Kay v Commissioner of the Police of the Metropolis: HL 26 Nov 2008

The claimant had been involved in a monthly cycle ride through central London which had continued for many years. The ride took place without any central organisation and without any route being pre-planned. They objected to being required to apply for a licence and to file a route with the Commissioner under section 11. The question was whether each ride was the same procession, and whether it was ‘commonly or customarily’ held.
Held: Mr Kay’s appeal succeeded. A regular procession need not follow the same route each time. The fact that no person or persons organised the procession meant that no person held any duty under the Act, and section 11 had no application.
Lord Rodger said: ‘if Parliament had actually intended to use the Public Order Act 1986 to outlaw processions of that kind without a predetermined route, then it would not have done so by a side wind in a section creating a system of notification: it would have done so specifically. Section 13 contains a carefully crafted measure which allows councils, with the consent of the Secretary of State, to prohibit public processions in certain specified circumstances. Where the Act contains a specific provision prohibiting certain processions, there is no room for implying into another provision a requirement which would have the effect of prohibiting a different type of procession by exposing the organisers to a criminal conviction and fine.’
Lord Phillips said: ‘Critical Mass is not an organisation but the name given to a recurrent event. It takes place in central London on the evening of the last Friday of every month, as it has done since April 1994. Similar events take place on the last Friday of every month in many other cities throughout the world. Critical Mass starts at the same location, (the South Bank near the National Theatre) at the same time (6 pm). It is featured in Time Out magazine. It is in the nature of Critical Mass that there is no fixed, settled or predetermined route, end-time or destination; where Critical Mass goes, where and what time it ends are all things which are chosen by the actions of the participants on the day.’
Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood
[2008] UKHL 69, [2008] 1 WLR 2723, [2009] RTR 16, [2009] HRLR 10, [2009] 2 All ER 935
Bailii, HL, Times
Public Order Act 1986 11
England and Wales
Citing:
At First InstanceKay v The Commissioner of Police of the Metropolis Admn 27-Jun-2006
For many years and in many large cities, once a month, cyclists had gathered en masse to cycle through the city in a ‘Critical Mass’ demonstration. There was no central organisation. Clarification was sought as to whether the consent of the police . .
Appeal fromCommissioner of Police for the Metropolis v Kay CA 21-May-2007
The commissioner appealed against a judgment that a mass cycle ride held regularly but over different routes did not first require notice to be given.
Held: The commissioner’s appeal succeeded. The fact that the route changed meant that the . .
CitedFlockhart v Robinson 1950
A challenge was made to the organising of a procession. Its route was determined by Mr Flockhart as he went along.
Held: For the purposes of section 3(4) of the 1936 Act, a procession ‘is a body of persons moving along a route’ and that, by . .
CitedRegina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to . .

Cited by:
CitedRolls-Royce plc v Unite the Union CA 14-May-2009
rolls_uniteCA2009
The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case . .
CitedPowlesland v Director of Public Prosecutions Admn 9-Dec-2013
The defendant apealed against his conviction for having taken part in a public procession, a a Critical Mass Cycle Ride, knowingly in breach of conditions attached to it by the Police. The defendant had argued that the ride was not a procession.
Updated: 12 February 2021; Ref: scu.278297