England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		9th December 2013

MR JUSTICE OUSELEY :

1. Mr Powlesland, along with others, was convicted in March 2013 before District Judge Roscoe at City of Westminster Magistrates Court of an offence under section 12(5) of the Public Order Act 1986. The offence was taking part in a public procession on 27 July 2012, knowingly failing to comply with a condition imposed on the procession by direction of an Assistant Commissioner, acting on behalf of the Metropolitan Police Commissioner. Those conditions, to the extent upheld by the District Judge, prohibited the procession, which was a Critical Mass Cycle Ride, CMCR, from going north of the Thames on 27 July 2012, between 6pm on 27 July 2012, the day of the Olympic Games Opening Ceremony in Stratford, and 3am the next day. She found that Mr Powlesland started out as and remained part of the procession, albeit not on a bicycle, when it was north of the Thames during the hours of exclusion, and knew of the conditions. He appeals against conviction by way of Case Stated contending that the District Judge ought to have found that the police had no power to give the direction containing the conditions because at the time they did so, no route had been proposed and the procession had not started.
2. These grounds require an understanding of a CMCR. I start with an agreed summary of the particular characteristics of a CMCR, adopted by the District Judge from the speech of Lord Phillips in Kay v Commissioner of the Police of the Metropolis [2008] UKHL 69:

"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."

3. This particular Friday therefore was the July day on which the customary CMCR event would take place.

The statutory provisions

4. S12 of the Public Order Act 1986, which is in Part II "Processions and Assemblies", provides:

"(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 space specified in the directions.

In subsection (1) "the senior police officer" means-

(a) In relation to a procession being held, or to a procession intended to be held in a case where persons are assembling with a view to taking part in it, the most senior in rank of the police officers present at the scene, and

(b) In relation to a procession intended to be held in a case where paragraph (a) does not apply, the chief office of police.

(c) A direction given by a chief officer of police by virtue of subsection (2)(b) shall be given in writing.

(5) A person who takes part in a public procession and knowingly fails to comply with a condition imposed under this section is guilty of an offence, but it is a defence for him to prove that the failure arose from circumstances beyond his control."

This is an arrestable offence, punishable by a fine.

5. It is convenient to set out here two other sections of the Act which featured in the submissions to us. Mr Blom-Cooper, for the Appellant, submitted that s11 was relevant to what was meant by "proposed route". This is a notification provision. It provides:

"(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."

6. S11 also prescribes the police station to which, and how, notice must be delivered. Subsection 7 makes it an offence not to give the required notice, or to hold a procession if the date, start time or the route differ from that specified in the notice.
7. S14 enables conditions to be imposed on public assemblies which the senior police officer present believes will become seriously disruptive in the same way as provided for in s12 in relation to processions. Directions may impose conditions as to the place at which the assembly may be held or continue to be held, its maximum duration, or the maximum numbers which may constitute it.

The issue in the appeal

8. The Appellant, as with the other Defendants, argued that the CMCR was not a procession at all, but the District Judge rejected that argument, rightly, and although it was originally raised by one of the questions in the Case Stated, it has not been pursued. It is therefore accepted that the fact that there was no pre-determined route did not prevent the CMCR being a "procession" within both ss11 and 12. Indeed, the House of Lords in Kay, above, had concluded that, if it were a procession within s11, by 2008 it had become exempt under s 11(2), as a "commonly or customarily" held procession. The majority of their Lordships were prepared to assume that the CMCR was a procession.
9. The Appellant had argued unsuccessfully that there was no "route or proposed route" since CMCR had no pre-determined route at any stage, even moments before setting off from the South Bank, and so no conditions could be imposed in advance. The s12 power to impose conditions while the procession was being held was not the power which was exercised. That argument underlies the appeal. Mr Blom-Cooper also argued, before us it appears for the first time, that there could also be no "proposed route" if it had not been notified under s11, but I accept that that falls within the scope of the question in the Case Stated.

The question for the opinion of this Court is:

"(2) Was I right to conclude that the requirement within section 12(1) of the Act that the senior police officer consider the "route or proposed route" of the public procession was satisfied where the officer has considered the route even where the route was likely to be spontaneous and unpredictable?"

The focus on "proposed route"

10. Mr Blom-Cooper's submissions focused on "proposed route" since he attributed significance to the fact that the police notice of the direction imposing conditions under s12 was dated 25 July 2012, two days before the procession. That is when the Assistant Commissioner decided that the requirements of s12 were met, "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…."
11. I have put in brackets those parts of the statutory wording which Mr Blom-Cooper submitted were inapplicable to the question which the Assistant Commissioner was considering on 25 July 2013. The District Judge appears to have accepted 25 July as the date when the Assistant Commissioner reached the conclusion that a direction should be given.
12. I point out that the statutory question however is not what the police thought when preparing the notice, but what the police reasonably believed when the direction was given. There is no finding that the direction was given on 25 July. Rather the evidence, as recorded in the District Judge's judgment on the submission at the close of the prosecution case, was that the police had tried to communicate with CMCR without success before 25 July, not to give them a direction but, it appears, to ascertain their intentions. The evidence which the District Judge accepted about how the various Defendants were given the direction clearly relates to what was done by the officers present at the South Bank on 27 July when the riders were waiting to set off, including conversations with riders and a police car tannoy. That is when the direction was given, before and not after the procession had set off, and that is what matters for Mr Blom-Cooper's submissions. I shall however revert to that aspect later.
13. It does not matter in this case that the crucial judgment, which eventuated in the later giving of the direction, was made on 25 July, since it is not suggested by either party that there was any change in circumstances over the next two days. But the evidential focus should be on the position when the direction is actually given.

Must a "proposed route" within s12 be one which has been notified to the police under s11?

14. Mr Blom-Cooper first submitted that the effect of s11, read with s12, was that a "proposed route" in s12 was one which had actually been notified to the police under s11. It did not cover one which should have been notified but was not notified, even if it had been publicly proclaimed, nor did it cover one which could not be notified for want of an organiser to do the notifying. S12 could therefore only apply to a procession which had not been notified, for whatever reason, once the procession "is being held". That procession then has a route, and the s12 powers applicable to a procession with a route become exercisable. The possible gap in the preventive powers of the police in relation to routes not formally notified but known to or anticipated by the police could be filled by resort to s14 of the 1986 Act.
15. I do not accept this submission. It makes no sense of s12 in language or purpose. S11, it is true, is concerned with the notification of the proposed route of proposed processions, but it does not follow as a matter of language or purpose that s12, so far as it relates to proposed routes, is concerned only with notified proposed routes. There is no express limitation of "proposed route" in s12 to those which have been notified. In each section there are powers in respect of "proposed routes", but s12 is not merely a follow on section to s11, making provision for notified routes alone. S3 of the Public Order Act 1936 was the predecessor provision to s12, and it was in very similar terms to s12, when there was no equivalent to s11, the notification provision. There is no reason to suppose that so radical a limitation on s12 was to be created by the greater power which the notification provision in s11 was intended to confer. It is also difficult, as a matter of language, to see why the word "notified" should be inserted so as to qualify "proposed route", but not to qualify "route" as well. But Mr Blom-Cooper accepted, for very good reason that "route" should not be so qualified.
16. S12 also has its own purpose, which is to enable an advance precautionary direction to be given for processions which are proposed, notified or not, and to enable a more immediate precautionary direction to be given when the procession is being held. Sedley LJ in Kay in the Divisional Court [2006] EWHC 1536 at paragraph 9 contrasted the control powers in ss12 and 13, applying to any procession, notifiable or not, if the circumstances indicated a material threat of disorder or intimidation, with the purpose of s11 which was to permit the policing of processions, whether or not they posed such a threat. Nothing in the House of Lords decision contradicts that.
17. There is no purpose in excluding unnotified processions from the scope of the power to give an advance precautionary direction, leaving the power to arise only when the procession is "being held", however serious, obvious and foreseeable the problem would be. That requires an obviously strained interpretation simply to introduce a gap in the legislation. It would be very strange indeed if the senior officer present as the procession assembled, with evidence all around him of its intended route, had to stay his hand until the procession had left simply because the organiser, out of devilment or ignorance of the law, had declined to notify the police of the proposed procession. The pointlessness of such an interpretation is demonstrated by Mr Blom-Cooper's assertion that the inconvenience of such a gap might be reduced by the use of s14 of the 1986 Act. That could only apply if a procession could also be an assembly, and if the route could be regarded as the place at which it could be held. It is not obviously fit for the role assigned to it by Mr Blom-Cooper to fill a gap of his making.
18. The language and purpose of s12, in my judgment, plainly cover processions and proposed routes which are not notified.

Can a route which is chosen spontaneously by participants while the procession is being held be a "proposed route"?

19. Mr Blom-Cooper's second submission was that even if a "proposed route" included a route which was not notified, or even notifiable, a "proposed route" still meant a specific route which was actually proposed. It could not cover a route which would be chosen spontaneously as the Ride evolved, which could go anywhere, and for which no destination had been decided. If there were no proposed route to which regard could be had, that relevant factor could not yet be taken into account, and no power to give directions under s12 could arise before the procession was being held. Once, however, the procession was "being held" there was a route, known to the extent to which it was already travelled, and to which the police could have regard, together with what appeared to them to be its onward trajectory, as Mr Blom-Cooper put it. The police could then exercise their powers to give a direction, but it would only be to participants in a procession which was already under way. It did not matter whether the rest of the route was known to the police or not, or even whether it was known to the participants or not.
20. That power could not arise, in this case therefore, until the procession had left the South Bank, and in colloquial terms was under way or in statutory terms was "being held". It would then have had a "route", even though its destination and how it might reach it, would be no more known to participants or police, than it had been two days earlier, or than it had been immediately before setting off. The senior officer present would then have the power to give effect to the same conclusions as he had reached two days earlier, and to give the same direction. Mr Blom-Cooper accepted that the time elapsed and distance travelled between the start of the route and the giving of directions could be very short indeed.
21. It was important however to construe the powers given to the police narrowly in order to reflect the fact that restrictions on processions affected rights under ECHR Articles10, freedom of expression, and 11, freedom of assembly. Any ambiguity should be construed in favour of the individual and against the penalisation of otherwise lawful activities.
22. There are two reasons why I do not regard the second submission as well founded either, ably though it was presented. First, "route" does not have to be a specifically planned route. The CMCR procession does have a "proposed route". The "proposed route" is "a route going anywhere, as chosen spontaneously by the participants from time to time, starting from the South Bank". The route may include roads north of the Thames; the participants do not yet know if it will or not. But those roads are within the scope of their proposed route.
23. There is modest assistance to be derived from the obiter consideration of this issue in Kay. The House of Lords, in finding that CMCR was a commonly or customarily held procession, did consider whether and how it could fill the notification requirements. Lord Phillips, paragraph 20, considered that the notification of the procession under s11 could still be of value to the police, even if they did not know what route was to be followed and so the route was not specified: they would know when and where it would start and in what police area it was to take place. At paragraph 23 he considered, obiter, what the position would have been in relation to an event such as CMCR on the first occasion on which it was held, before it became a procession held commonly or customarily. He rejected the Commissioner's contention that in the absence of a pre-determined route, any s11 notice would be defective and so the organisers would be liable to prosecution if the procession took place. There were a number of possible constructions of s11 which would not involve outlawing a CMCR type procession, and he expressed no preference between them:

"(i) the notification obligation does not apply to a procession that has no predetermined route;

(ii) there is no obligation to give notice of a procession that has no predetermined route because it is not reasonably practicable to comply with section 11(1);

(iii) the notification obligation is satisfied if a notice is given that states that the route will be chosen spontaneously."

24. Lord Rodger, unlike Lord Phillips, did not accept that a notice which did not specify a route could advance the aims of the section. But he concluded in paragraph 43 that s11 could not be interpreted as meaning that all subsection (1) processions had to have a pre-determined route, though the preferable view might well be that s11 did not apply to procession without one. The underlying problem with the decision is that all of their Lordships, save Lord Brown, felt constrained to answer the question whether the Rides were a procession commonly or customarily held, amalgamating the two questions, on a basis which assumed what needed to be argued.
25. My second reason is the s12 power to give a direction in respect of a "route", which obviously includes a "proposed route", necessarily enables the police to give a direction in respect of what they reasonably believe may be the potential routes. The power actually exercisable by the police pursuant to s12 dictates that to which regard must be had. Those potential routes and the risk of serious disruption to which they may give rise are the routes or proposed routes to which regard is to be had.
26. The body of s12 enables a senior police officer, who reasonably believes that a procession may result in serious disruption to the life of the community, to give such directions imposing conditions as to the route of the procession as appear to him necessary to prevent such disruption. This can be done days before the procession, or at the point of assembly or during the procession itself. But clearly the giving of directions is a preventive measure whenever given. The "route" in the body of s12 (1) in respect of which a direction can be given, and which in that part of the section includes both the proposed and actual route, must therefore mean those parts of the route as yet untravelled, whether that is the whole of the route before it starts or the part remaining after the start of the procession. The power would be nugatory otherwise.
27. The power to give directions is to be used, not just when the organisers of a procession have been co-operative enough to tell the police in advance of their intentions as to a specific route, but and perhaps more importantly when they have not done so. It would be an absurd interpretation if a direction, aimed at preventing serious disruption, could not be given unless the police knew as a matter of objectively provable fact that the procession would follow a specific route from A to B via particular roads, despite disruptive organisers masking their intentions. It cannot be that, until the police know the specific route, they cannot use s12 to prevent the use of a reasonably possible but seriously disruptive route. The power to give directions would not be useable when most needed; and it could always be objected that the police did not know what the route was to be, but had merely believed, however reasonably, that it could take a disruptive route.
28. The better interpretation of "route" in the body of s12, therefore, is that the police can give a direction based on what they understand of the organisers' intentions and based on what they believe is reasonably possible. That may not be an objectively provable fact; it may be no more than a reasonable belief based on what has been gleaned from a variety of sources. But once it is recognised that the power to give a direction as to route precedes certain knowledge of the future route, it follows that a direction can be given in respect of what the police reasonably believe to be possible future routes at a time when the actual future route is not known. The fact that the route is uncertain, for whatever reason, necessarily implies the existence of a variety of reasonably possible routes to which the direction can apply. The crucial requirement before a preventive direction is given is therefore not the identification of the precise route to be followed, but the reasonable belief that one or more of the reasonably possible routes may lead to serious disruption.
29. The scope of "route or proposed route", in the first part of s12, to which regard must be had before a direction is given, therefore enables the police to have regard to the reasonably possible future routes of a procession, which may result in serious disruption. A direction can then be given in respect of the procession's route along such roads. The extent of police knowledge of the possible routes goes only to the reasonableness of their judgment as to what routes are possible, and not to the power to have regard to what is reasonably possible and to act on it. S12 does not preclude the power to give a direction arising until a specific route is known for certain.
30. Applied here, the police were entitled on 25 July to have regard to the reasonably possible routes which CMCR might take and which might be seriously disruptive, even though it was not possible to say for certain that it would go north of the Thames which is where the serious disruption would occur. The reasonably possible routes were "anywhere starting from the South Bank as will be decided upon spontaneously by the participants, but which include the roads north of the Thames". The preventive measure was concerned with what would happen if the route went north of the Thames on to the major roads affected by the opening of the Olympics. The police were entitled to give the direction they did.
31. Mr Blom-Cooper submitted that such a construction would be far too wide, and indeed would apply to the other factors to which regard had to be had. The statutory language did not refer to what the police reasonably believed whether as to route or as to the other factors to which regard was to be had. It is true that that is not the express language, but in my judgment it is the necessary implication of the statutory language, having regard to the purpose of the Act. If the police could only act under s12 once they knew the time, place, route and circumstances of a procession in order to have regard to them, the restriction on the sensible exercise of a preventive power would be too severe to have been what Parliament contemplated. It cannot have been intended that the person who gave no notice and concealed his route, its time and place till the last would be able to avoid otherwise necessary advance restrictions.
32. The argument is not advanced either by reference to ECHR Articles 10 or 11 or by the principle against doubtful penalisation. A restriction imposed on a procession which has yet to choose where it wants to go seems to me to be rather less of an interference than one which prevents someone going where they specifically wanted to go. The offence consists of non-compliance with the condition in the direction; it is that which has to be clear, and any ambiguities in it are construed against the police. The power under which the direction is given is not the point at which the rule against doubtful penalisation arises.
33. Even on Mr Blom-Cooper's own submissions, the issue is a technical one. It was not disputed that the police had reasonable grounds, two days beforehand and at the South Bank assembly point, on which they could form the view that if CMCR went north of the Thames that evening, serious disruption could follow. But they would have no power to give a direction two days in advance or while the procession was assembling; they would have to wait till it had set off. A direction could be given in respect of a CMCR procession once it had set off because it would then have a route, however short, already travelled, to which regard could be had and from which some potential trajectory could be inferred. That is another way of saying that a reasonable belief as to where it might go could be formed. That belief could be formed however very soon after departure.
34. This was not a submission based on the extent of knowledge which that short section of route might enable the police to acquire of the possible routes so as to bring s12 into play. There is no or but negligible difference, with a procession like CMCR where there is a free choice exercised spontaneously at all times, between what is known before it sets off and what is known after it sets off, apart from the route actually covered, with perhaps an apparent but potentially short-term heading, which may turn out to be a quite false indicator. The suggestion by Mr Blom-Cooper that the police might have to wait before forming the necessary views, if the CMCR headed south-west from the South Bank, illustrates the point, since it rather ignores the number of bridges crossing the Thames available for use in the free and spontaneous choices exercised by the riders. There is no more than a possibly increasing prospect that CMCR will take the roads which lead to serious disruption. The police would not know the route as a specific journey to a particular destination by particular roads in the one case but not in the other, nor was it suggested that so precise a belief was required before a direction of the sort given here could lawfully be given. Indeed, the police never could know the route of a CMCR in that way until it was over. But the reasonable belief that the CMCR may lead to serious disruption was admittedly there well before the start. So the difference is not that a reasonable belief as to the route becomes firm knowledge at some point after the start of the procession.
35. His submission in reality depended on the mere fact that before the CMCR set off, there was no route to which the police could have regard and so they could not exercise powers under s12, but after it had set off, there was a route, to the extent that it had been travelled, to which regard could be had, and so there was power to give a direction, all without any significant change in what was known about the possible route of the CMCR. A power to give a direction very shortly after the start, but not before, makes little sense in those circumstances since the police would stop the riders or shout at them over a police car tannoy to give the direction shortly after the start, when that could easily have been given while they were milling around waiting to set off. It strongly supports my conclusion that Mr Blom-Cooper's submissions misconstrue s12; if he is right, the time at which power becomes exercisable is unrelated to any significant change in the information which should drive the exercise of the public order power but creates the problems attendant on dealing with a procession already underway rather than when assembling, all without obvious purpose in protecting freedoms.
36. I return to the point at which a direction is given. The difference between the direction being given just before the riders moved off towards the bridge, and being given as they did so, highlights the technicality of the defence and might require quite refined fact finding as to when the procession began "being held". If the giving of the direction had been delayed until the procession had set off, perhaps heading immediately for the nearest bridge over the Thames, this argument could not have been mounted. I doubt that Parliament intended that outcome, in the absence of a sound purpose to it. I see none.
37. I did not derive assistance from Jukes v DPP [2013] EWHC 195 (Admin), Moses LJ and Gloster J. Mr Blom-Cooper relied on paragraphs 16-17 in which, dealing with a s12 offence, Moses LJ placed emphasis on the conditions relating to a "particular procession" and its route. But that language is directed to the question of whether a breakaway procession or group remained part of the particular procession to which the conditions had been attached. That is not the issue here at all. Nor did I gain assistance from Flockhart v Robinson [1950] 2KB 498. Lord Goddard CJ described a procession as a body of persons moving along a route. That is all very well when the procession is being held but does not advance understanding of whether the 1986 Act s12 covers a spontaneously chosen route before it has set off. The 1980 White Paper "Review of the Public Order Act 1936 and related legislation" was cited by Mr Blom-Cooper as was the 1985 "Review of Public Order Law" by Mr Gelbart. Their admissibility was not challenged; their value was limited. There was a debate about the degree of change which the 1986 Act was intended to achieve, but that did not advance the construction issue. I accept that processions of the sort here were unlikely to have been within Parliament's contemplation. But processions the route of which was kept under wraps by the organiser, and not known clearly to the police, may well have been in its contemplation, and the difference between them and CMCR to the intended practical operation of the 1986 Act is of no obvious significance.
38. Accordingly, I would answer the question in the Case Stated: "Yes", and dismiss the appeal.

Lord Justice Goldring:

39. I agree.