Leeds United Football Club Ltd v Chief Constable of the West Yorkshire Police

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeMaster of the Rolls,Lord Justice Moore-Bick,Lord Justice McCombe
Judgment Date07 Mar 2013
Neutral Citation[2013] EWCA Civ 115
Docket NumberCase No: A2/2012/2295

[2013] EWCA Civ 115

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT, QUEENS BENCH DIVISION

MR JUSTICE EADY

Hq11x01926

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Master of the Rolls

Lord Justice Moore-Bick

and

Lord Justice Mccombe

Case No: A2/2012/2295

Between:
Leeds United Football Club
Respondent
and
The Chief Constable of West Yorkshire Police
Appellant

Mr Michael Beloff QC and Mr Mark Gay (instructed by Burges Salmon Solicitors) for the Respondent

Mr John Beggs QC and Mr James Berry (instructed by West Yorkshire Police Legal Services) for the Appellant

Hearing date: 11 February 2013

Master of the Rolls
1

The issue that arises on this appeal is whether the West Yorkshire Police ("WYP") are entitled to charge Leeds United Football Club ("the Club") the cost of public order policing and crowd control outside the immediate environs of the Club premises at Elland Road (on land neither owned nor controlled by the Club), both before and after football matches. Section 25(1) of the Police Act 1996 ("the 1996 Act") provides that 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…of charges…." It is not in dispute for the purposes of this appeal that the Club has requested and WYP has provided police services (i) within the Club's stadium, (ii) in the areas immediately outside the stadium that are owned or controlled by the Club and (iii) in certain identified streets and public areas beyond the stadium and the areas owned or controlled by the Club. The Club has always accepted that the police services provided in (i) and (ii) are "special police services" ("SPS") within the meaning of section 25 of the 1996 Act. The issue is whether the police services provided in (iii) (which I shall refer to as "the extended footprint") are also SPS. The extended footprint includes public highways, a number of residential streets as well as other public areas such as car parks and open spaces. In a careful and comprehensive judgment, Eady J held that the services provided in the extended footprint are not SPS, but are police services provided in discharge of WYP's ordinary public duty to prevent crime and protect life and property for which they are not entitled to charge the Club. WYP appeals from that decision.

2

The Club entered into negotiations with WYP as to where the extended footprint should be drawn. At all times, the Club maintained that policing in the extended footprint could not in law amount to SPS. In the event, the Club entered into agreements with WYP and paid for SPS in the entire extended footprint for the three seasons which are the subject of this litigation (2009/10, 2010/11 and 2011/12). But they did so without prejudice to the question whether such policing services could amount to SPS and on the basis that, if they were not, the Club would be repaid. The litigation has, therefore, been conducted on the understanding that the only issue for decision is whether the policing services provided in the extended footprint are SPS, it being conceded that, if they are, the monies paid by the Club will be refunded in full. It is no part of the Club's case that the "requests" for SPS were invalid if the services are in fact SPS.

3

Although the question whether policing services provided outside a football stadium and other land owned or controlled by a club are capable of being SPS has not been previously decided, this is an area which is not free from case-law. It is necessary to refer to several authorities before I come to the judgment of Eady J, the submissions that have been made to this court and my conclusions.

Previous authorities

4

The starting point is Glasbrook Brothers Ltd v Glamorgan County Council [1925] AC 270. On the occasion of a colliery strike, a colliery manager applied for police protection for his colliery and insisted that it could only be efficiently protected by billeting a police force on the colliery premises. The police superintendent was prepared to provide what he considered to be adequate protection, but only if the manager agreed to pay for it. By a majority, the House of Lords decided that there was nothing illegal in the agreement. Although the House was split on the question whether the particular agreement was lawful, there was no disagreement as to the relevant principles. It is sufficient to refer to the speech of Viscount Cave LC. He said that the practice by which police authorities charge for "special services" outside the scope of their obligations had been established for upwards of 60 years. It was an absolute and unconditional obligation binding on 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 further payment for that which is their right" (p 277). He continued at p 278:

"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 weddings, athletic or boxing contests or race meetings, and the provision of constables at large railway stations. Of course no such lending could possibly take place if the constables were required elsewhere for the preservation of order."

5

At p 281, he said that if in the judgment of the police authorities the garrison was "necessary for the protection of life and property", then they were not entitled to make a charge for it. But if they thought that the garrison was a "superfluity" and they "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 a special duty and to charge for it."

6

Thus a distinction was clearly drawn between the police (i) performing their duty of doing what is necessary to prevent crime and provide protection (for which they cannot make a charge) and (ii) doing something else at the request of an individual (for which they can charge). That was the position at common law. It was later reflected in legislation. It is common ground that the legislation (including section 25 of the 1996 Act) did not change the law.

7

The next case to be considered is Harris v Sheffield United Football Club Ltd [1988] 1 QB 77. The chief constable arranged for police to attend at matches both inside and outside the club's ground in order to fulfil his duty to maintain law and order and to protect life and property. The issue was whether the club was obliged to pay for services inside the ground as being SPS within the meaning of section 15(1) of the Police Act 1964 ("the 1964 Act"). The Court of Appeal held that these were SPS and the club was therefore obliged to pay. Section 15(1) of the 1964 Act was in the same terms as section 25(1) of the 1996 Act.

8

It was submitted by Mr John Griffiths QC on behalf of the club that the predominant role of the police inside the ground was to maintain law and order and that there was no difference between the performance of "ordinary police duty" on private and on public premises. The operation was planned as a whole and it was impossible to make a satisfactory distinction between the duties which the officers carried out outside the ground and those which they carried out within it.

9

It was also submitted that there was a finding of fact that, unless the police were present at matches in numbers, serious breaches of the peace were probable. Moreover, it was accepted by the police that their predominant role inside the club's ground was to maintain law and order and to prevent riot and consequent injury to law-abiding persons and property. In short, it was submitted that, where a chief constable accepts that there is a necessity for a police presence in order to keep the peace, the officers who attend are performing "ordinary police duty", provided that the predominant purpose of their presence is to fulfil that necessity; and there is no difference between the performance of "ordinary police duty" on private or on public premises. These submissions were based on Glasbrook.

10

Neill LJ gave the lead judgment. He said (p 83G) that SPS were not defined in the 1964 Act, but it was clear that section 15(1) provided statutory authority "for a long-established practice whereby police officers have been made available to carry out functions at private premises in return for payment to the relevant police authority". At p 89D he said that, if the words of Viscount Cave in Glasbrook were applied as if they were the words of a statute, the case for the club would be very strong if not overwhelming. That was because it was not in dispute that the chief constable had been of the opinion that the attendance of police officers at the ground was necessary for the maintenance of law and order and the protection of life and property. But he said that the question before the House in Glasbrook was whether a charge could be made where the precautions taken were more extensive than those which the police authorities considered to be necessary. More importantly,...

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