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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Leeds United Football Club Ltd v The Chief Constable of West Yorkshire Police [2012] EWHC 2113 (QB) (24 July 2012) URL: https://www.bailii.org/ew/cases/EWHC/QB/2012/2113.html Cite as: [2012] EWHC 2113 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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LEEDS UNITED FOOTBALL CLUB LTD |
Claimant |
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- and - |
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THE CHIEF CONSTABLE OF WEST YORKSHIRE POLICE |
Defendant |
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John Beggs QC and James Berry (instructed by Office of the Force Solicitor) for the Defendant
Hearing dates: 10 – 12 July 2012
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Crown Copyright ©
Mr Justice Eady :
The problem of policing in and around Elland Road Stadium
"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."
"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."
An attempt by ACPO and WYP to change the basis of charging
The common law duty to keep the peace
"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."
"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
"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.)
"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."
" … 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.
"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].
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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."
Did the Wigan Athletic case change the law?
" … 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)
A potential problem about "immediately imminent" violence
The attempt by WYP to define a "footprint" round the Club stadium
The consequences of my interpretation of the current law
The role of safety certificates
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.
"(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.
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(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."
Recovery of the sums paid "without prejudice"
The WYP scale of charges
Further submissions may be required