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Judgments -Kay (FC) (Appellant) v Commissioner of Police of the Metropolis (Respondent)


SESSION 2007-08

[2008] UKHL 69

on appeal from: [2007] EWCA Civ 477




Kay (FC) (Appellant) v Commissioner of the Police of the Metropolis (Respondent)

Appellate Committee

Lord Phillips of Worth Matravers

Lord Rodger of Earlsferry

Baroness Hale of Richmond

Lord Carswell

Lord Brown of Eaton-under-Heywood



Michael Fordham QC

Emma Dixon

(Instructed by Friends of the Earth Rights and Justice Centre)


David Pannick QC

Jason Beer

(Instructed by Metropolitan Police Directorate of Legal Services)

Hearing date:

20 OCTOBER 2008






Kay (FC) (Appellant) v Commissioner of Police of the Metropolis (Respondent)

[2008] UKHL 69


My Lords,


1.  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.

2.  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”

3.  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."([2006] 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.

4.  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.”

5.  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.”

6.  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

7.  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).

8.  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

9.  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.”

10.  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.”

11.  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

12.  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.

13.  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.

14.  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 [1950] 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.”

15.  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.

16.  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.

17.  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.

18.  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.

19.  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.

20.  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.

21.  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

22.  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.

23.  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.

24.  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 [2003] 2 AC 687 brings events such as Critical Mass within the ambit of section 11. I beg to differ.