|Judgments - Kay (Fc) V Commissioner of The Police of The Metropolis Appellate Committee Lord Phill
HOUSE OF LORDS
 UKHL 69
on appeal from:  EWCA Civ 477
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Kay (FC) (Appellant) v Commissioner of the Police of the Metropolis (Respondent)
Lord Phillips of Worth Matravers
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Michael Fordham QC
(Instructed by Friends of the Earth Rights and Justice Centre)
David Pannick QC
(Instructed by Metropolitan Police Directorate of Legal Services)
20 OCTOBER 2008
WEDNESDAY 26 NOVEMBER 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Kay (FC) (Appellant) v Commissioner of Police of the Metropolis (Respondent)
 UKHL 69
LORD PHILLIPS OF WORTH MATRAVERS
"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"
"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."
"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 decision of the Administrative Court
"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).
"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
"any procession is active and takes its regularity from an examination of all the features that make it up. A procession cannot, in my judgment, become common or customary if no route or end point is ever the same.
32. This interpretation avoids any problem of seeking to constrain a procession which is truly commonly or customarily held to the precise route previously adopted. I could certainly visualise commonly held processions that start at the same point at the same time and end up in the same place albeit travelling by different routes. Similarly, processions which are held at different times or dates but follow the same route would not, in my judgment, necessarily cease to be commonly or customarily held. Thus, for instance, a Remembrance Day parade remains the same procession even if, for some reason, the organisers choose a different route from church to war memorial, or, indeed, a slightly different starting or end point in any particular year provided that, having regard to all the circumstances, the procession remains the same: in each case, it will be a question of fact and degree. No single feature is determinative."
"the provisions of section 11(3) of the 1986 Act involve the statutory assumption of a route. That being so, it appears to me that, when considering whether or not a procession is "commonly or customarily held", which is the requirement for exemption under section 11(2) from the notice provisions in section 11(1), it is necessary to take into account the route which it follows.
69. That is the point at which I, like Leveson LJ, depart from the reasoning of the Divisional Court. While, as a matter of express words, it is correct to say that there is nothing in section 11 as a whole which defines "a procession" in subsection (2) by its route (see para 20 of the judgment) it none the less assumes that it has one: see section 11(3)
The first part of [section 11(2)] seems to me to be directed to processions, the identity, nature and route of which are of sufficient consistency and longstanding to enable the police readily to anticipate the nature and extent of regulation which may be required along the route of the procession. In no sense can the monthly rides of Critical Mass be so described, give the entirely random nature of the route followed."
The narrow issue
"A procession is not a mere body of persons: it is a body of persons moving along a route. Therefore the person who organizes the route is the person who organizes the procession. That is how I approach this case. It seems to me clear that, at any rate from the time when these people reached Piccadilly Circus, the defendant was organizing the route for the procession to follow, and that they followed it.
. . .
He was organizing the procession because, although he did not organize the body of people, he organized the route. There is no other way of organizing a procession, because a procession is something which proceeds. By indicating or planning the route a person is in my opinion organizing a procession."
- The procession is made up of cyclists;
- The procession starts at the same place;
- The procession takes place in the Metropolitan Police Area;
- The procession starts at 6pm on the last Friday of every month;
- Those who join the procession do so with a common intention;
- The procession is recognised and publicised by a single name, "Critical Mass".
- The procession chooses its route on a follow-my-leader basis.
The wider issues
(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.
It is not necessary to select between these, nor appropriate to do so without hearing argument on them. Any one would, however, be preferable to the construction urged by Mr Pannick.
LORD RODGER OF EARLSFERRY
BARONESS HALE OF RICHMOND
"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."
These passages were apparently based upon section 11 of the Public Order Act 1986, set out by my noble and learned friend, Lord Phillips of Worth Matravers at para 4 of his opinion. If so, they were misleading. Section 11 does not make the procession itself, or mere participation in it, unlawful. Only the organisers commit an offence, if they fail to comply with the notice requirements or the procession actually held differs from the procession notified. Yet the object of the letter must have been to deter everyone involved from taking part.
LORD BROWN OF EATON-UNDER-HEYWOOD