COURT OF APPEAL (CIVIL APPEALS DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LORD JUSTICE SEDLEY, MR JUSTICE GRAY
 EWHC 1536 (Admin)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALL
LORD JUSTICE LEVESON
| COMMISSIONER OF POLICE FOR THE METROPOLIS
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Michael Fordham QC (instructed by Friends of the Earth Rights and Justice Centre, London) for the Respondent
Hearing date : 14 March 2007
Crown Copyright ©
Lord Justice Leveson :
"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."
The Statutory Scheme
"(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."
"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."
"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."
"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. "
The Divisional Court
"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  KB 498). "
"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."
"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."
The Appeal: Argument
Lord Justice Wall:
"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."
" …. 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. "
"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."
"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."
"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."
Sir Mark Potter P:
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.