Ipswich Town Football Club Company Ltd v The Chief Constable of Suffolk Constabulary

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Green
Judgment Date27 Feb 2017
Neutral Citation[2017] EWHC 375 (QB)
Docket NumberCase No: HQ15X02259

[2017] EWHC 375 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Green

Case No: HQ15X02259

Between:
Ipswich Town Football Club Company Limited
Claimant
and
The Chief Constable of Suffolk Constabulary
Defendant

Nick De Marco of counsel and Mark Gay solicitor advocate (instructed by Solesbury Gay) for the Claimant

Dijen Basu QC and Catriona Hodge of counsel (instructed by Suffolk County Council Legal Services) for the Defendant

Hearing dates: 20 th January 2017

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Mr Justice Green Mr Justice Green

A. Introduction: Summary of Issues and Conclusions

(i) The issue

1

There is before the Court the second stage in litigation between Ipswich Town Football Club Limited (the "Claimant" or the "Club") and the Chief Constable of Suffolk Constabulary (the "Defendant" or "The Police"). In a judgment ("the Judgment") handed down on 8th July 2016 ( [2016] EWHC 1682(QB)) I held that in principle it was open to the Police to charge the Club for the provision of policing services in two roads adjoining "Portman Road", the football stadium used by the Club. I do not in this judgment repeat the facts that I have described and made findings about in that earlier Judgment.

2

All along these two roads (Portman Road and Sir Alf Ramsey Way) are situated the series of gates and turnstiles at which football supporters both enter and depart the ground. There are 25 turnstiles on Portman Road and 33 on Sir Alf Ramsay Way. The two roads are the subject of a Traffic Control Order ("the TCO") by the local authority so that for a short period both prior to and after matches the Club, through its stewards, closes the roads by placing bollards and others signs and barriers at entry points and monitors and controls the closed area. Under the order there is strictly controlled access by vehicles into these roads during these times and entry is, in practice, administered by the Club's stewards. Close to the gates and turnstiles on the pavement of the two roads the Club's stewards erect a series of crowd control barriers which are designed to segregate the home and away teams and create safe and sterile areas in close proximity to the turnstiles so that spectators can enter the ground in an orderly fashion and be separated from the supporters of the opposing team (See Judgment paragraph [1]). In the Judgment I have referred to this area as the "TCO area". I use the same expression in this judgment.

3

Whilst I concluded that in principle the Police could charge for services provided within the TCO area, it was conceded by the Police that beyond this area there was no right to impose charges. I am therefore proceeding in this present dispute upon the basis that it is common ground that as between the Police and the Club there was no basis for the Police to charge the Club for the provision of operational services provided outside the TCO area. I describe the issue in this way because, in the course of the hearing in the present dispute, reference was made to other possibilities for the police to charge, such as the provision of policing at the railway station which is outside the TCO area, about which there is no judicial pronouncement.

4

In the Judgment I also used certain terms to describe the different types of police services. As I explained these are not technical terms or terms of art, but useful shorthand which differentiate a variety of different situations and circumstances. I use the same shorthand in this judgment and in particular the phrases: " Operational duty"; " Special Police Services" or " SPS"; " reactive" policing; and, " preventive" policing. 1

5

In this second stage to the litigation the Club seeks restitution of sums paid, under contract, to the Police for policing services provided in areas of Ipswich which are beyond and external the two roads in issue. The facts relating to the contracts in issue are set out in paragraphs [50] – [67] of the Judgment. It suffices to record here that contracts providing for the Police to provide policing services were entered into on various dates from 2008 onwards. In certain contracts the Club paid for the provision of policing services extending beyond the TCO area.

(ii) The nature of the police services arising in the present case

6

The basis of the right and ability of the Police to charge for services rendered is described in full in the Judgment. The law is presently reflected in section 25(1) Police Act 1996 ("PA 1996"). This provides:

"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 police authority of charges on such scales as may be determined by that authority."

7

That section reflects much older common law principles pursuant to which when the police are requested, and then agree, to provide SPS they may charge for the provision of such services. However they are not allowed to charge for services which are not " Special". The factual and evidential divide between that which can, and cannot, be charged for was at the heart of the first part of this litigation.

8

The issue now is therefore exclusively with services which the police cannot charge for. The Courts have long made clear that the police owe a duty to provide policing services which are, to put the point simply, the citizen's lawful due or " right" upon the basis that the service is paid for out of taxation or rates and any attempt to impose yet further charges is not " lawful".

9

In Glamorgan Coal Company v Glamorganshire Standing Joint Committee [1916] 2 KB 206 (" Glamorgan") Pickford LJ, at page [229] held that where a person was threatened with violence the victim was entitled to protection provided by the Police which could not be made contingent upon an agreement or promise by the victim to pay or defray the expense incurred by the Police in providing a protective service. He observed that the obligation upon the Police to provide policing services was the concomitant of the " … contribution… rate payers… make to the support of the Police", and:

"There is a moral duty on each party to the dispute to do nothing to aggravate it and to take reasonable means of self-protection, but the discharge of this duty by them is not a condition precedent to the discharge by the Police authority of their own duty."

10

In the Judgment at paragraphs [94] and [95] I explained how the dichotomy between SPS and services provided pursuant to the operational duty emerged in case law:

"94. In Glasbrook Brothers Limited v Glamorgan County Council [1925] AC 270 (" Glasbrook") Viscount Cave LC (at page 277) stated that there was:

'… 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.'

The House of Lords thus made plain that no charge could be levied by the Police for the provision of services which they were, otherwise, bound to provide to the public who paid for those services through rates and taxes. This statement may be viewed as the locus classicus of the principle that the obligation on the Police to act is not contingent upon or affected by the wealth or impecuniosity of the recipient of services. The dictum is also important because it defines the obligations of the Police in terms of 'preventing crime… protecting property from criminal injury… and the public.'

95. Viscount Cave articulated the concept of 'services of a special kind which might be charged for'. He stated:

'… 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. But it has always been recognised 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… "lend" the services of constables for that purpose in consideration of payment. Instances of the lending of constables on the occasion 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.'

This gave rise to the concept of SPS. The situations identified as exemplars have had to be modified and modernised with the passage of time."

(iii) The availability of a restitutionary remedy

11

In the present case the Club argues that it is entitled to restitution of the sums paid upon two bases: (i) that the sums were paid to the Police in purported exercise of the latter's statutory powers which are now accepted to have been exercised unlawfully and ultra vires (referred to in this judgment as a Woolwich type claim – explained below); (ii) that the sums were paid pursuant to a mistake of law, namely that the Police were entitled to demand the sums in issue when in law they were not. The Police dispute this arguing that there is no Woolwich type restitutionary remedy based solely on the ultra vires nature of the charges (i.e. (i) above) and that the only basis of recovery is mistake (i.e. (ii) above) where there are defences open to the Police...

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