Bicycles – Exemptions – Notification - Processions

Kay v Commissioner of Police of the Metropolis: HL (Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood): 26 November 2008

The appellant cyclist (K) appealed against a decision ([2007] EWCA Civ 477, [2007] 1 WLR 2915) that monthly mass cycle rides, starting from the same meeting point at the same time each month but following a different route on each occasion, were not commonly or customarily held processions for the purposes of section 11(2) of the Public Order Act 1986.

K was a regular participant in Critical Mass (C), a cycle ride which had begun at a fixed time and place every month for a number of years, and which had no predetermined route. The police asserted that C was a procession for which notice was required under section 11 of the act. The Divisional Court accepted K’s challenge to the police’s assertion on the grounds that C was a procession commonly or customarily held within section 11(2), but the Court of Appeal reversed that decision. The respondent commissioner argued that section 11(2) could not apply because each time that C occurred it followed a different route: unless a procession followed the same route each time, it could not be described as the same procession. There was an implied obligation in section 11 for a procession to have a predetermined route; that was necessary to give effect to an object of the legislation, namely giving the police advance notice of processions so as to enable them to prevent them from resulting in public disorder. It was not possible lawfully to establish a procession without a predetermined route, since section 11 required notice of a procession and that the notice had to include a proposed route.

Held: (1) Proceeding on the basis that C was a procession to which section 11 applied, section 11(2) applied to it as a procession that was commonly or customarily held. A procession had to move along a route, Flockhart v Robinson [1950] 2 KB 498 DC considered, and if it took place along the same route at regular intervals, that fact would be material to the question of whether it was the same procession. However, a fixed and known route was not an essential characteristic of a procession commonly or customarily held. The rides had so many common features that any person would consider that each month the same procession took place and, on the natural meaning of the words, that it was a commonly or customarily held procession. Section 11 did not require notice to be given of every procession capable of creating a disturbance. The fact that, on their natural meaning, the words of section 11(2) were wide enough to exclude some processions in respect of which the police did not have all the information they would wish was no reason to give those words an unnatural meaning.

(2) (Obiter) Although K had accepted that section 11 applied, it was unlikely that C, once established, involved any advance planning or organisation, in which case section 11 had no application to it. Section 11(1) applied to ‘any proposal to hold a public procession’, and an offence under section 11(7) would be committed by the organisers of the procession only if there was no compliance. No offence could be committed unless a procession took place without an antecedent proposal to hold it, nor could an offence be committed if there were no organisers of the procession. The submission that organisers proposing to hold a new procession without a predetermined route could not lawfully do so could not be accepted. If Parliament had intended to outlaw processions of that kind, it would not have done so in a section creating a system of notification; it would have done so specifically.

Appeal allowed.

Michael Fordham QC, Emma Dixon (instructed by Friends of the Earth Rights and Justice Centre) for the appellant; David Pannick QC, Jason Beer (instructed by in-house solicitor) for the respondent.