Powlesland v Director of Public Prosecutions

Section 12 of the Public Order Act 1986 permits preventive conditions to be imposed on a proposed procession even where its route has not been notified and will be chosen spontaneously. The relevant “route or proposed route” includes reasonably possible future routes. The police need not identify the precise route which will be followed. They must reasonably believe that one or more possible routes may cause serious disruption, and that the conditions are necessary to prevent it. The power may be exercised before the procession has begun. Restrictions engage Convention rights, but the requirement for clarity applies principally to the condition and the resulting offence, rather than to the existence of the statutory power.

The claimant was convicted by a District Judge at Westminster Magistrates’ Court of taking part in a Critical Mass Cycle Ride while knowingly failing to comply with conditions imposed under section 12 of the Public Order Act 1986. The conditions prohibited the procession from going north of the Thames during the period of the Olympic Games opening ceremony.

The claimant appealed by way of case stated. He argued that the police had no power to impose conditions before the procession began because no route had been proposed, and that a proposed route had to be notified under section 11. The central issue was whether section 12 was satisfied where the route was likely to be spontaneous and unpredictable.

1. Appeal dismissed. The police direction was lawfully given before the Critical Mass Cycle Ride set off.
2. Section 12 is not confined to proposed routes notified under section 11. Sections 11 and 12 serve different purposes. Section 11 regulates notification, whereas section 12 provides a preventive power applying to processions, whether notified or not. The predecessor provision in section 3 of the Public Order Act 1936 supported that construction.
3. A spontaneously chosen route may constitute a proposed route. In the case of a Critical Mass Cycle Ride, the proposed route was a route starting from the South Bank and going anywhere as chosen spontaneously by participants. It could therefore include roads north of the Thames, although the precise route and destination were unknown.
4. The statutory reference to the route or proposed route necessarily permits the police to consider reasonably possible future routes. The essential requirement is a reasonable belief that one or more such routes may result in serious disruption to the life of the community. Requiring objective certainty as to the precise route would make the preventive power ineffective, particularly where organisers conceal or have not determined their intentions.
5. The relevant time was when the direction was actually given. Although the Assistant Commissioner’s assessment had been made earlier, the evidence showed that the direction was given at the assembly point before the procession moved off. There had been no material change in circumstances.
6. Articles 10 and 11 of the European Convention on Human Rights required the statutory power to be construed narrowly where necessary. However, the rule against doubtful penalisation concerned the clarity of the condition whose breach constituted the offence, not the prior existence of the power to impose it.
7. The reasoning in Jukes v DPP and Flockhart v Robinson did not assist because those authorities addressed processions already under way or different issues. The question was answered “Yes”.

• Westminster Magistrates’ Court: The claimant was convicted by District Judge Roscoe of an offence under section 12(5) of the Public Order Act 1986.
• High Court (Administrative Court): The Divisional Court answered the stated question affirmatively and dismissed the appeal.