these rides in another city. There could be no question then of invoking the section 11(2) exemption for rides “commonly or customarily held”. But to my mind there could be no question either of banning them because of the inability of whoever wanted to institute them to specify the route that the assembled cyclists would then take. Put simply, the instigator of a new CMCR would not be proposing to organise a procession; he would be proposing no more than that a disorganised procession should follow on from an organised assembly.
- I should briefly mention the Divisional Court’s decision in Flockhart v Robinson  2 KB 498 which upheld a defendant’s conviction for organising a public political procession in the face of a prohibition then in force against holding such processions, notwithstanding that it had occurred spontaneously and without any previous arrangement. The defendant (who earlier in the day had organised a lawful procession in a different police district) was held rightly convicted because he had “placed himself at the head of that public procession of a political character and, having done so, organised it: he directed them and they obeyed him” (Morris J at p 503). As Lord Goddard CJ put it (p 502): “The person who organises the route is the person who organises the procession”. Plainly, however, it could not be said of whoever happened at any point to be leading a Critical Mass cycle ride and deciding what path to take that he or she is its organiser, still less that the decision in Flockhart v Robinson points to there having been someone in the present case of whom it could be said that they were proposing to organise a procession within the meaning of section 11(1), (3) so as to require its prior notification to the police.
- In short, I regard these processions as by their very nature excluded from the requirement of notification under section 11. It is implicit in section 11 that only organised processions are within its scope and these rides are not organised. Such an approach to section 11 is, moreover, reinforced by the section’s implicit assumption that anyone organising a notifiable procession will indeed be in a position to give the police advance notification of its proposed route. In the case of these processions, by definition this cannot be done.
- In the light of these conclusions it becomes not merely unnecessary but actually impossible to answer the question suggested to arise under section 11(2). If rides taking an impromptu route are not prima facie notifiable under section 11 in the first place, it is meaningless to ask whether, having regard to their routeless nature, they can properly be said to be commonly or customarily held within the meaning of the exempting provision.
- I add only this. Had I taken a different view of the scope of section 11 and regarded it as apt to encompass even processions which take impromptu routes, I would have needed a great deal of persuasion before concluding that processions of this kind do not fall squarely within the proviso to section 11(1). In their case “it is not reasonably practicable to give any advance notice of the procession”. Since, however, this was not argued before us and since in any event it is unnecessary to address it, I shall express no concluded view upon the point.
- For these reasons, which differ from those of my noble and learned friends, Lord Phillips of Worth Matravers and Lord Rodger of Earlsferry, only because I decline to decide this important case in the straitjacketed way sought to be forced upon us by the course of the proceedings thus far, I too would allow Mr Kay’s appeal.