R (Kay) v Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | LORD PHILLIPS OF WORTH MATRAVERS,LORD RODGER OF EARLSFERRY,BARONESS HALE OF RICHMOND,LORD CARSWELL,LORD BROWN OF EATON-UNDER-HEYWOOD |
| Judgment Date | 26 November 2008 |
| Neutral Citation | [2008] UKHL 69 |
| Date | 26 November 2008 |
| Court | House of Lords |
[2008] UKHL 69
HOUSE OF LORDS
Appellate Committee
Lord Phillips of Worth Matravers
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Carswell
Lord Brown of Eaton-under-Heywood
Appellants:
Michael Fordham QC
Emma Dixon
(Instructed by Friends of the Earth Rights and Justice Centre)
Respondents:
David Pannick QC
Jason Beer
(Instructed by Metropolitan Police Directorate of Legal Services)
My Lords,
Introduction
The facts of this case raise issues of public importance as to the ambit of section 11 of the Public Order Act 1986. It is unfortunate that both before the Court of Appeal and this House the appellant was content to found his case on one narrow issue that is fact specific and much less significant than the wider issues. Those wider issues were canvassed in argument, though Mr Pannick QC for the respondent made the point that he had not come prepared to deal with them. Your Lordships will on this appeal resolve the narrow issue. I propose however to make some provisional observations on the wider issues so that the effect of the decision in this case is not misconstrued.
The appellant is an environmental educator and performing artist who is a regular participant in the monthly Critical Mass Cycle Ride ("Critical Mass"). The nature of Critical Mass is central to both the narrow and the wider issues. It has been agreed between the parties in the following terms:
"Critical Mass is not an organisation but the name given to a recurrent event. It takes place in central London on the evening of the last Friday of every month, as it has done since April 1994. Similar events take place on the last Friday of every month in many other cities throughout the world. Critical Mass starts at the same location (the South Bank, near the National Theatre) at the same time (6 pm). It is featured in Time Out magazine. It is in the nature of Critical Mass that there is no fixed, settled or predetermined route, end-time or destination; where Critical Mass goes, where and what time it ends, are all things which are chosen by the actions of the participants on the day"
These agreed facts represent an advance from the position before the Administrative Court. Giving the judgment of that court, Sedley LJ commented "there is not complete agreement as to whether the choice of route is truly spontaneous." ( [2006] EWHC 1536 (Admin), para 6). It may be that there were organisers who planned the original Critical Mass in April 1994. Today, however, the agreed facts suggest that it is an event that takes place spontaneously without any advance planning or organisation by any individual or individuals. The spontaneity of the event and, in particular, of the route that it takes, is an important feature of Critical Mass. Another feature that has been assumed for the purpose of these proceedings is that most who join Critical Mass share a common intention in doing so, which can perhaps be shortly described as promoting cycling.
The following are the relevant provisions of the 1986 Act:
"11 Advance notice of public processions
(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 of one of the persons) proposing to organise it.
(4) Notice must be delivered to a police station—
(a) in the police area in which it is proposed the procession will start, or
(b) where it is proposed the procession will start in Scotland and cross into England, in the first police area in England on the proposed route.
(5) If delivered not less than six clear days before the date when the procession is intended to be held, the notice may be delivered by post by the recorded delivery service; but section 7 of the Interpretation Act 1978 (under which a document sent by post is deemed to have been served when posted and to have been delivered in the ordinary course of post) does not apply.
(6) If not delivered in accordance with subsection (5), the notice must be delivered by hand not less than six clear days before the date when the procession is intended to be held or, if that is not reasonably practicable, as soon as delivery is reasonably practicable.
(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 direction.
(10) A person guilty of an offence under subsection (7) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
12 Imposing conditions on public processions
(1) 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 to 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."
These proceedings were initiated by the appellant in response to a circular letter handed to participants in Critical Mass by Superintendent Gomm of New Scotland Yard which included the following assertions:
"Organisers of public processions are required by law to notify police at least six days before the event occurs of the date, time, proposed route and name and address of an organiser. Failure to do so makes the event unlawful.
…
These cycle protests are not lawful because no organiser has provided police with the necessary notification. Your participation in this event could render you liable to prosecution. Police policy in facilitating these events is currently under review."
The narrow issue is whether Critical Mass is a "procession [which is] commonly or customarily held in the police area (or areas) in which it is proposed to be held", so that it falls within the exemption granted by section 11(2). The wider issues raise the question of whether, and if so how, section 11 of the 1986 Act applies to events such as Critical Mass.
The decision of the Administrative Court
In giving the judgment of the Administrative Court, Sedley LJ rejected the argument that section 11 of the 1986 Act could not apply to Critical Mass because it had neither an organiser nor a proposed route capable of being notified under section 11(3). He said (paras 13 and 14)
"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… 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 section 11(1) not reasonably practicable to give the requisite notice."
The appellant succeeded however on the narrow issue. He contended, successfully, that the monthly ride by Critical Mass was a procession which was "commonly or customarily held" within the exemption in section 11(2).
Sedley LJ proceeded on the basis that Critical Mass had an intention that fell within section 11(1). He held that it was by its intention that a notifiable procession was defined. Continuity of intention was necessary to give the procession the common or customary character necessary to attract the protection of section 11(2). He commented 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." (para 27).
The decision of the Court of Appeal
The Respondent appealed. The appellant did not cross–appeal on the issues on which he had lost. The...
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