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

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25.  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.

26.  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

My Lords,

27.  "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.

28.  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.

29.  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.

30.  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.

31.  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.

32.  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.

33.  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.

34.  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.

35.  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.

36.  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.

37.  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 [1950] 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.

38.  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.

39.  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.

40.  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.

41.  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.

42.  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.

43.  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.

44.  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.

45.  For these reasons I would allow the appeal.

BARONESS HALE OF RICHMOND

My Lords,

46.  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.

47.  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).

48.  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.

49.  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).

50.  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".

51.   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".

52.  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.

53.  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.

54.  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.

LORD CARSWELL

My Lords,

55.  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.

56.  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.

57.  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.

 
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