On the legality of London's Critical Mass

On the September 2005 Critical Mass (‘CM’) in London, police handed out leaflets warning participants that this was an unlawful event and that they were at risk of arrest. This article attempts to examine some of the legal issues, from the viewpoint of a regular participant in the Mass who happens to be legally experienced.

Important Note: The information and commentary do not, and are not intended to, amount to legal advice to any person on a specific case or Mass. You are strongly advised to obtain specific, personal advice from a lawyer about your case or Mass and not to rely on the information or comments contained here.

First, a note on police powers

The police can arrest simply if they have grounds to suspect an offence is being committed, however, for the arrestee to be convicted of that offence, there has to be enough evidence to satisfy a court so that it is sure of guilt, aka “beyond reasonable doubt”. Of course, being arrested is not a pleasant experience now, especially in our Orwellian society, with the police having rights to fingerprint, photograph and DNA swab you. However most of those arrested in protest situations do not end up with a conviction.

In terms of what police can publicise, it’s a bit more complex. Clearly, if the police say that something is illegal when it is in fact legal, this puts people in fear of doing something they have a right to do. This is known in Human Rights law as a “chilling effect”. The difficulty is that there seems to be no case law under section 11 of the Public Order Act 1986 (‘the Act’), indeed no record even of any prosecutions.

Section 11 (“Advanced notice of public processions”) states:

  1. Written notice shall be given in accordance with this section of any proposal to hold a public procession intended-
    (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,
    unless it is not reasonably practicable to give any advance notice of the procession
  2. Subsection (1) does not apply where the procession is one commonly or customarily held in the police area (or areas) in which it is proposed to be held…
  3. The notice must specify the date when it is intended to hold the procession, the time when it is intended to start it, its proposed route, and the name and address of the person (or of one of the persons) proposing to organise it.

The Act later on helpfully clarifies that a “Public procession” means a procession in a public place!

Is Critical Mass a public procession?

Possibly, it depends on the particular facts, the two issues being whether processions need to be on foot and the degree of order of the participants.

In terms of the Mass being on pedal cycle (and also wheelchairs, in-line skates and skate boards), this does not seem to affect the issue of whether it is a procession or not. While Lord Denning in Kent v Metropolitan Police Commissioner (1981) TLR 15 May defined a public procession as the “act of a body of persons marching along in orderly succession”, this seems contradicted by more recent regulations on seat belts that provides a defence to not wearing one where involved in a public procession.

The leading case of Flockhart v Robinson [1950] 2 KB 498 viewed a public procession as a “body of persons” – in other words mode of movement was irrelevant – that is orderly formation. In that case a group of unionists had been walking along Picadilly in “loose formation” then suddenly they closed up and a “procession came into being spontaneously and without any prior arrangement”.

Much of the time London Critical Mass is what a judge might call a disorganised rabble. It has no predetermined route so sometimes when it stops at a junction one section will go off one way and other people another way. Sometimes cars or buses find themselves in the middle of it, so too do pedestrians and non-massing cyclists. Until the police shepherd people in, it does not ride in tight formation, cyclists are all over the place. Indeed at those times it is the police who are ‘organising’.

Is it a controllable public procession?

Tourists following guides holding forth umbrellas don’t need to notify the police, nor do groups of ramblers, school children walking in crocodile formation or indeed cyclists going for a ride together. For that reason section 11 only applies to political public processions.

The police continue to insist on calling Critical Mass as the CHARM ride, which once stood for Cyclists Have A Right to Move, although few participants have ever heard of this name. Their fiction conveniently helps them side step the fact that whatever the “intent” of the original Mass eleven years ago, it is now just a social event which people do for fun.

Some police still see cycling as a bit cranky and so may think that cycling is inherently political. This is as nonsensical as suggesting that the in-line skaters’ ride is political in that it is to raise the cause of skating, or demonstrate support for the actions of other people skating. Indeed one sergeant at the September Mass on being asked why it was political and the skaters’ ride was not said that the skaters’ ride did not count as it went faster. This is a classic example of the “Ways and Means Act”, in other words the police trying to interpret an act as the means to enforce their own views and prejudices.

Many individual cyclists may have their own political views, even badges or stickers, just as school children in crocodile formation might have a number of MPH wristbands, tour parties wear Remembrance Day poppies etc. The fact that people hand out a wide range of leaflets on and before the Mass does not affect this. Even the Critical Mass leaflets themselves simply raise awareness of the existence of the Mass as a social event, a way of enjoying the streets without them being choked with motor traffic, of enjoying cycling without being crashed into by drivers.

The best argument the police might have is that following their unlawful leaflet, London Critical Mass now has the purpose of publicising the cause of its continued existence and demonstrating opposition to the police trying to shut it down.

Does it fall within the commonly or customarily held exemption?

Many of those challenging the police’s view that Mass is unlawful have done so on the basis of it being customarily held over the last eleven years so that it falls within the exemption under section 11(2).

It might be argued that the route is not regular but certainly part of it is, such as going over Waterloo Bridge, and due to the Mass moving significantly faster than a march and Friday London traffic moving significantly slower than traffic normally, very little prejudice is caused by this detail.

In any event a “purposive interpretation” needs to be adopted to this sub-section which has attracted academic criticism for its vagueness: any restriction on human rights have to be interpreted proportionately so that the powers are the minimum necessary.

The argument of the police (contained in their response to a pre-action letter by solicitors attached to Friends of the Earth Rights & Justice acting on behalf of three Massees) is particularly confused. It suggests that because Critical Mass never had permission in the first place, it cannot acquire “squatters’ rights” to be legal simply due to being commonly held. This misunderstands the very essence of section 11 which contains advanced notice requirements unlike other jurisdictions or indeed the Serious Organised Crime Act 2005 (in relation to the designated area around Parliament) which have police permit requirements for processions.

As stated in Public Order Law (Richard Card, 2000 at page 219) “it is not an offence simply to participate knowingly in a procession for which advanced notice has not been given”. The Act simply contains a mechanism for advanced notification of processions in certain circumstances and provides a minor penalty for those who organise processions and fail to provide the necessary notification.

Who is the organiser then?

In Flockhart it was held that “The act of organizing might in some circumstances take a lot of time and require premeditation. In other circumstances organizing might be speedily done.” In that case the fact that the defendant was at the front of the procession, and gave directions and orders which were obeyed was enough for him to be convicted although one of the three judges dissented. The organisation of the route taken was the key issue.

In the case of Critical Mass, some people discuss route possibilities on email lists, perhaps due to another cyclist being mown down by a driver at a particular location, over a beer while waiting for the Mass to set off or even once it is going. However whatever individual’s plans or views as to where the Mass should go, it has a mind of its own. Even if someone tried to organise a route, it is unlikely the Mass would obey it, so that it would be hard for them to be convicted of being an organiser failing to provide advanced notice.

Allegations by the police of people at the back directions phoning to the front seem to be at best one-offs. The police have acknowledged on an individual basis that the mass is disorganised and that at times no one seems to know where it is going, which of course is why they want it to be organised. The fact is section 11 only provides for offences in relation to organisers of which there are none.

Is advanced notice reasonably practicable?

Because of the consensual, non-hierarchical nature of Critical Mass, the only way direction can be worked out is through the Mass deciding. Even were one Mass to try to decide the route of the next Mass, intervening circumstances or even just the weather could make its decision out of date.

To require advanced notice would require Critical Mass to have a route which would destroy its fundamental nature. The police already know when the Mass will take place, in which area of London (usually fairly central) and can guess numbers based on the season and prevailing weather.

One of the major strands of the argument of the police is that they need to be given notice so that they can ensure there are enough police covering the ride for participants’ safety without tying up too many police so that they are diverted from fighting crime. Despite this they send unnecessarily large amounts of police along, particularly during the winter in an attempt to wrench control of the Mass. This leads to the problem that while up to about 2002 the Mass was able to police itself, and ‘cork’ side roads, people now rely on the police to do this as there’s so many of them they have to be given something to do.

Police powers over traffic

The police have wide powers to direct traffic of all types, including people walking and cycling. In fact having obtained advanced notice for a procession does not provide a defence to charges of public nuisance or obstructing the highway.

The Highway Code does require cyclists to ride not more than two abreast, however breach of the code is not automatically a criminal offence. If the police do start prosecuting cyclists for causing an obstruction or issue Fixed Penalty Notices, this will highlight the discrimination against cyclists in London. While no driver has ever been prosecuted for disobeying cycle lanes, boxes (Advanced Stop Lines), or gaps and they are frequently allowed to get away with speeding and phone-driving, cyclists face a clamp down in central London.

That the police are not using these to deal with anyone causing a particular problem on the ride and instead are trying to use powers to control processions is down to the fact that they, as an organisation which is as hierarchical as possible, has a problem with a ride which is non-hierarchical. The police want Critical Mass to be formalised and turned into an organisation despite that going against its very essence.

Parliament

The Serious and Organised Crime Act 2005 only applies to demonstrations and explicitly does not apply to political public processions under section 11. A Mass would have to stop for a significant period of time to lose its character and become a static demonstration. Other processions are not covered otherwise many tour groups would be in trouble. The fact that the police have attempted to cite this new law shows quite how poor their legal advice is.

Conclusions

The police leaflet is inaccurate, so much so that it is it rather than London Critical Mass is unlawful. Anyone arrested under the laws cited has a wide range of defences open to them and is unlikely to face conviction.

The action of the police besides being unlawful represents a volte-face, having previously received an Transport for London 999 Cycling award:

City of Westminster Taskforce, Metropolitan Police Service led by Sergeant Ray Bloye
Building community relations: The team have formed a strong partnership and mutual respect with monthly CHARM demonstrators which has reduced traffic disruption and the number of arrests, see this press release from Transport for London.

If Critical Mass is unlawful and never had been then what has the Met been doing facilitating it for the last few years?

Critical Mass is a symbol of spontaneity, a defiance the Health & Safety culture where every inch of our streets are covered with lines or coloured surfacing, where every event has to be planned to oblivion and where even sorting out a drink with friends needs about a protracted game of SMS ping-pong. The clamp down on Critical Mass is part of a drive by Neo-Labour and their allies to regulate and control every order of our life. Fortunately more and more Londoners are pedalling away from this grim future.

Support our work