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||Neutral Citation Number:  EWCA Civ 524
||Case No: A2/2005/2380/QBENF
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LEEDS DISTRICT REGISTRY
(His Honour Judge Grenfell)
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SCOTT BAKER
LORD JUSTICE JACOB
LORD JUSTICE NEUBERGER
|| Reading Festival Limited
||- and -
||West Yorkshire Police Authority
Robert Englehart Q.C. and Max Mallin (instructed by Freeth Cartwright) for the Appellant
James Watson Q.C. and Jeremy Johnson (instructed by West Yorkshire Police Authority) for the Respondent
Hearing date: 23/03/2006
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Scott Baker:
- This appeal concerns the correct interpretation of section 25 of the Police Act 1996 and the circumstances in which the police are entitled to charge for 'special police services' at a music festival. The appeal has implications for major sporting events, other music festivals and large gatherings. Where is the dividing line between the service the police must provide as part of their ordinary public duty, and special services they provide at the request of promoters of events for which the promoter must pay? The appeal is brought with the permission of the trial judge, Judge Grenfell, who, on 11 October 2005 in the High Court sitting at Leeds, gave judgment for the respondent police authority in the sum of £291,248.64 plus interest.
- The appellant is Reading Festival Limited, which is part of the Mean Fiddler Organisation. Since 1999 it has organised the Leeds Festival which is a three day music festival and ordinarily takes place over the August Bank Holiday weekend. The issue was whether the respondent police authority was entitled to recover the cost of policing the 2003 festival. In each of the previous four years the West Yorkshire Police had, after negotiation, been paid an agreed sum. For those years the festival had been held at Temple Newsam, but in 2003 there was a change and it was held at Bramham Park.
- The Mean Fiddler organisation includes among its activities the organisation and promotion of large outdoor popular music festivals such as the Leeds Festival, the Reading Festival and, since 2002, the Glastonbury Festival.
- The respondent's claim arises out of section 25 of the Police Act 1996 which provides:
"(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 police authority of charges on such scales as may be determined by that authority."
Subsection 1A, inserted by the Anti-terrorism, Crime and Security Act 2001, contains a similar provision for the chief constable of the British Transport Police but without limitation as to premises or locality.
- Section 25(1) of the Police Act 1996 replaced section 15(1) of the Police Act 1964 which was in identical terms. The 1964 Act placed on a statutory basis what had previously been recognised at common law since Glasbrook Brothers Limited v Glamorgan County Council  AC 270.
The background facts
- Each year from 1999 to 2002 Mean Fiddler requested and the police authority provided 'special police services' for the Leeds Festival. This involved a large police presence, day and night within the grounds of Temple Newsam. The police patrolled all areas of the site other than inside the arena where the music was played. They covered camp sites, car parks, food and merchandising areas. There was a police control post and a crime reporting station with an enclosed prisoner reception area maintained by the police. Mean Fiddler paid for the services provided both on and off site. Those services included traffic management on the public roads around the location of the site.
- Each year a fee was proposed by the police, negotiated and eventually agreed and paid by Mean Fiddler. The agreed fees, exclusive of VAT were;
- On 13 May 2003 the Licensing and Regulatory Panel of the Leeds City Council resolved, despite police objections, to grant a provisional public entertainment licence for the 2003 festival with the council's Director of Legal and Democratic Services having authority to determine the final licence conditions.
- The police were unhappy that the council had not accepted their objections and remained opposed to the festival taking place. There had been serious disturbances at the conclusion of the 2002 festival. Their concerns included:
- A history of escalating violence at the event.
- Experience of similar large scale entertainment events where unforeseen developments could lead to loss of life.
There was, however, a change in venue for the 2003 festival from Temple Newsam, a former stately home and grounds owned by the Leeds City Council on the outskirts of Leeds, to Bramham Park, a much larger and privately owned site comprising country parkland between Leeds and York just to the west of the A1.
- The overall national security situation.
There was also a change of police strategy for the 2003 festival with a much lower profile on site. There was a relatively small number of plain clothes officers on site. We were told that a similar situation obtained for 2004 and 2005 when the festival again took place. There is an outstanding issue about the cost of police services provided in respect of those festivals. We were told the outcome turns on the result of the present appeal.
The two main issues in the appeal are (1) whether Mean Fiddler made a request for special police services and (2) whether the services provided by the police were 'special police services' within the meaning of section 25(1) of the Police Act 1996. The judge answered both questions in the affirmative and held Mean Fiddler liable for the whole of the sum claimed by the police.
The judge identified various matters of factual common ground. These included that a temporary control centre was set up in Wetherby for the additional police officers who were on duty because of the festival. Very large numbers of police officers were required to be on duty for the duration of the festival, many of whom would otherwise have been on holiday or off duty. It was not in issue that deployment of those large numbers was caused by the staging of the three day festival.
Nor was it disputed that Mean Fiddler requested special traffic policing and paid for it promptly. However, Mean Fiddler proceeded on the understanding that if there was no police presence on the site of the festival itself then it was not liable to pay for other services. This, it was submitted, was the crucial distinction. Officers deployed off site were providing ordinary police services and not 'special police services'.
Before turning in more detail to the issues in the present appeal it is necessary to examine with a little care two authorities. The first is Glasbrook. In that case a colliery manager applied for police protection of his colliery during a strike. The police superintendent was prepared to provide what, in his opinion, was adequate protection by means of a mobile force. The manager insisted the colliery could only be efficiently protected by billeting men on the premises. This, the superintendent was only prepared to do if the manager agreed to pay for the men at the specified rate. The colliery sought to resist recovery of the sum of £2200 which they had agreed to pay for the cost of the police services specially supplied. The House of Lords by a majority of 3 to 2 held that there was nothing illegal in the agreement nor was it void for want of consideration. It is to be observed, however, that the dissenting speeches of Lords Carson and Blanesborough were essentially on the facts of the case rather than upon any issue of legal principle (see Lord Carson at p.297 and Lord Blanesbrough at p.306).
Glasbrook affirmed the principle that there is a fundamental obligation on the police to keep law and order and that this is paid for through general taxation. Viscount Cave L.C. said at p.277:
"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."
He added at p.278 that any attempt by a police authority to extract payment for services which fell within the plain obligations of the police force should be firmly discountenanced by the courts. No one seeks to disagree with that. One of the problems in the present case is to identify the dividing line between those 'plain obligations' and special services which the police are in a position to provide. Viscount Cave continued:
"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 large gatherings in and outside private premises, as on the occasions of weddings, athletic or boxing contests or race meetings, and the provision of constables at large railway stations."
He added at p.279:
"….There may be services rendered by the police which, although not within the scope of their absolute obligations to the public, may yet fall within their powers, and in such cases public policy does not forbid their performance."
Thus he concluded that the practice of lending constables for special duty on consideration of payment was not illegal or against public policy, a view shared by the other members of the House. For example Viscount Finlay said at p.285:
"If a particular person desires protection of a special sort and the police can give this without interfering with the discharge of other duties elsewhere, it is difficult to see on what ground of public policy it should be illegal that a charge should be made in respect of special protection."
The decision in Glasbrook therefore turned on whether the lending of seventy constables to be billeted in the appellants' colliery was a legitimate application of the principle, and the House of Lords held by a majority that it was. Viscount Cave said at p.291 the question for the court was whether on 9 July 1921, the police authorities, acting reasonably and in good faith, considered a police garrison at the colliery necessary for the protection of life and property from violence, or, in other words, whether the decision of the chief
constable in refusing special protection unless paid was such a decision as a man in his shoes could reasonably take. He said:
"If in the judgment of the police authorities, formed reasonably and in good faith, the garrison was necessary for the protection of life and property, then they were not entitled to make a charge for it, for that would be to exact a payment for the performance of a duty which they clearly owed to the appellants and their servants; but if they thought the garrison a superfluity and 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 special duty and to charge for it."
He concluded with these words:
"I have come to the conclusion that when a colliery company or an individual requisitions police protection of a special character for a particular purpose, he must pay for it, and he must pay for it whether he makes a contract to pay or whether he does not – a promise to pay would be implied under those circumstances."
In fact there was an express promise in that case. Thus it has been established, at least since the decision in Glasbrook, that the police are entitled to provide special police services if requested to do so, 'special police services' being broadly defined as those over and above their general obligation to maintain law and order and keep the peace.
It is unclear why over 40 years passed following Glasbrook before the principle there identified was put into statutory form or indeed why Parliament felt it necessary to do so. Section 15(1) of the Police Act 1964 is an enabling section. That is, it enables the police to do that which the common law already said they could do. For my part, I do not think Section 15(1) added anything to or altered the common law position except possibly to clarify that the police authority had the last word on the scale of charges. The present provision, section 25(1) of the Police Act 1996, simply re-enacted the previous provision. Thus, following what Viscount Cave said, a promoter of a function who requisitions 'special police services' must pay for them whether he makes a contract to pay or a promise to pay is to be implied.
In my judgment the key features of Section 25(1) on a natural reading of the words are (1) there must be a request for special police services, (2) the chief officer has a discretion to provide them and (3) if he agrees to do so the police authority, in the absence of agreement, is entitled to fix the scale of charges. The section does not speak of a contract as such but it seems to me there would ordinarily need to be agreement between the promoter and the police as to what was being provided – at least in broad terms – before a liability to pay arises. I say 'in broad terms' because how the police provide the services requested must ultimately always be a matter for them; they make the operational decisions. We were not referred to any reported case in which a claim has succeeded under this section that has not been based on contract.
The relevant statutory provision in the form of Section 15(1) of the Police Act 1964 was considered by this court in Harris v Sheffield United Football Club Ltd  1QB 77. The main issue in that case was whether services provided by the police at Sheffield United Football Club for the club's home fixtures were 'special police services' so that if they were provided at the club's request the police could charge for them. Up until 1970 the club had made special arrangements for the attendance of police officers at matches for which payments had been made. Thereafter the police continued to attend at matches both inside and outside the ground, but the club's view was that they were obliged to do so in accordance with their duty to maintain law and order. The club refused to make any payment. The police authority claimed £51,669 for the services of officers inside the ground for a 15 month period between August 1982 and November 1983 on the basis that they were 'special police services'. The club argued that they were not and that the police were doing no more than carrying out their duty. Further, the club denied that over a short period at the end of 1983 they had 'requested' police services for the purposes of the section and counterclaimed a declaration that they were not liable to make any payment for police services unless they requested attendance by officers to fulfil roles other than police duty. The judge found that at some matches violence was almost certain unless the police attended in substantial numbers, but concluded that the attendances inside the ground constituted special services and that the services had been requested. His decision was upheld on appeal.
Neill LJ pointed out at p.83D that the claim was a claim in contract and that it was conceded that the claim would fail if the officers attended merely to enable the chief constable to carry out his duty to maintain law and order, in which event there would be no consideration and no charge could be made. However, it was also conceded by the club that if the attendance of the officers did amount to 'special police services' then, subject to the issue about whether there had been any request after October 1983, the charges were recoverable. The case is important because it is the one occasion on which this court has considered what amounts to special police services under the legislation.
The words are not, as Neill L.J. observed, defined in the Act. He referred to Glasbrook and to the Shortt Committee Report on Crowds (1924) (Cmd 2058) which followed the events at the first Cup Final held at Wembley Stadium in 1923. He said it was accepted that the police authority had been entitled up until 1970 to charge for 'special police services', first in accordance with the decision in Glasbrook and then section 15(1) of the 1964 Act. But thereafter the position was said to have changed fundamentally. The argument was that although it was accepted the club continued to request the attendance of officers until October 1983, the requests did not give rise to legal liability to pay for the attendance because the chief constable was obliged to arrange for the attendance of these officers in any event so that he could fulfil his duties to maintain law and order and protect life and property. Since about 1970 the position had changed, with football crowds becoming more unruly so that the chief constable's opinion was that from then on the attendance of police officers at league and cup matches was necessary for the maintenance of law and order and the protection of life and property.
Neill L.J. said the question before the court was not whether the chief constable ought to have sent officers to the ground or as to the number of officers that were necessary. That the presence of officers was necessary was not in dispute. The question was whether having regard to his general duty to enforce the law, the provision of the officers could properly be considered as the provision of 'special police services' for which the police authority was entitled to make a charge.
Neill L.J. did not attempt to lay down any general rules as to what are or are not 'special police services'. He pointed out that it depended on all the circumstances of the individual case. He did, however, identify four matters that ought to be taken into account. These were:
i) Whether the police officers were required to attend on private premises or in a public place. The fact that the police do not as a general rule have access to private premises suggests that prima facie their presence on private premises would constitute 'special police services'.
ii) Whether some violence or other emergency had already occurred or was immediately imminent.
iii) The nature of the event or occasion the officers were required to attend. Here, he thought a distinction could be drawn between public events, such as elections, at one end of the spectrum and private events such as weddings at the other. He saw events such as football matches, to which the public are invited and which large numbers are likely to attend, as lying somewhere in between. He thought it might be relevant to inquire whether the event was a single one or one of a series, which was likely to place an exceptional strain on police resources.
iv) Whether the necessary amount of police protection could be met from the resources available to the chief constable without the assistance of officers who would be engaged in other duties or off duty.
The Lord Justice expressed his conclusions thus:
"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 wide spread 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 authority 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.
There is clear evidence that the chief constable would be unable to provide the necessary amount of protection for Bramall Lane and also to discharge his other responsibilities without making extensive use of officers who would otherwise have been off duty. Substantial sums by a way of overtime have therefore to be paid. The arrangements for the attendance of the officers are made to guard against the possibility, and for some matches the probability, of violence; the officers are not sent to deal with an existing emergency, nor can it be said that any outbreak of violence is immediately imminent.
In my judgment, looking at all these factors I am driven to the conclusion that the provision of police officers to attend regularly at Bramall Lane throughout the football season does constitute the provision of special police services. Nor in my opinion is it to the point that the club has stated that they do not expect the police to carry out any duties other then to maintain law and order. The resources of the police are finite. In my view if the club wishes on a regular basis to make an exceptional claim on police services to deal with potential violence on its premises, then however well intentioned and public spirited it may be in assembling the crowd at Bramall Lane, the services which it receives are "special police services" within the meaning of section 15(1) of the Police Act 1964."
Balcombe L.J. approached the question somewhat differently from Neill L.J. He pointed out that the essence of the club's argument was that some violence was virtually certain if the police were not present and that the police by their presence were doing no more then fulfilling their function of preserving public order. What they were doing was part of their ordinary duty and could not therefore be 'special police services'. He rejected this argument pointing out that Glasbrook, on which it was based, concerned very different facts. In particular, it was not suggested in Glasbrook that the person requiring police protection had, for his own private purposes, organised an occasion which could only take place safely if special security measures were taken which it was his own duty to provide.
Balcombe L.J. said of the chief constable's duty to enforce the law and keep the peace that he had a discretion which he must exercise even handedly. Provided he acted within his discretion, the courts would not interfere. But he had to have regard to the resources available and could not, as Scrutton L.J. observed in the Court of Appeal in Glasbrook  1KB 879, 891, protect every citizen completely against possible, even anticipated, crime. The cost would be prohibitive.
The key passage in Balcombe L.J's judgment is at p.95G where he said:
"In answering the question whether the provision of police within the club's ground was a special service the judge 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".
In my judgment that is a correct statement of the legal position which cannot be faulted."
The second question in Harris was whether the services had been requested. This related solely to the short period after October 1983 in respect of which it was argued on behalf of the club that there had been no relevant requests other than requests made on a without prejudice basis. Neill L.J., with whom the other members of the court agreed, thought the club's argument lacked any real substance and dealt with the point shortly at p.93B:
"If the club is to hold matches at Bramall Lane it is necessary for police officers to attend inside the ground. Their presence is necessary to enable the club to meet its responsibilities to the players, the staff and the spectators as well as to comply with the rules imposed by the football authorities. It is not necessary to examine what steps could be taken, and by whom, to stop a match taking place if the club authorities declined to allow the police to attend. But there is no likelihood that the club authorities, who have acted with a great sense of responsibility throughout, would take such a course. It may be that the request for the police services can only be implied from all the circumstances and that it is made without enthusiasm. But if the police attend in order to enable the match to take place then, in the circumstances existing in this case, I consider that a request is to be implied."
Before leaving Harris I would make these observations. The court there was considering police services within the ground and not outside. While the section covers services provided at any premises or in any location in the force area provided they are 'special police services', the police were not seeking to recover any costs of policing outside the ground. Harris is authority for the proposition that regular attendance of the police inside the stadium is special police services.
Ultimately each case will depend on its own particular circumstances. Different considerations will be material in different cases. The facts in Glasbrook were very different from the facts in Harris just as those in Harris are very different from the facts of the present case. 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.
Against that background I turn to the circumstances of the present case and the issues the judge had to resolve.
Was there a request?
It is necessary to look with a little care at how events unfolded before the festival. On 7 April 2003 there was a meeting between Mean Fiddler and the police. At this point the police were objecting to the grant of the licence. They objected both to the proposed new site (Bramham Park) and the old site (Temple Newsam). The festival drew a national and international crowd; the potential for disorder, according to the police, was the same whatever the venue. The event had always caused problems and the legacy each year was extensive and expensive police investigations.
On 13 May 2003 the Licensing and Regulatory Panel of the Leeds City Council met on the premises of Bramham Park and granted a provisional occasional public entertainment licence despite the objection on the part of the police which included showing a video of events that had taken place at the conclusion of the 2002 festival. The licence was granted subject to (1) the continuation of multi-agency meetings and (2) a number of specified conditions. Those conditions included the following:
(10) The security of the licence site and the safety of persons within it shall be the responsibility of the licensee, before during and after the event.
The previous year's licence, and I imagine those of earlier years, had included an additional condition in these terms:
(11) Security in sufficient numbers deployed to an agreed specification as acceptable to the Chief Officer of Police, Fire Brigade and Local Authority, shall be provided in accordance with Chapter 6 of the Event Safety Guide. Briefing of stewards/security to the satisfaction of the Chief Officer of Police, Fire Brigade and Local Authority will be given and the stewards/security will be provided with easy means of recognition. No person under the age of 18 years shall be employed as a steward.
"The licensee will provide secure, sterile area/s and facilities to the standards as required by the West Yorkshire Police in which the police will operate. Such area/s will be provided with an adequate power supply."
It is apparent that by reason of condition 11 the festival could not take place unless the police and others were satisfied that security arrangements met the appropriate standards. That seems to me to answer the potential problem of the police being left with having to police and pay for the policing of Bramham Park in circumstances where they had objected to the grant of a licence. The promoters themselves had to provide and pay for adequate security. It does not, however, answer the problems outside Bramham Park and the police were quite naturally concerned about the resource implications of policing the communities outside the festival, not least when it involved being prepared to go into the festival at very short notice. The problem seems to me to be that a promoter of a festival or other event who specifically does not make a request under section 25(1) and yet is able to hold the event, may land the police and hence the community at large with a substantial bill for policing that the police are unable to recover. A possible way around this might be for the local authority in granting the licence to impose a condition that the promoter makes an appropriate request under section 25(1) for special police services. But care would have to be taken to ensure that this did not include services that were not 'special' and that the police were obliged to provide under their public duty (see Glasbrook).
There was an internal meeting on 3 June 2003 at which policing strategy was discussed. The minutes indicate that the police had to be prepared for the event to go ahead, although they did not want it to; that the responsibility for managing the event lay with the organisers and that the force would support people in the community who could be affected by the festival. Also, it was agreed that the full costs should be recovered and, if possible, an up front payment should be requested from the organisers. This, however, was an internal police meeting at which no representative of Mean Fiddler was present. The "agreement" about recovery of cost was between various representatives of the police and not an agreement between the police and Mean Fiddler.
There followed further meetings between the police and Mean Fiddler at which the detail of the event was gone into in great detail, but cost was not mentioned. These meetings included a planning meeting on 13 June 2003, the minute of which records that the police would not be on site but that their focus would be in the surrounding villages and they would be on call to arrive for any public order issue/major incident. The judge found there was misunderstanding about what was said at this meeting that was pivotal to Mean Fiddler's stance on paying for police services. Mean Fiddler's understanding was that the police would be directing their energies to policing the community rather than the festival itself, whereas the police case was that they were going to be very visible offsite; there would be a control post in Wetherby and there would be a close eye kept on what was going on, on site through CCTV, which was to be set up by Mean Fiddler, and other surveillance. However, on 22 July 2003 Harmony Blake, on behalf of Mean Fiddler, asked the police in an e-mail:
"We are doing the first draft of our budget but I have not heard anything from Chief Superintendent Gavin Edwards on any policing costs not connected with the traffic policing. Do you have any feed back on this?"
The e-mail in response said the costs were being finalised.
The notes of an internal police meeting on 31 July 2003 record that the costing was approximately £318,000 which did not include the large public order reserve, any post incident investigations and for the Gold Command. It included case investigators during the period the event was running but not any post incident investigations. The notes include this statement:
On 1 August 2003 a detailed schedule of costing was sent to Mean Fiddler. It was expressed as an estimate. The schedule included the traffic management costs which are not in dispute and have been paid, and the remainder of the costs which are and have not.
"A meeting to be arranged with Melvin (Mr Benn of Mean Fiddler) as soon as possible who has agreed to pay for officer/s on SPS who do traffic duties" (my emphasis.)
On 4 August 2003 the parties signed a statement of intent as recommended by Lord Justice Taylor in his report into the safety of football grounds. This document sets out the parties' respective responsibilities. The primary responsibility for the safe management of the event lay with Mr Benn on behalf of Mean Fiddler but the police could assume overall control in the event of an emergency.
On 5 August 2003, following earlier discussions, there was a meeting between Mr Benn and Chief Superintendent Edwards. Mean Fiddler were prepared to pay the sum of just over £27,000 for 'special police services' of the traffic officers, but not for officers deployed elsewhere, Mr Benn's position being that "West Yorkshire Police will not be policing this event". He was prepared to reconsider a payment if the police were prepared to base any police units on the site.
The festival took place against this background over the Friday, Saturday and Sunday of the bank holiday weekend. Mean Fiddler managed the safety of the site with security staff hired for the purpose. The police were prepared to go onto the site in extremis but fortunately did not have to do so. The occasion went off more calmly than the previous year. The police provided traffic management for which they were paid as 'special police services'. They also provided officers who were ready to be called on if necessary and were based within the surrounding community for which they were not paid.
The judge said at paragraph 24 of his judgment that had the police been deployed on site at Bramham Park for the 2003 festival then, subject to the issue of whether a relevant request had been made, the various criteria for specialist police services suggested by Neill L.J. in Harris to which I have referred, had been met. But it was more difficult to establish 'special police services' where the police presence was deployed off site. I agree with that.
The judge identified that it was at the heart of Mean Fiddler's case that they had made no request for 'special police services' other than traffic management and that they decided to invest in a considerably enlarged use of private security arrangements to compensate for the lack of police presence within the festival site. Had the police provided policing on site as in previous years Mean Fiddler would have expected to pay for it and would not have incurred the substantial additional expenditure on security that they did.
The judge said at paragraph 26 that event organisers who request 'special police services' cannot dictate to the chief constable how, in his discretion, he deploys his police officers to provide those services provided that the use of these resources is reasonable. He went on to say that this factor was relevant in deciding whether there had been a request for 'special police services' in the present case. He found assistance in Harris where there was no express request but the court nevertheless had no difficulty inferring one. He noted that 'special police services' had been provided in previous years and that it was not in issue that 'special police services' for traffic management had been requested.
In my judgment the facts on which the inference of a request was drawn in Harris were totally different from those in the present case. The club's case in Harris was that it had to have the police inside the ground for the matches to take place. That was not so at Bramham Park.
The principle that it is for the police themselves to decide how they deploy their officers and resources and police a particular situation is wholly apposite when they are performing their general public duty but it has to be applied with some care to a situation where the police are providing 'special police services' where regard must be had to the actual services requested. The judge in paragraph 26 appears to have treated the principle as of wider application than was justified on the facts of this case.
Whilst I entirely accept that it is a matter for the police how the policing is conducted and the promoter cannot dictate to the police how they are to perform their public duty, that does not in my view put the promoter in an all or nothing situation as far as 'special police services' are concerned. He can, for example, say that there is a ceiling to his budget to which the police would be entitled to respond that they were not prepared to provide any 'special police services'. He can say what he wants and is prepared to pay for, and what he does not want. Each side has a right of veto. In my judgment, although it does not expressly say so, it is very difficult to see how section 25(1) can operate absent a contract. There has to be a request accepted by the chief officer of police. This could off course be achieved by the police saying we want to do this and the promoter agreeing. The claim is pleaded as an implied contract.
Mr Robert Englehart Q.C., who has appeared for Mean Fiddler before us as he did in the court below, submits that a request for certain services cannot be derived from a refusal to pay for services by a supplier. In the present case, he submits, there was an express refusal. Secondly, he submits that a request for certain services cannot be derived from an indication that the refusal to pay might be reconsidered if the supplier were to agree to supply other services.
At paragraph 36 of his judgment the judge referred to the meeting on 7 April 2003 noting that he regarded as important Mr Benn's early expressed hope that the police would provide services as they had in the past. He regarded this as forming the beginning of the factual basis of his request for such services. This meeting, however, took place in the context that the police were objecting to the licence and were not in the position to negotiate and Mr Benn was trying to clarify whether the police would be happy to go ahead with the event.
The judge made this important finding at paragraph 39:
"There is no doubt that West Yorkshire Police did make it clear that there would not be significant numbers of police officers on the site itself. I am satisfied, however, that Mr Melvin Benn viewed this as meaning that West Yorkshire Police were not going to provide a significant police presence at the festival itself, meaning to his way of thinking on the site of the festival. In short, there was no meeting of minds. West Yorkshire Police on the one hand had decided that they were going to police the festival by adopting different tactics to those of previous years. Mean Fiddler on the other hand took this to mean that West Yorkshire Police were not providing special police services."
So the position was that the police planned for, and in due course provided, what they believed were 'special police services', whereas Mean Fiddler proceeded on the basis that as there would not be significant numbers of police on the site itself they were not going to police the festival to the extent of providing 'special police services'. Mean Fiddler for its part increased the number of security staff beyond the minimum number illustrated for the licence application, which itself was almost double the number provided in 2002.
The judge's critical finding comes at paragraph 64 where he says:
"In my judgment, Mean Fiddler's position was indeed clear, that they wanted the police operation to include officers patrolling the site. Indeed they had been making clear for some time that they wanted police officers within the private property of Bramham Park."
He concluded that this plainly amounted to a request for 'special police services' for the purposes of section 25. Accordingly, the case turned on whether the police provided 'special police services'. The judge then observed that a claim in contract could not have succeeded because there was no meeting of minds as to how the police services were to be deployed and how they were to be paid.
In my judgment the judge fell into error. Assuming for present purposes that Mean Fiddler wanted the police operation to include officers patrolling the site and assuming that wish went as far as amounting to a request for 'special police services', what the police in fact provided was something entirely different, namely a large contingent offsite that could be called up if Mean Fiddler's onsite arrangements proved inadequate. There was nothing to suggest the police were required in surrounding villages in order for Main Fiddler to stage the festival. Looked at another way, the request under section 25(1) cannot be divorced from the special services for which a charge is to be made. In my view the judge's finding that there was no meeting of minds is fatal to the claim. It is not as if there was a request by Mean Fiddler to the police to police its festival leaving the police to do it in whatever manner they wished. The judge was not entitled on the facts that he found to spell out a request by Mean Fiddler for 'special police services' under section 25. Once he had concluded a claim based on contract could not succeed the police claim was bound to fail.
Had there been agreement about what special services the police were to provide, all operational decisions under the umbrella of the agreement would have been a matter for the police. But it was for Mean Fiddler to decide, albeit after negotiation, what 'special police services' they wanted even though it was for the police to decide how they would provide them. If the judge's approach is correct then the result is that a promoter who puts on a festival or indeed an organiser who puts on a sporting event has effectively no choice but to pay the police for whatever operation they choose to mount.
The judge said he would in any event have had no hesitation in inferring a request from the fact that in each previous year such a request for police services had been made. I agree with Mr Englehart's submission that it was not open to the judge to infer a request in this way. The circumstances in previous years were quite different. In particular, in previous years the police had attended at the festival itself thus saving Mean Fiddler some at least of the security costs. In 2003 because of the absence of the police Mean Fiddler had to make and pay for additional security arrangements. Previously there had been negotiations and an agreement on the fee, but in 2003 there was no negotiation and a specific refusal to pay for external police other than, to a limited extent, in relation to traffic. In previous years if Mean Fiddler had declined to make payment the police would not have attended at the festival.
Were 'special police services' provided?
If, as I find to be the case, Mean Fiddler 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.
There is no doubt that the police called up a great deal of additional resources and man power 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. Mr Englehart 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. Mr Englehart submits that this emerges from the decisions in Glasbrook and Harris.
There is no obligation on the police to provide 'special police services' in contrast to their public duty obligations, a factor which is submitted is material in determining what falls within the phrase 'special police services'.
Mr James Watson Q.C., 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.
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.
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.
The distinction in Harris 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.
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.
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 Harris 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.
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 the Mean Fiddler agreed and paid for traffic policing outside. Much of what the police did outside Braham 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.
I turn to consider, as did the judge, the factors mentioned by Neill L.J. in Harris in relation to the facts of the present case. The section 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 on to 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.
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.
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.
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'.
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.
On balance I have come to the conclusion that the police did not provide 'special police services' in this case.
By a respondent's notice Mr Watson sought to uphold the judge's decision on other grounds essentially that on the facts found he should have concluded that there was a contract to provide 'special police services' and that it arose by implication of law. This was only faintly pursued in argument and I am quite unpersuaded that there are any other grounds not relied on by the judge on which his decision could be upheld.
The cost of the police services
The judge awarded the police authority the amount of the claim. He said:
"In the end however, there is no challenge to the costings for the special police services as calculated by West Yorkshire Police. Whereas, as in the past, there might have been scope for differentiating those services which were entirely attributable to ordinary policing of the locality, no case has been made out for such differentiation for 2003. It seems to me that West Yorkshire Police in previous years had recognised such differentiation and had been prepared accordingly prepared to compromise on the full cost of the police operation. I note that Assistant Chief Constable Sampson is on record in 2003 as being prepared to recommend a figure of £150,000 to avoid the "tortuous" procedure of determining such differentiation, as I see it.
In the event, I am faced with no investigation into what costs were attributable to the special police services that I have found to exist. The spreadsheet was accepted to be a before the event estimate, but was also explained to my satisfaction that as in the past years, the estimate was always likely to reflect the actual cost, because it simply involved costing the number of police officers and equipment deployed. If I had been asked to make an informed judgment as to costs attributable to special police services, I should have been inclined to accept Mr Sampson's own judgment on the matter."
Mr Englehart complains that these are estimated costs rather than actual costs and the judge should have directed an inquiry to determine the true costs. Mr Watson's response is that there was adequate evidence that the estimate represented what was deployed on the occasion itself. The police authority tendered the relevant witness (see paras 14 and 23 of the statement of Michael Tracey). The judge was therefore, in the absence of cross examination, entitled to infer that the estimate represented the actual services provided.
Had the police authority succeeded on liability I would not have disturbed the judge's decision on quantum.
I would allow the appeal and enter judgment for Mean Fiddler because it is not established they made a request for 'special police services' within the meaning of section 25(1) of the Police Act 1996
Lord Justice Jacob
Lord Justice Neuberger
I also agree.
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