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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/115.html
Cite as: [2013] EWCA Civ 115, [2014] QB 168, [2014] 1 QB 168, [2013] 2 All ER 760, [2013] 3 WLR 539, [2013] WLR(D) 95

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		Neutral Citation Number: [2013] EWCA Civ 115
		Case No: A2/2012/2295

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QUEENS BENCH DIVISION
MR JUSTICE EADY
HQ11X01926

Royal Courts of Justice
Strand, London, WC2A 2LL

07/03/2013

B e f o r e :

THE MASTER OF THE ROLLS
LORD JUSTICE MOORE-BICK
and
LORD JUSTICE McCOMBE
____________________

Between:

	LEEDS UNITED FOOTBALL CLUB	Respondent
	- and -
	THE CHIEF CONSTABLE OF WEST YORKSHIRE POLICE	Appellant

____________________

Mr Michael Beloff QC and Mr Mark Gay (instructed by Burges Salmon Solicitors) for the Respondent
Mr John Beggs QC and Mr James Berry (instructed by West Yorkshire Police Legal Services) for the Appellant
Hearing date: 11 February 2013
____________________

HTML VERSION OF JUDGMENT
____________________

Master of the Rolls:

The issue that arises on this appeal is whether the West Yorkshire Police ("WYP") are entitled to charge Leeds United Football Club ("the Club") the cost of public order policing and crowd control outside the immediate environs of the Club premises at Elland Road (on land neither owned nor controlled by the Club), both before and after football matches. Section 25(1) of the Police Act 1996 ("the 1996 Act") provides that the chief officer of police of a police force "may provide, at the request of any person, special police services at any premises or in any locality in the police area for which the force is maintained, subject to the payment…of charges…." It is not in dispute for the purposes of this appeal that the Club has requested and WYP has provided police services (i) within the Club's stadium, (ii) in the areas immediately outside the stadium that are owned or controlled by the Club and (iii) in certain identified streets and public areas beyond the stadium and the areas owned or controlled by the Club. The Club has always accepted that the police services provided in (i) and (ii) are "special police services" ("SPS") within the meaning of section 25 of the 1996 Act. The issue is whether the police services provided in (iii) (which I shall refer to as "the extended footprint") are also SPS. The extended footprint includes public highways, a number of residential streets as well as other public areas such as car parks and open spaces. In a careful and comprehensive judgment, Eady J held that the services provided in the extended footprint are not SPS, but are police services provided in discharge of WYP's ordinary public duty to prevent crime and protect life and property for which they are not entitled to charge the Club. WYP appeals from that decision.

The Club entered into negotiations with WYP as to where the extended footprint should be drawn. At all times, the Club maintained that policing in the extended footprint could not in law amount to SPS. In the event, the Club entered into agreements with WYP and paid for SPS in the entire extended footprint for the three seasons which are the subject of this litigation (2009/10, 2010/11 and 2011/12). But they did so without prejudice to the question whether such policing services could amount to SPS and on the basis that, if they were not, the Club would be repaid. The litigation has, therefore, been conducted on the understanding that the only issue for decision is whether the policing services provided in the extended footprint are SPS, it being conceded that, if they are, the monies paid by the Club will be refunded in full. It is no part of the Club's case that the "requests" for SPS were invalid if the services are in fact SPS.

Although the question whether policing services provided outside a football stadium and other land owned or controlled by a club are capable of being SPS has not been previously decided, this is an area which is not free from case-law. It is necessary to refer to several authorities before I come to the judgment of Eady J, the submissions that have been made to this court and my conclusions.

Previous authorities

The starting point is Glasbrook Brothers Ltd v Glamorgan County Council [1925] AC 270. On the occasion of a colliery strike, a colliery manager applied for police protection for his colliery and insisted that it could only be efficiently protected by billeting a police force on the colliery premises. The police superintendent was prepared to provide what he considered to be adequate protection, but only if the manager agreed to pay for it. By a majority, the House of Lords decided that there was nothing illegal in the agreement. Although the House was split on the question whether the particular agreement was lawful, there was no disagreement as to the relevant principles. It is sufficient to refer to the speech of Viscount Cave LC. He said that the practice by which police authorities charge for "special services" outside the scope of their obligations had been established for upwards of 60 years. It was an absolute and unconditional obligation binding on police authorities "to take all steps which appear to them to be necessary for keeping the peace, for preventing crime, or for protecting property from criminal injury; and the public, who pay for this protection through the rates and taxes, cannot lawfully be called upon to make further payment for that which is their right" (p 277). He continued at p 278:

"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."

At p 281, he said that if in the judgment of the police authorities the garrison was "necessary for the protection of life and property", then they were not entitled to make a charge for it. But if they thought that the garrison was a "superfluity" and they "only acceded to Mr James' request with a view to meeting his wishes, then in my opinion they were entitled to treat the garrison duty as a special duty and to charge for it."

Thus a distinction was clearly drawn between the police (i) performing their duty of doing what is necessary to prevent crime and provide protection (for which they cannot make a charge) and (ii) doing something else at the request of an individual (for which they can charge). That was the position at common law. It was later reflected in legislation. It is common ground that the legislation (including section 25 of the 1996 Act) did not change the law.

The next case to be considered is Harris v Sheffield United Football Club Ltd [1988] 1 QB 77. The chief constable arranged for police to attend at matches both inside and outside the club's ground in order to fulfil his duty to maintain law and order and to protect life and property. The issue was whether the club was obliged to pay for services inside the ground as being SPS within the meaning of section 15(1) of the Police Act 1964 ("the 1964 Act"). The Court of Appeal held that these were SPS and the club was therefore obliged to pay. Section 15(1) of the 1964 Act was in the same terms as section 25(1) of the 1996 Act.

It was submitted by Mr John Griffiths QC on behalf of the club that the predominant role of the police inside the ground was to maintain law and order and that there was no difference between the performance of "ordinary police duty" on private and on public premises. The operation was planned as a whole and it was impossible to make a satisfactory distinction between the duties which the officers carried out outside the ground and those which they carried out within it.

It was also submitted that there was a finding of fact that, unless the police were present at matches in numbers, serious breaches of the peace were probable. Moreover, it was accepted by the police that their predominant role inside the club's ground was to maintain law and order and to prevent riot and consequent injury to law-abiding persons and property. In short, it was submitted that, where a chief constable accepts that there is a necessity for a police presence in order to keep the peace, the officers who attend are performing "ordinary police duty", provided that the predominant purpose of their presence is to fulfil that necessity; and there is no difference between the performance of "ordinary police duty" on private or on public premises. These submissions were based on Glasbrook.

Neill LJ gave the lead judgment. He said (p 83G) that SPS were not defined in the 1964 Act, but it was clear that section 15(1) provided statutory authority "for a long-established practice whereby police officers have been made available to carry out functions at private premises in return for payment to the relevant police authority". At p 89D he said that, if the words of Viscount Cave in Glasbrook were applied as if they were the words of a statute, the case for the club would be very strong if not overwhelming. That was because it was not in dispute that the chief constable had been of the opinion that the attendance of police officers at the ground was necessary for the maintenance of law and order and the protection of life and property. But he said that the question before the House in Glasbrook was whether a charge could be made where the precautions taken were more extensive than those which the police authorities considered to be necessary. More importantly, the emergency which required the presence of police officers in Glasbrook arose in the context of an industrial dispute and not because the colliery had chosen to invite a large number of people to watch a football match or other spectacle.

At p 91D, Neill LJ addressed the question whether, having regard to the chief constable's general duty to enforce the law, the provision of the officers could properly be considered as the provision of SPS. As to this, he said:

"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 [1925] 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 [1924] 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."

Taking these factors into account, he concluded that the regular attendance of police officers at the ground constituted the provision of SPS. In particular, he mentioned the fact that the club was not under any duty to hold matches; the charges related solely to the officers on duty inside the ground and not those in the street or other public places; and the chief constable would be unable to provide the necessary amount of protection within the ground without making extensive use of officers who would otherwise have been off duty.

Balcombe LJ said that, in deciding how to exercise his public duty of enforcing the law, a chief constable had a discretion and was required to consider what resources were available to him. In answering the question whether the attendance of police within the ground was the provision of SPS, the first instance judge in that case had said:

"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."

Balcombe LJ said that this was a correct statement of the legal position which could not be faulted. He made no explicit reference to the four factors identified by Neill LJ. But in substance he expressed agreement with Neill LJ's fourth factor, since he considered that the fact that the chief constable would be unable to provide policing services within the ground without calling on officers who would otherwise have been off duty pointed to the policing being SPS. Kerr LJ agreed with both judgments.

Mr Beloff QC submits that the Court of Appeal was wrong to distinguish Glasbrook and that, since the policing inside the ground was necessary, it fell within the basic public duty of the police and could not have been SPS. He submits that the court in Harris should have followed the clear principles stated in Glasbrook and should not have enunciated and applied the four factors identified by Neill LJ. I shall revert to this submission after I have considered the next important authority.

In West Yorkshire Police Authority v Reading Festival Ltd [2006] EWCA Civ 524, [2006] 1 WLR 2005, the issue concerned the policing at a music festival which took place every August bank holiday weekend at an outdoor site in Leeds and whether the police authority was entitled to charge for the police services as SPS under section 25(1) of the 1996 Act. The Court of Appeal held that, since there had been no request, the authority was not entitled to charge. That is the ratio of the decision (see para 58 of the judgment of Scott Baker LJ). Nevertheless, Scott Baker LJ went on to express an opinion (obiter) on the question of whether SPS had been provided. He said:

"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 [1988] 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.

67 ….

68 I turn to consider, as did the judge, the factors mentioned by Neill LJ in the Harris case [1988] 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 have quoted from this judgment extensively because (i) it has been suggested that at para 63 Scott Baker LJ introduced an additional factor to the four stated by Neill LJ, namely whether the services are (predominantly) for the benefit of the person requesting the services; and (ii) it shows that the courts have regarded the "guidance" given by Neill LJ as "helpful".

It is not clear that Scott Baker LJ did in fact introduce a separate fifth factor. At para 59 of his judgment, he recorded a submission that "the test" was whether the services provided to the person requesting them were for his own benefit; in other words, that the services must be special to the person requesting them rather than rendered for the benefit of the general public. Scott Baker LJ did not accept that this was "the test" for determining whether policing is SPS in any particular case. If he had been of the view that it was as simple as that, he would not have gone on to say what he said at paras 66 to 71 of his judgment. In my view, there is no separate conclusive benefit test. Nevertheless, I would accept the submission of Mr Beloff that the focus on who benefits from the service may be a relevant part of the analysis of whether the service provided falls within the scope of a constable's ordinary public duties.

For completeness, I should refer to the decision of Mann J in Chief Constable of Greater Manchester Police v Wigan Athletic AFC [2007] EWHC 3095 (Ch). The issue in this case was whether the chief constable could charge the club for police services provided on private land immediately outside the stadium which was leased and controlled by the club. This raised the question whether (i) the services were SPS and (ii) a "request" had been made for the purposes of section 25 of the 1996 Act. The judge held that the services were SPS. In reaching this conclusion, he considered a number of factors. Towards the end of his consideration, he said this at para 98 of his judgment:

"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."

He then went on to address the request issue and decided that a request could be implied. The Court of Appeal allowed the club's appeal on the ground that there had not been a request. It was, therefore, not necessary for the court to decide whether, if there had been a request, the services provided by the police would have been SPS and it did not do so.

Since the decision of Mann J was reversed on the request point and the Court of Appeal did not deal with the other aspect of the case, the observations of the judge on the SPS issue carry little weight. It is clear, however, that he purported to apply the dicta of Scott Baker LJ. For the purpose of determining whether the service was being provided by the police as part of their general public duty, he found it useful to consider the question of who was its principal beneficiary.

The judgment of Eady J

In the course of his analysis of the issues, the judge said:

"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)."

Having quoted extensively from the authorities to which I have referred, he said:

"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