R (Kay) v Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | Lord Justice Leveson,Lord Justice Wall |
| Judgment Date | 21 May 2007 |
| Neutral Citation | [2007] EWCA Civ 477 |
| Docket Number | Case No: C1/2006/1758 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 May 2007 |
[2007] EWCA Civ 477
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL APPEALS DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
LORD JUSTICE SEDLEY, MR JUSTICE GRAY
The President of the Family Division
Lord Justice Wall and
Lord Justice Leveson
Case No: C1/2006/1758
David Pannick QC and Jason Beer (instructed by E. B. Solomons, Directorate of Legal Services, Metropolitan Police Service) for the Appellant
Michael Fordham QC (instructed by Friends of the Earth Rights and Justice Centre, London) for the Respondent
Hearing date: 14 March 2007
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.
The Background
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.
The Statutory Scheme
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.”
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