Kay v The Commissioner of Police of the Metropolis

This is a friendly action, but it is brought for a serious reason. Each side has agreed not to seek costs against the other if it wins, and the claimant’s counsel is donating his services, because the shared purpose is to get the law clear about an issue of some public importance before anything goes wrong.

The courts do not generally answer academic questions, but the questions raised here are real. They all relate to whether the monthly Critical Mass cycle rides through central London are processions of which the organisers are required to give the police prior notice under s.11 of the Public Order Act 1986. Everybody recognises that it is better to ascertain the answer now, so far as it can be done, than to wait until arrests are made and a criminal prosecution makes its way back to this court.

Although there are different views, not all of them favourable, of what Critical Mass is and does, the essential facts about it are not in dispute. 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.

The  Wikipedia entry, quoted by the claimant, says:

“Critical Mass has no leaders, and no goals other than to meet every month and enjoy the security of riding through the city together.”

It is, of course, their numbers that make the participants a critical mass in the scientific as well as the social sense. 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.

More generally, Critical Mass’s own website says this:

“There is no single aim of CM, although there is a shared wish to see less car-dominated cities and more people cycling. There are as many aims of CM as there are participants. Each individual comes there with his or her own idea of what it’s about, and the sum of this makes up the mass.”

There is not complete agreement as to whether the choice of route is truly spontaneous. The Commissioner does not suggest that it is pre-planned, but officers have occasionally noticed riders in the centre of the group speaking on mobile phones, possibly to riders at the front. The difference of view is probably no more than the difference between the official mind, which finds it hard to believe that anything cohesive can be spontaneous, and the libertarian ethos which likes to claim spontaneity (the Critical Mass website speaks of the ride as ‘an unorganised coincidence’) even if at the occasional expense of reality. For reasons we are coming to, it does not at present matter which is right.

Section 11 is in Part II of the Public Order Act 1986, which deals with processions and assemblies. It says:

Sections 12 and 13 are also material. Section 12(1) provides:

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.

Notwithstanding what is said in the first paragraph of this judgment, the issues before the court were brought to a head by a letter from Superintendent Gomm of the Public Order Branch of the Metropolitan Police, dated 29 September 2005, which was handed to Critical Mass riders. It read:

There are four grounds on which, with permission granted by Newman J, Michael Fordham contends on behalf of the claimant that s.11 has no application to the Critical Mass rides. They are that:

We agree with the Commissioner’s view that only the first two questions are apt for an answer in these proceedings.

By virtue of section 11(3), if the conditions for giving notice are satisfied, the notice has to specify the proposed route and to name an organiser. None of the conditions for the giving of notice is the prior existence of a planned route or an organiser: these things are assumed. We are unable to accept Mr Fordham’s reverse argument that a procession with no planned route and no organiser cannot be subject to a requirement to give notice. The statutory assumption of a route and an organiser, as Mr Beer accepted, represents a mismatch between what we have called the official mind and the way that Critical Mass works; but for better or for worse the assumption and its consequent requirements are there.

Nor can we accept Mr Fordham’s argument that the want of a planned route, or for that matter an organiser, makes it in terms of s.11(1) not reasonably practicable to give the requisite notice. The exemption of cases in which “it is not reasonably practicable to give any advance notice of the procession” is designed to accommodate demonstrations occurring in reaction to sudden events and so unable to be the subject of any notice at all. In less urgent cases, s.11(6) allows for notice to be served within the 6-day period “as soon as delivery is reasonably practicable”. Both provisions have to do with the practicalities of timing, not with the feasibility of giving the required details.

There is a distinct reason why this court ought not to answer the third question. 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).

Counsel agree that it is the procession itself to which the intention has to be ascribed under s.11(1). One might well have wondered why the claimant takes issue with the suggestion that the Critical Mass rides are “intended … to demonstrate support for or opposition to the views or actions or any person or body of persons [or to] publicise a cause or campaign” within s.11(1). Their overt and perfectly legitimate purpose, Mr Beer submits, is 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 be thought to be the ones which both unify them and are conveyed to the public.

But Mr Fordham tellingly instances a procession of children who are walked to school each day in a marshalled group to ensure their safety. The parent who has organised it may be campaigning for better road safety and have arranged extensive publicity for the procession. But if the shared or dominant intention of the procession is simply to get the children to school safely, it will not come within s.11(1) and no notice will be required. This we would accept. What we find rather harder to accept is the submission that Critical Mass is in an analogous class because its participants go along for the pleasure of a collective cycle ride and not to make a point to the world.

In these circumstances we decline to hold that the Critical Mass event has no collective intention bringing it within s.11(1). Whether, in the event of a prosecution, the police would be able to prove, as they would need to do, that the ride had one or more of the collective aims listed in the subsection will matter only if we are wrong on the final issue, to which we now turn.

“The procession” in s.11(2) is a procession with an intention that brings it within subsection (1): absent such an intention, no notice is in any event required. Parliament’s assumption in enacting the first exemption created by s.11(2) must have been that the authorities will already know about those processions which are customarily or commonly held in their locality and so be in a position to police them.

There is nothing in the subsection, or in s.11 as a whole, which defines such a procession by its route. Accordingly, in our judgment, an annual Remembrance Day parade, which would ordinarily fall within s.11(1)(c) as a procession commemorating an event, does not forfeit the protection of s.11(2) if it alters its route. The Act gives no support to Mr Beer’s stricture that, while minor changes can be made, a radical change of route will require notice. 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 is not easy to say as a matter of ordinary English that a procession which has taken place in the Metropolitan Police area on the last Friday of every month for almost 12 years is not one which, by now, is commonly or customarily held there. But Mr Beer seeks to meet this ostensibly cogent proposition in two ways. He submits first that there has not been the constancy of intention which would make a Critical Mass ride the same procession today, for the purposes of s.11(1), as it was in and after 1994. Secondly he contends that Critical Mass cannot rely on its own unlawful origins to give it a common or customary character.

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. We would simply note that the denial of a collective intention falling within s.11(1) may not be easy to reconcile with the continuity of qualifying intention needed to attract the protection of s.11(2). Either will afford a defence, but it is hard to see how both can.

This leaves the argument from initial illegality. Mr Beer points out that the rides began at a time when the Public Order Act 1986 required notice to be given; yet none apparently ever was. Reliance, he argues, cannot now be placed on an accumulation of unlawful processions in order to establish the common or customary character which escapes the requirement of notice. If this means reading the words “is one which is commonly or customarily held” in s.11(2) as “has become one…”, Mr Beer submits we should do so.

We would accept Mr Beer’s last proposition on the logical ground that no event can initially be either common or customary. But by itself it proves nothing; and, for the rest, we are unable to accept his argument. The fallacy in it is the assumption that there is such a thing in the context of s.11 – or for that matter of ss.12 or 13 - as an unlawful procession. What all these sections create are offences on the part of individuals arising out of specified breaches of control measures. Of course an entire procession may act unlawfully, for example by unreasonably obstructing the highway or by setting out to terrorise a neighbourhood; but the police have distinct powers to deal with such occurrences. It is not, in our judgment, open to the Commissioner or to the courts, many years in retrospect, to treat the early Critical Mass rides as having themselves been unlawful, even if one gives unlawfulness the limited meaning, on which Mr Beer fell back in argument, of being such as to attract s.11 sanctions. For reasons considered earlier in this judgment, one cannot know, for example, whether there was in 1994 an organiser capable of having violated s.11 by not giving notice. If it is to be said that one or more of the early rides involved infractions by individuals of s.11, the time to establish it was then. No court of summary jurisdiction would be justified in deciding whether a Critical Mass ride is now common or customary by trying to decide whether  someone – and if so, presumably, who - had organised the same event in breach of s.11 twelve years ago.

We would observe in this connection that the circular letter issued over the name of Superintendent Gomm is based on the same mistaken idea that a procession itself can be unlawful for want of notice. We would add parenthetically that the offence of participation in a public demonstration in a designated area under s.132 of the Serious Organised Crime and Police Act 2005 is not committed if the procession is either governed by or exempted from s.11 of the 1986 Act: see s.132(3). It seems to us regrettable that this letter, the express purpose of which was to warn cyclists against participating in Critical Mass rides, did not have the benefit of sounder legal advice. The subsequent letter of 21 October 2005 to the claimant’s solicitor from Sarah Winfield, on behalf of the Commissioner’s Director of Legal Services, put the case more fully and more accurately. But the contradiction in the Commissioner’s position resurfaced when she wrote:

“….none of these monthly events have ever been notified under s.11 of the Public Order Act 1986. It is however, and always has been, the view of the MPS that they are processions within the meaning of s.11…”

It is common ground that on this issue the court has effectively all the information which a trial court could have about the Critical Mass events in relation to s.11(2), and both parties invite us to decide the s.11(2) question on the basis of it. It is, of course, information which is good only up to the moment of our hearing, but for so long as it remains good it establishes, in our judgment, that the monthly Critical Mass cycle ride in the Metropolitan Police area is one which is commonly or customarily held there and of which notice is therefore not required under s.11 of the Public Order Act 1986.

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.

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.

Having received this judgment in draft, counsel are agreed that this is a declaratory judgment, that it is not necessary to make a formal declaration, and that for substantive purposes this judgment is all that is needed. There will, by agreement, be no order as to costs.