Mr Justice Eady :
The problem of policing in and around Elland Road Stadium
- The central issue now before the court is whether the West Yorkshire Police ("WYP") are able to recoup from Leeds United Football Club ("the Club") the very considerable costs of public order policing and crowd control around the immediate environs of the Club premises, before and after matches, or whether they are confined to recovering in respect of special police services ("SPS") on land which is owned, leased or directly controlled by the Club. I was told that the Club's home matches have one of the worst records for football-related violence in the country. This appears to be borne out by Home Office statistics which consistently show the Club's supporters either at or very near the top of the league when it comes to arrests and football banning orders. The costs of policing such events are, therefore, very considerable and rising. At the moment the Club is paying (partly, at least, on a without prejudice basis so far as this issue is concerned) SPS costs not far short of £1m per annum. There is no single drain on WYP's diminishing resources greater than that of policing the Club's matches. It is hardly surprising, in these circumstances, that they wish to recover as much as they reasonably can. The question is how far the law permits them to go.
- I was shown extracts of recorded footage relating to crowd control at a selection of matches over the past year or so. Sometimes it has proved necessary to deploy dozens, even hundreds, of police officers to shepherd the fans of visiting teams and to keep them separate and apart from home supporters. It has emerged from the evidence that the officers who take part in such operations regard them as "holistic" and "seamless"; that is to say, they do not see it as realistic to draw a clear distinction between police activities inside the stadium and those outside. In particular, the calming effect of external crowd control prior to matches reduces the risk of violent outbreaks within.
- Mr Peter Nicholson is currently a security consultant, but from 2005 was the superintendent in charge of operations in the division which included the Elland Road stadium. He told me:
"The policing of football matches at this stadium had a significant drain on policing resources not only within the Division, but also to the force as a whole. The policing of football matches at Elland Road could not be considered 'normal' policing activity. … The resources available to me were insufficient to meet the demands of the Division as well as policing the stadium. This had an effect on the service we were providing to the general public as officers were being taken from operational work within the Division to police LUFC home games.
There is generally an increase in crime recording associated with LUFC home games. Additional officers were routinely deployed to Bridewell Police Station in the City Centre to deal with those arrested at or near the stadium. We were also routinely required to request assistance from other Divisions to provide officers so that there were sufficient numbers to safely police the games. Clearly, this also had an impact on the resources available to other Divisions.
Because of the reputation of the club and many incidents of disorder associated with their football matches, a great deal of time and effort was put into ensuring the safety of the fans (both home and away) and the local community. A good example of the disorder experienced on a regular basis was the match between LUFC and Millwall in October 2007 when LUFC supporters smashed the windows of buses containing Millwall supporters on Elland Road outside the stadium as the buses were en route to the game. At the end of the game the LUFC supporters besieged car park A, which forced us to deploy mounted officers and police dog handlers as well as numerous other officers to ensure the safety of the travelling supporters."
- As various officers explained, an attempt is made in advance of each home match to anticipate the degree of risk involved. The most common categorisations are A to C in ascending order of gravity. There is, however, an even higher rating than C for the worst cases. It is generally true that the risks are assessed as being higher in relation to visits from certain teams (which I need not name for present purposes). At all events, Mr Nicholson explained that in relation to the matches which were assessed as being of high risk the Club regularly dedicated a room within the stadium for police officers to store their riot gear, so as to afford immediate access when disorder broke out.
- Another officer with years of direct experience of the problem is Inspector Neil Hemingway, who thought that in his 20 years service he had probably attended and assisted in the policing of no less than 150 matches at Elland Road. He told me:
"I have policed a large number of games over that period and have been involved on numerous occasions in restoring order between rival fans at the ground, in the different car parks around the periphery of the stadium and in the city centre. In my experience there are a significant minority of LUFC supporters who persistently and actively seek to get involved in disorder at football fixtures. I have faced high levels of violence from groups attending LUFC fixtures, from both home and away fans and have been deployed on a number of occasions within a unit carrying shields and/or batons to protect ourselves and restore order. …
Risk fans are a group of individuals who wish to engage in disorder with other like-minded groups of supporters from rival football clubs. The risk elements tend to maintain contact with each other to arrange disorder, contact is often made via social websites such as Facebook or on fan websites or via the telephone. …
The risk groups tend to be well organised and most have a hierarchy. Generally within this structure there will be those who organise the fights, older members who will muster support and younger members who will attempt to prove themselves by engaging in disorder. Many of the risk elements consume alcohol to excess and are known to be involved in the recreational use of drugs such as cocaine. …
The risk groups tend to associate themselves with other members who may already be subject to football banning orders pursuant to the Football Spectators Act 1989 s.14B due to their violent behaviour. The risk fans tend to be responsible for serious disorder, criminal damage, assaults and intimidation at football fixtures. …
Some of the older risk fans may maintain certain rules of engagement with rival fans, however many of the younger groups do not abide by the same rules and will not only engage in disorder with like-minded rivals but will also attack 'normal' spectators and have been known to attack disabled spectators."
- I mention this purely by way of background, in order to convey something of the scale and intensity of the problems with which the WYP is regularly confronted. During the season, home matches take place generally once a fortnight. One can only admire the stoicism of such officers who are required to carry out these stressful duties, not because of some genuine emergency, but simply as a matter of routine.
An attempt by ACPO and WYP to change the basis of charging
- For many years football clubs were normally charged only for SPS on their own property and the costs of policing outside would be borne by public funds, on the basis that it fell within the traditional duty of police officers to keep the peace and maintain public order. Both sides were largely content with these arrangements, although in the Club's case there was an unfortunate "blip" a few years ago when it went into receivership owing WYP over £80,000 for SPS costs, which remain unpaid.
- As costs escalated, however, and more and more restraints were imposed on the use of public moneys, it was only natural that attempts should be made to offload as much as possible of the cost involved to the clubs who were responsible for hosting the matches. The opportunity was taken to broaden the basis of claims, so as to include policing within an area of land described as a "footprint" in the vicinity of the relevant stadium – but without regard to whether the land in question belonged to the relevant club, or was under its control. The notion of a "footprint" has no statutory basis (although it is referred to in the latest Home Office Circular, HO 09/2011). It simply emerged as a pragmatic way of identifying the trouble spots within the immediate vicinity of the match location.
- For example, the "footprint" proposed in respect of the Club includes parts of the public highway and, in particular, Elland Road to the south of the stadium and Lowfields Road to the east. It also embraced some parking areas including car park A, referred to above, where until recently coaches would disgorge the visiting fans, and the surrounding area where the Club fans would lie in wait for them. I understand that no part of the "footprint" devised by WYP extends beyond a distance of 200 metres from Club premises. I am asked to decide whether there is any lawful basis for this approach.
- The charging practice seems to have changed at the beginning of the 2009-10 football season when WYP, in accordance with advice from the Association of Chief Police Officers ("ACPO"), based the "footprint" argument upon the first instance judgment of Mann J in Chief Constable of Greater Manchester Police v Wigan Athletic AFC Ltd [2007] EWHC 3095 (Ch). This was handed down on 21 December 2007 and an appeal was heard in December 2008: [2009] 1 WLR 1580 (CA). I should make clear that it has not been suggested that the nature or extent of police services in any way altered. There is no operational reason for the new stance. Despite this, the change has brought about a fourfold increase in the Club's SPS bill over the last three seasons.
- It is submitted by Mr Beloff QC for the Club that ACPO and WYP, in seeking to support their "footprint" stance on charging, have placed more weight on the judgment of Mann J than it will bear on closer scrutiny. Before I turn to address it in further detail, it is necessary to set out the legal background rather more fully.
The common law duty to keep the peace
- The traditional duty of police constables was originally defined at common law and my attention was drawn to a convenient summary in Halsbury's Laws of England, Vol 36(1) at para 478:
"The primary function of a constable remains, as in the 17th century, the preservation of the Queen's peace. From this general function stems a number of particular duties additional to those conferred by statute and including those mentioned below.
The first duty of a constable is always to prevent the commission of a crime. If a constable reasonably apprehends that the action of any person may result in a breach of the peace it is his duty to prevent that action. In certain circumstances the police may have a duty with regard to disclosure of information regarding convicted criminals in order to protect the community. It is the constable's general duty to protect life and property. The general function of controlling traffic on the roads is derived from this duty."
- At the heart of the Club's submissions is the proposition that, in seeking to make a charge in respect of policing activities beyond its own land, and land which it controls, WYP is impermissibly seeking payment for the discharge of normal common law duties. The fundamental principle was identified by Viscount Cave LC in Glasbrook Bros Ltd v Glamorgan County Council [1925] AC 270, 277-8:
"No doubt there is an absolute and unconditional obligation binding the 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 a further payment for that which is their right. … I think that any attempt by a police authority to extract payment for services which fall within the plain obligations of the police force, should be firmly discountenanced by the Courts."
Charging for special police services
- Already, however, even at common law, it had been recognised that there were certain circumstances in which the police could make charges for the provision of services, provided they extended beyond normal policing duties. The common law exception has since 1964 been embodied in statute, although it has not been submitted that this brought about any change of substance. Currently, it is necessary to consider the terms of s.25 of the Police Act 1996 which are, so far as relevant, as follows:
"25. – Provision of special services.
(1) 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 to the [local policing body] of charges on such scales as may be determined by [that body].
(1A) The Chief Constable of the British Transport Police Force may provide special police services at the request of any person, subject to the payment to the British Transport Police Authority of charges on such scales as may be determined by that authority."
(The words in square brackets replaced "police authority" with effect from 16 January 2012: Police Reform and Social Responsibility Act 2011, Sched. 16, Part 1, para. 24.)
- It will be noted that there was not incorporated any statutory definition of "special services". The concept has, however, received judicial attention from time to time.
- I turn first to consider the decision of the Court of Appeal in Harris v Sheffield United Football Club Ltd [1988] QB 77. In that case, the club was submitting that it was not obliged to pay for the services of police officers inside their ground between August 1982 and November 1983, since they did not fall within the meaning of SPS in the statutory provisions then current: s.15(1) of the Police Act 1964. It was contended that the chief constable, in arranging for officers to attend even inside the ground, was doing no more than carrying out his duties of preventing crime and maintaining public order. It was held that it was necessary to look at all the circumstances of the individual case. There, the conclusion was reached that, in order for the football matches to take place, it was necessary that police officers should attend inside the ground. Only thus would the club be able to meet its responsibilities to the public. It followed in such circumstances that a request by the club for the police to attend was to be implied. (Such an implication would naturally be difficult to draw in a case, such as the present, where the police activity is to take place outside the scope of the relevant club's ownership or control.)
- Both counsel referred to the guidance given by Neill LJ at pp. 91-92:
"I see the force of the argument that the court must be very slow before it interferes in any way with a decision of a chief constable about the disposition of his forces. The question posed in the instant case, however, is not whether the chief constable ought to have sent officers to Bramall Lane or as to the number of officers which were necessary; that the presence of officers was necessary is not in dispute. The question is whether, having regard to his general duty to enforce the law, the provision of these officers can properly be considered as the provision of special police services for which the police authority was entitled to make a charge. 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 is 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.
Bearing these considerations in mind I return to the present case. The club has responsibilities which are owed not only to its employees and the spectators who attend but also to the football authorities to take all reasonable steps to ensure that the game takes place in conditions which do not occasion danger to any person or property. The attendance of the police is necessary to assist the club in the fulfilment of this duty. The matches take place regularly and usually at weekends during about eight months of the year. Though the holding of the matches is of some public importance because of the widespread support in the local community both for the game and the club, the club is not under any legal duty to hold the matches. The charges which the police authorities seek to make, and have made, relate solely to the officers on duty inside the ground and not to those in the street or other public places outside."
- In the present case, of course, there is no dispute that WYP can charge the Club in respect of special police services within the stadium, and indeed on any ground leased or controlled by the Club; what is in contention is whether they can be legitimately so charged in respect of the "footprint" extending beyond such areas. As Mr Milsom, an Assistant Chief Constable, confirmed in his evidence, the Club has always maintained that it has no responsibility for policing outside the ground.
- It is submitted on behalf of WYP that in the disputed areas, which are on non-match days to all intents and purposes deserted, the crowd control and peacekeeping services provided by WYP benefit only the Club and those who are attending the match. They are separate and apart from ordinary policing duties, according to WYP, and thus are properly to be categorised as SPS which they have been implicitly invited to perform by the Club. I can observe at this stage that there is no authority in direct support of those submissions either in Harris or in any other case so far.
- 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.
- Furthermore, if it is reasonably anticipated that violence is likely to break out between rival groups of fans on match days, as unhappily appears generally 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).
- I must turn now to consider the next instance when these provisions came to the attention of the Court of Appeal, in West Yorkshire Police Authority v Reading Festival Ltd [2006] 1 WLR 2005.
- The promoter of a music festival made clear to the relevant police authority that it would not pay for the cost of officers deployed off the site, apart from those managing traffic, although it would contribute in respect of any who were based on site. In fact, the safety of the site was managed with hired security staff, while a large number of police officers were deployed in the surrounding area. Proceedings were brought claiming the costs of the entire police operation in reliance upon s.25(1). At first instance, it was found that the Defendant had made an implied request for SPS. Even though there had been no agreement as to how those officers were to be deployed, or how they were to be paid for, the Judge upheld the claim. An appeal was allowed for a number of reasons.
- It was held that, before a promoter of an event became liable to pay for police services, there would ordinarily need to be an agreement as to what services were to be provided. Once such an agreement came into effect, it was recognised that all operational decisions under the umbrella of that agreement were a matter for police judgment, but it did not follow that a promoter who requested services was obliged to pay for whatever operation the police chose to mount. Since the services provided by the police authority were different from those requested, and since the operation mounted had not been necessary in order for the festival to take place, the services were not treated as having been impliedly requested under s.25(1). The upshot was that the police authority had not been entitled to charge for the attendance of officers outside the festival site.
- It is illuminating for present purposes to consider a number of points made in the careful judgment of Scott Baker LJ. Having considered the earlier cases of Glasbrook and Harris, to which I have already referred, he went on to highlight certain important distinctions in the background circumstances. As he pointed out at [32]:
" … Policing considerations for football matches differ from those for music festivals. At football matches rival fans have to get safely to and from the ground, sometimes in a highly charged atmosphere. At the ground they have to be kept apart. A large crowd has to be kept safely in a confined space. The music festival extends over a longer period and takes place in a much larger open space. The threat it creates to the community outside the venue itself is over a much wider and less specific area. It should not be overlooked when drawing the line in a particular case between what are and what are not 'special police services' that the outcome will determine whether the promoter of the event or the public at large pays for the services provided."
He went on to express agreement, at [45], with an observation of the judge at first instance to the effect that it was more difficult to establish SPS where the police presence was deployed off site.
- Since so much of the judgment is germane to the present circumstances, it is necessary for me to set out further passages:
"Were 'special police services' provided?
58. If, as I find to be the case, [the promoter] made no request, express or implied, for 'special police services' it is irrelevant to the outcome of this appeal whether what the police did provide amounted to 'special police services' within the meaning of section 25(1) or was in truth no more than performance of their public duty albeit on a more extensive scale than would ordinarily be the case. I confess I have not found this an easy question to answer but I endeavour to do so because of its significance in relation to other cases.
59. There is no doubt that the police called up a great deal of additional resources and manpower because the festival was taking place. Rest days were cancelled; officers were called back from leave; arrangements were made for a police helicopter and other facilities. None of this would have been necessary but for the fact that the festival was taking place. In one sense this was way beyond ordinary police services. [Counsel for the promoter] submits, however, that this is nothing to the point. The test is not whether the services were caused by the event but whether the services are provided to the person requesting them for his own benefit and protection. In other words the services must be special to the person requesting them rather than rendered for the benefit of the general public. [Counsel] submits that this emerges from the decisions in Glasbrook Bros Ltd v Glamorgan County Council [1925] AC 270 and Harris v Sheffield United Football Club Ltd [1988] QB 77.
60. There is no obligation on the police to provide 'special police services' in contrast to their public duty obligations, a factor which is submitted as material in determining what falls within the phrase 'special police services'.
61. [Counsel for the police authority] submits that the services were special in the sense required by section 25. The services were quite different from the routine deployments of police officers in West Yorkshire. The sole reason for the need for the policing operation was the fact that the festival was being held. It was a commercial event that attracted large numbers of people and gave rise to an exceptional demand on police resources. The police operation was tailored to the particular requirements caused by the festival.
62. This argument has considerable superficial attraction, But taken to its logical conclusion it suggests that on every occasion some event causes the police to provide services that go beyond the routine deployment of officers they are providing 'special police services'. I do not believe that to be the law. Take, for example, a large demonstration in a public place. The organisers, responsibly, tell the police what is planned and there is dialogue so that the risk of unlawful activity is kept to a minimum. I cannot see that policing such a demonstration could be described as providing 'special police services' within the meaning of section 25.
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. In the present case any 'special police services' did not have to be confined to the area of Bramham Park itself as is witnessed by the fact that [the promoter] agreed and paid for traffic policing outside. Much of what the police did outside Bramham Park could be said to be for the dual benefit of both the promoters of the festival and the general public but it was, on my conclusion, not requested. In my view the extent that a promoter pays for such services should be negotiated and resolved before the event takes place. The ultimate sanction for a promoter who refrains from making a request for 'special police services' that are reasonably required may be that the event should not take place at all. As the law stands, it seems to me that the dice are loaded rather heavily against the police for they may find themselves incurring considerable cost and expense in policing the consequences of an event which they cannot recover because there is no agreement with the promoter.
68. I turn to consider, as did the judge, the factors mentioned by Neill LJ in the Harris case [1988] QB 77 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 [the promoter].
…
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."
- Much of the judgment is helpful in addressing the issues in the present case but, at this stage, I would highlight four points in particular. First, there is the observation, at [67], that the ultimate sanction for a promoter who refrains from making a request may be that the event should not take place at all. I shall return to this subject when I come to consider the need for football clubs to obtain safety certificates in accordance with the Safety of Sports Grounds Act 1975.
- Secondly, it is important to note the conclusion, however attractive the contrary argument may be, that the law as it stands at the moment does not permit police to recover additional costs of policing merely because someone puts on a function which attracts a large number of "punters" – even where the event is run for profit. There is no "but for" test; that is to say, it will not suffice for a police authority to show that the expenditure would not have been incurred but for the staging of the event concerned: see at [59].
- Thirdly, there is no simple "benefit" test, in the sense that the question should turn on an ex post facto analysis by the court as to whether the police services in issue primarily benefited the general public or particular groups or individuals (and, if so, which): see paragraphs [63] and [72]. That is not a practical or sufficiently certain approach.
- Fourthly, the present facts do not have either of the two "key features" described by Scott Baker LJ at [66]. The Club never requested services which went beyond those thought by WYP to be necessary; nor were the policing requirements outside the stadium, but within the "footprint", such as the Club would have had to provide out of its own resources.
Did the Wigan Athletic case change the law?
- The police in general, and WYP in particular, seem to have been quite willing to bear the cost of additional policing in any public places as falling within their traditional constabulary duties up to the 2008-9 season. One can readily infer that it was the financial constraints associated with the economic recession from 2008 onwards which led, understandably, to attempts to reduce the costs of the police budget generally and to recoup any additional expenditure from those who stood to gain from popular events that gave rise to a need for crowd control or an increased risk of criminality. It was in these circumstances that ACPO appears to have focussed on the first instance decision of Mann J in the Wigan Athletic case. I must, therefore, now turn to the learned Judge's reasoning.
- Mr Beloff made a number of general submissions about the status of the judgment before addressing the relevant content. First, he argues that its authority is diminished by reason of the fact that the decision itself was overturned (albeit without the specific reasoning being the subject of criticism in the Court of Appeal or, for that matter, endorsement). Secondly, he points out that a decision by one High Court judge is not binding on another, even though it may be illuminating and persuasive. Thirdly, the parts of the judgment relied upon are obiter. Putting all that to one side, however, it seems to me important to focus first on what the Judge's reasoning actually was and whether it will bear the interpretation that ACPO seeks to place upon it.
- It will by now have become apparent, in considering the authorities touching upon s.25(1) of the 1996 Act, that there is a tendency for the facts to obtrude in a rather inconvenient way, even though the central issue might appear to be a relatively straightforward one for the court to determine as a matter of law. It is important to note, for example, that in the Wigan Athletic case the police authority was not claiming to recover for the costs of policing incurred on public land, such as public highways or the town centre. By contrast, here, WYP is claiming to recover in respect of certain areas of public land (specifically in relation to the two highways abutting the stadium to the south and east) and also in respect of car parking areas owned by third parties (and in one case actually controlled by WYP). Furthermore, the Club made no request, as contemplated by s.25(1), in respect of any of those areas. That was made clear in the evidence of Mr Shaun Harvey its chief executive.
- Mann J was called upon to make findings of fact in relation to the degree of control exercised by Wigan Athletic in certain areas outside the stadium itself. Having concluded that there was control, he felt able to rule that there could be recovery with regard to any SPS there provided. He was concerned, in particular, with an argument that certain land could be categorised as public merely by virtue of the fact that there was public access to it. Understandably, he concluded that this was not determinative in the club's favour, focussing rather on the degree of control it exercised. It is quite apparent, however, that nothing he said lends support to the general proposition (and leaving aside the terms of any agreement negotiated) that a police authority can recover the cost of policing in respect of some conveniently designated "footprint" area which is neither owned, leased nor controlled by the relevant club. This much emerges from a close consideration of paragraphs [89]-[93].
- It is necessary also to take into account the conclusion expressed at paragraphs [98]-[99], where he distinguished the facts from those in the Reading Festival case. He went on:
" … 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 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.
For those reasons, therefore, I find that the services of the police in the land around the stadium (meaning the leased land) was, in terms of its nature and location, of a nature which could be SPS as opposed to being part of [Greater Manchester Police's] normal duty to a citizen." (emphasis added)
- It is true, of course, that the Club in the present case, in respect of all the matches under consideration, "got the benefit of having its invitees looked after, supervised, segregated and protected from harm". I suspect that this similarity has played an important part in persuading ACPO and WYP to pray the decision in aid. Nevertheless, there remains the important distinction that Mann J was confining his observations to SPS provided on land which had been leased by the club. It is thus implicit in his judgment that the cost would not have been recoverable if the services had been rendered on land in public ownership. I am unable to discern anything in the first instance judgment, or that of the Court of Appeal, to justify ACPO's advice that SPS could thereafter be charged for on a wider basis.
A potential problem about "immediately imminent" violence
- The Club is not taking the point, touched upon in the course of argument, that in respect of any particular match WYP was not entitled to be paid for services rendered inside the stadium. In theory, it could be argued, having regard to one of the factors identified by Neill LJ in the Sheffield case, that sometimes the officers would have been required to attend to "immediately imminent" violence. As this case illustrates, there is sometimes a very fine line between "attending as part of a pre-planned operation" and attending in anticipation of "immediately imminent" violence. From bitter experience, WYP know that, especially with regard to the high risk category games, violence is very likely to break out unless preventative measures are taken. It would be difficult to divide up the cost on the basis, for example, that police officers' time should be charged as SPS in accordance with pre-planning until the rival coach party turns into the premises when, on some occasions, violence becomes "immediately imminent". As it happens, of course, this dilemma does not arise in relation to the Club, since none of the car parks is under its control, but I make the point as being merely illustrative of the fine lines that may have to be drawn in other venues.
The attempt by WYP to define a "footprint" round the Club stadium
- Mr Beggs QC, appearing for WYP, has placed emphasis upon a particular aspect of the land, and the Club's control over it, in seeking to support what he calls the "absurdity" of the Club's position. It so happens (as emerges from the plans and photographs put in evidence) that, to the eastern side of the stadium, the boundary does not form a straight line but passes diagonally over a publicly accessible walking area. This means that when a police officer, or indeed anyone else, steps across that boundary in the course of walking in a straight line to the east of the club, he or she will pass imperceptibly from a private into a public area or vice versa. On one side the officer's services will be chargeable, but not on the other. I agree that this may seem arbitrary, but that is true of any boundary line. (Mr Beggs himself made a similar "absurdity" point in relation to WYP's apparent inability to charge for officers stationed just outside the turnstiles.)
- There is one area which, at least until recently, was a notorious trouble spot and which WYP seek to include within its "footprint" for that reason. It is a small residential area where the Club's fans would congregate regularly, sometimes gathering bits of wood from garden fences and other weapons or missiles (e.g. stones or bricks), with a view to ambushing the fans of a rival club when its coach pulled into car park A, which is adjacent to it. I can well understand why the police reasonably thought it necessary to have a presence in that public area, and that the only occasion for these displays of hostility was that the Club was hosting a match that day. Nevertheless, it seems to me quite clear, consistently with the reasoning of Scott Baker LJ, that these factors do not themselves justify, as a matter of law, a claim to recover the cost of the necessary policing: see Reading Festival at [59]-[62].
- 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 can simply be categorised as "policing for the purposes of the match" and, for that reason alone, attributed to SPS.
- 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.
- If a promoter asks for onsite policing and the police authority concludes that only an offsite presence is required it cannot, without more, charge the promoter for offsite services for which he did not ask: Wigan Athletic [2009] 1 WLR 1580 (CA), at [32], per Sir Andrew Morritt C.
- In any event, s.25 of the 1996 Act plainly contemplates that SPS may be provided. There is an element of discretion as to whether the relevant police authority complies with a request. On the other hand, where attendance by officers is necessary to keep the peace or to prevent violence, a common law duty arises which has to be complied with. It does not depend on a request: see the remarks of Lord Cave LC in Glasbrook, cited above. The only discretion in such circumstances is as to how the chief constable deploys the available resources in the discharge of that duty.
- In the course of formulating submissions, WYP resorted to somewhat contorted and artificial arguments on "control". As I have said, none of the nearby car parks was owned or leased by the Club. Several are owned by the City Council and there is also a bus park owned by West Yorkshire Passenger Executive (generally referred to as Metro). On at least one occasion, the Club arranged for its own tractor to clear snow from the Metro bus park to facilitate parking for visiting coaches. This was said to be some evidence of "control" by the Club, but the crucial fact is that before doing so the Club required, and obtained, Metro's permission.
- Another argument related to the Club's having engaged the part-time services of a Mr W. He was paid on match days for monitoring CCTV coverage and would pass relevant information to the police. On 2 May of this year, he was requested by the Club's security officer to open the Fullerton car park for matches on 15 May, and to make charges on behalf of the Council, which owned it and by whom he is usually employed. It was in that capacity that he was requested to make the parking available. That does not evidence control by the Club: quite the contrary. As I have said, there is no evidence that it controls any of the relevant parking areas.
The consequences of my interpretation of the current law
- I naturally understand that it must be tiresome for WYP to cost separately the services performed, as between SPS and non-SPS, purely for accounting purposes, since they are rendered on a holistic basis as one overall policing operation. Yet this has to be done whether the boundaries are drawn by reference to the selected "footprint" area or to the smaller area falling under Club ownership or control.
- I appreciate also that my interpretation of the law is unfortunate not only for WYP but also for the public purse. It has been government policy, at least since 2000, that the costs of SPS should be paid in full by those using them and that no part of them should be allowed to add to the general level of police expenditure: see Home Office Guidance on Football Related Legislation (HOC 34/2000), at [13.3]. At that stage, it was recognised that where officers were deployed partly inside and partly outside a club's private property, the full cost of time spent inside should be recovered – but not that in respect of services performed outside.
- There is a more recent Home Office Circular (09/2011) which came into effect on 1 August 2011. This takes into account more recent judicial authorities on the interpretation of SPS, including the Wigan AFC case. Of course, its status is not such as to determine the law, only serving as a guide to its application. Nevertheless, it does seem to me to reflect the current state of the law accurately. Specifically, it refers to a "defined footprint area including the football ground itself and other land owned, leased, or controlled by the football club (or manager of the event)". This corresponds to the ruling of Mann J.
- If the government should wish to extend the scope of SPS beyond that limited definition, and to ensure recoupment of police costs incurred over a wider area, legislation would be required (although it would give rise to real problems as to where the line could be drawn).
- Finally, I should make clear that I do not accept the validity of Mr Beggs' gloomy prediction that my having ruled as I have, on the facts before me, will have the "profound effect" that police officers would not be able to charge for policing services rendered hereafter in respect of cycle races on public roads or by way of escorting articulated lorries. The situations are not comparable. Police officers performing such duties are not there, normally, for the purpose of preventing public disorder or crimes of violence. He is, however, quite right to say that the distinction between private and public land is not always decisive in such cases. It will often be an important factor, as Neill LJ made clear in the Sheffield case, but is not by itself determinative. Where the police are requested, specifically, to offer their services on public roads to ease the flow of traffic, because a potential obstruction may be caused by an unusual use of the highway, there is no reason why SPS should not be charged for.
The role of safety certificates
- Meanwhile, it would seem that in practice "something will have to give". I can well see an argument that the police cannot reasonably be expected to continue indefinitely funding these expensive activities out of an ever diminishing budget. As Scott Baker LJ observed, in the Reading Festival case, at [67], the "ultimate sanction" would be that such events should not take place at all. At least, it may be thought, steps will have to be taken, if police funds are stretched too far, to limit the risk of violence by imposing or negotiating restrictions on the management of high risk matches. The officers who gave evidence referred to three possible areas:
i) The overall numbers attending should be confined so as to be manageable from within the stadium (i.e. through properly chargeable SPS);
ii) The availability of alcohol on the premises could be limited;
iii) Earlier kick-off times could be fixed.
Each of these restrictions would impact on the Club's finances, but there may soon come a time when police funding is no longer available to sustain the Club's revenues at their present level.
- Such questions are closely connected with the need for safety certificates in accordance with ss.1 and 2 of the Safety of Sports Grounds Act 1975. They are granted by the relevant local authority, but will often involve input from the chief officer of police. It is provided by s.2:
"(1) A safety certificate shall contain such terms and conditions as the local authority consider necessary or expedient to secure reasonable safety at the sports ground when it is in use for the specified activity or activities, and the terms and conditions may be such as to involve alterations or additions to the sports ground.
…
(2A) No condition of a safety certificate shall require the provision of the services at the ground of any members of a police force unless the extent of the provision of their services is reserved for the determination of the chief officer of police of the force."
- Estimates were given in the course of evidence, which must inevitably have been very approximate, as to the potential impact on the need for SPS within the Elland Road Stadium on the assumption that police funds could no longer stretch to the intensive crowd control hitherto applied outside. It was said that it might be necessary, depending on the risk category of the match, to increase the internal police presence by as much as 50 per cent. That is to take account of the absence of the restraint and calming influence of police officers in the surrounding area, in particular by keeping the rival fans apart.
- This may all be rather unrealistic in practice, since on many occasions there would be outbreaks of violence, criminality and even perhaps rioting, if the police were not maintaining an effective presence outside the stadium and indeed in the city centre. Yet, on my interpretation of the law, WYP would not be able to charge for that as SPS. This rather artificial divide takes no account of their holistic approach, which assumes that no valid distinction can be drawn between crowd control inside and outside.
- It is important to note that the grant of a safety certificate may be subject to "such terms and conditions as the local authority consider necessary and expedient", which can extend even to alterations or additions to the ground. They can thus include such provisions as I have identified above: there may be restrictions imposed as to numbers attending, consumption of alcohol and the timing of the kick-off. Such conditions would be likely to have an effect on the need for crowd control, both inside and outside the ground. They may, therefore, bring about some corresponding reduction in the cost of policing.
- On the other hand, once a certificate has been granted and a match is due to take place, the WYP will still have a duty to keep the peace in the city centre and the environs of the Club stadium (whatever agreement may be reached as to SPS). That duty will have to be discharged in accordance with the resources available and the usual budgetary constraints. It will not be open to WYP to offload on the Club the cost of any external policing which does not fall within SPS (unless and until the law is amended). That is not permitted by s.25(1) of the 1996 Act (as hitherto interpreted by the courts). Thus, they cannot seek to impose a condition upon the provision of SPS within the stadium that the Club should also contribute to the cost of providing services outside if they would not otherwise fall within the recognised scope of SPS.
Recovery of the sums paid "without prejudice"
- It was agreed for the seasons 2009/10 and 2010/11 that the Club would only pay for services rendered within the "footprint" on a "without prejudice" basis, so that if it should prove successful in its submissions to the court on the extent of SPS such sums would be recoverable. It would follow from my rulings that they should be repaid. I can see no reason for drawing a distinction in relation to the most recent season. It may be that proceedings could have been pursued more expeditiously, but I do not consider that this disentitles the Club from recovery in accordance with the understanding reached. In any event, there was no power to charge the Club for services other than SPS.
The WYP scale of charges
- As to the scale of charges, Scott Baker LJ observed in the Reading Festival case, at [20], that the police authority has "the last word". This was the only discernible change brought about by the statutory provisions introduced from 1964 onwards. The matter is addressed generally in the current circular HO/09/2011 at [13.4]-[13.7]. WYP, like other forces around the country, calculates its charges in accordance with those principles and with ACPO guidance, currently contained in Paying the Bill 2. This was all explained in the evidence of Mr Mark Reeves, which the Club did not challenge. There is no reason why the charges should be confined to direct cost, however that is to be calculated. The Circular makes clear that "full costs" includes "indirect costs". It is obvious that the cost of any police officer to the relevant police authority goes beyond his/her basic salary. WYP wish, for example, to include costs to take account of notional pension charges. I see no reason why they should not do so. The Circular refers expressly to that category of expenditure, as it does also to overtime, national insurance, rent allowances, uniform, administrative costs and general overheads. The objective is to avoid SPS encroaching upon the publicly funded budget. WYP has made clear that it does not aim to make a quasi-commercial profit, as Mr Milsom confirmed in evidence. Furthermore, I can see no reason why they should not charge for officers' time in six hour units, as opposed (say) to two or four hour units. This is the subject of some dispute because the Club contends, for example, that at a typical Saturday match there would only need to be police cover between 1.30 and 5.30 p.m. The charges could only be challenged, in my judgment, if they were irrational in a public law sense.
Further submissions may be required
- In the light of my conclusions upholding the Club's interpretation, I will consider counsel's submissions (which may be oral or written) on the form of any declaration to be granted.
