ON APPEAL FROM THE HIGH COURT, QUEENS BENCH DIVISION
MR JUSTICE EADY
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
LORD JUSTICE McCOMBE
| LEEDS UNITED FOOTBALL CLUB
|- and -
|THE CHIEF CONSTABLE OF WEST YORKSHIRE POLICE
Mr John Beggs QC and Mr James Berry (instructed by West Yorkshire Police Legal Services) for the Appellant
Hearing date: 11 February 2013
Crown Copyright ©
Master of the Rolls:
"But it has always been recognized that, where individuals desire that services of a special kind which, though not within the obligations of a police authority, can most effectively be rendered by them, should be performed by members of the police force, the police authorities may (to use an expression which is found in the Police Pensions Act 1890) "lend" the services of constables for that purpose in consideration of payment. Instances are the lending of constables on the occasions of weddings, athletic or boxing contests or race meetings, and the provision of constables at large railway stations. Of course no such lending could possibly take place if the constables were required elsewhere for the preservation of order."
"In answering this question I do not propose to attempt to lay down any general rules as to what are or are not "special police services," because in my judgment it is necessary to look at all the circumstances of the individual case. I would, however, venture to suggest that the following matters require to be taken into account (1) Are the police officers required to attend on private premises or in a public place? Though in Glasbrook Brothers Ltd. v. Glamorgan County Council  AC 270 the fact that the garrison was to be stationed on private premises was not treated as conclusive, the fact that the police will not as a general rule have access to private premises suggests that prima facie their presence on private premises would constitute special police services. (2) Has some violence or other emergency already occurred or is it immediately imminent? I can at present see no basis for an argument that the attendance of police officers to deal with an outbreak of violence which has actually occurred or is immediately imminent could constitute the provision of special police services, even though officers who would otherwise be off duty had to be deployed. (3) What is the nature of the event or occasion at which the officers are required to attend? It is to be noted that in Wathen v. Sandys (1811) 2 Camp. 640 , which was referred to in the course of argument in the Glasbrook case in the Court of Appeal  1 K.B. 879 , 882, the sheriff was not entitled to charge the candidates for the provision of constables at the polling booth because he was under a duty to procure the peace of the county. But a distinction can be drawn between public events such as elections which perhaps lie at one end of a spectrum, and private events such as weddings which lie at the other end. At various points in the middle may lie events such as football matches to which the public are invited and which large numbers of the public are likely to attend. It may also be relevant to inquire whether the event or occasion forms part of a series or whether it is a single occasion or event. Someone who stages events which require the regular attendance of police officers will be placing an exceptional strain on the resources of the police, particularly if the events take place at weekends or on public holidays. (4) Can the provision of the necessary amount of police protection be met from the resources available to the chief constable without the assistance of officers who would otherwise be engaged either in other duties or would be off duty? It was argued on behalf of the club that though it was relevant to take account of the total number of men available it was not permissible to take into consideration the fact that the use of "off-duty" officers might increase the payment of overtime. I am unable to accept this argument. The chief constable when deciding how to deploy his forces is subject not only to the constraints imposed by the number of men available, but also to financial constraints. The payment of overtime on particular occasions may mean that on other occasions reductions have to be made in the ordinary services provided by the police or sacrifices have to be made in the provision of equipment."
"The numbers considered necessary to carry out these services could only be provided by calling on officers who, at the material times, would otherwise have been off duty. The scope and extent of those services and their impact on the chief constable's manpower resources put them beyond what the club, in the circumstances, was entitled to have provided in pursuance of the chief constable's public duty. He was entitled to provide those services because he was able to do so without depriving other people of police protection. In other words, the services provided were within his powers; they were not within the scope of his public duty. I am satisfied that they were special services as I understand that expression to have been used in the Glasbrook case and within the meaning of section 15(1) of the Police Act 1964. It follows that he was entitled to provide them on condition that they were paid for."
"63 Police operations conducted on the public highway or in villages will not ordinarily be conducted for the benefit or protection of particular persons such as those organising occasions like sporting events or music festivals and their attendees. Rather, their purpose will be for the protection of the public at large. That, in my judgment, was their predominant purpose in this case albeit this was occasioned by the existence of the festival.
64 The distinction in the Harris case  QB 77 between policing outside the football ground and within the football ground has been picked up in a number of Home Office circulars and documents, for example Home Office Circulars 36/1991 and 34/2000. While these documents cannot determine the law, they are a useful guide to how it has been pragmatically applied.
65 In my judgment it is not apposite to consider the request and "special police services" as completely separate entities when considering the application of the section; the two things are related.
66 I agree that it is impossible to lay down a comprehensive definition of "special police services" and that the particular circumstances are likely to be critical. I have, with respect found the guidance in the Harris case helpful. It does however, seem to me that one of two key features is ordinarily likely to be present. Either the services will have been asked for but will be beyond what the police consider necessary to meet their public duty obligations, or they are services which, if the police do not provide them, the asker will have to provide them from his own or other resources. Essentially, however, "special police services" will be something that someone wants, hence the importance of the link in the section with a request.
68 I turn to consider, as did the judge, the factors mentioned by Neill LJ in the Harris case  QB77 in relation to the facts of the present case. Section 25(1) refers to services at any premises or in any locality in the police area. As the judge pointed out, where the services, as here, are deployed off site it is more difficult to establish "special police services". It is true that the police were ready at short notice to go onto the festival site but it seems to me that in that event it would be in order to perform their public duty of keeping law and order rather than to provide any special service to Mean Fiddler.
69 As to the second consideration, no violence or other emergency had occurred or was imminent although all were aware of what had occurred the previous year.
70 As to the third and fourth considerations, certainly the festival put an exceptional strain on police resources and the amount of police protection provided could not be met by the chief constable without calling on officers who were on leave or on rest days.
71 I agree with Mr Englehart's submission that the fact that the services were not on private property in this case is an important factor. In many, perhaps most, cases whether the services are provided on private property or in a public place is likely to be a very strong factor in determining whether they are "special police services".
72 There is a strong argument that where promoters put on a function such as a music festival or sporting event which is attended by large numbers of the public the police should be able to recover the additional cost they are put to for policing the event and the local community affected by it. This seems only just where the event is run for profit. That however is not the law.
73 On balance I have come to the conclusion that the police did not provide "special police services" in this case."
"I find it difficult to describe the police operation in this case in the area surrounding the stadium as being carried out for the public at large. It was done for the benefit of the club, and was not merely occasioned by the matches in question. The club got the benefit of having its invitees looked after, supervised, segregated and protected from harm. It got the additional advantage of having a more controlled audience admitted to the stadium, in an orderly and probably more alcohol-free state (where the police reinforced the searching, or were clearly seen to be available to reinforce the searching). The beneficiaries of all that were the club and the fans; the public were not the beneficiaries in the sense referred to by Scott Baker LJ. When the police switched from doing whatever they were doing to, for example, forming a cordon or assisting in searches, they were not switching capacities or duties. They were doing part of one and not the same thing, and that is providing a service, for the club which their normal public duty would not necessarily (or in those cases) require."
The judgment of Eady J
"20. It is to be noted that it has never been suggested, up to this point, that the Club should be made responsible for the cost of similar policing outside the "footprint" (for example, in the city centre two miles away, where rowdy fans can also congregate before and after matches). Policing in public areas away from the ground, therefore, seems to be readily accepted as falling within the ordinary constabulary duties of WYP. Indeed, the evidence shows that where officers have been called to perform duties outside the "footprint", for part of the time, the Club has been proportionately reimbursed. That accords with principle.
21. Furthermore, if it is reasonably anticipated that violence is likely to break out between rival groups of fans on match days, as unhappily generally appears to be the case, it would be difficult to contend that for some reason this should be exempted from the scope of ordinary common law duties. By the same token, I cannot see how, as a matter of law, a private individual or football club can be compelled to pay the cost of such policing simply because (if it be the case) it is holding a function or hosting a football match which will attract a large number of people to the vicinity. There is no authority to support that proposition either. Nor would the police services, in my judgment, be converted into SPS and thus taken out of the scope of ordinary constabulary duties, merely because upon careful ex post facto analysis, at some later date, it emerges that the club in question happens to have been the major beneficiary of the visit in commercial or financial terms (as opposed, for example, to local breweries or publicans, or other providers of services to football fans, who also stand to gain financially)."
"40. I am driven to the conclusion that it would fall within the normal constabulary duty to keep the peace. The officers were not there at the Club's request, express or implied; nor was the land in question owned, leased or controlled by the Club. Furthermore, their presence would have benefited, not merely the Club, but also other members of the public, including the unfortunate local residents whose properties were sometimes vandalised near car park A. I am unable to accept Mr Beggs' submissions that policing in that area simply be categorised as "policing for purposes of the match" and, for that reason alone, attributed to SPS.
41. More generally, it seems wrong to discount the majority of well behaved fans who come to Elland Road, whether club supporters or visitors, all of whom retain their status as members of the public. In that capacity, they too are entitled to expect police protection. In any event, I consider that there would be insuperable difficulties in seeking to sub-divide people, in public highways and other spaces, when trying to assess to whose benefit such duties were carried out. They are intended to keep the Queen's peace in the interests of the general public. The services rendered, therefore, cannot be classified as SPS."
Grounds of appeal
The provision of policing services on private land
The provision of policing on public land
Lord Justice Moore-Bick:
Lord Justice McCombe: