Kay (FC) v Commissioner of Police of The Metropolis

A procession may be “commonly or customarily held” within section 11(2) of the Public Order Act 1986 although its route changes, or is chosen spontaneously, on each occasion. Whether recurring events constitute the same customary procession depends on their features as a whole. A fixed route is not essential.

Section 11 must not be construed as indirectly prohibiting public processions without predetermined routes. On the assumption that recurring rides with an impromptu route were otherwise notifiable, their regular time, starting place, purpose, character and recognised name were sufficient to bring them within the customary-procession exemption.

A monthly cycle ride known as Critical Mass had begun at the same time and place in central London since 1994. Its route, destination and finishing time were chosen spontaneously by participants. The Metropolitan Police distributed a letter asserting that the absence of advance notification made the rides unlawful.

The Administrative Court, in [2006] EWHC 1536 (Admin), held that the ride was a procession commonly or customarily held and therefore exempt under section 11(2) of the Public Order Act 1986. A majority of the Court of Appeal allowed the Commissioner's appeal in [2007] EWCA Civ 477, reasoning that the absence of a sufficiently consistent route prevented the exemption from applying.

The cyclist appealed. The formal issue was whether a recurring procession required a fixed route to qualify as commonly or customarily held. The wider, largely unargued question was whether section 11 applied at all to an impromptu procession without organisers or a predetermined route.

1. The appeal was allowed unanimously. Lord Phillips, Lord Rodger, Baroness Hale and Lord Carswell concluded that a fixed route was not an essential characteristic of a procession commonly or customarily held under section 11(2) of the Public Order Act 1986. Lord Brown allowed the appeal on the logically prior ground that the rides were not notifiable processions within section 11.

2. Per Lord Phillips, the recurring rides had sufficient common features to constitute the same customary procession. They involved cyclists, began at the same place and time each month, occurred within the same police area, pursued a common intention, used a recognised name and selected their route in the same spontaneous manner. The fact that routes varied did not displace the natural meaning of “commonly or customarily held”.

3. Per Lord Rodger, section 11 did not impliedly require every procession within subsection (1) to have a predetermined route. Parliament could not be taken to have prohibited such processions indirectly through a notification provision, particularly when section 13 expressly provided a carefully defined power to prohibit processions. On the assumption that section 11(1) otherwise applied, section 11(2) exempted the London rides.

4. Per Lord Carswell, the statutory paradigm was a familiar annual procession whose route was known to the police. That paradigm did not exhaust the exemption. Customary processions may vary their routes while retaining common starting points, destinations and other identifying characteristics.

5. Baroness Hale agreed on the narrow issue. She also explained that section 11 did not make a procession, or mere participation in it, unlawful. Its offences were directed at organisers who failed to meet notification requirements or whose procession differed from the notification.

6. Lord Phillips provisionally considered that section 11 could not apply where there was no antecedent proposal and no organiser. Lord Brown reached that conclusion as his basis of decision: section 11 implicitly concerned organised processions, whereas the ride following the organised assembly was inherently impromptu. Lord Rodger considered that exclusion from section 11 might be the preferable wider analysis. The House did not adopt a single concluded ratio on that wider issue because the appeal had been confined to section 11(2).

1. House of Lords — [2008] UKHL 69: Allowed the cyclist's appeal unanimously and displaced the Court of Appeal's conclusion that a fixed route was required.
2. Court of Appeal — [2007] EWCA Civ 477: By a majority, allowed the Commissioner's appeal. Wall LJ dissented.
3. Administrative Court — [2006] EWHC 1536 (Admin): Held that the recurring ride was commonly or customarily held within section 11(2), although it rejected arguments based on the absence of an organiser or planned route. No formal declaration or order was made.