One of the many memorable scenes from the Olympic Opening Ceremony was the sight of several dozen cyclists emerging into the stadium, with giant wings waving behind them, like so many Tubular Bat-people. Outside, the police were then midway through the obstruction and then kettling of London’s monthly Critical Mass cycle ride. By the end of the day, 182 cyclists had been arrested; and although the police have made the welcome announcement that they have no plans to take any further action with regards to 166 of them, sixteen of those arrested still remain to be interviewed and some may yet be charged.
Most arrests were made for offences under section 13 of the Public Order Act 1986 which empowers officers to ban “public processions where a senior officer reasonably believes that the holding of such a procession would result in serious public disorder, and no action short of a ban could prevent the disorder.
This raises the question of whether Critical Mass is a public procession at all Act. Something like this question has already been subject to litigation. Section 11 of the same Act requires organisers of certain kinds of demonstration to notify the police in advance of their intention to protest. Not every demonstration requires notification (i.e. is a “notifiable procession”), but only public processions “(a) to demonstrate support for or opposition to the views or actions of any person or body of persons, (b) to publicise a cause or campaign, or (c) to mark or commemorate an event.” From the wording of the Act it is far from clear whether this provision gives the words “public processions” their meaning (i.e. processions for other purposes are not public processions) or only specifies which public processions require their organisers to notify the police.
The Act then goes on to provide in any event that the duty to notify where the procession is one commonly or customarily held in the police area in which it is proposed to be held.
In Commissioner of Police of the Metropolis v Kay  2 All ER 935, the House of Lords had to decide whether Critical Mass was “commonly or customarily held” in the same area. Their Lordships determined that it was and there was no duty to notify.
A number of the Judges remarked in passing that Critical Mass either might not be a procession or might not be a procession to demonstrate support for particular views, etc. In the words of Lord Brown of Eaton-under-Heywood, “To my mind the real question here is whether these cycle rides are prima facie notifiable processions at all within the meaning of s.11. And the answer is that they are not. Their very nature as impromptu rides to my mind takes them out of the section altogether.” But these reservations refer directly to the notification duties in section only, and are less than an unequivocal statement to the effect that Critical Mass is not a public procession and does not come within the Act at all.
It is very easy to see that if any of the 2012 defendants are arrested and charged, they may well say that Critical Mass is not a public procession, does not come within the Act, cannot be lawfully prohibited by the police, and that involvement in it where there was an illegal police ban cannot be unlawful.
It is equally to see that the police will respond that Kay is a case about what sort of processions require notice, and that even if Critical Mass does not require notice, Kay has left open the question of whether Critical Mass is part of a class of events which a senior police officer can in any event prohibit.
I’d love to say that this is a battle which the police must lose. My truer, more considered belief is that there is no short-cut; only a court can determine which analysis will prevail.
The best, practical, advice for any people reading this who are within the group of 16 people still to be interviewed, comes from a message being circulated by the legal observers’ network Green and Black Cross:
“Accepting a caution has very specific implications in these cases with specific regard to the Section 12 restrictions. This is because a caution is an admission of guilt, and to be guilty of breaking the S.12 restrictions you have to acknowledge the legality of those conditions, it goes hand in hand. So in other words, or in reverse – if the conditions are illegal then there could have been no breach and therefore no offence.”
“A caution is never a great option. The police will present it as such, but this is because it is an easy, cheap and efficient way for them to convert arrests into convictions. Naturally it is very tempting for the defendant to have it all over with and not have to go to court, but having a criminal record poses many issues, especially if you work with children or vulnerable adults.”.