Kay (FC) v Commissioner of the Police of the Metropolis

The principal legal issue was the scope of section 11 of the Public Order Act 1986, in particular whether a recurring, routeless monthly cycle ride called "Critical Mass" was a "procession ... commonly or customarily held" within the exemption in section 11(2). The House held that a procession need not follow a predetermined route in order to be "commonly or customarily held" and that the natural meaning of section 11(2) can embrace routeless recurring events. The Lords made provisional observations that (i) section 11 is premised on a prior proposal to hold a procession and an organiser able to give notice, and (ii) where an event has no organiser or no proposed route alternative constructions of section 11 (including that notice may be impracticable or that a notice stating a spontaneously chosen route may suffice) may avoid an interpretation that would outlaw spontaneous processions.

Background and facts:

• The appellant is a regular participant in the monthly Critical Mass cycle ride in central London, starting at the South Bank at about 6pm on the last Friday of every month since April 1994. Critical Mass has no settled route or identifiable organisers; the route evolves spontaneously on the day.
• The Metropolitan Police distributed a letter asserting that organisers of public processions must notify the police at least six days in advance under section 11 of the Public Order Act 1986 and suggesting that participation without such notification could render participants liable to prosecution.

Procedural history:

• The appellant sought judicial review of the police stance. The Divisional Court (Administrative Court) concluded that Critical Mass was "commonly or customarily held" and thus fell within the section 11(2) exemption. The Commissioner succeeded in the Court of Appeal (divided decision). The appellant appealed to the House of Lords.

Nature of the claim/application:

• Judicial review seeking to challenge the legal basis of the police letters and to establish whether the Critical Mass rides fell within the section 11(2) exemption from the notice requirement.

Issues framed by the court:

1. Whether each monthly Critical Mass ride is the same procession and, if so, whether it is "commonly or customarily held" in the Metropolitan Police Area for the purposes of section 11(2).
2. Wider questions (provisionally addressed): whether section 11 applies at all to events that lack an organiser or a predetermined route, and what constructions of section 11 avoid outlawing spontaneous processions.

Court's reasoning and decision:

• On the narrow issue the House allowed the appeal. Several Law Lords concluded that the recurring rides share sufficient common features (same start point, same time, shared purpose, common name, follow-my-leader dynamics) to be considered the same procession and thus capable of being "commonly or customarily held" even though the precise route varies.
• The House rejected the argument that section 11 implies a requirement that all processions have a predetermined route and that the exemption must therefore be limited to processions with fixed routes. Several Lords observed that construing the section to outlaw routeless processions would be inconsistent with Parliamentary intent and the right to hold processions.
• The House also made provisional observations (not decided as part of the operative determination) that where there is no organiser or no antecedent proposal to hold a procession section 11 may not apply at all, and suggested alternative constructions by which notification obligations might be reconciled with spontaneity (for example, that notice of date, time and start point may suffice where specifying a route is not reasonably practicable).

Appeal allowed. The House held that recurring Critical Mass rides could be regarded as a procession "commonly or customarily held" within section 11(2) of the Public Order Act 1986 despite the absence of a predetermined route. The Lords rejected the implication that section 11 requires every notifiable procession to have a fixed route and made provisional observations that section 11 may not apply where there is no organiser or antecedent proposal.

Divisional Court (Administrative Court) decision: R (Kay) v Commissioner - [2006] EWHC 1536 (Admin) (Divisional Court held Critical Mass fell within s11(2)). Court of Appeal (majority) allowed the Commissioner's appeal: [2007] EWCA Civ 477. House of Lords allowed the appeal: [2008] UKHL 69.