Commissioner of Police for the Metropolis v Kay

This is an appeal by the Metropolitan Police Commissioner from a decision of the Divisional Court of the Queens Bench Division (Sedley LJ and Gray J) the effect of which was to declare that monthly mass cycle rides that start from the same meeting point at the same time once a month, albeit on each occasion travelling along a different route, constitute processions that are commonly or customarily held in the Metropolitan Police area. The significance of that conclusion is that these rides do not engage the notice provisions of section 11 of the Public Order Act 1986 (“the Act”). The appeal proceeds with the leave of Carnwath LJ who described the issues raised as of some general importance.

I can do no better than adopt, with gratitude, the factual background to this dispute provided by Sedley LJ (who gave the judgment of the Divisional Court [2006] EWHC 1536 Admin)) in clear terms:

“3.

Critical Mass is not an organisation but the name given to a recurrent event. Since April 1994 in London, as in many other cities throughout the world, starting in San Francisco in 1992, cyclists have gathered at a set time early in the evening of the last Friday of each month for a mass ride through the streets. In London they gather on the South Bank near the National Film Theatre. These features are fixed, but the route is not. Whoever happens to be at the front decides which direction to take next. The numbers, which rarely if ever fall below 100 and are commonly three or four times that, are sufficient to make their presence felt both by passers-by and by other road users, the great majority of whom are motorists. They can and do cause additional congestion, but they keep moving (we are not concerned here with questions of obstruction if and when they halt) and can legitimately say that they are part of the city’s traffic.

4.

…. Pauses are sometimes held to mark places where cyclists have been killed in collisions, and occasionally a segment will make for a particular venue such as an embassy to demonstrate in response to political events. However, the police identify two particular kinds of objective which they have observed the group making for: places where maximum disruption to vehicular traffic can be caused, such as Piccadilly Circus and Oxford Street, and places where cyclists are considered to get a hard time from motor vehicles, such as Euston Road and Blackfriars Bridge, making the Critical Mass event a form of payback. The claimant, who has been involved in these rides since their early days but is otherwise a nominal party, rejects this as an account of his (and most other riders’) motivation, which is, he says, simply to celebrate cycling.”

As Sedley LJ observed, there is an issue as to whether the choice of route is truly spontaneous in the sense that the Commissioner points to evidence of riders in the centre of the group speaking on mobile phones, possibly to riders at the front. Whether the ride does have formal organisers or whether the Critical Mass website is accurate in its reference to the ride as ‘an unorganised coincidence’ does not matter for the purposes of the present argument although it would be of real importance to any prosecution if the Divisional Court was wrong in its conclusions, so that these rides were not exempt from the provisions of section 11 of the Act. It is to those provisions that I now turn.

Part II of the Act deals with processions and assemblies and section 11 identifies the circumstances in which advance notice to the police of such a procession is required in these terms:

“(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 one of the persons) proposing to organise it.

…….

(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 discretion.”

As Sedley LJ observed, the provisions of section 11 do not create any offence of simple participation in an un-notified procession. The responsibility for giving notice, and the liability for failing to give it, or for departing from its terms, rests upon the organiser or organisers; it is for that reason that the issue between the parties as to whether there are, in fact, any organisers of the rides, assumes real importance if this legislation bites.

Sections 12 and 13 are also material. Section 12 deals with imposing conditions on public processions and subsection (1) provides:

“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 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.”

Section 13 then goes on to provide for the prohibition of public processions where conditions imposed under section 12 of the Act will not be adequate. For the Metropolitan Police area, subsection (4) provides:

“If at any time the Commissioner of Police for the City of London or the Commissioner of Police of the Metropolis reasonably believes that, because of particular circumstances existing in his police area or part of it, the powers under section 12 will not be sufficient to prevent the holding of public processions in that area or part from resulting in serious public disorder, he may with the consent of the Secretary of State make an order prohibiting for such period not exceeding 3 months as may be specified in the order the holding of all public processions (or of any class of public procession so specified) in the area or part concerned.”

It is clear from the legislation that a major difference between these provisions and section 11 is that sections 12 and 13 criminalise both the organiser of, and any participant in, a procession that fails to comply with a direction under section 12 or one that is banned under section 13.

Further, Sedley LJ explained the effect of these provisions in relation to the extent to which the police can pre-empt anticipated public disorder in these terms (at paragraph 9):

“Thus advance notification of a procession will enable the police to consider exercising their powers to impose conditions on it or to prohibit it. But it is not suggested either that this is the purpose of s.11 or that the applicability of s.11 is determined or conditioned by the availability of such controls. The control powers in sections 12 and 13 apply to any procession, notifiable or not, if the circumstances indicate a material threat of disorder or intimidation. The purpose of s.11 is to permit the policing of processions which pose no such threat as well as of those which do. ”

In the Divisional Court, Mr Michael Fordham (who then appeared pro bono) advanced four propositions, only one of which has been in issue before us. Two concerned arguments that the event had no organiser or alternatively no route which was capable of being notified within section 11(3) of the Act; as determinative issues, these were rejected. It may be that the statutory assumption of a route and an organiser represents a mismatch between what we have called the official mind and the way that Critical Mass works but, as Sedley LJ observed “for better or for worse the assumption and its consequent requirements are there”. As to the spontaneity of the ride and, thus, the inability to provide timeous notice, he went on to observe that the exemption for cases in which “it is not reasonably practicable to give any advance notice of the procession” (or under section 11(6) of the Act less than 6 days notice) is designed to accommodate demonstrations occurring in reaction to sudden events. Finally, on this topic, Sedley LJ concluded that both of these provisions had to do with the practicalities of timing, not with the feasibility of giving the required details.

There is no appeal from those aspects of the Divisional Court’s decision but it is right to underline one feature to which specific reference was made. Although the Court rejected the submission that, as a matter of law, the cycle ride had no organiser, the question in any particular case was left open by Sedley LJ for a reason (at paragraph 15) to which I shall later return:

“If the police consider that they can prove all the other ingredients of an offence of non-notification, they must find an organiser to prosecute under s.11(7). If there is no organiser, or if they cannot prove that the accused organised the procession, they will not be able to obtain a conviction. But it is not for this court to say that there can never be such a prosecution. Whether there can be will depend in each case on whether the police can prove the accused to have organised the procession, whether from the start or during its progress (see, as much for its historical as for its legal interest, Flockhart v Robinson [1950] KB 498). ”

The next argument advanced before the Divisional Court was that the cycle rides had none of the intentions specified in section 11(1) of the Act, that is to say to demonstrate support for or opposition to the views or actions of any person or body of persons, to publicise a cause or campaign, or to mark or otherwise to commemorate an event. Sedley LJ referred to the submission of Mr Jason Beer (then appearing for the Commissioner) to the effect that the overt and perfectly legitimate purpose of the rides was to support the cause of self-propelled mobility in cities dominated and polluted by cars and lorries, to campaign to make the streets safer and more welcoming for bicycles and their riders, and to demonstrate opposition to the motor vehicle lobby. Individually, as the Critical Mass website points out, participants may have a variety of other objectives too, but those spelt out above might, it was said, be thought to be the ones which both unify the participants and are conveyed to the public.

In an attempt to persuade the Court that it was necessary to go behind this intention, Mr Fordham gave the example of a procession of children who are walked to school each day in a marshalled group to ensure their safety. He postulated that the parent who has organised that procession may be campaigning for better road safety and have arranged extensive publicity for the procession. In that case, as Sedley LJ accepted, if the shared or dominant intention of the procession was simply to get the children to school safely, it would not come within section 11(1) of the Act and no notice would be required. If the dominant purpose, however, was to support the cause of road safety, rather than moving children to school, the position would be different. The same position arose in relation to cycle rides. In those circumstances, as the Divisional Court held, it would be open to the Court to conclude that there was a collective intention within the subsection. Again, this decision is not the subject of any appeal, although the issue of proof is one to which I shall return.

This brings me to the challenge that found favour with the Divisional Court and which forms the basis of this appeal. Mr Fordham argued that the rides had started at the same time, from the same place on the same day of each month for almost twelve years and thus came within the exception created by section 11(2) of the Act. The Divisional Court accepted that this proposition accorded with ordinary English usage and concluded that “for the purposes of the exemption the single question is whether the event, defined by its collective intention, is commonly or customarily held in the material police area” (paragraph 20).

Mr Beer sought to demonstrate that this construction did not accord with the true meaning of the legislation for three reasons. First, he submitted that a radical change of route to any customary procession (such as occurs from church to war memorial on Remembrance Day) altered the character and customary nature of the procession, thereby requiring notice. Secondly, he argued that there has not been the constancy of intention, for the purposes of s.11(1) of the Act, which would make a Critical Mass ride the same procession today as it had been in, and subsequent to, 1994. Finally, he contended that Critical Mass cannot rely on its own unlawful origins to give it a common or customary character.

Dealing with constancy of intention, Sedley LJ said (at paragraph 22):

“We have accepted that it is by its intention that a notifiable procession is defined, so that an event which has remained constant in form but has changed in intention may arguably cease to be common or customary within the meaning of s.11(2). We have also declined to define the intention of the present-day Critical Mass event beyond holding that it does not necessarily fall outside s.11(1). But on the evidence before us we see no ground for holding that the dominant collective intention has significantly changed over time.”

As to illegality, the Divisional Court rightly observed that the cycle rides were not, at any time, in themselves unlawful. The section did no more than create a series of criminal offences committed by those who, without giving notice, organised a procession that falls within section 11(1). It is not necessary further to analyse the reasons advanced by the Divisional Court for it is not the subject of challenge in this court.

In relation to route, Sedley LJ observed that the Act gave no support for the proposition that a radical change of route altered the nature of a procession or gave rise to any other justification for requiring notice of what was commonly or customarily held in the police area; rather he relied on the proposition that, in enacting the first exemption created by s.11(2) of the Act, Parliament must have assumed that the authorities would already know about those processions which are customarily or commonly held in their locality and so be in a position to police them.

The upshot of the hearing was that the Divisional Court concluded that the monthly Critical Mass cycle ride was one which was commonly or customarily held within the Metropolitan Police area and of which notice was therefore not required under s.11 of the Act. Its conclusions were explained in these terms:

“27.

Our first reason is 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. Our second reason is that the absence of a planned route for the procession has no legal consequences if notice of the procession is not required. Our third reason is that the procession is not prevented from having acquired a common or customary character by the unproven possibility that one or more individuals failed to give notice under s.11 of the first such rides some twelve years ago.

28.

We reach this conclusion in the knowledge that not having advance notice of the intended route of a procession does not make the job of policing it any easier. But the legislation itself creates only a selective requirement of notice. It was passed against a background of reluctance to place prior restrictions on the exercise of a historic liberty: Lord Scarman had advised against doing so in his 1974 report on the Red Lion Square disorders, but in his 1981 report on the Brixton disorders had reluctantly changed his mind. It continues to have to be construed and applied within a common law system which not only reads penal legislation narrowly but is concerned to protect people’s right to use the streets for lawful purposes, whether singly or in groups, without official permission and without having to account for their intentions except to the extent that Parliament has clearly stipulated otherwise.”

Mr David Pannick Q.C., now appearing with Mr Beer for the Commissioner, argues that collective intention is insufficient to define what is common or customary. Rather, it is necessary to construe the meaning of that phrase within the context of legislation that sought to regulate processions not likely to result in serious public disorder (for which sections 12 and 13 of the Act provided the police with appropriate powers). Thus, the control mechanism of section 11 consisted of a requirement of notice in good time before the procession, together with information (consisting of time, date, route and name and address of organiser) to allow effective policing with criminal sanctions for failure to give appropriate notice or deviation from the time date and route notified. The exception in section 11(2) covered processions likely to be of such a character that the police would already be in a position properly to police them. The result, so it is argued, is that in determining whether a procession is commonly or customarily held requires the court to have regard to the information that Parliament determined should be provided as to processions not commonly or customarily held and all the circumstances of the procession in question. This was not, Mr Pannick submitted, intended by Parliament to be confrontational: rather, the legislation was to ensure that the police could properly perform their function of ensuring that the lawful procession could proceed safely and without undue inconvenience to road users in general.

As to the conclusion of the Divisional Court, Mr Pannick submitted that the collective intention of the participants is insufficient as a definitional marker firstly because section 11 applies to a wide variety of processions in circumstances in which it will frequently be the case that more than one of the prescribed intentions is being pursued; secondly, because it is not necessarily easy to determine collective intention (as the Respondent had argued in the Divisional Court in support of the contention that the ride did not fall within section 11 of the Act at all); and, thirdly, because collective intention could change over time even if the procession was held at the same time, date and route each week and it is unclear why such a procession was not one that is commonly held simply because it chose to publicise a different cause or campaign.

Mr Fordham Q.C. (as he has now become) challenges Mr Pannick’s approach which he submits is flawed. He argues that the legislative scheme confers powers on the police to restrict (section 12) or prohibit (section 13) public processions in appropriate circumstances and, additionally, for certain (but not all) others, to impose an advance notice requirement. That advance notice requirement did not apply to public assemblies (section 14) but to those public processions defined by intent not otherwise excluded. Excluded processions, which thus never fell within the ambit of the legislation, were not only those commonly or customarily held in the police area (or areas) in which it is proposed to be held but also funeral processions organised by a funeral director acting in the normal course of his business. The very fact that funeral processions were not included demonstrated that there was no necessary policing need (as foreshadowed by Mr Pannick’s argument) for date, time and route to be known.

In particular, Mr Fordham submits that the details required in section 11(3) of the Act (date, time, place, route and organiser) are features required in those circumstances where advance notice is required but do not define whether it is required; there is simply no basis for reading section 11(3) into the meaning of “procession … commonly or customarily held”. Rather, the meaning is clear. Because it is commonly or customarily held, the police are in a position to consider how to police it consistent with the right of those processing to do so and public safety.

Finally, Mr Fordham challenges Mr Pannick’s characterisation of the judgment of the Divisional Court as concluding that the single question involved asking whether a procession, defined by intent as required by section 11(1) of the Act, could be said also to be the determinative test for the exemption of processions “commonly or customarily held”. Paragraph 27 of the judgment made it clear that the circumstances in which the conclusion was reached that these processions fell within the exemption included “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”.

As Sedley LJ observed, the starting point must properly be that the right to use the streets for lawful purposes without seeking prior permission should only be restricted by specific Parliamentary authority although, in that context, it cannot be denied that the Act (expanding beyond the Public Order Act 1936) specifically did limit that right in the language of the short title “to control public processions”. Further, I agree with Mr Fordham that section 11(3) of the Act does not seek to define the proper construction of section 11(2) because it does no more than remove from section 11(1) – and thus the obligation to give advance notice – a procession “commonly or customarily held in the police area (or areas) in which it is proposed to be held or … a funeral procession organised by a funeral director acting in the normal course of business”.

Thus, contrary to Mr Pannick’s submissions, in my judgment, section 11(2) does no more than identify those processions to which, for one reason or another, Parliament does not require that advance notice be given. I agree with both counsel that the purpose of the first limb of the subsection is to remove from the obligation to give advance notice those processions that the police know about and so are able to take such steps as they believe necessary to exercise appropriate control. The second exception, in relation to funerals, is not (contrary to Mr Pannick’s submission) likely to be as a consequence of Parliamentary deference to the bereaved but rather because there are so many such funerals that to impose a notice obligation will create far too great an administrative burden for all involved (including the police), with little public order concern in any. Of course, there will be a few funerals that may give rise to public order issues (examples including funerals of the famous or infamous or funerals following death in circumstances of great public concern) but these can be identified on an ad hoc basis without the need for special reporting, any necessary directions being given under section 12.

Although I accept that section 11(3) cannot be read into section 11(2) of the Act, that is not to say that route is irrelevant to the question whether a procession is one “commonly or customarily held”. Commonplace and custom are not wholly defined by the time and place of commencement because any procession is active rather than static. It is a movement from the rallying point along a route either to some other point or, perhaps, back to the start. Thus, the direction in which any procession moves and its destination is certainly material, if not integral, to the issue of repetition which is at the heart of what is commonplace or customary.

Assume a procession that is the reverse of the procession that takes place. Rather than always assembling at a fixed point, the start of the procession is an assembly at the same time each month but at a different, pre-arranged, location. It then moves off but always ends up in the same place each month, say, Parliament Square. It would be quite impossible to police because the police would not know the starting point (thus defeating the agreed intention of the first limb of section 11(2) of the Act) but there would be the identical features each month namely time, date and end point. I venture to suggest that no-one would argue that such processions were commonly or customarily held simply because of the commonality of starting time and date along with destination. Each procession would be a unique event albeit occurring regularly and consistently.

I appreciate that by changing the facts, I have changed the circumstances and that both sides (and, indeed, the Divisional Court) were, as Mr Fordham emphasised, concerned with the circumstances. I also recognise (as Wall LJ points out in his judgment which I have had the advantage of reading in draft) that my example is entirely different in the sense that it makes it impossible for the police to anticipate the route of the procession or plan in any way for difficulties that might transpire. The example is, however, valuable for two different reasons. First, it is illustrative of the wider concern which is to question whether processions that on every occasion travel a unique route ending up at a different point do carry with them the element of repetition that is necessary for commonality and custom. Secondly, if it is accepted that the excluding provisions do relate to the ability or necessary foreknowledge to permit policing of the procession, the route then does become relevant to issues of custom and commonality.

Sedley LJ was quite right to observe that there is nothing in section 11 as a whole that defines a procession which is held with one of the relevant intentions by its route (see paragraph 20). Having said that, however, in my judgment, route is clearly relevant and I respectfully question whether there is that necessary element of repetition of the activity which constitutes the procession, sufficient to satisfy the essential elements of section 11(2) of the Act, if the only common features are the location and time of its commencement.

There is no doubt that a cycle rally at the National Film Theatre is commonly and customarily held on the last Friday of each month, but I have come to the conclusion that although a procession customarily follows that rally or meeting, the actual procession that then takes place is neither common over the weeks and months or, in any true sense, customary. Rather, each procession is a unique enterprise, taking place over a route (if Critical Mass are right) that is devised by those who, whether by accident or design, simply happen to be at the front when the ride starts and are able to take the cyclists where they want for reasons devised by them and not necessarily shared with others. The cyclists not only do not travel along an identical or even similar route but they also never end up in the same place twice. That is not to elevate route into the determinative feature (still less is it to re-introduce section 11(3) of the Act by a back door having refused it entry through the front door of statutory interpretation). Rather, as I have indicated, it is to recognise that although the meeting point is static, 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.

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. Needless to say, however, organisers considering changes would do well to consult with the police in order to avoid the suggestion that a particular deviation to place, time or route constitutes a different procession.

In the circumstances, I have come to a different conclusion from that expressed by the Divisional Court. In my judgment, whether or not an organiser can be identified and whether or not one of the statutory intentions set out in section 11(1) of the Act can be established, the cycle ride does not constitute a procession commonly or customarily held so as to bring it within section 11(2).

I must refer again to the reluctance to place prior restrictions on the exercise of a historic liberty (quoted by Sedley LJ and set out above). The fact is that if the police had challenged the first of these processions, there could be no question but that notice would have been required. If (as Wall LJ suggests and as I agree) the purpose of the legislation is to permit the police to monitor a procession conducted with one of the statutory intentions, knowledge of the route does become an important component. But the ability to police a procession does not make it one that is commonly or customarily held. My approach to the meaning of this phrase has nothing to do with failing to construe a penal statute restrictively (as Mr Fordham suggested): it is the consequence of my view of the resolution of the constituent elements of the activity of procession which are necessary to identify the repetition required to justify the description “commonly or customarily held”.

Two further points need to be emphasised. The first is to return to the caveats properly expressed by Sedley LJ in relation to proof. The way in which these processions have previously been policed is for officers to be cycling along with the riders; such an approach seems eminently sensible and it is not without significance that the rides have, in fact, proceeded over many years without it having been considered necessary for the issue of section 11 of the Act ever to be raised. The fact that there has been no complaint by the police or any other authority, however, does not itself bite on the question raised by section 11(2) of the Act. Having said that, however, it may be that the evidence adduced in this case will serve to demonstrate the forensic difficulties that would stand in the way of establishing the identity of an organiser (of the procession rather than the gathering) and the relevant intention under section 11(1) of the Act. I, for my part, would not be unhappy if that were the outcome but, whether or not that view is taken, nothing that I have said (or indeed that Sedley LJ said in the Divisional Court) should be taken as lessening the burden of proving each of the ingredients of any alleged breach of the notice provisions and doing so, in each case, to the appropriate criminal standard.

The second point concerns the nature of the relief sought. When granting leave, Carnwath LJ considered that the Court may 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. Although in the Divisional Court, this had not been contentious and the approach was agreed, Mr Fordham helpfully collected a bundle of authorities upon the use and propriety of this course. In the event, no oral argument was addressed to it and I have not considered it necessary to decide the point. That is not to say, however, that I do not agree with the concern expressed by Carnwath LJ. Bearing in mind the issues in this case, however, I prefer to leave the general question open to be fully argued when the appropriate occasion presents itself.

In giving the judgment of the Divisional Court in this case, Sedley LJ described it as “a friendly action”, the shared purpose of which was “to get the law clear about an issue of some public importance before anything goes wrong”. Against that background it strikes me as doubly unfortunate; (1) that the case reaches this court at all; and (2) that it provokes a disagreement not only between this court and the Divisional Court, but within this court itself.

Leveson LJ has helpfully set out the facts and the relevant statutory provisions in his judgment, and I need not repeat them.

The appeal, in my judgment, raises a short point of statutory construction. In simple terms, was the Divisional Court correct to hold, as it did, that the Critical Mass Cycle Rides (CMCRs) held in London on the last Friday of every month since 1994 were “commonly or customarily held” in the police area (or areas) in which they are proposed to be held within section 11(2) of the Public Order Act 1986 (POA 1986), and that, as a consequence, section POA 1986, section 11(1) did not apply to them?

I have come to the clear view that the Divisional Court was right so to construe POA 1986 section 11(2), and I would dismiss this appeal. However, since that is not the view of Sir Mark Potter, P and Leveson LJ, whose judgments I have had the opportunity to read in draft, it is not, I think, sufficient for me to say simply that I would dismiss the appeal for the reasons given by the Divisional Court (although I would be content to do so): I need to explain my own independent reasoning for reaching the same result.

In this court, Mr. David Pannick, QC, for the appellant, as I understood him, took only one point on POA 1986, section 11(2). It was that CMCRs could not be said to be “commonly or customarily held” because each of the more than 150 CMCRs which had taken place since April 1994 had taken a different route. There had, accordingly, been 150 or more different processions, and although each had begun in the same place within the Metropolitan Police Area on the same day of the month and at the same time for the last 13 years, they were not for this reason within the exemption provided for in POA 1986, section 11(2).

In other words, and to put the matter with what I think is an accurate crudeness (although I freely acknowledge that it does no justice to the skill with which Mr. Pannick argued the point) route is everything. To fall within the exemption under the Act, a “commonly or customarily held” procession has to have a settled route - indeed the same route - on each occasion. These processions do not have a settled route, therefore they fall outside the exemption.

This is an argument which, on the admittedly unusual facts of this case, I am unable to accept.

The first difficulty I have with Mr. Pannick’s argument is that, if he is right, one has to wonder whether a CMCR is a procession within POA 1986. If it is of the essence of a procession that it has an identified route, and if the CMCR has no route (save in the sense that it moves randomly from a fixed starting point to an undetermined point or points where the cyclists disperse) is it a procession at all?

Interesting as that question is, it is not, I think, open to this court to ask it. The Divisional Court held that a CMCR was a procession, and there is no appeal by the claimant against that finding. As Leveson LJ explains in his judgment, the Divisional Court also did not permit CMCRs to escape POA 1986 section 11(1) by asserting that they had no organiser or organisers who could give notice of the proposed route. We are, in my judgment bound by the Divisional Court’s findings. Thus: (1) the CMCR is a procession; (2) it cannot be said as a matter of law that it has no organiser or organisers capable of giving the written notice required by POA 1986, section 11(1); and (3) its intention falls within section 11(1)(a) to (c) of POA 1986. The only question for this court, accordingly, is whether or not CMCRs fall within the exemption provided by POA 1986, section 11(2).

Mr. Pannick took us to the locus classicusofmodernjudicial thinking on statutory construction, namely the speech of Lord Bingham of Cornhill in R(Quintavalle) v Secretary of State for Health [2003] UKHL 13, [2003] 2AC 687 at 694 to 696, paragraphs 6 to 10 (Quintavalle). The passage (particularly paragraphs 7 and 8) is, I suspect, too well known to warrant repetition. I cite only the final two sentences from paragraph 7: -

“The court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context which led to its enactment.”

I have no difficulty in applying Lord Bingham’s approach to statutory construction to POA 1986, section 11(2) although it must be doubtful whether processions in the nature of CMCRs were in the contemplation of Parliament when the Act was passed.

Speaking for myself, I gain no assistance from Flockhart v Robinson [1950] 2 KB 498 in construing POA 1986, section 11(2). Apart from the fact that the case arose under different legislation, the question for the Divisional Court in that case was whether or not Mr. Flockhart had organised the procession. The Divisional Court (by a majority) held that he had because, although the procession had formed spontaneously, by the time it reached Piccadilly Circus there was evidence upon which the chief stipendiary magistrate could properly find that Mr. Flockhart was leading it.

In these circumstances, I do not think it is possible to extract Lord Goddard CJ’s statement that a procession is a body of persons moving along a route, and use it to bolster the argument that a procession cannot be customarily or commonly held if it has no fixed route.

Leveson LJ parts company with the Divisional Court in paragraphs 27 to 30 of his judgment on the ground that the actual procession which customarily follows the monthly rally on the South Bank is neither common over the weeks and months nor, in any true sense, customary. I regret to say that I cannot agree with this view. I will endeavour to explain why.

Firstly, I am not assisted by the hypothetical example provided by Leveson LJ in paragraph 28 of his judgment. As he himself rightly points out, these are not the facts with which we have to deal, and in my judgment he is not comparing like with like. In the instant case, the procession invariably starts out from the same place. If, therefore, one is applying the pragmatic policing argument, as he does in paragraph 29, it is immediately apparent that the one fact about which the police can be certain is that, wherever it goes, the CMCR will start out from the same place and at the same time each month. Equally, the report disclosed in the proceedings from Inspector Rowe entitled “Critical Mass – Review” makes it clear that there have, hitherto, not been any substantial policing difficulties. Inspector Rowe states in terms that: “In the past two years the monthly event has not created any serious public order problems”, one reason for which, he says, is:

“ …. the firm but fair approach of the police recognising not only the participants’ right to demonstrate but also preventing the public’s inconvenience as far as is possible. ”

As to that inconvenience, Inspector Rowe fairly puts it into perspective by stating that there have only been two letters of complaint from members of the public in the two years he has policed the event, one of which is in our papers. Mr. Rowe’s conclusion is expressed in the following terms: -

“If Critical Mass continues in its present form with current levels of seasonally adjusted policing, I consider that it poses a minor inconvenience to the public as a whole. Some members of the public will undoubtedly be inconvenienced each Friday of the month, but due to the variety of routes used it is unlikely that any one person, or any section of the public will be seriously inconvenienced on a regular basis. The monthly events pose a small threat of impromptu and irregular disorder involving individuals rather than the group as a whole. Sufficient resources are currently deployed to prevent this or deal with it appropriately.

I would be interested in the view of legal services with regard to any options that have not yet been explored or can be suggested to assist in the policing of this event, also a view with regard to the proportionality, accountability and necessity of the current arrangements and tactics.”

It is not, I think, straying outside Lord Bingham’s guidance in Quintavalle to ask oneself whether or not there would be either a qualitative or quantitative difference in public inconvenience, or in the measure of policing, if the CMCR followed an identified route.

Be that as it may, the police, in my judgment, know what the cyclists are going to do. They are going to ride around the Greater London area. That is a perfectly lawful activity, and if, for any reason, it ceases to be so, the police have ample powers to intervene. Thus far from the absence of a fixed route proving fatal to bringing the procession within the section 11(2) exemption, it seems to me that its absence is a common feature which undoubtedly forms a material part of its customary nature.

I reach that conclusion because every CMCR since 1994 has, consistently, gone off in a different direction. The police have known and observed that since an early stage. It must have been apparent to the police that this was so by the second or third CMCR. Hitherto it has not been thought either appropriate or necessary to require written notice to be given under POA 1986, section 11(1), and, speaking for myself, I do not detect any evidence that there has been any material change since 1994.

Furthermore, Mr. Fordham QC, for the respondent to this appeal is, in my judgment, entitled to argue that not only is the CMCR a part of London life and featured in Time Out magazine, but that, more significantly, none of the bodies responsible for public transport - notably Transport for London – has thought it appropriate to invite the police to consider the use of the Act. Indeed, he cites the Mayor of London’s Road Safety Ambassador as urging the police to “allow Critical Mass to go ahead unimpeded”.

In my judgment, starting from the same point at the same time on the same day each month, and going off thereafter in different directions are all part and parcel of the CMCRs’ customary nature. It is what they commonly do. If the police had felt the need to intervene, and argue that CMCRs were either caught by POA 1986, section 11(1) or outside section 11(2) they could and should have done so years ago. In my judgment, when, in effect, nothing has changed since 1994, it is far too late for the police now to say that the absence of a fixed route requires obedience to POA 1986, section 11(1). In parenthesis I should say that I do not accept the premise contained in the second sentence of paragraph 34 of Leveson LJ’s judgment. In my view the outcome of a hypothetical attempt by the police to bring one of the first CMCRs within POA 1986 section 11(1) must be a matter of speculation. I have (albeit somewhat reluctantly) accepted in paragraph 45 above that in May 2007 we are bound by the Divisional Court’s findings made in June 2006. It by no means follows, however, in my judgment, that the Divisional Court in 1994 or 1995 would have reached the same conclusion – for example on the question of whether or not the CMCR was a procession.

I therefore respectfully part company with Leveson LJ in paragraph 29 of his judgment when he suggests that there is the need for what he describes as “that necessary element of repetition” in the route. I thus cannot agree with his conclusion in paragraph 30, and with great respect to him, although he is at pains to reject the suggestion that he is elevating route into the determinative feature that is, in my judgment, precisely what he is doing.

I also agree with Mr. Fordham that, if Mr. Pannick is right, the consequences are potentially oppressive. Thus, to take only one example, the local priest who, one year, takes his congregation over a different route for the annual remembrance day parade will, on the construction of the statute favoured by the majority, commit a criminal offence if he does not give notice of the changed route to the police. In this regard, I am not persuaded by Leveson LJ’s reasoning in paragraph 32 of his judgment.

Carnwath LJ, in granting permission to appeal, stated that the issues raised are of some general importance. I respectfully agree. In my judgment, their importance is neatly encapsulated in paragraph 28 of the Divisional Court’s judgment, which Leveson LJ has set out in paragraph 19 of his, but which bears repetition. The Divisional Court said: -

“28.

We reach this conclusion in the knowledge that not having advance notice of the intended route of a procession does not make the job of policing it any easier. But the legislation itself creates only a selective requirement of notice. It was passed against a background of reluctance to place prior restrictions on the exercise of a historic liberty: Lord Scarman had advised against doing so in his 1974 report on the Red Lion Square disorders, but in his 1981 report on the Brixton disorders had reluctantly changed his mind. It continues to have to be construed and applied within a common law system which not only reads penal legislation narrowly but is concerned to protect people's right to use the streets for lawful purposes, whether singly or in groups, without official permission and without having to account for their intentions except to the extent that Parliament has clearly stipulated otherwise.”

I respectfully agree. I also agree with the final two sentences of paragraph 13(4) of the skeleton argument in support of the appeal prepared by Mr. Pannick and Mr. Beer, in which, after setting out what they submit are “the obvious working difficulties with this part of the Act” they say: -

“In these circumstances, Parliament may well consider it necessary to legislate (as it did in section 132-138 of the Serious Organised Crime and Police Act 2005 in relation to the area around Parliament). It is respectfully submitted that it is preferable that it does so after the issue has received attention by the Court of Appeal.”

In my judgment, if section 11(1) is to apply to CMCRs it is for Parliament to change the law to enable it to do so. This court should, in my judgment, construe POA 1986 in the manner identified in paragraph 28 of the Divisional Court’s judgment.

For completeness, I should perhaps add that I do not agree with the President when he states in paragraph 70 of his judgment that the Divisional Court posed itself “an insufficiently focused question” and that had the question been posed in the manner suggested by the President, the Divisional Court might have come to a different conclusion. I have, I think, already given my reasons why I do not share the President’s view, and I will not repeat them.

For these reasons and for the reasons given by the Divisional Court, I would dismiss this appeal.

I agree that the appeal should be allowed. I would only add this on the question of statutory construction.

Neither the Public Order Act 1986, nor the earlier Public Order Act 1936, contain a statutory definition of the word “procession”. However, the Concise Oxford Dictionary defines it thus:

1.

A number of persons or vehicles moving forward in an orderly fashion

2.

The action of moving in such a way

3.

A relentless succession of people or things.

On the basis no doubt of the common ground that the Critical Mass rides involve a large number of persons on bicycles moving forward in relentless succession along whatever route is followed on any monthly ride, it appears to have been no part of the argument below that such a ride did not amount to a procession for the purposes of the statute (see paragraph 11 of the judgment of the Divisional Court). Nor has any such argument been advanced to us.

While for the purposes of a general definition considered independently of any statutory context it is unnecessary to refer to it, it is inherent in the concept of a procession of persons or vehicles that they move along a route: see Flockhart v Robinson [1950] KB 498 per Lord Goddard CJ at 502. Furthermore, as acknowledged by the Divisional Court (at paragraph 13 of their judgment) the provisions of s.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 s.11 (2) from the notice provisions in s.11 (1), it is necessary to take into account the route which it follows.

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 s.11 as a whole which defines “a procession” in subsection (2) by its route (see paragraph 20 of the judgment) it nonetheless assumes that it has one: see s.11(3).

When the Divisional Court stated at paragraph 20 of its judgment that “for the purposes of the exemption the single question is whether the event, defined by its collective intention, is commonly or customarily held in the material police area”, it seems to me that it posed an insufficiently focused question. The “event” which fell to be considered was/is the procession of cyclists on any given ride after they have moved off from the starting point, again assuming (rather than being defined by) the procession’s collective intention. The fact that such collective intention is required to be present to bring subsection (1) into play is not definitive of the question whether a particular procession is one commonly or customarily held in the police area. For that purpose it is necessary to have regard to its nature and quality as a procession, including the route which it follows. Had the question been posed in that way, and had the Divisional Court applied the statutory presumption which it elsewhere recognised, it might have come to a different conclusion.

Given that it is common ground that the Critical Mass events are held on the basis that, once started, the rides involve a wide variety of different routes dependent entirely upon the whim of whoever happens to be at the front of the procession of cyclists, I do not consider that they have ever acquired the status of a procession “commonly or customarily” held within the Metropolitan Police area in the sense contemplated by s.11(2). The first part of that subsection 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, given the entirely random nature of the route followed.

I would only add that I do not consider that the fact that s.11(2) also exempts funeral processions from the provisions of s.11(1) throws any useful light upon the question at issue. Such processions are by their nature “one off” and short-notice events which are exempted for reasons quite different from those relating to processions exempted on the grounds that they have commonly or customarily been held within a police area.