Ipswich Town Football Club Company Ltd (Appellant/Claimant) v The Chief Constable of Suffolk Constabulary (Respondent/Defendant) The English Football League (Intervenor)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Gloster,Lord Justice Gross,Lord Briggs of Westbourne |
| Judgment Date | 10 October 2017 |
| Neutral Citation | [2017] EWCA Civ 1484 |
| Docket Number | Case No: A2/2016/3388 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 October 2017 |
[2017] EWCA Civ 1484
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION
The Honourable Mr Justice Green
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Gloster,
Vice President of the Court of Appeal, Civil Division
Lord Justice Gross
and
Lord Briggs of Westbourne
Case No: A2/2016/3388
and
Mr Michael Beloff QC and Mr Nick De Marco (instructed by Solesbury Gay) for the Appellant
Mr Dijen Basu QC and Ms Catriona Hodge (instructed by the Head of Legal Services, Suffolk County Council) for the Respondent
Hearing dates: 27 and 28 June 2017
Judgment Approved
Introduction
This is an appeal by the appellant, Ipswich Town Football Club Company Limited ("the Club"), from the decision of Green J, sitting in the High Court (Queen's Bench Division), dated 8 July 2016 ("the judgment") 1. It concerns the scope of section 25 of the Police Act 1996 ("the 1996 Act"), which provides:
"25 – Provision of special police 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."
The dispute between the parties concerns whether section 25 of the 1996 Act entitles the police to charge the Club for special police services ("SPS") provided on land immediately adjacent to, and outside, Ipswich football stadium. The disputed area essentially consists of land comprising the public highway, in respect of which the Club has no proprietary interest, but over which it exercises a degree of de facto control.
The Club submits that the respondent, the Chief Constable of Suffolk Constabulary, 2 with responsibility for the direction and control of that Constabulary, ("the respondent" or "the Chief Constable") has no such power, section 25 being effectively confined to private premises such as, paradigmatically, the inside of the stadium. The Chief Constable submits that the judge was correct to find that the statutory power to charge for the provision of policing services extends to land of the type in question, and that, in any event, the judge's finding was within the bounds of his permissible fact finding remit.
The Honourable Michael Beloff QC together with Mr Nick De Marco appeared on behalf of the Club; Mr Dijen Basu QC together with Miss Catriona Hodge appeared on behalf of the Chief Constable.
Permission to appeal was granted by Green J on 3 August 2016.
Factual background
The Club holds a long lease over the Club's stadium, the Portman Road Football Club Stadium and Practice Pitch, Portman Road, Ipswich, IP1 2DA ("the stadium"), the freehold reversion of which is owned by the local authority. The stadium has a maximum capacity of around 29,000 spectators, although typically around 20,000
spectators attend each match. It is primarily accessed via two streets which directly adjoin two sides of the stadium, namely Portman Road and Sir Alf Ramsey Way. Both are public highways. It is on these two streets that the majority of the stadium's turnstiles and exit gates are situated. Accordingly, on match days, very large numbers of people congregate on these streets on their way into the stadium. This creates obvious safety risks. The entry and exit gates and turnstiles for fans are accentuated pinch points and require very careful control. Tens of thousands of fans coalesce at these points before and after a match.The Club employs stewards who carry out a number of functions, both on Portman Road and Sir Alf Ramsey Way, and within the stadium itself, with a view to ensuring that fans enter and exit the stadium in a secure and peaceful manner.
As a designated sports ground, section 1(1) of the Safety of Sports Grounds Act 1975 ("SSGA 1975") requires that the stadium has a safety certificate which, under section 2(1) of the SSGA 1975, must contain such terms and conditions as the local authority considers necessary to secure reasonable safety at the stadium. On match days, policing is sometimes necessary within the stadium to prevent crime and keep the peace. However, most of the Club's matches are not policed. The Club's Safety Certificate granted by Ipswich Borough Council ("the Council") is contingent upon the Club having a police presence within the stadium during certain matches. Without that police presence, the Club is in breach of its Safety Certificate and may be subject to criminal sanctions. In practice, this means that those matches cannot be played. The Safety Certificate does not require the Club to secure a police presence outside the stadium.
In order to facilitate matches at the stadium, on 18 July 2000, and following the Club's application, the Council issued a Traffic Regulation Order (or traffic control order) entitled Ipswich Borough Council (Portman Road / Sir Alf Ramsey Way) (Prohibition of Entry) Order 2000 ("the Order"). The Order came into operation on 1 August 2000 and has the effect of closing the roads in an area surrounding the stadium ("the TCO area") during certain matches. Schedule 1 of the Order sets out an Operational Plan which provides for: i) the closure of Portman Road and Sir Alf Ramsey Way on match days from 90 minutes prior to kick-off to 30 minutes after the final whistle; ii) all vehicles to be prohibited from entering the TCO area during that time, save with the permission of a police officer or traffic warden or in relation to certain exempt vehicles including emergency vehicles; iii) the placement of barriers and bollards on the boundaries of the TCO area 90 minutes prior to kick-off, and; iv) the use of various "road closed" signs and "no waiting" cones in a number of strategic locations prior to kick-off.
It is the Club's stewards and employees (and not the police) who insert the physical barriers that close the roads and who then regulate traffic in the TCO area. No police officers are involved in the road closures. The stewards put crowd control barriers in the roads in the TCO area in order to control fans as they approach the turnstiles.
On 23 July 2008, the parties agreed a Memorandum of Understanding ("MOU"), intended to govern the provision of police services by the Respondent to the Appellant during the period 1 July 2008–30 June 2011. Pursuant to that MOU, the Chief Constable was required to provide policing services to the Club "sufficient to facilitate the safety of both home and away spectators and to prevent crime, violence and disorder". The level and type of policing services provided for any particular match depended on which 'risk grade' the parties assigned to that match, each grade corresponding to a sum chargeable by the Chief Constable for providing the services. Grade A represented a low risk of disorder, and was charged at £5,926, Grade B denoted a medium risk of disorder and was charged at £10,928, and Grade C, which was charged at £25,242, was reserved for matches carrying the highest risk of disorder. The MOU covered all policing operations, and drew no geographical distinction between policing provided: i) inside the stadium; ii) on Portman Road and Sir Alf Ramsey Way, and/or; iii) elsewhere in Ipswich.
In January 2011, the parties agreed a Statement of Intent, which was stated not to be legally binding, but rather simply to define the respective duties of the Club and the Chief Constable. Paragraph 1.1 of the Statement provided that the sole responsibility for the safe management of crowds entering and leaving the stadium rested with the Club. Paragraph 3 provided that "external areas" were the responsibility of the Chief Constable. The TCO area was excluded from the definition of "external areas".
Upon the expiry of the 2008 MOU in June 2011, the parties agreed a document entitled "Terms for the request and supply of special police services under section 25 Police Act 1996" ("the 2011 Terms"). This document was signed on 5 August 2011, and related to matches played during the 2011–2012 season. It made provision for the supply of SPS within and around the stadium, including within the TCO area. These services were to be chargeable on essentially the same basis as under the 2008 MOU, save that the basis of charging was geographically limited to policing services provided within the stadium and the TCO area, thereby excluding policing services provided in other areas of Ipswich.
On 24 July 2012, judgment was delivered in the case of Leeds United Football Club Limited v Chief Constable of West Yorkshire Police [2012] EWHC 2113 (QB) (" Leeds"), in which the High Court held that the police were not entitled to charge for policing services provided on the public highway and in car parks immediately surrounding the stadium. The police subsequently appealed.
On 1 August 2012, upon expiry of the 2011 Terms, the Club and the Chief Constable agreed a second set of "Terms for the request and supply of special police services under section 25 Police Act 1996" ("the 2012 Terms"). As with the 2011 Terms, the 2012 Terms provided for the Chief Constable to charge the Club for the provision of SPS within the TCO area. However, under clause 23 of the 2012 Terms the Club reserved the right to renegotiate the contract once the legal effect of the Leeds case was finally determined.
On 17 December 2012, the Club wrote to the Chief Constable explaining that, as a result of the High Court judgment in the Leeds case, the Club believed that it had been overcharged by the Chief Constable in the...
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