Kay v The Commissioner of Police of the Metropolis

Section 11 of the Public Order Act 1986 requires notice only where a public procession has one of the statutory collective intentions. A procession is not exempt merely because its route is unplanned or no organiser is immediately identifiable. Those matters concern compliance and proof of an offence, not whether the statutory notice regime applies. The exemption for a procession commonly or customarily held in the relevant police area is assessed by reference to the event’s collective intention, not its route. Repeated events may acquire that character even if earlier individual breaches of the notice provisions are alleged but unproved. The statute creates offences by individuals for specified breaches; it does not make the procession itself unlawful for want of notice.

The claimant sought declaratory relief concerning monthly Critical Mass cycle rides through the Metropolitan Police area. The rides had taken place for almost 12 years, on the last Friday of each month, from a fixed starting point, but with routes selected during the ride. The Commissioner considered that the rides were public processions requiring advance notice under section 11 of the Public Order Act 1986.

The claimant argued that the rides lacked a statutory intention, were commonly or customarily held, had no identifiable organiser, and had no sufficiently definite proposed route. The court considered the first two issues and declined to determine in the abstract whether an organiser could be identified in any future prosecution.

1. Notice and statutory assumptions. Section 11(3) assumes that a notifiable procession has a proposed route and an organiser whose name can be given. The absence of a planned route or immediately identifiable organiser does not remove the requirement to give notice. The provisions concerning impracticability of advance notice and late notice address timing, not the feasibility of supplying the required details.
2. Organiser. Whether a particular accused organised the procession is a question for any prosecution. The police must prove that the accused organised it, whether from the outset or during its progress. The court declined to hold that such a prosecution could never occur, referring to Flockhart v Robinson [1950] KB 498.
3. Collective intention. The relevant intention is that of the procession itself. The court declined to hold that Critical Mass necessarily lacked an intention within section 11(1). Whether the police could prove a qualifying collective aim would matter only if the section 11(2) exemption did not apply.
4. Common or customary procession. For section 11(2), the question is whether the event, defined by its collective intention, is commonly or customarily held in the relevant police area. The route is not determinative. A change of route does not remove the exemption. The court also rejected the argument that alleged initial illegality prevented the rides from becoming customary. The Act creates offences by individuals for specified breaches and does not make the procession itself unlawful for want of notice.
5. Application and outcome. More than 140 monthly rides, held from a fixed location on a fixed day and at a fixed time, established that the Critical Mass ride was commonly or customarily held in the Metropolitan Police area. Notice was therefore not required under section 11. The judgment was declaratory in substance, with no formal declaration and no order as to costs.