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

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58.  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.

59.  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.

60.  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?

61.  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.

62.  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.

63.  I would allow the appeal and answer the question posed in the negative.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

64.  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.

65.  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.

66.  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.

67.  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.

68.  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.

69.  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.

70.  I should briefly mention the Divisional Court’s decision in Flockhart v Robinson [1950] 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.

71.  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.

72.  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.

73.  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.

 
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