| HIGHWAY — Public procession — Advance notice — Mass cycle rides in central London — Rides taking place monthly for 12 years — Participants promoting cycling — No organiser or fixed route — Whether requiring advance notice to police — Whether “commonly or customarily” held in police area — Public Order Act 1986, s 11(2)
Kay v Commissioner of Police of the Metropolis
CA: Sir Mark Potter P, Wall and Leveson LJJ: 21 May 2007
Since no fixed route was followed the monthly mass cycle rides through central London could not be considered commonly or customarily held processions and therefore the organisers were required to give the police prior notice of the names of organisers, date and start time and intended route.
The Court of Appeal so held in a reserved judgment (Wall LJ dissenting) when allowing the appeal of the defendant, the Commissioner of Police of the Metropolis, against the decision of the Divisional Court of the Queen’s Bench Division (Sedley LJ and Gray J) on 27 June 2006 [2006] RTR 469 that the monthly mass cycle rides, in which the claimant Desmond Woolf Kay took part, constituted an event and not a notifiable procession and thus did not engage s11 of the Public Order Act 1986. The ground of appeal was that the court had erred in law in finding that the mass cycle rides were processions commonly or customarily held within the police area for the purposes of s11(2) of the 1986 Act.
LEVESON LJ said that, while accepting that s11(3) could not be read into s11(2), that was not to say that route was irrelevant to the question whether a procession was one that was “commonly or customarily held”. Route was clearly relevant and it was questionable whether here there was the necessary element of repetition of the activity which constituted the procession, sufficient to satisfy the essential elements of s11(2) of the 1986 Act, if the only common features were the location and time of its commencement. Although there was no doubt that a mass cycle rally at the National Film Theatre was commonly and customarily held on the last Friday of each month, in his Lordship’s view, although a procession customarily followed that rally or meeting the actual procession which then took place was neither common nor customary. Rather each procession was an unique enterprise taking place over a route devised by those who happened to be at the front at the start and who could then dictate the route; the cyclists not only did not travel along an identical or even similar route but they also never ended up in the same place twice. Accordingly whether or not an organiser could be identified and whether or not one of the statutory intentions set out in s11(1) of the 1986 Act could be established, the mass cycle ride did not constitute a procession commonly or customarily held so as to bring it within the s11(2) exemption.
SIR MARK POTTER P delivered a concurring judgment.
WALL LJ, dissenting, said that far from the absence of a fixed route proving fatal to bringing the procession within the s11(2) exemption, starting from the same point at the same time on the same day each month and going off thereafter in different directions was all part of the customary nature of the cycle rides. Furthermore, if the police had felt the need to intervene and argue that the rides were caught by s11(1) or were outside s11(2) they could and should have done so years ago; since nothing had changed since 1994 it was now far too late to say that the absence of a fixed route required obedience to s11(1). In his Lordship’s view if s11(1) were to apply to the cycle rides it was for Parliament to change the law to enable it to do so.
|
Appearances: David Pannick QC and Jason Beer (Directorate of Legal Services, Metropolitan Police Service) for the defendant; Michael Fordham QC (Phil Michaels, Friends of the Earth Rights and Justice Centre, Islington) for the claimant.
|
