Leeds United Football Club v West Yorkshire Police

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.

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.

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.

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.”

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.”

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.

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.

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.

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.

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, the emergency which required the presence of police officers in Glasbrook arose in the context of an industrial dispute and not because the colliery had chosen to invite a large number of people to watch a football match or other spectacle.

At p 91D, Neill LJ addressed the question whether, having regard to the chief constable’s general duty to enforce the law, the provision of the officers could properly be considered as the provision of SPS. As to this, he said:

“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] A.C. 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 was 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.”

Taking these factors into account, he concluded that the regular attendance of police officers at the ground constituted the provision of SPS. In particular, he mentioned the fact that the club was not under any duty to hold matches; the charges related solely to the officers on duty inside the ground and not those in the street or other public places; and the chief constable would be unable to provide the necessary amount of protection within the ground without making extensive use of officers who would otherwise have been off duty.

Balcombe LJ said that, in deciding how to exercise his public duty of enforcing the law, a chief constable had a discretion and was required to consider what resources were available to him. In answering the question whether the attendance of police within the ground was the provision of SPS, the first instance judge in that case had 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.”

Balcombe LJ said that this was a correct statement of the legal position which could not be faulted. He made no explicit reference to the four factors identified by Neill LJ. But in substance he expressed agreement with Neill LJ’s fourth factor, since he considered that the fact that the chief constable would be unable to provide policing services within the ground without calling on officers who would otherwise have been off duty pointed to the policing being SPS. Kerr LJ agreed with both judgments.

Mr Beloff QC submits that the Court of Appeal was wrong to distinguish Glasbrook and that, since the policing inside the ground was necessary, it fell within the basic public duty of the police and could not have been SPS. He submits that the court in Harris should have followed the clear principles stated in Glasbrook and should not have enunciated and applied the four factors identified by Neill LJ. I shall revert to this submission after I have considered the next important authority.

In West Yorkshire Police Authority v Reading Festival Ltd [2006] EWCA Civ 524, [2006] 1 WLR 2005, the issue concerned the policing at a music festival which took place every August bank holiday weekend at an outdoor site in Leeds and whether the police authority was entitled to charge for the police services as SPS under section 25(1) of the 1996 Act. The Court of Appeal held that, since there had been no request, the authority was not entitled to charge. That is the ratio of the decision (see para 58 of the judgment of Scott Baker LJ). Nevertheless, Scott Baker LJ went on to express an opinion (obiter) on the question of whether SPS had been provided. He said:

“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 ….

68 I turn to consider, as did the judge, the factors mentioned by Neill LJ in the Harris case [1988] QB77 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 Mean Fiddler.

69 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.

70 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.

71 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”.

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.”

I have quoted from this judgment extensively because (i) it has been suggested that at para 63 Scott Baker LJ introduced an additional factor to the four stated by Neill LJ, namely whether the services are (predominantly) for the benefit of the person requesting the services; and (ii) it shows that the courts have regarded the “guidance” given by Neill LJ as “helpful”.

It is not clear that Scott Baker LJ did in fact introduce a separate fifth factor. At para 59 of his judgment, he recorded a submission that “the test” was whether the services provided to the person requesting them were for his own benefit; in other words, that the services must be special to the person requesting them rather than rendered for the benefit of the general public. Scott Baker LJ did not accept that this was “the test” for determining whether policing is SPS in any particular case. If he had been of the view that it was as simple as that, he would not have gone on to say what he said at paras 66 to 71 of his judgment. In my view, there is no separate conclusive benefit test. Nevertheless, I would accept the submission of Mr Beloff that the focus on who benefits from the service may be a relevant part of the analysis of whether the service provided falls within the scope of a constable’s ordinary public duties.

For completeness, I should refer to the decision of Mann J in Chief Constable of Greater Manchester Police v Wigan Athletic AFC [2007] EWHC 3095 (Ch). The issue in this case was whether the chief constable could charge the club for police services provided on private land immediately outside the stadium which was leased and controlled by the club. This raised the question whether (i) the services were SPS and (ii) a “request” had been made for the purposes of section 25 of the 1996 Act. The judge held that the services were SPS. In reaching this conclusion, he considered a number of factors. Towards the end of his consideration, he said this at para 98 of his judgment:

“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 not 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.”

He then went on to address the request issue and decided that a request could be implied. The Court of Appeal allowed the club’s appeal on the ground that there had not been a request. It was, therefore, not necessary for the court to decide whether, if there had been a request, the services provided by the police would have been SPS and it did not do so.

Since the decision of Mann J was reversed on the request point and the Court of Appeal did not deal with the other aspect of the case, the observations of the judge on the SPS issue carry little weight. It is clear, however, that he purported to apply the dicta of Scott Baker LJ. For the purpose of determining whether the service was being provided by the police as part of their general public duty, he found it useful to consider the question of who was its principal beneficiary.

In the course of his analysis of the issues, the judge said:

“20.

It is to be noted that it has never been suggested, up to this point, that the Club should be made responsible for the cost of similar policing outside the “footprint” (for example, in the city centre two miles away, where rowdy fans can also congregate before and after matches). Policing in public areas away from the ground, therefore, seems to be readily accepted as falling within the ordinary constabulary duties of WYP. Indeed, the evidence shows that where officers have been called to perform duties outside the “footprint”, for part of the time, the Club has been proportionately reimbursed. That accords with principle.

21.

Furthermore, if it is reasonably anticipated that violence is likely to break out between rival groups of fans on match days, as unhappily generally appears to be the case, it would be difficult to contend that for some reason this should be exempted from the scope of ordinary common law duties. By the same token, I cannot see how, as a matter of law, a private individual or football club can be compelled to pay the cost of such policing simply because (if it be the case) it is holding a function or hosting a football match which will attract a large number of people to the vicinity. There is no authority to support that proposition either. Nor would the police services, in my judgment, be converted into SPS and thus taken out of the scope of ordinary constabulary duties, merely because upon careful ex post facto analysis, at some later date, it emerges that the club in question happens to have been the major beneficiary of the visit in commercial or financial terms (as opposed, for example, to local breweries or publicans, or other providers of services to football fans, who also stand to gain financially).”

Having quoted extensively from the authorities to which I have referred, he said:

“40.

I am driven to the conclusion that it would fall within the normal constabulary duty to keep the peace. The officers were not there at the Club’s request, express or implied; nor was the land in question owned, leased or controlled by the Club. Furthermore, their presence would have benefited, not merely the Club, but also other members of the public, including the unfortunate local residents whose properties were sometimes vandalised near car park A. I am unable to accept Mr Beggs’ submissions that policing in that area simply be categorised as “policing for purposes of the match” and, for that reason alone, attributed to SPS.

41.

More generally, it seems wrong to discount the majority of well behaved fans who come to Elland Road, whether club supporters or visitors, all of whom retain their status as members of the public. In that capacity, they too are entitled to expect police protection. In any event, I consider that there would be insuperable difficulties in seeking to sub-divide people, in public highways and other spaces, when trying to assess to whose benefit such duties were carried out. They are intended to keep the Queen’s peace in the interests of the general public. The services rendered, therefore, cannot be classified as SPS.”

Mr Beggs QC advances the following principal grounds of appeal. First, he submits that the judge failed to apply Neill LJ’s list of factors properly or at all. All but the first of these factors militated strongly in favour of the conclusion that the policing services provided in the extended footprint were SPS. Secondly, the judge rejected the WYP submission that, where the policing in question takes place on public land, an additional important factor in determining whether it amounts to SPS is whether the operation is conducted predominantly for the benefit or protection of particular persons, such as those organising sporting events or whether it is conducted predominantly for the protection of the general public. He should have applied this “benefit” test as Mann J did at para 98 of his judgment in the Wigan case and concluded that the policing in the extended footprint was predominantly for the benefit of the Club. Thirdly, the judge was wrong to say that there would be “insuperable difficulties” in seeking to sub-divide people in public places when trying to assess for whose benefit such duties are carried out. Fourthly, the judge appears at para 40 to have considered that the principal test for whether policing amounts to SPS is whether the policing is part of the normal constabulary duty to keep the peace. Mr Beggs submits that this test is too broad and is unworkable. It was rejected by this court in Harris in favour of the more nuanced approach propounded by Neill LJ. Eady J should have adopted the same more nuanced approach in the present case.

I shall start with policing on private land, since the cases to which I have referred all involved such policing. There is no doubt that Glasbrook remains good law. The police are under a duty to prevent crime and disorder and to protect life and property. They cannot charge anyone for the cost of discharging this duty. But they may charge for the provision of other services which they choose to provide at the request of any person. These other services are SPS. None of these principles is controversial. But the cases show that difficulties can arise in relation to their application. The policing of large sporting events and, in particular, football matches, raises particular difficulties of application. When, pursuant to a request by the club, police attend an important football match, are they discharging their public duty of preventing crime and disorder and protecting life and property or are they providing some other service which, in their discretion, they may or may not decide to provide?

In answering this question, two points should be borne in mind. First, although professional football is usually played on private land owned or controlled by football clubs, it is unrealistic in the 21^st century to regard football matches attended by many thousands of spectators as in any way analogous to weddings. One only needs to look at the newspapers and other organs of the media to see how important a part professional football plays in public life. Secondly, as is well known, professional football matches often attract violence and disorder. As the judge stated, the Club’s home matches have one of the worst records for football-related violence in the country. The Home Office statistics consistently show the Club’s supporters at or near the top of the league when it comes to arrests and football banning orders. I hasten to say, however, that the problem of football-related violence is by no means confined to the Club.

It might be thought that these two factors should lead to the conclusion that the provision of policing services even inside football grounds is not SPS, but a service which the police are obliged to perform as part of their public obligation to maintain law and order. That was what was unsuccessfully argued by Mr Griffiths on behalf of Sheffield United FC in the Harris case. The Court of Appeal did not accept that the fact that the services were to be provided on private land determined conclusively that they were SPS. Nor did they consider that the fact that the police thought the services were necessary to prevent a breakdown of law and order determined conclusively that they were not SPS. Instead, Neill LJ propounded a nuanced approach suggesting a number of factors which are required to be taken into account in deciding whether the services are to be classified as SPS. Of these, the most important is whether officers are being required to attend on private premises. That is because, since the police do not as a general rule have access to private premises, their presence there would suggest that prima facie policing on private premises amounts to the provision of SPS.

Mr Beloff makes a number of detailed criticisms of Neill LJ’s four factors and indeed Scott Baker LJ’s “benefit” factor. He submits that the Court of Appeal in Harris failed to apply the principles stated by the House of Lords in Glasbrook. Had they done so, they would have focused on the simple question whether the services were considered by the police to be necessary in order to maintain law and order and would have accepted the submissions of Mr Griffiths.

I proceed on the basis that what Neill LJ said in Harris formed part of his reasoning and that, whether or not Balcombe LJ agreed with this reasoning, Kerr LJ certainly did. In my view, for that reason alone it should be followed by this court. There is the further point that Harris has been treated as good law for some 25 years. It was said (obiter) to be “helpful” guidance by Scott Baker LJ in Reading Festival and seems to have been applied by Mann J in Wigan. In any event, I regard the four factors suggested by Neill LJ as in varying degrees useful pointers to the application of the Glasbrook principles and as to whether police services provided in any given case are or are not SPS.

His first factor is clear enough. In my judgment, it is the most important factor in the context of policing to maintain law and order. Prima facie, the police are obliged to maintain law and order in public places. They are not usually obliged to do so on private premises, at any rate unless violence has actually occurred or is immediately imminent. The police may, of course, be asked to provide other services on public land. The provision of a road escort is an obvious example. But the question whether the services are provided on public or private land is plainly of central importance to whether they are SPS where those services are provided in order to promote the maintenance of law and order. The second factor is closely related to the first. I would accept that the fact that there is actual or imminent violence at private premises may well indicate that the provision of police services at those premises for law and order purposes is in performance of the general police duty and not SPS. But attendance at private premises just in case there is an outbreak of violence is likely to be SPS. On the other hand, policing provided in a public place in order to protect persons and property, even where there is no actual or imminent threat of violence, will usually be in discharge by the police of their ordinary public duty.

As regards the third factor, I have already made the point that professional football matches attended by many thousands of members of the public are essentially public events. Indeed, they almost certainly require a greater police presence than elections which Neill LJ placed at the opposite end of a spectrum from private weddings. I would also respectfully question the relevance of whether events place an exceptional strain on the resources of the police. This leads to the fourth factor, which also concerns resources. I suggest that the question whether the provision of police services places a particular strain on their resources is unlikely to shed much light on whether those services are SPS. The police sometimes provide law and order services which they are undoubtedly obliged to provide despite the very considerable strains that this places on their resources. A good example is the policing of a large protest march which the police authority believes may give rise to violence and which therefore requires the deployment of off-duty officers paid on overtime and the deployment of substantial additional resources.

As regards Scott Baker LJ’s fifth factor, I have already said that the focus on who benefits from the police service may be a relevant part of the analysis of whether the service provided falls within the scope of a police officer’s ordinary duties. I do not believe that Scott Baker LJ was saying anything more than this at para 63 of his judgment. In other words, if the police operation is conducted solely or predominantly for the protection of the public at large, this is a factor which points strongly against the services being SPS. This is the point that Eady J was making at para 41 of his judgment. I do not consider that a benefit test should be regarded as determinative or even necessarily of great weight in all cases. For example, take the apprehension by the police of a criminal who is engaged in robbing a jeweller’s shop. This police service clearly benefits the jeweller. But it would be absurd to regard the services provided by the police as SPS so that the jeweller would have to pay for the cost of the police operation (on the assumption that he had summoned the police and asked for their help). The short answer to the suggestion that the jeweller would be the sole or even principal beneficiary of the police service is that the entire community benefits from the detection and prevention of crime.

As I have earlier noted, having identified at para 63 of his judgment the predominant purpose of the police services, Scott Baker LJ went on at paras 66 to 71 of his judgment to refer to and apply Neill LJ’s four factors. At para 29 of his judgment, Eady J said that there was not a simple “benefit” test in the sense that the question should turn on an ex post facto analysis as to whether the services provided by the police primarily benefited the general public or particular groups or individuals. He said that this was “not a practical or sufficiently certain approach”. I agree, but would add that it is also too narrow an approach, since it overlooks the fact that there is a real public interest in the police maintaining law and order.

To summarise, the provision of policing services at football matches on private land at the request of a football club will usually be SPS except where the police are summoned to deal with actual or imminent violence.

It was the provision of law and order services by the police on private land that was in issue in the authorities to which I have referred. The Club accepts that it is obliged to pay WYP for the provision of such police services inside its stadium at Elland Road and in the land immediately outside the stadium that it owns and controls. The present case concerns the question whether the Club is also required to pay for the services provided in the extended footprint, that is on land which the Club does not own or control which is public land. Although we have been shown no authority in which this issue has arisen, it seems to me that it should be resolved by applying the principles that are to be derived from the authorities to which I have referred.

Neill LJ’s first factor, namely the fact that the land on which these services are to be provided is public land and not owned or controlled by the party requesting them, is a strong indicator that the services are not SPS. Although not conclusive, it is common ground that it militates in favour of treating the services as being performed by the police in discharge of their duty to maintain law and order. That duty is most obviously to be performed in places to which members of the public have recourse.

Mr Beggs submits that Neill LJ’s second factor supports his submission that the services provided in the extended footprint are SPS. He says that the officers who are required to police the extended footprint attend as part of a pre-planned operation to prevent or control disorder. They are not required to attend in response to an emergency that has already occurred or is imminent. For this reason, Mr Beggs submits that the routine provision of policing services in the extended footprint is SPS. On the other hand, if disorder breaks out or becomes imminent and additional officers are required, it is accepted by WYP that the provision of these additional resources would not amount to SPS. As I have already said, I regard this as closely connected to the first factor. In a public setting away from any relevant private premises, the question whether the police provide services in response to an emergency that has already occurred or is imminent (as opposed to responding to the need to provide protection against the possibility of disorder) is unlikely to shed light on whether the provision of the services is part of the police obligation to maintain law and order or the provision of SPS. Prima facie, in a public location the provision of police services in both situations is likely to be in discharge of the duty to maintain law and order. As I have explained at para 30 above, the position is likely to be different in private premises.

As regards the third factor, Mr Beggs submits that with respect to policing in the extended footprint, the situation is closer to a wedding than an election. Most weddings are private affairs. He submits that the Club’s matches are also private affairs in that they can only be attended by paying ticket holders. The vast majority of members of the public who are in the extended footprint on match days are ticket holders who are there solely because they wish to enter or leave the ground. The extended footprint is not accessed by the general public on match days. Conversely, when matches are not being played, the extended footprint is almost deserted. Mr Beggs submits further that the Club’s games form part of a series of events throughout the football season; and the events place an exceptional strain on police resources. I have already made the point that football matches attended by large numbers of people are essentially public events. Although the Club can exclude those it wishes to exclude, in reality almost anybody who is willing to pay and applies for a ticket in time will be admitted to a match, unless he or she is subject to a football banning order. Football matches are a far cry from a private wedding. I have also said why I do not regard the fact that policing the Club’s matches places an exceptional strain on police resources is a factor of much weight.

As regards Mr Beggs’ criticism of the judge for failing to address Scott Baker LJ’s “benefit” point, I refer to what I have said at para 32 above.

Before I express my conclusion, I should make two further points. First, it is perhaps tempting to say that the Club should pay for all the services that the police consider are required for the maintenance of law and order by reason of the holding of a football match. After all, the Club profits from football matches at Elland Road. Why should it not pay for all the costs of the provision of such police services as it requests and which the police decide that it is necessary or desirable to provide in order to maintain law and order? This is the point that Scott Baker LJ made at para 72 in Reading Festival. But as he said, that is not the law. WYP (rightly) recognises that there is no room for a “but for” test here. On match days, WYP responsibly provide additional policing at Leeds City railway station which is approximately two miles from the Elland Road ground. They do so in order to protect supporters and members of the general public who are in the vicinity of the station and to protect property in that area from the risk of criminal damage. It is not suggested that the provision of these services is SPS. It is rightly acknowledged by WYP that, in providing these services, the police are discharging their public duty of maintaining law and order and protecting life and property.

Secondly, WYP say that, from an operational point of view, there is no difference between policing within the land owned and controlled by the Club immediately outside the stadium and policing within the extended footprint, which is contiguous to that land. Mr Beggs submits that there is no good or practical reason for drawing the line at the boundary of land controlled by the Club for the purposes of deciding what are SPS. The line should be drawn not on the basis of the ownership or control of land, but on the basis of where significant numbers of police are required to be deployed exclusively (or nearly exclusively) for the benefit of the Club and for the protection of the Club’s customers. The difficulty with this argument is that it treats Scott Baker LJ’s benefit factor as if it were conclusive. But as the authorities show, that is not the law.

The essential question that arises on this appeal is whether the law and order services provided by WYP in the extended footprint are in discharge of their public duty to maintain law and order and protect life and property or are SPS requested by the Club. That is the question mandated by Glasbrook. In Harris, Neill LJ suggested four factors which, for the reasons I have given, have varying degrees of utility in pointing to the answer to the essential question. In Reading Festival, Scott Baker LJ suggested that the so-called “benefit” test may also be useful.

It should be borne in mind that in this case we are concerned with the provision of police services to maintain law and order at and in the vicinity of a football stadium owned by a club whose supporters have a poor record for football-related violence. No doubt most of their supporters and other visitors to matches are law abiding. As the judge said, they do not lose their status as members of the public when they come to a match. They are entitled to police protection when they come to a match. The police have a duty to maintain law and order and to protect them and their property when they approach and leave the stadium. In Harris, this court held that, on the facts of that case, the duty did not extend to providing police protection within the land owned and controlled by the club. But it does not follow from that decision that the public duty imposed on the police does not extend to providing protection in public land in the vicinity of the land owned and controlled by the Club. Their most important duty is to prevent the maintain law and order and protect life and property. If the police consider that the discharge of that duty requires the provision of policing in a public place, it is difficult to see why that is not the end of the enquiry. The provision of other policing services in public places raises different considerations.

It is pertinent to ask why WYP accepts that police protection at Leeds City station on football match days is provided in discharge of their public duty, but the provision of such services in the extended footprint is not. It seems to me that the answer must be that the provision of police protection in the extended footprint is predominantly for the benefit of the Club and its customers, whereas the provision of protection at the station benefits not only the Club and its customers, but many other members of the public as well. But for the reasons already given, the benefit test has limited value. Perhaps more importantly, it has never been suggested in the authorities that the benefit test is conclusive.

The policing of the extended footprint on match days is provided in order to maintain law and order and protect life and property in a public place. None of the arguments advanced on behalf of WYP persuades me that the law and order services provided by them in the extended footprint are different in principle from the law and order services that they provide in any other public place. I would dismiss this appeal.

I agree.

I also agree.