House of Lords
Published November 27, 2008
Regina (Kay) v Commissioner of Police of the Metropolis
Before Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood
Speeches November 26, 2008

Since a procession could be commonly or customarily held even though on each occasion it took a different route, a monthly mass cycle ride through London which set off from a fixed starting place but the route of which was determined by whoever happened to be at the front at any one time was such a procession so as to be excluded from the statutory requirement for organisers of public processions to give the police prior notice of the event.

The House of Lords so held in allowing an appeal by the claimant, Desmond Woolf Kay, from the Court of Appeal (Sir Mark Potter, President of the Family Division, and Lord Justice Leveson; Lord Justice Wall dissenting) ( The Times June 13, 2007; [2007] 1 WLR 2915) allowing an appeal by the Commissioner of Police of the Metropolis from the decision of the Queen’s Bench Divisional Court (Lord Justice Sedley and Mr Justice Gray) ( The Times July 3, 2006) that the ride was exempted by section 11(2) of the Public Order Act 1986 from the notification requirements of section 11(1).

The claimant, a long standing participant in mass cycle rides which had taken place on the last Friday evening of each month in London since 1994, had sought a declaration that the rides were not public processions of which the organisers were required to give the police notice as to its route under section 11(1). They started on the South Bank near the National Film Theatre and the routes were not fixed.

The Divisional Court held that the event fell within the section 11(2) exception and the appeal to the Court of Appeal had been limited to that point.

Mr Michael Fordham, QC and Ms Emma Dixon for MrKay; Lord Pannick, QC and Mr Jason Beer for the commissioner.

LORD PHILLIPS said that the narrow issue was whether the mass cycle ride was a procession which commonly or customarily held in the Metropolitan Police area. Giving the English language its natural meaning, it was. In order to identify one procession with another it did not have to follow the same route. If there were sufficient similar features of processions that took place at regular intervals, albeit over different routes, it could be natural to describe what occurred as being the same procession.

Lord Pannick had argued that an object of the legislation was to give the police advance notice of marches and processions so as to enable the taking of any necessary measures to prevent them from resulting in public disorder and traffic disruption and that in order to achieve that purpose it was necessary for the police to know the proposed route.

The section 11(2) exception, he had argued, could only sensibly apply to processions that had the same route, and should be so construed.

His Lordship did not accept that argument. Section 11 did not require notice to be given of every procession that was capable of creating a disturbance.

The fact that, on their natural meaning, the words of section 11(2) were wide enough to exclude some processions in respect of which the police did not have all the information that they would wish was no reason to give those words an unnatural meaning.

The words should be given their natural meaning so as to apply to the mass cycle ride as a procession that was commonly or customarily held. For that reason his Lordship would allow the appeal.

However, because of its spontaneous nature and because those who took part in it knew where and when it was to start, it seemed unlikely that the mass cycle ride now involved any advance planning or organisation; if that was the true position, his Lordship did not see how section 11 could have any application to it.

Lord Rodger, Lady Hale and Lord Carswell delivered opinions agreeing that on the assumption that section 11(1) would otherwise have applied, the mass cycle rides fell within the section 11(2) exception.

Lord Brown delivered an opinion allowing the appeal on the ground that, absent any organisers, the rides by their nature were excluded from the requirement of notification under section 11 and so the question under section 11(2) did not arise.

Solicitors: Mr Phil Michaels, Islington; Mr Edward Solomons, Victoria.

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