Commissioner of Police for the Metropolis v Kay

The exemption in section 11(2) of the Public Order Act 1986 is not determined merely by a procession’s fixed starting point, time or collective intention. A procession is a moving activity, so its route and destination are material to whether it is commonly or customarily held. The assessment is one of fact and degree, and no single feature is decisive. However, a procession with no recurring route or endpoint cannot qualify merely because it begins regularly at the same place and time. The majority therefore held that the Critical Mass rides fell outside the exemption.

The Commissioner appealed from the Divisional Court’s declaration that monthly Critical Mass cycle rides were commonly or customarily held in the Metropolitan Police area and therefore exempt from the notice requirements of section 11 of the Public Order Act 1986. The rides began at the same place and time each month but followed different routes and ended at different locations. The Commissioner argued that route was essential to the identity and customary nature of a procession. The respondent argued that the recurring event, fixed starting arrangements and known policing context were sufficient. The central issue was whether the rides fell within the section 11(2) exemption.

Disposition. By a majority, Sir Mark Potter P and Leveson LJ allowed the appeal. Wall LJ dissented and would have dismissed it.

1. Statutory scheme. The first limb of section 11(2) of the Public Order Act 1986 removes from the advance-notice obligation processions commonly or customarily held in the relevant police area. Section 11(3) specifies the particulars required in a notice but does not define the scope of the exemption. The separate control powers under sections 12 and 13 remain available for processions presenting the relevant risks.
2. Meaning of common or customary. The court must consider all the features making up the moving activity. Route and destination are material because a procession moves from a rallying point to another point or back again. No single feature is determinative, and variation in route, time or starting point may be compatible with continuity where the procession remains the same. The question is one of fact and degree.
3. Application. Although the monthly rally at the National Film Theatre was common and customary, the procession which followed it was not. Each ride followed a route devised during the event, never used the same route or reached the same endpoint, and was therefore a unique enterprise. It did not fall within section 11(2), whether or not an organiser or statutory intention could ultimately be proved.
4. Minority reasoning. Wall LJ considered that the fixed starting place and time, monthly recurrence and consistently variable route were all part of the rides’ customary nature. The police knew the event and had historically policed it without substantial difficulty. He relied on the statutory-construction approach in R(Quintavalle) v Secretary of State for Health [2003] UKHL 13 and would have followed the Divisional Court.
5. Proof. Leveson LJ emphasised that any prosecution must prove every ingredient of an alleged breach of the notice provisions, including the identity of an organiser and the relevant intention, to the appropriate criminal standard. The court left open the wider question concerning the propriety and legal effect of declaratory relief.

1. Court of Appeal (Civil Division). The majority allowed the Commissioner’s appeal; Wall LJ dissented.
2. Divisional Court, Administrative Court, Queen’s Bench Division. Declared that the monthly Critical Mass rides were commonly or customarily held and exempt from section 11 notice requirements: [2006] EWHC 1536 (Admin).