Greater Manchester Police v Wigan Athletic Afc Ltd

This is a claim in relation to monies which the claimant (“GMP”) claims are due from the defendant (“the club”) in respect of policing activities carried out by GMP at the stadium used by the club for its association football matches. The club is the well-known premier league football club. The amount of the moneys in dispute has actually been paid by the club to GMP, but under protest. The form of the action is a claim by GMP for those moneys with a claim for their return by the club. At the heart of the claim is the question of the extent to which GMP was entitled to those monies.

The source of the claim is easy to describe, though its application to the facts of this case presents significant difficulties. In this section I will merely describe the legal source of the claim and, very much in outline, how it arises.

A person or organisation who wishes to stage a large event attended by many thousands of people may feel that the number and nature of the audience, and the activities to be carried out, require the attendance on the private property concerned of members of the police force in order to keep order and to provide other services which can best be provided by the police. They are not entitled without more to call upon the services of the police for this purpose. They can, however, ask for “special police services” and reach an agreement as to the payment for those services. Authority indicates that such arrangements could be properly made at common law, but the position is now confirmed by statute. The current provision is s.25 of the Police Act 1996:

“25.

Provision of special services

(i)

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.”

Large football matches are obvious occasions on which the attendance of police in the ground is conducive to the smooth running of the fixture, and such clubs are obvious, and frequent, persons who wish to avail themselves of those services. As well as the obvious need for such policing, modern clubs require a safety certificate, and the safety certificate regime requires them to obtain proper policing. If they did not do so then they would lose their safety certificates and the right to play at their grounds. The club in the present case falls into the category of clubs which require policing for those reasons. It had for some years had an agreement with GMP to provide such policing, and appropriate charges were made on an agreed scale. However, shortly before the beginning of the 2003/2004 season, GMP put forward a proposed charging structure which significantly increased the charges which GMP indicated that it would be making because it proposed both a material increase in the level of policing at fixtures, and in the police that were to be charged for. The club did not accept that those charges could and should be made, and it offered to pay at rates based on the then current charging rates but assuming the level of usage of police offers as was reflected in previous years. The parties went the whole of the season without reaching an express agreement on the way forward, and arrears built up (on the basis of the calculations and claims of the GMP). During that season the police provided policing for home fixtures despite the lack of final agreement. The same difference of opinion arose at the beginning of the next season (2004/2005) and further arrears built up. Again, policing was provided for the season. Before the end of the season, however, pressure was put on the club by the football authorities to make payments, and under those circumstances the sums claimed by GMP were paid under protest. They amounted to almost £300,000.

The principal element in the dispute concerns the number of officers charged for, and one important element of dispute within that is a dispute as to whether officers who are outside the stadium itself can be charged for. Accordingly, the local geography is of some significance, and I therefore need to describe it.

The club plays at a stadium known as the JJB stadium in Wigan. The stadium lies to the west of Wigan town centre. Between Robin Park Road and the Douglas River (which at this point runs very close to the Leeds/Manchester canal) there is an area comprising a retail park and the JJB stadium, together with certain other sports facilities. The layout can best be seen from the plan which I annex to this judgment. The roads shown as Anjou Boulevard and Loire Drive are apparently dedicated as highways. There is a footpath which skirts the southern end of the stadium, running down from the canal bridge, passing over the small bridge to the east and passing round the south-western corner. For the most part its line is probably 10 feet away (at least) from the back of the south stand. There is another footpath which crosses Stadium Way some way to the north.

The club does not have any interest in the stadium greater than a licence. The freehold of the land is (or at least in 1999 was) vested in the local authority (Wigan Borough Council). On 4^th August 1999 Wigan Borough Council granted a lease to Wigan Football Company Limited (“the Stadium Company”), a company in which the Council had a 10% interest and in which the remaining 90% was owned by, or was under the control of, Mr David Whelan, a prime mover in the club. The significant provisions of the lease were as follows:

The licence pursuant to which the club occupies is also dated 4^th August 1999 and is made between the Stadium Company and the club. In the licence, the expression “the Stadium” means “the Stadium operated by the Company and known as JJB Stadium, Robin Park, Wigan”. Clause 2 gave the club the right in common with the Stadium Company and all others authorised by the Stadium Company:

“To use the Stadium for the purpose hereinafter authorised during such Match Days as occur during the Term….”

Clause 3 contained “Licensees undertakings”, which included an obligation:

“3.2

To use the Stadium only for the purpose of fulfilling association football fixtures of the club, including the right to admit the public upon payment to attend such fixtures and for such ancillary social activities as the Company shall permit on such Match Days…”

Clause 3.3 contains an obligation:

“Not to use the Stadium in such a way as to cause any nuisance, damage, disturbance, annoyance, inconvenience or interference to any neighbouring or adjoining property.”

The licence fee payable is the cost of making the stadium available plus 10% of gross receipts. I do not need to elaborate on this.

Thus the club was fulfilling the obligations of the Stadium Company to carry on football matches at the stadium.

It appears from the terms of the licence that the premises which are apparently to be the subject of it, on the basis of the express words used, are merely the stadium itself without any surrounding land. I have had the opportunity of a view of the stadium and surrounding area, and what one sees on the ground confirms the impression one gets from the plans. The stadium itself is a clearly defined brick, concrete and metal structure which is fully enclosed. On four sides the backs of the four stand areas rise several tens of feet. There are various entrances and exits in each of the external faces of the stands, the public being admitted to matches by narrow turnstile entries and allowed to leave by much wider exit doors. On one side there is a reception area and there are also ancillary matters such as ticket windows in some of the external walls. Across each of the four corners are much lower barriers, comprising gates which are probably eight to ten feet high, through which access can be gained into the ground. On all four sides of the stadium there is a tarmac area which is in no way fenced or gated off. It is many feet wide. One can easily walk all round the stadium; indeed the width is wide enough to enable a vehicle, or sometimes two or three vehicles side by side, to drive comfortably round it. In other words, it is many feet wide. Behind the south stand there is the line of a footpath; the footpath used to run in what would be a diagonal line across the pitch, and it was diverted to its present line to allow construction of the stadium. To the north of the north stand there is a separate property which is fenced off. To the east of the east stand, after allowing for the extensive tarmac area, there is a fence behind which is the Douglas River. To the south of the south stand, again after allowing for the tarmac, there is a car park used by the players and a fence separating the general stadium area at that point from the property to the south. The fence stops at a point roughly coincidental with the west end of the south stand, allowing open access on foot into a car park in front of the Robin Park Arena. Part of that access is chained off, but in essence there is completely open foot access at that point. The west side of the stadium can be regarded as the front. There is a smart reception area and car parking for staff. Between the car parking and the road there is a cultivated bushy area.

In practical terms, access to the stadium can be obtained by a number of routes. Cars can drive down Stadium Way from the north and gain access to the various car parks shown on the plan. Car park 3 is a car park designated for away supporters. Pedestrians can use the same route. Vehicles can now also get in from the other end of that road, although it was not always complete at its southern end. Pedestrians can also gain access from the city centre to the south-east by crossing the canal and river by the bridges shown. The canal bridge is a particular feature to which reference has to be made below; it is a pinch point for spectators, and a potential flashpoint too. Further vehicular access can be obtained by driving up Anjou Boulevard or Loire Drive, but then there is no access to any of the stadium car parks. Lastly, access on foot can be obtained by various routes across the retail park, and in particular through a wide pathway which leads from the Loire Drive/Robin Park Road junction in a north-easterly direction through car parks intended to serve the retail park. Wigan’s stations are in the town centre to the south-east, so it is likely that fans arriving by train would take the route across the bridges.

Although the licence purports to be the document which controls the use of the Stadium Company’s property for the purposes of the club, in my view it does not express the totality of the rights. Other important rights exist but are not referred to. If one looks on the licence as being an arm’s length bargain between grantor and grantee, then the most surprising express omission is any right of access to the stadium. At no point does the stadium itself abut a highway. Even from the diverted footpath, one has to cross an expanse of tarmac before reaching the stadium proper. Anyone visiting the stadium for the purpose of attending a football match would obviously need to be able to cross land retained by the Stadium Company and over which there are no express rights.

There are clearly implied rights of access. That covers not merely the tarmac areas surrounding the stadium itself on all four sides (which one has to cross to get to the turnstiles) but also Stadium Way itself, which is not a highway but which gives on to the car parks. I was told that the car parks themselves are operated by the Stadium Company. Such stewarding as is necessary in those car parks is, however, carried out by stewards of the club. They direct cars and raise and lower the various barriers across Stadium Way in order to control access on match days. There is obviously an arrangement which actually entitles the club to insist on the use of car parks. There is also plainly an implied right, ancillary to the licence, to gain access over the approach ways to the stadium. Effectively, on match days, those approach ways are used for the purpose of the club. The same can be said for the car parks. Mr Lewis, who appeared for the club, sought to say that there were no implied rights of access ancillary to the licence. The areas round the stadium were merely areas to which the public was allowed to have access by the Stadium Company. They were effectively open, albeit not dedicated as highways. I do not think that that analysis is right. The club and the Stadium Company entered into formal relations via the licence, and when viewed as an arm’s length bargain (as it has to be in these circumstances) it seems to me to be plain that there are implied rights of access, and probably car park usage, vested in the club. The access to the stadium cannot be regarded as something which is at the whim of the Stadium Company. This degree of access and operation of the land for the purposes of the club on match days is something which may go to the extent to which any services provided by the police can be regarded as SPS.

It will be useful at this point in the judgment to outline the various elements which from time to time are involved in policing football matches at Wigan. Some of the activities (such as the policing of the interior of the stadium itself) will occur at every match. Other aspects will occur to a greater or lesser degree, depending on the importance of the match and, in particular, the number and nature of away spectators who attend.

There are two important units which make up a detachment of police who police football matches. The first is a serial. This comprises one sergeant and seven constables. The second is a police support unit – “PSU”. This is three serials plus an inspector – so it is one inspector, three sergeants and 21 constables. Each match has a match commander, who will usually be an inspector but who may on some odd occasions be a sergeant. If it is a bigger match, then there will be a “bronze” commander responsible for supervising the policing of an area wider than the stadium and its surroundings. On really big matches there will be a bronze commander in the stadium, another bronze commander in charge of policing outside the stadium and to the west of the canal, and a third bronze commander responsible for policing in the city centre area to the east of the canal. Over all those, if the situation requires it, is a silver commander who has control of the overall operation, town and stadium.

On any given day the normal policing of Wigan will require a given number of police officers. However, when there is a home football match, additional police are required. For this purpose, the police bring in policemen who would otherwise be on rest days. They are paid at overtime rates.

A match day starts with a briefing of the officers at the police station. Thereafter the period on a match day during which the football policing is carried out is, as a matter of general police practice, divided into three phases. The first starts after the police have paraded and been briefed and lasts until just after kick off time. There is a dispute as to how long that phase is, or should be treated as being, to which I will have to return below. The second is from the end of phase 1 until phase 3 starts (that may seem to be obvious, but that is the way in which it was described to me) and phase 3 starts about 15 minutes before full time and ends when the police are finally stood down – this may in practice be relatively soon after the stadium empties for a “quiet” match but will be longer on bigger match days. Thus the phases can be seen to correspond roughly to the match period in the middle, with assembly and dispersal periods before and after, allowing necessary overlaps.

In advance of the match, the appropriate senior policeman will decide where his forces will be deployed. They are deployed by PSU and by serial within the PSU. Specialists (dog handlers and mounted police) are deployed in smaller units. There are match orders (or operational orders – I shall use both phrases) which will indicate where each serial and/or PSU is to be deployed in each of the phases. Sometimes that will be by geographical location, and sometimes it will be “mobile” or “as directed”, which indicates that their precise deployment will be determined by the needs of the situation. Of course, other fixed deployments can be changed as and when the need arises.

So far as the physical deployment of the police is concerned, that can conveniently be broken down into the following areas:

It can thus be seen that, at least for the bigger matches, the deployment of police would take place across a wide area – from the centre of the town, through the stadium area and on to the west. The dispute in this case essentially concerns police deployed in the areas which I have described under heads (b), (c) and (d) above. The police case is that they are entitled to charge for officers who policed the area of the leased land (which in practice means the three areas that I have just referred to). GMP does not seek to claim for police in any wider area. The club maintains that it is only obliged to pay for police in the stadium, whether actually deployed there for one or more of the phases or where they are injected as a result of a particular and sudden need.

In addition to the PSUs and commanders that I have described, other police are or might be involved. One of the witnesses I heard from, PC Broad, was usually involved as an intelligence officer, moving around inside and outside the ground as and when his presence was required. There are other intelligence officers, or “spotters”, who were involved in identifying troublemakers and gathering intelligence about them. Their job was, in essence, to keep an eye on known trouble makers (or “prominents”), so that assessments could be made of the likelihood of trouble. This was done in the town, and inside and outside the ground – wherever the prominents happened to be. The spotters also gathered intelligence for use on later occasions. Other intelligence units or specialist football operations were involved (“Operation Lynx” and “Operation Colchester”). There are also mobile police called tactical aid units (“TAUs”) who provided assistance as and when required and who have particular public order training. Inside the ground were one or more radio operators and one or more loggists, whose job it was to act as a radio link between the police officers on the ground and their commanders, in their control positions, and (via the loggists) to chronicle the various events during the course of a match afternoon or match evening so far as they unfurled over the radio. Inside the stadium there would sometimes be one or two custody officers (the stadium has detention facilities) and there might be the deployment of a prison van with a driver. Some matches required the deployment of mounted police, in varying numbers (the biggest number I saw was 19), some of whom would be around the ground and some of whom would be farther away in the centre of town or otherwise. Sometimes dog handlers were required, either around the ground or in the town centre. A CCTV van was sometimes used.

The starting point for ascertaining the level of policing required was a match categorisation system. This technique was adopted by forces other than GMP as well as GMP itself. The principal categorisation was an ascending order of seriousness (and therefore of policing) from A to C. Sub categories of B+ and C+ were also used by GMP. The category into which a match fell was discussed and agreed provisionally with the club before the beginning of each season, and upward or downward adjustments were made prior to each match as circumstances required. The sort of considerations involved in determining the category were the number of away supporters expected, the general reputation of the away supporters and certain undesirable contingents associated with them, the number and reaction of home supporters, ticketing arrangements, and any additional specific intelligence-related matters that affected the match in question.

In order to be able to conduct football matches at the JJB stadium, the club needs a certificate under the Safety of Sports Grounds Act 1975. Certificates are apparently renewed annually but the ones which cover the ground do not materially vary from time to time. I can take the certificate issued on 21^st August 2002 as governing the activities at the ground for the two seasons in question.

The certificate describes the address of the premises for which it is issued as being “JJB stadium, Anjou Boulevard, Robin Park, Wigan”, and the occupiers of the premises are described as “Wigan Athletic Football Club and Wigan Warriors Rugby League Club”. The certificate holder is the Stadium Company. The definition section describes the “Sports Ground” as being:

“The Sports Ground known as the JJB Stadium, Anjou Boulevard, Robin Park, Wigan.”

It describes “Specified Activity” as meaning:

“the use of the Sports Ground (a) during the playing of, and during the two hours before the start and one hour after the finish of, Rugby League Football and Association Football matches …”

Part 2 contains general conditions, and condition 1 is as follows:

“The Holder shall retain control over the whole and each part of the Sports Ground and shall take all necessary precautions for the reasonable safety of the spectators admitted to the Sports Ground. The responsibility for the safety of spectators at the Sports Ground lies at all times with the Holder, who shall produce a written statement of safety policy which shall be made known to all members of staff.”

Schedule A, section A.3 deals with “Crowd Control and Policing”. The first few paragraphs of that section provide as follows:

“A.3.1 Before each Specified Activity, the Holder shall consult with the Chief Constable, the County Fire Officer and the Chief Ambulance Officer with regard to the general arrangements for that activity.

A.3.2 The Holder shall secure, at the Holder’s expense, the attendance at the Specified Activity of such number of police officers as in the opinion of the Chief Constable is sufficient to ensure orderly behaviour of spectators.

A.3.3 The Holder shall use its best endeavours to enter into a written statement of intent with the Chief Constable setting out their respective responsibilities for crowd safety and control and in particular which posts are to be staffed by stewards or police. A copy of the statement of intent shall be kept with this Certificate.

A.3.4 The Holder shall agree with the Council and the Chief Constable the methods to be used for the segregation of home and visiting spectators. Satisfactory spectator segregation shall be maintained at all times and prior to any section of the Sports Ground normally occupied by home spectators being used to accommodate away spectators, the Holder shall give a minimum of eight days’ notice to the Council and the Chief Constable. Such segregation is not required while the Sports Ground is being used in connection with a rugby match/event.”

The club relies on the terms of the certificate as helping to define the area to be covered by SPS and it points out that the certificate itself simply relates to the four walls of the Stadium. It does not claim expressly to regulate any of the activities outside those four walls.

The club also points to the background set by Lord Taylor’s report into the Hillsborough Stadium disaster (Tm 962). At paragraph 210 FF Lord Taylor deals with policing and stewarding. At paragraph 210 the report says:

“2.10

The temptation to the clubs to leave it all to the police is stronger if they are not required to make realistic payment for police services. No charge is made for officers outside the ground since maintaining law and order in the streets is a normal public function of the police. At the present time, the practice as to recovering costs of policing inside grounds from clubs varies greatly from place to place, different formulae being used….”

Paragraph 211 points out that many aspects of crowd control and management could be carried out by efficient stewarding, while paragraph 212 accepts that sometimes the “greater authority and resilience of the police” is required. Paragraphs 213 and 214 suggest that there should be a written document known as a “statement of intent” which sets out the respective functions of a football club and of the police for crowd and safety control.

Mr Lewis relied on the fact that, like the safety certificate, this section of the report was talking about police functions inside stadia, and seemed to suppose that the police would be paid for that activity but not activity outside. While it is true that Lord Taylor assumed that these activities outside the grounds would be part of their normal duties, a proper reading of this section of the report, together with its preceding paragraphs, demonstrates that Lord Taylor’s entire focus was really on what went on inside. He was not considering a wider picture. I found this report to be of little assistance in determining the questions that I have to determine in this action.

Before the facts which give rise to this case came about, the Home Office had issued a circular which touched inter alia on matters of charging. The circular expresses itself to be “About: Home Office guidance on football-related legislation”. Section 13 of the report deals with charging. Its provisions were relied on from time to time at the trial before me, so I will set out its material paragraphs.

Section 13.2 refers to the 1975 Act and observes that it requires the issue of safety certificates for stadia. It says:

“Where certificates require the holder to arrange for the attendance of an adequate number of police officers within the ground, the extension of the provision of police services must be reserved for the determination of the chief officer of police in whose area the safety certificate applies.”

The next few paragraphs deal with the “extensive charges”. They read (so far as material):

“13.3

It is Government policy that the costs of special services should be paid in full by those using that service and that no part of these costs should be allowed to add to the general level of police expenditure. The charges should be reviewed and adjusted as necessary on an annual basis.

13.4

The aim in principle should be to recover the full cost of:

•

Those police officers who are deployed at football matches on the private property of the football club; and

•

Where officers are posted outside the ground for part of their tour of duty and inside it for the remainder, the full cost of their time spent inside should also be recovered.”

For the purposes of this action it is important to note the reference to “private property of the football club” and the distinction drawn between duty done inside and outside the stadium. If it matters, it seems to me that, looking at that paragraph fairly, the circular envisages that police inside the physical stadium or otherwise on adjacent private property of the club should be paid for by the club, and that the reference to police being “outside the ground” means police deployed other than on that private property.

Before turning to deal with the detailed facts of this case I should next say something about the witnesses that I heard. I heard from the following witnesses.

In the narrative that follows, any reference to a fact should be taken as a finding by me unless the contrary appears.

In the two or three seasons preceding the two disputed seasons, GMP provided SPS pursuant to a statement of intent and a written “order” provided by the club. Each of the forthcoming matches was categorised according to the level of policing that was thought to be required. Mr Harrison would meet with representatives of the club and they would agree into which category the various forthcoming matches would fall, in an ascending scale from A to C+.

There was no material disagreement as to the payment of the club for policing costs until the two seasons 2003/04 and 2004/05. In those earlier seasons the club was working its way up through the two lower leagues of the Football League. Before each season the match categorisation was agreed between Mrs Spencer and Mr Mason’s predecessor, Superintendent Harrison. Each categorisation also carried an agreed level of policing to be paid for. The agreement dealt in serials – 1 sergeant and 7 constables (“1+7”, or multiples thereof), and there were agreed levels for inside the ground and for an “outside reserve”. The levels were as follows:

The “Inside” forces were to be paid for. The Outside Reserve was only paid for if and insofar as they had to enter the ground.

An additional C+ category was stated as a possibility, but until the first of the disputed seasons the documentation did not express the level of policing that that carried. There were also “Police Free” and “Stewards Only” matches. The first was a slight misnomer. “Police Free” meant that the stewards controlled the stadium proper, but police were available to go into the ground if necessary; an “Outside Reserve” of “1+7” was specified. “Stewards Only” meant that police were not specially available even outside the ground. In neither case were police charged for, unless (in the case of police free matches) they were actually called on to intervene in the stadium. In fact, as PC Broad explained, no matches were totally devoid of policemen, because there would always be a spotter or some element of the police intelligence operation in the ground.

The “Outside Reserve” was not a reserve in the sense of just sitting and waiting until called upon to do something. They were policing the outside – standing at the fixed points, patrolling the carparks and the approaches and so on.

In the 2001-02 and 2002-03 seasons the club and the police signed documentation which followed a format used before.

In 2001-02 the documents were as follows. There were two documents - a “Statement of intent as to working practices at the JJB Stadium” and an “Acknowledgment and request”.

The Statement of Intent was the document suggested by Lord Taylor in his report. So far as is material, the Statement of Intent provides as follows:

“This Statement of Intent does not create a legally binding contract or agreement between Greater Manchester Police and Wigan Football Company Limited [the “Company”] and Wigan Athletic Football Club [the “Club”] but simply defines the respective duties of the parties as recommended in the final report into the Hillsborough Stadium Disaster.

Responsibilities of the Company

The Company are the holders of a General Safety Certificate issued under the Safety of Sports Grounds Act 1975 (as amended). The Company shall retain control over the whole and each part of the sports ground and shall take all necessary precautions for the reasonable safety of spectators admitted to the sports ground. The responsibility for the safety of spectators at the sports ground lie at all times with the Company. The Company shall ensure compliance with the terms and conditions of the Safety Certificate at all times the sports ground is in use for a specified activity.

Responsibilities of the club

The club will from time to time lease the stadium from the Company and will be responsible for consulting with the Company on the requirements for Special Police Services and for requesting such services from the Greater Manchester Police.

Responsibilities of the Greater Manchester Police

The Greater Manchester Police may assist company officials where necessary with their duties relating to crowd control and safety.

The Greater Manchester Police will endeavour insofar as is practicable under the circumstances prevailing at the relevant time to respond to incidents of disorder inside or in the vicinity of the Stadium during the match day operation.

…..

Football Intelligence Officer

The role of the Football Intelligence Officer is solely to gather intelligence. His/her attendance at a match will be for that sole purpose and his/her duties will not involve crowd control or safety.”

The document was signed on behalf of the Stadium company and on behalf of the club. It was also signed on behalf of the police by a chief superintendent.

With the statement of intent, and apparently bound with it, was an “Acknowledgement and request for supply of Special Police Services under s.25(1) of the Police Act 1996”. It recites the fact that GMP is the police authority for Greater Manchester and that the Company owns “a sports club known as JJB Stadium, Anjou Boulevard, Robin Park, Wigan” which from time to time is “leased” to the club. Section A then provides as follows:

“A.

It is hereby acknowledged as follows:

1.

The Special Police Services which the Chief Constable will supply are as specified in the first schedule hereto.

2.

The charges to be imposed under s.25(1) will, until further notice, be at the rate per hour per rank and/or specialist function of police officer to supply the SPS, as specified in the second schedule hereto.

3.

The provision of SPS to the club may require up to six hours of police time per officer for each event policed and the charge made under s.25(1) will be imposed in respect of the full time spent or amount entitled to by each officer providing the Special Police Services, such time charged to include where appropriate:

travelling to the division where the event takes place;

briefing instructions;

pre-match crowd control including searching;

the match itself;

crowd dispersal;

debriefing;

travel to home division.

The number, rank and specialist skills of officers supplied to police the event in the Third Schedule hereto will be as determined appropriate by the Chief Constable or his authorised representative in accordance with the provisions of the Safety Certificate issued in respect of the Stadium.

It is hereby requested that the Chief Constable supply Special Police Services to the club at the dates and times set out in the Third Schedule hereto and in accordance with the provisions of this form of Acknowledgement and request.”

Schedule 1 contains a “specification for Special Police Services”. It is said to:

“Define the SPS which the Chief Constable will provide at sports grounds when circumstances permit and when a person has requested provision of SPS in accordance with s.25 of the Police Act 1996.”

It goes on:

“3.

The Chief Constable, in specifying the need for the attendance of a specific number of police officers, in accordance with the provisions of a Safety Certificate for the Stadium gives no warranty that no offences will be committed or property damaged while such number of officers are present in the Stadium.

4.

In this specification, any reference to…..(b) ‘The Stadium’ means the sports ground for which the Special Police Services have been requested and shall include the land surrounding the Stadium and owned or occupied by the club….

5.

Police officers who provide Special Police Services in the Stadium will:

arrest offenders;

keep the peace;

prevent offences;

Police officers in the stadium will be under the operational command of the Police Commander with whom the club should liaise in relation to any activity of such police officers.”

For present purposes it is relevant to note two things about that document. First, it refers to the safety certificate, which in turn refers principally to activities being carried on within the stadium proper. Second, and detracting from that, it refers to “the land surrounding the stadium and owned or occupied by the club”, and the Acknowledgement and Request document refers to activities which must be taken to have been carried out outside the ground – in particular the “pre-match control, including searching”.

Similar documentation was signed for the 2002-03 season. An identical statement of intent was provided by the Stadium Company and the police, but it was not signed on behalf of the club. In place of the Acknowledgment and Request there was an “Order for Supply of Special Police Services under section 25(1) of the Police Act 1996. It was in slightly different terms and was signed by Mrs Spencer on behalf of the club. Its relevant parts provided as follows:

“….3. From time to time the club requests the chief constable of the Greater Manchester Police Force to provide Special Police Services under s.25(1) aforesaid.

(A)

I, Brenda Spencer, authorised by, and acting on behalf of Wigan Athletic Football Club agree that –

(1)

the Special Police Services which the Chief Constable will supply will be as set out in the first schedule hereto.

(2)

the charges to be imposed under s.25(1) aforesaid will, until further notice, be at the rate per hour per rank and/or specialist function of police officer to supply the Special Police Services, as specified in the second schedule hereto.

(3)

the charge made under s.25(1) for the provision of Special Police Services by the Authority for each event policed will be imposed in respect of the full time spent by every officer in providing the Special Police Services. Such time to include, where appropriate:

(a)

travelling to the Division where the operation takes place.

Schedule 2 sets out charging rates. They are set out per hour for a Chief Superintendent, Superintendent, Chief Inspector and Inspector. Charges per rest day are set out for sergeants and constables, and a “Per Day” rate of “Nil” is provided for “Horse” and “Dog”. It should be noted that no charge is indicated for any specialist officers such as loggists, spotters and so on.

Schedule 3 is a “List of known events for which Special Police Services are requested”. The matches for the season are listed and given one of the categories referred to above. Seven are listed as “steward only”, six are listed as “police free” and the rest are categorised in a manner referred to above. Below the table containing the matches the “Staffing Levels” are set out – they correspond to the staffing set out in the above table. The schedule goes on to reflect the fact that categorisation might change during the season and states that “certain fixtures may be for [sic] into a Category ‘C+’.” The schedule ends by saying:

“There may be additional specialist resources from the Dog Unit, Mounted Section or Tactical Aid Unit if deemed necessary by the Police Commander”.

There was no particular problem about all this in the 2001-02 and 2002-03 seasons. The parties did not always initially agree on match categorisation issues as the season developed, but in practice there was no final dispute about it. In these seasons the club was playing in League Division 2 (now Division 1). Its crowds were generally in the region of 4000-6000 though occasionally there were much bigger crowds. The club was invoiced for policing in accordance with the categorisation and levels referred to above. To ascertain the amount chargeable the police took a given hourly rate for the officers involved, and charged for 5 hours of their time. There was a strong element of convention in that process, in that there was no attempt to justify 5 hours presence at the stadium, plus travelling costs and briefing time. It represented a conventional way of calculating the cost which the club and police were prepared to accept and did not seek to charge everything that might have been charged for. It did not, for example, seek to charge for a “tunnel officer” who was probably present in the ground at all policed matches but who was calculated as part of the police serial. To adopt such a convention was obviously very sensible and practical – it is not a particularly sensible way of calculating the cost to adopt a minute by minute assessment of where policemen were and what they were doing.

Furthermore, it sensibly and realistically covered the activities of officers who were not in the stadium proper. The 2001-02 document plainly referred to SPS activities which would take place outside the strict confines of the stadium – crowd control and dispersal. These would be most likely to occur on the surrounding concrete areas, and some way away to the east, across the car parks. Mrs Spencer acknowledged that this policing was taking place outside the stadium and that, at least in the category B matches, it was being paid for by the club, but said that police deployment was a matter for GMP.

The total police bill for the 2002-03 season was just over £61,000. At the end of the season the club was promoted to what is now the Championship.

By now Mr Mason had come on to the scene to replace Mr Harrison. On 25^th July 2003 he received a memorandum from the Assistant Chief Constable pointing out that it was government policy under Home Office Circular 34/2000 that the costs of special police services should be paid in full and that no part of the costs should be added to the general level of police expenditure. He said that the policy of GMP included the following:

“• Charges should be made for all police officers at the stadium (inside the ground or on the forecourts) and on any other private property owned by the football club (eg car parks)

• Where officers posted outside the ground are required to enter the ground for part of their duty, the full cost of their time spent inside the ground should also be recovered.

• For contentious or high profile matches, eg local derby games, Internationals etc, it may be prudent to discuss with organisers to negotiate a contribution towards policing costs away from the stadium.”

It ended by observing:

“Market forces in the football world will undoubtedly lead to clubs seeking to reduce their policing costs. It is therefore essential that a cohesive policy be applied throughout the Force, preventing clubs from challenging inconsistencies.”

Against that sort of background, and against the background of promotion to the Championship (which would be likely to lead to bigger crowds), Mr Mason met Mrs Spencer in June or July 2003 to discuss arrangements for the forthcoming season. He produced a schedule of fixtures with a suggested categorisation of matches, which he sought to agree with Mrs Spencer. It contained 9 Police Free matches (out of a total of 23), and categorised the others between categories A and C+. In a section underneath the table of matches he set out “Staffing levels”. It set them out as follows (in the case of this table the headings are mine):

The material differences between those levels and the previous seasons were as follows:

The effect of that, when reflected in charging, was potentially to bring about a very large increase in the cost. That was, to some extent, mitigated by an indication from Mr Mason that charging would not be entirely at that level. He proposed (as I find) that inspectors would not be charged for, that category B+ matches would be charged at category B levels, and that category C+ matches would be charged for as a category C match. No reflection of this proposal appears in a document recording it until the next year, but I find that it was made. It was ultimately reflected in the season’s invoices.

There were probably two principal reasons for this increase in proposed charging. First, the club was moving up a division, and larger, and potentially some more troublesome, crowds were expected for the matches other than those designated Police Free. Policing levels therefore went up to reflect that. Second, Mr Mason took a different view as to what should be properly charged for. His predecessor apparently took one view about charging (or more accurately not charging) for officers outside the ground, and Mr Mason took another.

In forming this latter view Mr Mason was probably influenced by the terms of the Home Office circular 34/2000. Be that as it may, the police were apparently stipulating a higher police deployment for the forthcoming season than had hitherto been paid for. The effect would have been roughly to triple the bill for some matches, and perhaps provide an even greater increase for others. The meeting between Mr Mason and Mrs Spencer (also attended by PC Broad) is not minuted but it is common ground that its purpose was to discuss the SPS for the forthcoming season. Match categorisation was discussed first, and the club was pleased to find that the police were proposing more Police Free matches than they had anticipated. However Mrs Spencer was less pleased when the consequences in proposed deployment became apparent because of the increase in the bills that would have come about. The club wanted to have SPS, and the police were willing to provide it. However, Mr Mason insisted that the officers he would provide, and that he would expect to be paid for, would be those that I have identified above. There was no material challenge to the match categorisation. I find that there was a clear objection to the proposal that the club would pay for the extra police shown in each categorisation. Mrs Spencer did not challenge the decision of the police that these deployments were necessary from the point of view of policing needs, but she made clear that she did object to having to pay for the deployment of so many policemen. She did not agree that the policing for which she should pay should go up so dramatically when compared with the previous year. She also indicated that she did not think that Mr Whelan would agree. It is apparent that she would have needed to get Mr Whelan’s approval in order to be able to agree the police proposals. There was a subsequent meeting at which, again, the police’s proposals were made clear, and Mrs Spencer did not agree the costings.

Attempts were made to arrange meetings between Mr Whelan and Mr Mason, but Mr Whelan did not attend. However, on 8^th September 2003 he wrote to Mr Mason setting out his concerns. They were that Wigan seemed to be being charged more than other clubs in the same divisions, that the police had been aggressive to some supporters and that the police were seeking to “fleece” Wigan. Mr Mason responded on 30^th September that his proposed charges were in accordance with national policy, which was that charges were to be made for “all police officers at the Stadium (inside the ground or on the forecourts) and on any other private property owned by the football club eg car parks”. It is plain from that that Mr Mason was maintaining his ground.

Eventually Mr Whelan met Mr Mason on 3^rd November. The meeting was not minuted, but Mr Mason set out its contents in a report to his Assistant Chief Constable. At the meeting Mr Whelan indicated that he thought he was being targeted as a test case and that he had to fight the cost on behalf of the other clubs. He did not agree the costs, and would not pay them, but was happy with the policing and standard of policing. Mr Mason, too, stood his ground as to what costs (and policing) the police required. At the end of the meeting Mr Whelan agreed to pay half the cost then outstanding, which the club then did 2 days later (5^th November) when it sent a cheque for £20,000 “without prejudice”, and recording that there was a “disagreement with the policing levels that are currently being charged”. Unlike previous years, no statement of intent, or order, was signed at this point in the season, or indeed at all so far as this season was concerned. The club did not do so because of the dispute over police costs.

Meanwhile the season had started. There had by now been a number of matches. Before each match there was a safety meeting attended by those with some responsibility or input into the safety of fans at matches. Over the disputed season these meetings were all attended by PC Broad. By and large no-one more senior attended on the police side. From the club various people, including Mr Johnston, attended, but usually Mrs Spencer did not attend. The meeting was concerned with the practical aspects attending the forthcoming match. The final categorisation was agreed, but there was no detailed discussion of it. The first match was against Hull, on 12^th August. There was a safety meeting on 11^th August at which it was re-categorised from police-free to category A, and the minutes (written by Mr Johnston) record that this meant “1 Inspector, 3 Sergeants and 21 Constables”. From this the club would have understood that the police intended to police at the levels indicated by Mr Mason in his June/July meeting, but it cannot be assumed that by failing to object to this indication the club was agreeing that it would pay for that level of policing. Mr Johnston was doing no more than indicating the intention of the police.

At the police briefing for the Hull match (as for all matches) an operational order was handed out to the police who were involved in the operation. Externally it was in the style of a football match programme; internally it set out the instructions to the policemen involved. I do not need to set out its detail at this point in the judgmentand can merely refer to various aspects. It is typical of match orders or operational orders for all matches.

It divided the operation into the three phases referred to above, and indicated where each of the three serials making up the PSU assigned to the match would be deployed. The first serial was to spend the first two phases inside the stadium, and the third “as directed”. The second was to spend the first phase in the Town Centre and Newtown (ie away from the Stadium area), the second at what is described as car park 5, which almost certainly means car park 3 (the away car park – there was no need to police car park 5, which was an executive and VIP car park), and the third “as directed”. The third serial was to spend the first phase on “Ground Points”, which means the four points at the external corners of the stadium, the second inside the stadium and the third “as directed”. This sort of deployment is typical across the season. Some officers spend some of their time in the stadium, some spend some time in the immediate surroundings and the car parks, and some spend some time (or sometimes all of their time) away from the stadium area in other parts of the town. In many of the later orders the PSUs are not broken down into serials.

On this particular occasion there is no reference in the safety meeting minutes to the police performing any particular service, but on occasions the minutes record specific requests to the police to perform various functions. Thus, and by way of example, on 20^th November 2003 there was a pre-safety meeting held in relation to a forthcoming match against Nottingham Forest (on big matches there was sometimes such a meeting before the safety meeting proper). At this meeting Mr Johnston is recorded as specifically requesting police assistance for stewards at the away turnstiles, and to “support the East Gate both pre and post match”. Similar requests are recorded in some of the other meeting notes. They reflect the fact that the club officials well understood that there would be policemen immediately outside the stadium, that their presence was part of a co-operative effort to ensure security and order and on occasions that they specifically requested their help. On any given day the police would be expected to do whatever was necessary to control queues and crowds, and sometimes to segregate supporters. Sometimes specific requests were made in advance of the match, as recorded in the minutes just referred to; on other occasions requests would be made ad hoc at the time, as the situation demanded; and on others the intervention would simply happen as a response to a developing situation. All were part of the same overall picture of policing outside the ground.

The position as between the police and the club was not resolved as the season developed. The club wanted SPS, but not at the cost the police were proposing, and not at the level that the police were proposing insofar as the club had to pay for it, and the police were not prepared to provide SPS merely at the level that the club was prepared to pay for. While the evidence for the club suggested that the club challenged the level of policing on occasions, I think that the proper analysis of the evidence was that the club was prepared to leave the actual level and method of policing on any occasion to the police. Mr Whelan and Mrs Spencer correctly judged that at the end of the day the police had to decide such matters. Complaints about the level of policing were, in reality, to the policing which the club was expected to pay for. Mr Whelan acknowledged that the police were entitled to be paid for what was “fair”, but did not agree with the police as to what that level was.

The police invoiced on a match by match basis during the season. The invoices were prepared by the accounts department as a result of an internal request for invoicing, that request being made on the basis of resources deployed in accordance with the ultimate match categorisation, and on the basis of Mr Mason’s stated intentions at the beginning of the season. As I have indicated, the club made a without prejudice payment on account in November 2003, but then did not make any payments until February 2004, when it made a round sum payment of £25,000. A further £25,000 followed on 11^th March 2004, £15,000 on 2^nd April and £10,000 on 12^th May. These were all round sum payments on account, with no particular rational basis behind them. On GMP’s case, these left large sums still outstanding – over £94,000.

By the end of April 2004 the club had decided on an apparently rational basis on which it would make payments. Mrs Spencer wrote to Mr Mason on 27^th April about outstanding invoices. She said:

“We do not agree with the charges we have been invoiced and have therefore paid what we have worked out to be the charges on the PSU charges from last year at this years increase in rates. I enclose a summary showing the differences and would state that we have paid the same PSU charges as have been charged at other clubs in the area, ie 1+7, 2+14 and 3+21, not 3+21, 6+42 and 9+63.

“I am not sure how we resolve this problem but my Chairman will only allow payment on account to cover the charges as I have explained above.”

In other words, the club was paying on the following basis. First, it took the match categorisation for each match, for the current season. Next, it looked at what policing would have been agreed as being paid for on the previous season’s basis (which involved fewer officers) and then applied the then current season’s charging rate per officer to arrive at an overall figure. From time to time thereafter, into the following season, it paid sums based on that calculation.

The 2003-04 season came to an end without any resolution of the dispute. The police provided policing in accordance with what it thought fit, and invoiced the club in accordance with what Mr Mason said would happen before the season started. This did not amount to invoicing the club with all the policing charges incurred in relation to a match. Other police resources were used from time to time and not charged for. This included other officers in the town and around, people like custody officers in the ground, and horses and dogs. The overall additional police costs of a football match being played at Wigan was often significantly in excess of the moneys which the police sought to charge, particularly for the big matches.

On 29^th June 2005 a meeting took place between Mr Mason (and PC Broad) and Mrs Spencer (and others) to discuss the forthcoming season’s fixtures. As before, they discussed and agreed match categories for the various fixtures. Mr Mason produced a table showing his proposed provisional match categorisation, and setting out the staffing levels for each match at the same levels as those he proposed for the previous season. It also contained a typed warning at the bottom that the categorisation might be revisited later in the season. There was no material dispute about this categorisation. Mr Mason made clear his position on resources and staffing, which was the same as the previous season, and Mrs Spencer made clear the club’s, which again was the same as before – the club would continue to pay on the basis of 2002-03 resourcing levels per category but updated by applying the current season’s hourly rates. She made it clear that she would not pay for any policing levels above that.

After the meeting Mr Mason sent a letter to Mrs Spencer enclosing the match categories “and approximate costings” as discussed. The match categories were contained in a table in now familiar form. The costings were in a typed document which indicated what the estimated charges would be for the various categories of match, applying staffing levels in the manner which the police sought to apply in the preceding season.

Some time later Mrs Spencer was asked to sign a statement of intent and an order similar to previous documents. She signed on 27^th October; Mr Mason had signed on 3^rd October. The statement of intent was essentially in the same form as that identified above in respect of previous seasons. The order was similar to the order signed for the 2002-03 season but with some manuscript additions and the layout and numbering was slightly different. Paragraph 4 was the equivalent of paragraph 3 of the previous order, and Mrs Spencer amended it. In typescript it read:

“4.

For each sergeant or constable provided on a rest day or public holiday rate it will require a minimum of five hours of police time. Such time, as required by Police Regulations 2003, is to include: [etc]”

By the side of the paragraph Mrs Spencer put an asterisk, with a reference to a manuscript amendment at the foot of the page which read:

“*Agree to pay maximum of 6 hours charge.”

The form ended by stating:

“ I hereby request the Chief Constable to supply the special Police Services to the club at the dates and times set out in Schedule 3 hereto and in accordance with the provisions of this form of acknowledgement and request.”

Underneath her signature she has added (and signed again) the following:

“Dispute at present over the number of officers deployed per match category. Therefore amounts invoiced not being paid in FULL.”

Schedules 1 and 2 were the equivalent of earlier schedules. Schedule 3 has the subtitle:

“List of known events for which Special Police Services are requested”.

Below that is a table with the columns “Date”, “Opponents” and “Category”, but this time they are not typed in. The boxes are completed by Mrs Spencer in her own handwriting, starting with the next match (Plymouth Argyle). There is no reference to staffing levels below that; nor is there a reference to how a categorisation is to be policed or changed. The categories reflect those agreed at or as a result of the July meeting. Mrs Spencer told me that she signed the statement of intent and the order because she was coming under some pressure from the Football League to sign the former. Her witness statement said that she completed a blank schedule 3 (without staffing levels on it) to ensure that it did not refer to the disputed staffing levels, and though she did not repeat that when asked about it in cross-examination, I consider it likely that that was her reasoning. Otherwise there was no good reason why she should not have signed a form with the whole of the season’s matches in. She was reinforcing that which Mr Mason already knew, which was that she did not accept the staffing levels as being something that the club should pay for.

GMP continued its practice of invoicing at its claimed levels, charging 6 hours for each officer said to be involved, and the club continued its practice of paying in a manner calculated by reference to old policing levels and new rates. It also started to add charges. During the later part of the season it started to add a charge for inspectors, and for a couple of matches it added charges for dogs and horses.

The club was achieving more success on the field than it was in resolving its policing issues, and at the end of the season the club achieved promotion to the Premiership.

However, GMP was getting restive about its arrears. In January 2005 it threatened proceedings. Other correspondence took place. The non-payment was raised at a meeting of SOSGAG on 8^th March 2005. SOSGAG (“Sports Grounds Advisory Group”) is a local committee whose objective is to further spectator safety at sports grounds. At this meeting the police representative stated that policing would be withdrawn if the outstanding invoices were not paid. If that had happened the stadium’s safety certificate would have been withdrawn, which would have prevented the club from playing its home matches there. In the end the club agreed to pay the invoices for the last 4 matches of the season in full, without prejudice to its claim that those sums were not due, and it duly did so.

The other arrears remained unpaid. These proceedings were commenced in July 2005. Shortly thereafter, under pressure from the Premier League, which feared loss of reputation for its clubs if policing was withheld and home games could not take place, the club paid those arrears under protest. Nothing turns on that payment for the purposes of these proceedings. By agreement between the parties, these proceedings have continued on the footing that the police entitlement is still in dispute. If and insofar as it transpires that the police were not entitled to any part of those moneys, it is accepted that they should be repaid.

The two intervening seasons have been covered by a separate agreement between the parties. No issue arises in these proceedings as to those seasons, though Mr Lewis did suggest, somewhat darkly, that those arrangements might fall to be revisited in the light of my decision in this action. He did, however, make it clear that if it turned out that the club had, on a proper application of the law, overpaid in terms of the sums voluntarily paid (those calculated on the basis of previous policing levels), which he said might be the case on one view of the law and facts, the club would not seek repayment of that surplus.

Before turning to the law that applies in this case it will be useful to set out the sort of issues that arise in this case so that the law can be viewed with that framework in mind. What follows is not a detailed exposition of all the issues that are in play in this action; it is a general summary of the main issues. I shall deal with detailed points later, and in the course of so doing I will also have to return to the facts in more detail.

It will be apparent from my findings of fact thus far that there was no obvious complete agreement between GMP and the club as to what was to be provided, or at least explicitly requested, by way of SPS and what the price was to be. The club says that it neither requested nor agreed the level of SPS that the police now seeks to charge it for. That gives rise to the following general issues:

The ability of individual to engage the police to provide services, and for the police to engage with individuals, has its roots in the common law. It was held in Glasbrook Bros Ltd v Glamorgan County Council [1925] AC 270 that the police were entitled to charge for special billeting of policemen at a colliery during a strike. The House of Lords considered that it was lawful for the police to seek to charge for services which their public obligations would not otherwise oblige them to provide. Viscount Cave adopted statements in previous cases about the obligation of the police to provide protection from violence, but added:

“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 … "lend" the services of constables for that purpose in consideration of payment. Instances are the lending of constables on the occasions 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.” (page 278 per Viscount Cave LC)

Their Lordships were careful not to detract from the public duties of the police and to make it plain that the police were only entitled to charge for services which were outside that duty. Thus Viscount Cave LC said (at page 281):

“If in the judgment of the police authorities, formed reasonably and in good faith, the garrison was necessary for the protection of life and property, then they were not entitled to make a charge for it, for that would be to exact a payment for the performance of a duty which they clearly owed to the appellants and their servants; but if they thought the garrison a superfluity and 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 special duty and to charge for it."

On the facts of the case, the majority held that the garrisoning of police was indeed more than the normal duties of the police required. The chief constable had formed the view that he could provide proper protection by mobile units responding as necessary, and the majority held that this view could not be impeached. The minority held that that view was wrong, and the garrisoning was necessary in order to give the colliery owners the protection to which they were entitled, so it could not be charged for. The exercise involved was described by Lord Carson (one of the minority) at page 292:

“ My Lords, it is necessary therefore to examine carefully the facts of the present case and to ascertain whether, under the circumstances, the steps taken to protect the safety men and thus avoid the drowning of the colliery, for which the appellants are asked to pay, were outside the proper and necessary duties of the police which the appellants were entitled to have performed under the law to which I have just referred.

That was a case in which the colliery owners had clearly asked for the services, and then sought to avoid payment. There was therefore no difficulty in defining what it was that the police were asked to, and agreed to, provide.

In 1964 the right of the police to charge became statutory, by virtue of the section 15 of the Police Act of that year. In West Yorkshire Police Authority v Reading Festival Ltd [2006] 1 WLR 2005 Scott Baker LJ held that the section:

“ … is an enabling section. That is, it enables the police to do that which the common law already said they could do. For my part, I do not think section 15 (1) added anything to or altered the common law position except possibly to clarify that the police authority has the last word on the scale of charges."

Section 25 of the 1996 Act merely re-enacts the earlier provision.

These statutory provisions have been considered in more modern cases. They were considered in the context of charges for football matches in Harris v Sheffield United Football Club Ltd [1988] QB 77. In that case a football club made arrangements with the police for attendance of police officers at matches, but then formed the view that the police were obliged to attend pursuant to their public duties and ceased paying. It also stopped making requests for policing, save for some made “without prejudice”. The club maintained that the police attended inside the ground pursuant to their normal duties and denied having made a “request” within section 15(1).

The Court of Appeal held that the police had provided SPS. Neill LJ did not make any attempt to define what SPS was, but pointed to certain relevant factors at page 91E-92C. Those factors were:

“(1)

Are the police officers required to attend on private premises or in a public place? … 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? …

(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 … 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 the 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 enquire whether the event or occasion forms part of a series of 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 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?”

Those were remarks going to the question of whether the services provided were capable of being sufficiently outside the normal scope of the duties of the police as to amount to special police services. They were not exhaustive criteria. It should be noted, for example, that Viscount Cave’s formulation in Glasbrook anticipated SPS being provided outside private premises – contrast Neill LJ’s first indicium.

Neill LJ then turned to the question of applying those criteria to the case. In that context he held:

“ 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 and during about eight months of the year. The holding of 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 authority 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.

There is clear evidence that the chief constable would be unable to provide the necessary amount of protection for Bramall Lane and also to discharge his other responsibilities without making extensive use of officers who would otherwise have been off duty …

In my judgment, looking at all these factors I am driven to the conclusion that the provision of police officers to attend regularly at Bramall Lane throughout the football season does constitute the provision of special police services. Nor in my opinion is it to the point that the club has stated that they do not expect the police to carry out any duties other than to maintain law and order. The resources of the police are finite. In my view if the club wishes on a regular basis to make an exceptional claim on these services to deal with potential violence on its premises, then however well intentioned and public spirited it may be in assembling the crowd at Bramall Lane, the services which it receives are "special police services" within the meaning of section 15(1) of the Police Act 1964.”

That dealt with a submission that the services could not be SPS because the police had an obligation to prevent and deal with violence. It seems to me that the following relevant points can be extracted from that decision:

Having dealt with that question, Neill LJ then dealt with the question of whether there had been a “request” –that is the word used in the relevant section of the legislation. He inferred a request from the fact that the club had to have policemen inside the ground to meet its responsibilities:

“ It was very strongly argued on behalf of the club that after 26 October 1983 the club made no relevant request for such services other than requests made on a without prejudice basis. In my view this part of the club's argument, unlike the argument on the meaning of "special police services," lacks any real substance. If the club is to hold matches at Bramall Lane it is necessary for police officers to attend inside the ground. Their presence is necessary to enable the club to meet its responsibilities to the players, the staff and the spectators as well as to comply with the rules imposed by the football authorities. It is not necessary to examine what steps could be taken, and by whom, to stop a match taking place if the club authorities declined to allow the police to attend. But there is no likelihood that the club authorities, who have acted with a great sense of responsibility throughout, would take such a course. It may be that the request for the police services can only be implied from all the circumstances and that it is made without enthusiasm. But if the police attend in order to enable the match to take place then, in the circumstances existing in this case, I consider that a request is to be implied." (page 93)

It seems to me that in reaching this conclusion Neill LJ might be thought to be adopting a slightly forced notion of a request. It seems that on the facts the club really avoided making a request, and so far as it made on it heavily qualified it by a “without prejudice” notion. However, Neill LJ was prepared to infer that a request was to be taken to be implied because the club needed the police, the police were not obliged to attend, and the police attended. This is in line with remarks of Viscount Cave LC in Glasbrook:

“ I have come to the conclusion that when a colliery company or an individual requisitions police protection of a special character for a particular purpose, he must pay for it, and he must pay for it whether he makes a contract to pay or whether he does not - a promise to pay would be implied in those circumstances."

I was invited to make a similar implication in the present case, insofar as may be necessary.

The next leading case in which SPS was considered was the Reading Festival case referred to above. The case concerned a music festival (rather confusingly held in Yorkshire, not Reading). The organisers said that they would pay for police if posted on-site, but not if deployed off-site save for some traffic management officers for whom they were prepared to pay in any event. The police did not choose to deploy any officers on the site, but increased policing in the surrounding area, to police those areas and to be available for any major incidents on or off the site. The police claimed the entire costs of its operation. The Court of Appeal rejected that claim. In the course of his leading judgment Scott Baker LJ again dealt with the qualities of services that qualified as SPS, and with the extent of the consensual element implicit in the notion of the request. He was prepared to accept the same notion of implied consent that had been applied in the previous cases, but held that no such inference (or implication) could be drawn in the case before him (para 48). He also held that the services in the case were not special police services. Although the case depended heavily on the facts, it is very helpful in deciding the issues which I have to decide in this case.

So far as the request was concerned, Scott Baker LJ arrived at his conclusion after a very careful analysis of the primary facts. He noted that at a particular meeting the festival organiser stated clearly that it would pay an identified sum for special police services of traffic officers, but not for other officers deployed elsewhere. The organiser would have reconsidered a further payment if the police were prepared to deploy officers on site (which they were not) (paragraph 43). At paragraph 50 Scott Baker LJ said:

“50.

Whilst I entirely accept that it is a matter for the police how the policing is conducted and the promoter cannot dictate to the police how they are to perform their public duty, that does not in my view put the promoter in an all or nothing situation as far as "special police services" are concerned. He can, for example, say that there is a ceiling to his budget to which the police would be entitled to respond that they were not prepared to provide any "special police services". He can say what he wants and is prepared to pay for, and what he does not want. Each side has a right of veto. In my judgement, although it does not expressly say so, it is very difficult to see how section 25(1) can operate absent a contract. There has to be a request accepted by the chief officer of police. This could of course be achieved by the police saying we want to do this and the promoter agreeing. The claim is pleaded as an implied contract.”

At paragraph 52 Scott Baker LJ referred to the findings of the trial judge about a meeting that took place at the beginning of the discussions between the parties. He had found that at that meeting there was "no meeting of minds". Despite that, the trial judge had held that the desire of the festival organisers to have a police presence on site meant that they had made a request for SPS. Scott Baker LJ held that in this respect the judge fell into error.

“55.

… Assuming for present purposes that Mean Fiddler [the festival organisers] wanted the police operation to include officers patrolling the site and assuming that which went as far as amounting to a request for "special police services", what the police in fact provided was something entirely different, namely a large contingent off site that could be called up if Mean Fiddler's on-site arrangements proved inadequate. There was nothing to suggest the police were required in surrounding villages in order for Mean Fiddler to stage the festival. Looked at another way, the request under section 25(1) cannot be divorced from the special services for which a charge is to be made. In my view the judge's finding that there was no meeting of minds is fatal to the claim. It is not as if there was a request by Mean Fiddler to the police to police its festival leaving the police to do it in whatever manner they wished. The judge was not entitled on the fact that he found to spell out a request by Mean Fiddler for "special police services" under section 25. Once he had concluded a claim based on contract could not succeed the police claim was bound to fail.

“56.

Had there been an agreement about what special services the police were to provide, all operational decisions under the umbrella of the agreement would have been a matter for the police. But it was for Mean Fiddler to decide, albeit after negotiation, what "special police services" they wanted even though it was for the police to decide how they would provide them. If the judge's approach is correct then the result is that a promoter who put on a festival or indeed an organiser who put on a sporting event had effectively no choice but to pay the police for whatever operation they choose to mount."

It may be important to note how far Scott Baker LJ goes with the question of a meeting of minds, because an absence of such a meeting figures very largely in the arguments of the club in the present case. In Reading Festival the facts were that the organisers had asked for one thing, and the police had provided another. Assuming the organisers had asked for police on site, the police had provided police off site. (Of course, they had also asked for traffic police (and got them), but there was no issue as to that.) So in contractual terms there was a complete non-meeting of minds, and that was fatal. But the extent of the fatal conditions should be noted. It seems from the sentence beginning “It is not as if ..” in paragraph 55 that Scott Baker LJ would have come to a different conclusion if there were something amounting to a generalised request for SPS. He also thought it was relevant that there was nothing to suggest that police were required in surrounding villages in order for the festival to be staged. That presumably is a reference to the factors relied on by Neill LJ in the passage from page 93 of Harris cited above – the fact that an event cannot take place without the attendance of police is relevant to the implication of a request.

Scott Baker LJ then goes on to consider whether “special police services” were provided, on the assumption that a request was made. The underlying question was whether on the facts of the case the services were in fact “special”, or whether they were within the normal duties of the police. In that case the police had had to deploy a lot of extra (and expensive) manpower because of the festival, but not on the festival site. It was in the surrounding area. In reaching his conclusion that this was not SPS he adverted to where the services were provided:

“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 judgement, was their predominant purpose in this case albeit this was occasioned by the existence of the festival.

…

65.

In my judgement it is not apposite to consider the request and "special police services" as completely separate entities when considering the application of this 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 considered 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 Mean Fiddler 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 events 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 expensive policing the consequences of an event which they cannot recover because there is no agreement with the promoter.” (the emphasis is Scott Baker LJ’s)

Then the Lord Justice deals with the factors mentioned in Harris and acknowledged the significance of the place where the service was provided.

“68.

… 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.

…

71.

I agree with Mr Engelhart'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 where 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".

He then concluded (in paragraph 73) that the police did not provide SPS in that case.

The following points, relevant to the case before me, emerge from those citations on SPS:

With that background of principle, it is now necessary to apply it to the facts of this case. The main points that arise can be summarised by setting out the main points made by the club:

There are other points of detail that arise, or may arise, once those questions are answered, but it is convenient to decide those major points first. In phrasing them in that way I do not mean to suggest that the club necessarily has the burden of proof in this case. In fact, I do not consider that these points really depend on burden. Once the primary facts are established they depend on the proper secondary factual and legal inferences to be drawn from them.

I also bear in mind that dividing the issues up in that way presents its own difficulties. Whether a given service is SPS, at least in geographical terms, may depend on the terms of the request or agreement. There are other links between those two questions. However, it is nonetheless useful to break the matter down in that way. At first blush it might be thought to be useful to consider the terms of the request first , but I consider that it would be useful to consider the extent of the suggested geographical and qualitative limitations first, so that the analyses of the parties can be put in that context.

GMP did not claim to be able to recover the cost of providing policing on public land such as public highways and the town centre. It also did not seem to recover costs of policing the retail park (a sign on a lamp post indicated that the council is the owner or occupier of the adjacent retail park car park.) There was therefore no material issue as to that save insofar as technically the canal bridge at point 5 was part of a public right of way. The club’s initial stance in this litigation was that services provided outside the stadium could not be SPS, because SPS was limited to services provided on private property and only the stadium itself was private property for these purposes. During the course of the hearing that position was modified in that Mr Lewis accepted that if services were actually requested in relation to the immediate surroundings then that could and would become SPS in the context of this case. The immediate surroundings for his purposes were the concrete aprons surrounding the stadium on 4 sides, where fans would inevitably congregate and be focussed on their way into the stadium proper, and on to which they would be disgorged at the end of a match. There was evidence that on occasions police assistance had been requested to police a ticket queue, or to assist in pre-entry searches, or to help segregate fans, and matters such as that. Absent such a request, however, services provided outside the stadium could not be SPS. Reliance was placed on the remarks in Harris and Reading Festival about the importance of private vs public land, and on the notion that outside the stadium the police were fulfilling their public duty rather than providing special services to the club. It was part of the club’s case that notwithstanding the fact that technically the land in question was private land (in that it belonged to the Stadium company) it nonetheless was land to which the public had access as a matter of fact (they were not excluded and there were no means of excluding them) and which was crossed by two footpaths, one of which passed close to the stadium and over part of the apron at the south end.

In order to consider this point properly the real legal and practical status of this land, and of the fans on it, must be established.

Accordingly, while it might be true as a matter of fact to say that the public had free access to the land on foot, in real terms the club had control of the leased area so that it could be controlled as part of the exercise of controlling match day crowds; and particularly so in the case of the immediately surrounding area. It does not fall to be treated as part of the highway, or public land, either in law or in fact.

That means that so far as a prima facie case arises against there being SPS where the policed land is public land, that does not arise in the present case. I think that the correct view is to regard it as part of the private land. The police are not admitted to it in the same way as they are to the stadium, but they are not policing public land when they carry out their activities on it. I also find that those facts mean that the land falls to be treated as land in the “vicinity” of the stadium pursuant to the Statement of Intent, and it also falls to be treated in land which is owned or occupied by the club for the purposes of Schedule 1 to the orders for SPS referred to above, so far as those facts are relevant to the disputed seasons.

It was urged on me that it would anomalous to take into account the private status of the land in this case when a great many other stadia are surrounded by public land in respect of which the police cannot take that point. I do not consider that there is an anomaly. The entitlements of the parties in this case depend on the facts of this case, not on the facts of other commercial situations, and in any event it cannot be unfair to give proper effect (whatever that may be) to the true land status in this case when the club has the benefit of that status.

Of course, that conclusion does not determine the issues that arise in this case. It is merely part of the jigsaw of considerations. The next piece of the jigsaw is the nature of the services provided by the police. The club maintains that in policing the surrounding land leased by the Stadium Company the police were carrying out duties which were owed to the public generally, and so not capable of being SPS. This submission is based partly on the fact that they were carried on outside the stadium proper, but partly on the nature of the activities themselves. It is that latter point that I now address.

The activities of the police outside the ground have been described above. Precisely what is required at any point of time at any match varies from match to match and depends on all the circumstances. Whether, on any given occasion, the activity in point is within GMP’s general duty will depend on the act in question. If it is actually intervening to stop violent conduct, plainly it will. But I consider that a large part of it, for a large part of the time, is not clearly within that general duty. This is not a point to which the Chief Constable or Mr Mason actually addressed their minds. They considered that the police presence they provided was a necessary part of the overall operation, but it does not necessarily follow that it was the duty of the police to provide the services in that particular way. Thus, for example, it does not seem to me that the general duty of the police to preserve order required that they have officers available to form a cordon to segregate away fans at the end of the match, or to reinforce stewards guarding the segregation gate at the rear of the East Stand. I think that the case of the club implicitly recognises that, because it acknowledges that if the intervention of the police was specifically requested in these activities, or, to give another example, in searching, then that was SPS for which the club should pay. If the activities were normally within the duties of the police then they would not have to be paid for. I think that the club is right to acknowledge that they should. Mr Lewis sought to characterise those services as being “emanations” of the services provided in the stadium, and thus to bring them within the concept of SPS provided on private land which the landowner could be required to pay for. I do not think that that characterisation is accurate or helpful. The activities are what they are, carried out where they are. It is wrong to characterise the situation as one where the in-stadium activities are the principal ones to which others are tacked on. They are each part of a greater whole.

The activities of the police on the leased land have a mixed purpose. They are in part preventative – their mere presence promotes calm and provides a disincentive to disorder (as in the stadium itself). They are in part precautionary – they are there in case their presence is needed for one of the functions referred to above or some other function (including dealing with violence). They are in part for an active purpose such as shepherding, or crime prevention in the car parks. Not all of that would be services which the police would have to provide as part of their general duty, though some might be. Even the crime prevention in the car parks might accurately be said to be beyond what strict public duty requires, because while the prevention of crime is certainly within police functions, one cannot say that the police had a duty to patrol the car parks in question, at the times in question, in order to prevent car crime there. I am satisfied that their normal public duty would not have required the policing of the leased area at the level at which it was in fact policed on various match occasions.

By the same token, and applying one of the tests suggested by Scott Baker LJ in Reading Festival, I am satisfied that if the police had not provided the outside officers then the club would have had to have provided the services itself. Thus it would have had to have provided extra stewards to provide or reinforce cordons; it would have had to have provided extra stewards for marshalling fans; it would have had to have provided extra stewards on occasions to reinforce searching; and so on. It could have done that, and since the land was private land it would have greater effective powers for doing so than if it were public. That is not to say that stewards would have been as effective as the police, but that is not the point. The mere fact that stewards could not corral and segregate as well as the police does not mean that the police are obliged to provide the corralling and segregation services. If the police did not provide the services the club would have to do what it could with the stewards.

The situation thus differs from that in Reading Festival. There is another key difference (related to the points made above). At paragraph 63 Scott Baker LJ observed that operations conducted on the highway or in the surrounding area would not usually be conducted for the benefit of the festival.

“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 that this was occasioned by the existence of the festival.”

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 GMP’s normal duty to a citizen.

That, of course, does not determine the case either. The ability of the police to claim under section 25 is not based on providing certain policing. It is based on a relationship which is consequential upon a “request” by a citizen for policing, according to the wording of the statute. Accordingly it is necessary to consider whether there was such a request in this case.

In the present case the issue surrounding the notion of a request arises out of where the parties had got to in their dealings about the two disputed seasons. It is plain that there was no express concluded detailed agreement. The club wanted SPS, and GMP was willing to provide it, but beyond that there were disagreements. Mr Mason had said what level of paid-for manpower he was prepared to provide. The club expressly refused to accept that and said it would not pay for all those officers. In due course, at least by its conduct, it agreed to pay at a reduced staffing rate. That difference of view was never expressly resolved.

Based on that, the club points to the references in Reading Festival to the need for a request and a meeting of minds, and says that there was no request to provide anything beyond the levels of policing in previous seasons. It says that on the facts it is impossible to find any request going beyond that, and it would be wrong to imply a request in the face of an express refusal to make one, and the making of a clearly more limited one. One cannot imply against that which is express. If the police supplied any more than that, then they have not done so pursuant to a request; a fortiori they cannot have done so pursuant to any agreement. Accordingly, one of the key ingredients of section 25 (the request) is missing from GMP’s case. By the time of final speeches the club’s case on the arrangement was that a contract was necessary to be able to claim SPS, no new contract was entered into for each of the disputed seasons, but SPS was provided which the club was prepared to pay for. Mr Lewis said that there was an arrangement for the previous seasons, and in the absence of a successful variation that prior contract continued into the first, and then the second, disputed season – in other words, there was a continuing contract.

I have no hesitation in rejecting the latter part of Mr Lewis’s analysis, based on a continuing contract. It is plain from the previous course of dealings that the club and GMP dealt with matters on a season by season basis. No-one expected the arrangements they were making to carry on beyond the end of the then current season. A new negotiation was expected each season. Schedule 3 of the Orders and Acknowledgments, which sets out the match categorisations, was headed “List of known events for which Special Police Services are requested”, and it covered only the known matches for the season. There is no material which supports an inference of a continuing arrangement subject to seasonal variations. In fact, there was not even a contract in the sense suggested by Mr Lewis’s submissions. The police did not bind themselves to provide SPS at all. The arrangements were in essence a framework pursuant to which the police were requested to provide SPS, and they were requested on a match by match basis (though of course it was anticipated that in fact they would cover the entire season). The framework did not purport to go beyond the end of each then current season, for the same reasons as I have just given in relation to the alleged contract. This limb of Mr Lewis’s analysis therefore fails.

However, it does not follow from that that GMP succeeds. Mr Lewis still has his first point – the absence of a request or agreement. For a claim under the statute to succeed GMP has to bring itself within one of those concepts.

At one level the club’s answer looks correct. It made clear its position; how could it be thought that it had requested any officers beyond the numbers deployed in the relevant categories in the 2002-03 when it made it so plain that it was not prepared to pay for them? It is ostensibly even clearer that there was no contract, in the face of that opposition. However, I do not consider that that conclusion would give the right effect to all the facts.

Although Reading Festival sought to emphasise the need for a request and something in the nature of a contract, if not a contract itself, it did not disapprove the result in Harris. While the facts of Harris are not entirely plain, it appears from the report that there was probably a meeting on 26^th October 1983 which has its counterpart in the dealings in the present case. In that case, too, there was a history of agreed policing. However, on that date there was apparently something that the club relied on as marking a watershed. It very much looks as though on that date the club in the case indicated that it would no longer pay for policing as it had before – see the references at p 81B, 82D, 83C, 83F, 86C and 93B. It seems reasonable to infer that something like that had happened, though its precise nature is unclear. Apparently there was only a request on a “without prejudice” basis. Despite that, the Court of Appeal was prepared to find an implied request (not relying on the “without prejudice” request) – indeed it regarded the contrary argument as being “without substance”. The implication arose from the facts that the presence of police was necessary inside the ground in order for matches to be staged, and that that was necessary because of the club’s responsibilities to players, staff and spectators, and because of football authority rules.

That was, of course a case on its own facts, and to that extent the implication cannot be automatically applied in other cases. But it does point to a similar answer in the present case. Against the implication is the clear position of the club that it was not prepared to pay for more officers than in previous seasons. That is reinforced by the apparent absence of a meeting of minds, referred to in Reading Festival. On the other hand, there are strong pointers the other way, some of which are analogous to or the equivalent of the facts in Harris. They are the following:

In those circumstances, can a request be implied? Subject to the effect of the express attitude of the club, I consider that it plainly can, and should be. But the real question is whether the club’s express attitude makes a difference. It does look prima facie as though it is an express negation of any request, because it was a clear indication of a refusal to pay. However, I do not think that that is the correct view. The club needed the police to be able to stage its matches, and to stage them correctly and safely. Under the general law the deployment of the police was a matter for the police themselves, and the obligation under the certificate was to engage police sufficient to satisfy the Chief Constable. The orders and acknowledgments in the preceding year, and in the disputed season for which such documents were generated (2004-05) reflected that deployment was a matter for the police. The club’s witnesses sensibly accepted as much. Nor did they, in reality, complain about police deployment in the disputed seasons. The real dispute was as to how much the club should pay for. There was a genuine dispute as to that, but no dispute as to whether policing should be provided or at what level.

I think that the real point in issue was encapsulated by evidence given by Mr Whelan. On Day 3 of the trial he was asked about his views of fairness in relation to what the police were seeking at the beginning of the first disputed season:

“Q. You thought it was particularly unfair because the stadium company was paying £750,000 in rates?

A – I brought up to Mr Mason the fact that the stadium alone were contributing a lot of money to the Local Authority, of which a certain amount goes into policing. But I say now, and I said then, we do agree with special police charges that are fair, and fairly levied; we agreed with that then and we agree with it now.

Q. You are prepared to pay, for the seasons in question, a fair policing charge, are you?

A – Yes.”

Perhaps the most significant point is that it is plain that the club made some request, express or implied, for SPS. It plainly wanted and needed it at least inside the stadium, although that was not the nature of its request. The real question is whether its request should be taken as being wider than that – a request for such services as the police considered necessary to police the event properly, and as could properly be treated as SPS. I think that the evidence as a whole shows the latter request to have been implicitly made. The objection to paying for the extra police was rooted not in a view that they were not needed, but in the view that they should not be paid for because the club should not have to pay for them. That translates into their being something that they were not obliged (in any sense) to pay for. But the club still wanted to stage its matches, still wanted SPS, and was still prepared to pay what was fair, and they said so, in effect. Subject to one particular point about fairness, involving a comparison with other clubs, and which I deal below, it is fair that the club should pay for that which the police were entitled, and wished, to charge, so I find that there was an implied request for that SPS.

There is nothing inconsistent with Reading Festival in this conclusion. In that case the festival operators had asked for some specific SPS (traffic control), and were prepared to pay for police on the site. They were not prepared to pay for police outside the site, and there was no agreement that they would. On the facts the police outside the site were held to be carrying out normal public policing duty, and their presence was not necessary in order for the festival to take place. Accordingly no inference of a request could be made. This is made clear by paragraph 48 of Scott Baker LJ’s judgment:

“48.

In my judgment the facts on which the inference of a request was drawn in the Harris case were totally different from those in the present case. The club’s case in Harris was that it had to have the police inside the ground for the matches to take place. That was not so at Bramham Park.”

Contrast the present case on the basis of my findings. If the police properly thought that a given level of policing was necessary for the stadium, then in practical terms the club was going to have to accept them if it wanted to stage its matches. If the police thought that their presence on the surrounding land was necessary for safe policing of fixtures, then the club was required to have them under the terms of its certificate. Although he did not push the point, Mr Mason could have refused to supply partial policing for the stadium alone, so in practical terms as well as certification terms the club had to have the policing outside the stadium. That allows the necessary inference, and I make it, both in relation to levels of policing and policing in the area surrounding the stadium proper.

I make additional remarks about the purpose of the request in the section on the basis of the claim, below. They help to elaborate on that conclusion.

It will now be convenient to get the issue of fairness out of the way. The club’s opening in this case placed great reliance on an obligation of the police to act fairly in requiring charges for SPS. The averment of such an obligation was supported by arguments based on public law duties, unfair competition under the Competition Act 1998 and the restraint of trade doctrine. In the end it was unnecessary to investigate the existence, nature and source of any such principle. Mr Berragan, who appeared for GMP, unsurprisingly did not dispute that there was a constraint of fairness. By the end of the case only one manifestation of unfairness was relied on by Mr Lewis. He said the police charges in this case were unfair because they were apparently very much more than were charged to other significant clubs; and insofar as the ability of the police to label activities as SPS (and therefore to charge for them) depended on the fact that the stadium was, unlike that of may other clubs, surrounded by private land and not the highway, then that too was unfair.

I do not consider that there is anything in these points in the context of this case. Assuming for present purposes that an unfairness case could be mounted on the basis of what are said to be comparable transactions with other clubs (which I very much doubt) it could only be properly investigated and ruled on the basis of clear evidence as to what occurred in those other clubs in terms of policing, dealings between the parties and all other relevant facts. That would require a considerable body of evidence, and nothing like that evidence was adduced before me. The evidence was little more than evidence of what the charges were said to be for a few other clubs, with a little evidence about the extent of public highways surrounding their stadia, but nothing more than that. It was wholly insufficient to allow an examination and comparison of the circumstances to see if there were factors which made Wigan’s charges unfair in some way. In the circumstances it is not necessary to consider this point further. Any fairness constraint is not determinative of anything in this action.

The debate now moves to the basis on which the police are actually entitled to claim. Some legal basis for the claim must be established. Mr Lewis laid heavy stress on the references to the need for a contract which he said arose from Reading Festival, and the need for a meeting of minds which he said also arose out of that case. Both, he said, were missing in this case. This point, if good, goes to the entitlement to charge, and also goes to the method of charging if there is an entitlement.

In considering this it is necessary to revert to exactly what it was that Scott Baker LJ said in that case. At paragraph 21 he reflected on the key features of section 25(1):

“ In my judgment the key features of section 25(1) on a natural reading of the words are: (1) there must be a request for special police services; (2) the police authority, in the absence of agreement, is entitled to fix the scale of charges. This section does not speak of a contract as such but it seems to me there would ordinarily need to be agreement between the promoter and the police as to what was being provided -- at least in broad terms -- before a liability to pay arises. I say "in broad terms" because how the police provides the service is requested must ultimately always be a matter for them; they make the operational decisions. We were not refer to any reported case in which a claim has succeeded under this section that has not been based on contract." (The italics are the Lord Justice’s; the emphasis by underlining in mine.)

It does not seem to me that he is saying that there must be a contract before there is recovery by the police. He refers to the ordinary case in which broad agreement is required, but does not go further.

He returned to this sort of point at paragraph 55, under the heading “Was there a request”.

“ In my view the judge's finding that there was no meeting of minds is fatal to the claim. It is not as if there was a request by Mean Fiddler to police its festival leaving the police to do it in whatever manner they wished. The judge was not entitled on the facts that he found to spell out a request by Mean Fiddler for "special police services" under section 25. Once he had concluded a claim based on contract could not succeed the police claim was bound to fail."

In its context that again is not a finding that a contract has to be established before the police can recover. At this point in his judgment Scott Baker LJ was considering the question of a request. On the facts of the case the non-meeting of minds meant that there could be no request. His point does not go further than that.

I therefore reject the submission that that case determines that there has to be a contract before there can be recovery. In my view Scott Baker’s judgment is entirely consistent with the law which necessarily underlies the section. He had held that the statute merely enacted the common law position. The common law position was that the police were entitled to charge for special police services (though that was not the common law description of them). That had been established in Glasbrook. That case did not deal with the legal basis of the charge; it dealt with the entitlement to charge (or more accurately it dealt with a potential bar on charging) in the light of the public functions of the police. Its principal legal point was that the police were not debarred from charging, and therefore, if the facts were right, they were entitled to make a charge. It did not create a separate legal head of charge. One can see from the facts that the police put their case in contract, which is understandable enough. That is the most likely way in which the claim would be put, but, like any other citizen, if the police authorities can find another legal head for their claim then, at common law, it can do so, subject to the public duty points arising out of Glasbrook.

Nothing in section 25 affects that, so far as I can see. The section does not create a head of claim, and where the police have a claim then they will establish it under the general law, using the permissive provisions of section 25 to allow them to do so. Under that section, as in the law applicable at the time of Glasbrook, the claim will be couched in one of the familiar bases of claim allowed by English law. Again, that is most likely to be in contract, because it is most likely to arise out of an agreement, and things based on agreement usually sound in contract. However, that is not necessarily going to be the case, and it seems to me that the other head of claim which might be open to a claimant in this situation, namely restitution, might, in an appropriate case, be open to the police as well. I certainly do not see section 25 as barring such a claim, contrary to the submission of Mr Lewis.

This analysis, which treats section 25 as being permissive, or enabling, also helps to put the concept of request into its proper place. It is not the foundation of the cause of action. The cause of action is something else. But the request does appear to be a pre-condition, and the Court of Appeal authorities emphasise its importance. Without it, there can be no claim. But what is its function if there is a separate cause of action on which the police sue in any event? I think that its importance lies not because, of itself, it is part of the cause of action. It is important because it is what distinguishes an officious intervention, or an intervention which has not been sought, and for which the police cannot charge, from one where the police are providing services they would not normally have to provide but where a citizen expressly wishes to have those services for his own purposes and communicates that wish. A chief constable may, if someone effectively asks for it, provide services and charge for them. It is part of the permissive mechanism, not really part of the cause of action on which the police sue. It distinguishes the officious or gratuitous from something more consensual. That is why the Court of Appeal in Harris was able to infer a request on the facts of that case despite the fact that the club had deliberately refrained from anything which was a request in the normal sense of the word, and why a request can be inferred in this case. In neither case was the intervention of the police officious. In substance, both clubs (Sheffield United and Wigan) wanted police, needed police and accepted police. The police fulfilled that need. They are therefore able to claim once they have established an appropriate cause of action.

What is required, therefore, is the establishment of a legal head of claim. As I have said, there are two likely candidates – contract and restitution (very much in that order). The ingredients of both heads are likely, of themselves, to rule out recovery in the case of officious and uncalled-for intervention.

I turn therefore to the nature of the entitlement, if any, in the present case. In previous years the claim was obviously contractual. The parties agreed the categorisation procedure, and then agreed the category of each match. They agreed the policing of each category and agreed the number of police for which charges would be made. The police specified the rate of charge for the various officers to be charged for, and a liability thus arose.

In the two disputed years there was agreement as to the charging rate and the categorisation of each match, but no express agreement as to any of the other ingredients. In particular there was no agreement to pay a calculated sum in the manner of previous agreements. There was, however, an implied request to provide SPS, or an acceptance by the club that it should be provided, so as to allow matches to proceed. The police did that. That could be said to give rise to a contract to pay a reasonable price, or to a right to a quantum meruit claim in restitution. They are very similar claims, both reflecting the fact that the police provided services which both parties expected them to be paid for, the club received the benefit of those services and there is now a dispute about price. The principles are set out in Chitty on Contracts, 29^th Edition at paragraph 29-071:

“ Similarly, in a contract for work to be done, if no scale of remuneration is fixed, the law imposes an obligation to pay a reasonable sum (quantum meruit). The circumstances must clearly show that the work is not to be done gratuitously before the court will, in the absence of an express contract, infer that there was a valid contract with an implied term that a reasonable remuneration would be paid; this principle may extend to services performed in anticipation that negotiations will lead to the conclusion of a contract, provided that the services were requested or acquiesced in by the recipient. In this context, it has been said that quantum meruit is not truly restitutionary, since it is only "an incident in assessing the amount due under an ordinary contract where the amount is blank." It is, however, difficult to accept this in the case of services rendered in anticipation that a contract would be entered into later and, in such a case, a quantum meruit is not subject to contractual defences such as a claim for late delivery. It has been said is that these may be examples of "cases not founded on contract, nor in tort, nor upon the application of any equitable doctrine or principle, where there may be recovery." In British Steel Corp v. Cleveland Bridge & Engineering Co Ltd Robert Goff J. said that the obligation imposed in such cases sounded in restitution and not in contract.”

Although the present case is not quite on all fours with the paradigm cases referred to in that passage, I consider that the principles set out there still apply. Either the terms of the implied request were accepted, on a match by match basis, by the police, leading to the contractual analysis, or the police rendered services in the mutual expectation that they would be paid for, and those services were accepted by the club. True it is that the club had sought to say that it would not pay for the level of policing that the police was seeking payment for, but the bottom line was that it had to pay for the SPS that was necessary, and Mr Whelan accepted he had to pay for what was fair. He and the police had different notions of what fairness required in this case, and on my findings the police notion of fairness was closer to the legal truth than Mr Whelan’s.

The GMP advanced an alternative restitutionary claim. Relying on the principles and cases gathered together in Goff & Jones on Restitution, 7^th Edition, at paras 1-016 and 1-019 to 1-026, Mr Berragan said that his client was entitled to recover for the services provided on the footing that the club had received an incontrovertible benefit in freely accepting services from the GMP. It is said that the application of what Mr Berragan described as the principle of free acceptance was approved and applied by Lightman J in Rowe v Vale of White Horse [2003] 1 Lloyds Rep 418. In that case the local council sought to claim payment for sewerage services enjoyed by a householder. In the course of his judgment Lightman J dealt with the law shortly:

“10.

Where a supplier has supplied services to another and there is no contractual relationship in existence, the law may afford to the supplier restitutionary remedy. Lord Wright stated in Fibrosa Spolka Akcyina v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32 at 61:

‘ Any civilised remedy of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is to prevent a man from retaining the money of or some of the benefit derived from another which it is against conscience that he should keep.’

11.

It is now authoritatively established that there are four essential ingredients to a claim in restitution:

(i)

a benefit must have been gained by the defendant;

(ii)

the benefit must have been obtained at the claimant's expense;

(iii)

it must be legally unjust, that is to say there must exist a factor (referred to as an unjust fact) rendering it unjust, for the defendant to retain the benefit;

(iv)

there must be no defence available to extinguish or reduce the defendant's liability to make restitution.”

Having set out those requirements, Lightman J. cited paragraph 1-019 of Goff & Jones as follows:

“ … a defendant who is not contractually bound may have benefited from services rendered in circumstances in which the court holds him liable to pay for them. Such will be the case if he freely accepts the services. In our view he will be held to have benefited from the services rendered if he, as a reasonable man, should have known that the [claimant] who rendered the services expected to be paid for them and yet he did not take a reasonable opportunity open to him to reject the proffered services. Moreover in such a case he cannot deny that he has been unjustly enriched."

He found that the local authority had perpetuated a belief that the services would not have to be paid for, so the third requirement was not fulfilled.

I find this analysis helpful in the present case. If the contractual or quantum meruit arguments do not work, it helps to resolve the problems that otherwise might be said to arise from the apparent impasse between the club, who wanted SPS but had said they were not prepared to pay for what the police proposed, and GMP, who were willing to provide SPS but only on the basis of being paid more than the club expressed itself as willing to pay for. Neither party had had its position expressly accepted. The club has incontrovertibly received a benefit from the policing. As well has having the match properly policed on the ground, it was able to fulfil the requirements of the safety certificate and thus play its matches; thus the first requirement is fulfilled. The benefit was obtained at the expense of the police, who had to pay its officers (all relevant constables and sergeants would otherwise have been on rest days, so there was an additional definable payment burden, and otherwise the police were providing facilities and officers who could have been deployed elsewhere); the second requirement was fulfilled. The police could have withheld all policing in the absence of a clear agreement if they wanted to, but provided it so that the matches could go ahead; the police were entitled to treat officers outside the ground as providing SPS whether the club liked it or not; and the presence of the police, in their provided numbers, was necessary for the matches to be held; it would in my view be unjust if the club could retain the benefit of that without some payment; so the third requirement is fulfilled. And no other defence exists; so the fourth requirement is fulfilled. This restitutionary basis is therefore an alternative basis of claim.

Mr Lewis sought to escape this conclusion by saying that there was no acquiescence by the club in the provision of policing over 2002-03 levels. He says that GMP knew that there would be no payment over those levels, and so those levels cannot be forced on the club in terms of its being required to pay. He relied on Bookmakers’ Afternoon Greyhound Services Ltd v Wilf Gilbert (Staffordshire) Ltd [1994] FSR 723. In that case a bookmaker received a broadcast information service (“SIS”) for which he was prepared to pay. That service carried another information service (“BAGS”) for which the second provider also sought payment. The bookmaker was not prepared to pay for that, and said so. However the two services were not severable – one could not receive the first without the second. BAGS sought to claim from the bookmaker inter alia on the footing that he had received a service, benefited from it and knew that BAGS wanted payment for it in the sense that it was not free. Aldous J said that the case posed the following question, and provided an answer to it:

“ Does the law impose a duty upon a person to pay, when he receives and uses a service knowing that it is not being offered free; when he makes it clear to the provider of the service that he does not want the service and that he will not pay for it? The answer is, I believe, no … When a party makes it clear to the provider of a service that he will not pay for it or does not want it, then it cannot be against the conscience of that man that he should refuse to pay for the service.” (page 743)

Mr Lewis says that this clearly covers the present case. The club had made it clear that it did not intend to pay above a given level, and that is an answer to GMP’s claim in restitution.

I do not think that that case assists Mr Lewis. In that case the bookmaker clearly indicated that he did not want the BAGS service at all, and declined to pay for that reason. It seems to have been the case that the service was actually used by him once the information had arrived, in that the information appeared on monitors in the betting shop and he took bets on the basis of the information shown. Nevertheless, it seems he did not want that information, and it is clearly implicit in the findings of fact at page 730 that he would have been happy not to have received it, and could have operated in accordance with his preferred manner without it. The services were in effect forced on him in that they arrived over the same broadcast medium that he wanted to use for other purposes. Those facts are different from those in the present case in a fundamental way. The club did not merely want some services which happened to come with some different but non-severable services which it did want. The club never said, and was not in a position to say, that it did not want the services and benefit of the officers as to which a dispute arises in this case. GMP was in a position to say what BAGS was not in a position to say, which is that the club must take the whole or none at all; and if the disputed services amounted to SPS then the club could not operate without them because otherwise it could not have staged its matches. The services of the disputed officers were not some unwanted accretion which the club could have done without; they were (on the facts as I have found them) a necessary matter which the club would have to have in order to be able to carry on its activities, both because it wanted the benefit of those services and because GMP would have been unlikely to have agreed to provide the services other than as a whole. The services of the “extra” officers were not something that the club did not want; they were something that the club did not want to pay for, which is different. Bookmakers Afternoon therefore does not assist the club.

Those, then, are the bases on which GMP is entitled to claim. The next question is how is that claim to be quantified. Mr Berragan’s first submission was that the payment should be a reasonable one, assessed on the basis of the new convention proposed by Mr Mason in June or July 2003, and renewed before the second disputed season. He says that this would be reasonable because in previous years there had been a convention along similar lines but involving different numbers of officers; that such conventions are reasonable because they avoid a more detailed assessment of precisely what SPS has actually been provided on any given match day by any given officer; and that therefore a convention on adjusted terms would be reasonable for the two disputed seasons.

I have no hesitation in rejecting that proposal. The whole point about conventions is that they are agreed by the parties because to adopt them is more convenient than a perhaps more detailed arrangement. I do not doubt that they are a sensible way of going about matters; the latter part of this judgment demonstrates as much by showing what detail has to be gone into on a match by match basis if one is not adopted. However, in a case such as this they still fulfil the function of providing an acceptable albeit artificial reality which is more convenient than reality itself. They can only provide their function because they are agreed. It might, in a given quantum meruit case, be possible for a court to say that an existing (ie already agreed) convention can form the basis of payment in another situation where it was not expressly agreed, but Mr Berragan’s submission involves more than that. He needs to create a new convention, and I do not think that the court can do that in order to arrive at a reasonable sum for payment; or at least not in a case such as this.

So the amount to be paid must be determined by other means. GMP is entitled to be paid a reasonable sum for the SPS that it actually provided. In the absence of a new convention no-one in the case has suggested any alternative to ascertaining the amount of SPS on a case by case, phase by phase (or occasionally, as will become apparent, by apportioning match days in a different manner) and PSU by PSU (or in some instances individual by individual, serial by serial, horse by horse and dog by dog) basis. When the SPS has been thus ascertained, the sum chargeable is arrived at by applying the relevant charging rates. The main part of this exercise involves a lot of detail, and the fluid nature of policing makes it less than satisfactory because, for entirely understandable reasons, the evidence of where a particular group of policemen is at any given time, and what it is doing, is not always clearly recorded or reconstructable with absolute clarity or accuracy. Senior (and indeed junior) police officers have better things to do on a match day than to keep complete records of precisely where the officers were at all times. Nevertheless, the exercise has to be done, and done in a manner fair to both parties. If either party does not like any aspects of the results of this then they have only themselves to blame for not taking the opportunity to reach a final agreement (convention, if you like) before each of the disputed seasons.

Mr Lewis sought to turn Mr Berragan’s convention argument against him by saying that, in relation to any particular match, when assessing what can be charged for, the overall result should not be allowed to exceed the sums which would be thrown up by Mr Berragan’s attempted convention. He said that if one is using the parallel of a failed negotiation to fix a quantum meruit, then one should look at what the claiming party was seeking in the negotiation, and limit the claim by reference to that. I reject that submission as I rejected Mr Berragan’s. GMP proposed a convention. The club rejected it. I have held that GMP is nonetheless entitled to charge by reference to actual SPS provided. The club had a chance to limit and define its liability which it declined to take. In those circumstances I can see nothing unfair, or undeserving, in allowing GMP to charge according to actual events, untrammelled by its original proposals. I think that this is likely to generate swings and roundabouts, but even if it generated an entire fairground of roundabouts (assuming that it is roundabouts that the club loses on) then that is a consequence of the club embarking on the receipt of policing without getting to an agreement first.

GMP is therefore entitled to be paid on a quantum meruit basis for the SPS it provided. As I have indicated, there is no dispute about rates. The principal dispute is as to the extent of SPS provided at the matches in question. It falls to me to determine that question. Once the number of officers, and the time claimable, has been determined, it becomes a matter of mathematics to ascertain the sum payable.

Over 40 matches are in issue in this case, but at my direction the parties have selected 7 which typically raise the disputes that tend to arise. It is hoped that by my deciding 7 of them, the determination of the various points in those cases will enable agreement to be reached on the remainder.

Certain points can be taken first, since they are common to all, or at least many, of the sample (and non-sample) cases. I shall dispose of them at this stage. Other points are more appropriately determined in the context of the particular matches, and I consider them there.

The first point to get out of the way is an estoppel point. Mr Lewis said that GMP is estopped from claiming any sum in excess of the invoices rendered. So far as the global sum is concerned, that is likely to be academic, because it is not thought that the likely outcome of my exercise, on a quantum meruit-type basis, will throw up a figure bigger than the aggregate invoiced for. However, on a match by match basis there may be an excess. It is that excess which is the subject of Mr Lewis’s estoppel argument.

The point can be dealt with shortly. One can nowadays sometimes detect a tendency for a litigant to say that X said something or other, therefore he is estopped. Estoppel is not that simple. Something more than a statement or claim has to be proved. Mr Lewis sought to rely on an estoppel by convention. That requires the all important element of a common assumption. The whole problem about this case is that there was no relevant common assumption about what policing was to be paid for. I cannot see that any estoppel arises out of the invoicing. The invoices were claims, which the club has rejected. I completely fail to see why this leads to GMP being estopped in any way. If it turns out that the quantum meruit claim imposes greater burdens than GMP was anxious to impose, then all that demonstrates is that the club was unwise to reject what has turned out to be a lower offer. This estoppel argument fails. I can see no reason why, on the facts and law as I have found them to be, GMP should not be entitled to recover whatever the proper exercise shows them to be entitled to.

One of the most significant findings that falls to be made as a result of the combined effect of what I have decided above is the characterisation of the activities of GMP on the surrounding (leased) land. This makes a big difference in this case. Officers in the stadium (leaving aside specialists such as spotters for the moment) will generally be providing SPS. My conclusions above mean that one does not necessarily distinguish those on the surrounding land, and on the facts of this case I find that that distinction should indeed not be drawn. The combination of the activities of those police there, the nature of the ground, the ability of the police to determine questions of appropriate deployment and levels of policing and the implied request to provide SPS all combine to have the effect that officers on that surrounding land, in all the cases I have considered, were in fact providing SPS. Expressing that conclusion at this stage means that I do not have to say the same thing in relation to every sample match, though as will appear some of the facts of the sample matches reinforce that conclusion.

This potentially has a material bearing on the number of hours that can be charged as SPS for any given officer. A separate point arises in relation to officers who devote part of their afternoon to SPS and part of it to normal public duties – I deal with that below. The present point relates to what length of time should be treated as chargeable for phase 1 on the assumption that phase 1 is chargeable at all.

All the sergeants and constables for whom charges are sought to be made would otherwise be on rest days, and so they are paid and charged at appropriately high rates. No dispute arises about that. Subject to questions of apportionment of time, they are charged out at rates which include elements for travelling. They arrive at the police station and receive a briefing. Then when the briefing is over the policemen start to deploy. This may start up to two hours before the start of the match. There was a dispute as to how much of this is chargeable as SPS in any event. The club’s case was that no more than 1 hour was chargeable, either because the definition of phase 1 was such that it was the period of 1 hour before kick off, or because, on the evidence, officers did not arrive at the ground until one hour before kick off and cannot have been providing SPS before they arrived. GMP’s case on this has fluctuated between seeking to charge 1 hour, 1.5 hours and then latterly 2 hours. It is not clear, and I do not need to find, how and why those fluctuations arose.

The reason I do not have to make such a finding is that I do not consider that asking how long phase 1 is poses the correct question. The question for me is what is the proper charge for SPS in the events which have happened. The phasing of the football matches is not intended to relate to charging. It is a description of the policing operation, devised for operational purposes. Since, to a greater or lesser extent, the phasing has been used to describe the whereabouts and activities of police officers, it is useful for the assessment of SPS, but it does not necessarily govern it or the charging. Phase 2 is a useful period for this purpose, and its commencement time is fixed. The period into which phase 1 falls is the preceding period, so its termination is fixed. Its commencement may be a matter for debate, but that does not matter to me. What matters is the proportion of time between the end of the briefing and the start of phase 2 that can be charged for. That does not depend on what the police describe as phase 1 for their operational purposes. It depends on what the individual police officers were doing, how it falls to be characterised and whether it is right to characterise it as SPS.

What they were doing was preparing themselves and getting themselves to their first deployment. There may, I suppose, be a period of inactivity prior to that happening, but I received no evidence about that. It was certainly not suggested that there was some wasted time within that period.

It seems to me that the proper approach to this period is as follows. I take first the paradigm case of police officers who are engaged in providing SPS for the whole of the afternoon. They arrive at the police station and are briefed. The club accepts that the whole of the briefing time of these officers is chargeable. I do not accept that a charge can be made only for the time then spent at the ground (or in its environs), a period which the club puts at one hour. The proper basis for charging for SPS is not that mechanistic. All these officers have been brought in on what would otherwise be a rest day for them. They would not have been there had it not been for the match. Unless it can be said that the time between the end of the briefing and their arrival at the ground is wasted, or is used for something else, it seems to me to be attributable to their being asked to provide SPS, and the whole of it would be chargeable, whether they had arrived at the ground or not. In the case of these officers it is inappropriate to start the clock at the beginning of the briefing, stop it again, and then start it again when they arrive at their deployment. Since there is no evidence of time wasted, it seems to me that in the case of these officers the whole of this period can be charged for.

What, then of officers who spend only part of their afternoon providing SPS? These officers plainly have a phase 1 operational deployment – at some time before the start of the match they have a place to go to and duties to perform. Those duties will either be SPS, or they will not. I think that the only sensible way of resolving the charge for the period culminating in their first deployment is to treat it as part of that first deployment. Nothing else is sensible or practical. In the case of officers whose phase 1 deployment is at the ground, and whose phase 2 and/or phase 3 deployments are elsewhere, it makes little practical sense to divide it up and separate out a period prior to their arrival at the ground. And there is no uniquely correct answer to the question of what one does with that period even if a first part is separated out. I suppose that one could make a sort of merits-based case for apportioning it pro rata to the times spent providing SPS and non-SPS services, but that is not a sensible exercise, in my view. Accordingly, where costs for the period between the end of briefing and the beginning of phase 2 are in question, they will be treated as costs of the initial phase.

There are odd exceptions to this – in some cases I have not assessed charges by reference to phases at all, but by reference to the cost of the whole afternoon (or evening for evening kick-offs). Where that happens then obviously what I have just said does not apply.

Under the previously agreed regime, a period was allowed for travel and briefing of the SPS officers. For the two disputed years there was no such agreement. The parties agree as to how this should be dealt with in relation to officers who spend the whole of their afternoon (or evening) on matters that are SPS – the whole of the travel and briefing period should be charged. Equally, nothing can be charged for those who spend no part of their time providing SPS. However, there is disagreement as to the approach in relation to officers who spend part of their time providing SPS and part of it on general public policing. The club says that none of their travel and briefing can be charged for, because that officer would have to be on duty anyway (to provide the public part of his services), and he would have had to have travelled and been briefed anyway. GMP says that there should be an apportionment of that officer’s travel and policing time, pro rata their involvement in SPS and non-SPS.

I consider the submissions of the club to be over-technical and wrong. An officer who is spending part of his afternoon in providing SPS has to be briefed and has to travel for it. He could not provide it if he were not briefed, and if he had not travelled to work. On the facts, the need to travel is split between two activities which require it, and it seems to me that it is entirely reasonable that the club should have to pay a charge which reflects this split, as suggested by GMP. As well as being consonant with common sense, reasonableness and fairness (which the club’s submission is not) it also avoids a contrivance which could be used to avoid at least some of its effects. Let it be assumed that there are three units to be deployed, and that proper deployment requires the equivalent of one (but not necessarily always the same one) to be on SPS duties for each of the phases. If the club’s submissions were adopted, then full travel and briefing can be recovered if one unit is consistently deployed for the three SPS functions throughout the afternoon, but nothing can be recovered if the police choose to split the SPS functions between two or all three units. That is not a sensible result. The proper answer is to allow an apportioned recovery of travel and briefing. The only sensible apportionment is to apportion pro rata to the phases – if one phase is filled providing SPS then one third of the travelling and briefing costs of the officers concerned can be recovered, and so on. I appreciate that this is allowing the phases to govern something for which they were not designed, but any greater degree of refinement would be unreasonable and impractical.

These can be got out of the way at this stage. I have set out their functions. They had a dual role. Their first was to assist the police intelligence officers – they gathered intelligence. However, on a match day they would also have an active policing role. They would keep an eye on the prominents wherever they were and be ready to communicate about this to the controlling officers. On occasions they might never get into the stadium if the prominents they were observing did not get there either. If there was something to report they would report it to the match commander (or other appropriate senior officer) – that shows that they were part of the general policing.

The fair way of dealing with these is as follows. On any given occasion the spotters would probably be at the stadium for the match. Before and after the match they would be much more likely to be elsewhere, observing the possibility of public disorder. It is really only during phase 2 that (on the evidence I have seen) they were supporting the SPS effort at and around the stadium. Accordingly, for all matches charging for spotters can be allowed for phase 2 only. Their connection with SPS is too tenuous to be allowed for any other phase. I am not aware of any positive evidence in the sample matches which places a spotter outside the stadium during phase 2, but if there is such evidence in relation to any other match then that spotter cannot be charged for at all.

Each match had one or more radio operators and loggists – some had 6. The radio operator provided a centralised radio control for the events, receiving reports from outside and enabling the match commander, and any other relevant senior officer, to give directions. The function of the loggist was to record events as they unfolded during the afternoon or evening and as they were communicated through the radio operator. For most (but not quite all) matches there is a surviving match log showing the timing of events, who was involved and what they were. There is also a different form of computerised log. I am not sure who kept that, but it does not matter.

I can make some generalised findings about these individuals and SPS at this stage. Part of their function was to deal with events directly related to the match – events in the ground or immediately outside it. They provided a vital link to the policemen on the ground and without them proper policing would not have been possible. It therefore appears to be entirely appropriate to treat part of their activities as being SPS – they were linking officers who were providing SPS. However, they also had a function in relation to the wider policing of the town. They record events happening in pubs, in the railway station and so on, which do not relate to SPS policing. Bearing that in mind it seems to me that the proper way of attributing their activities to SPS for charging purposes is to apportion their time and therefore their charging. It is tempting to allow a charge just for phase 2, because that is when most of their activities will be focussed on the ground. However, even then their logs show that they had to deal with events in the wider town, and in the other two phases they have to support SPS outside the ground itself. Accordingly it seems to me that half their overall activities should be treated as being SPS-related and chargeable for.

With those over-arching points out of the way I can now turn to the individual matches. They can be used as a vehicle for determining a number of other points which arise, to a greater or lesser extent, in other matches, but rather than deal with them generally it is more convenient to put them in an actual match context. There are also, of course, a number of individual points specially arising in relation to these specific matches. It will aid understanding to note at this stage that each PSU bears a number in a series which starts at CK400, and within each PSU the serials bear the number of the PSU and the letter A, B or C – thus CK400 is a PSU with the serials CK400A, CK400B and CK400C.

It will be useful to set out more of the detail in this case than in later cases, because explanations given here mean that later exposition can be shorter.

Further explanation is required as to those designations. They are important because they form the first line of evidence relied on by GMP as to where officers were actually deployed, and I have to determine actual deployments.

“Ground East Stand” means what it says – to be deployed in the East Stand inside the Stadium. The East stand was, at the time, the away supporters’ stand.

“As Phase 1” means what it says.

“As directed” means that the officers will be given instructions as to where to deploy, during the course of the overall deployment when the needs become more apparent.

“Town Centre” means a deployment in the town centre, away from the ground. In this deployment the police may be doing a variety of things – policing the station, escorting fans towards the ground, general control in the town, and so on. It is common ground that police thus deployed are not providing SPS.

“Newtown” – this is the area on the west side of Scot Lane. The policing here is general public policing, though Mr PC Broad said that they might be directed from there to the land surrounding the stadium – he could not say whether it had happened.

“Ground Points” describes the 4 points on the surrounding forecourt outside the four corners of the stadium itself, and at the canal bridge.

In overall command was an inspector (bronze command).

GMP’s case on this depends on bringing together various sources; this case was reflected in various tables helpfully put together by PC Broad which showed this case and indicated (by colouring) the source of the evidence relied on.

This match was given a final category A rating (having originally been projected as being a category B+).

The pre-match safety meeting contains an entry: “One serial will operate outside the East Stand to support the stewarding operation.” That demonstrates how the police operation in the surrounding areas was part of the overall security operation for the stadium proper, and makes the point about the availability, in the interests of (and at the request of) the club of police for intervention. It justifies treating the police involved as being part of the requested SPS.

The relevant policing according to the match order was as follows:

The contemporaneous notes of the loggist shows one serial (CK400A) “in position” for phase 1 at the “points”. I find that that is where it was deployed, and that for the reasons given above (and now reinforced by the note from the pre-match briefing) that this serial was providing SPS.

No claim is made for serial CK400C for phase 1. Mr Mason’s evidence was that as a matter of general practice for category A games, one serial would go into the stadium for phase 1, and one would be on the points. On this basis he put CK400B in the stadium for phase 1. This is plausible evidence which I accept, and I find that it provided SPS for this phase.

However, this introduces a conflict with the evidence of PC Broad (who was not at the match but who sought to interpret the logs). The logs show two of the three serials (serials CK400B and, by a process of elimination, CK400C) to be “in situe” [sic] at gates M and H at about 15:10. PC Broad’s evidence is that they will have been seeking access to the stadium, and he surmised that they had not gone in before then because they were dealing with an incident of disorder which had occurred shortly beforehand. I do not consider that that is the most likely interpretation. If he were right then no serial can have been in the ground during phase 1, which I think is unlikely. I think it more likely that the other two serials were actually in the ground at this point – the notes do say “in situe” suggesting that they were where they ought to be rather than waiting to get in to get there. This means that these two serials were in the stadium and providing SPS for phase 2.

CK400A was recorded as “in situ phase 2 – rear East Stand”. This was either policing that area, or on standby for that or the next phase. Either way, I find it was providing SPS for phase 2.

No witness suggested where CK400A was in phase 3, and I allow no claim in respect of it. Mr Mason, based on his experience, put CK400B in the Stadium and CK400C in the town centre. I think it likely that one serial remained in the stadium and surrounding area in phase 3, and allow a claim for that serial. I allow no other serial for phase 3.

Each of these PSUs was commanded by an inspector. This will be a convenient point at which to record that such inspectors can be charged for as part of the PSU. I can see no reason for distinguishing them as a matter of principal. The same will apply to all other matches.

Claims are made for the inspector in charge, a radio/loggist and a tunnel officer on the same basis as for Hull. I allow them to the same extent, and for the same reasons, as they are allowed in relation to Hull. I allow the claims for spotters for phase 2, as above. A “prison van” is referred to in the summary of deployments but Mr Berragan indicated he was not claiming for it in relation to another match (West Ham) and I therefore assume it is not claimed for here either.

Now I turn to the animals – dogs and horses (or more precisely, their handlers and riders). The first question is whether the provision of animals can be SPS in the context of this case. Until the first disputed season, there had never been a charge for horses or dogs. The 2002/03 season documentation anticipated the possible deployment of those resources, but indicated a “Nil” charge. They were obviously, as it were, thrown in (in the agreed charging regime) as and when necessary. However, that does not necessarily mean that the provision of these services cannot be SPS. The fact that no charge had been made hitherto, when there was an agreed charging structure, does not exclude them from consideration for the purposes of the exercise which I am now conducting. If it is satisfactorily proved that they are SPS within the implied request and obligation to pay which I have found, then in my view a proper charge can be made.

Mr Lewis argued against the inclusion of any charge for dogs or horses unless they were the subject of a particular arrangement with the club. If they were requested, then he accepted they could be charged for, but since they were not, then no charge could be levied. That seems to me to require a degree of formality that is unrealistic. It is hard to imagine any circumstances in which the club would request the services of horses or dogs, in terms. The club would inevitably leave the decision as to whether to deploy those officers to the police themselves. If an arrangement is reached which allows the police to determine the level of SPS policing, and if the police determine that dogs and horses are appropriate, then in my view they can be charged for as SPS, even if not specifically requested. The authorities to which I have referred indicate that how events are policed is entirely within the discretion of the police (within the usual public law constraints) and no-one in this case, either lawyers or witnesses, sought to challenge that. As I have already observed, the club’s officers did not seek to tell the police how to police. The use of dogs and horses falls within that operational discretion.

Since I have determined that the club is obliged to pay a reasonable price for properly provided SPS, it is therefore necessary to consider whether it has been demonstrated that the officers and animals were providing SPS on the evidence in relation to this match. There was no challenge to this item on the grounds that the circumstances did not merit dogs or horses. Accordingly, the point turns on whether, in respect of their afternoon’s activities, the officers involved can be treated as providing SPS or whether they were providing normal public policing services. This turns on their actual deployment.

There is no hard evidence of the deployment of the dogs. However, speaking from his general experience, but not from actual recollection, Mr Mason told me that if there were 4 dogs, two will have been in the town centre and two at the stadium, but the town centre dogs would gravitate to the stadium during the match so as to be ready to police or accompany the fans as they came out. Based on that, PC Broad put 2 dogs at the town centre and two at the ground for each of the phases in his schedule. That does not actually accord with his Superintendent’s evidence, whose logic puts 4 dogs at the stadium for phase 2 (and at the start of phase 3). All this is somewhat vague reconstruction really, and I am not prepared to put a construction on these events which is benevolent to the GMP. I think it likely that there were two dogs and handlers at the ground for all three phases. They were providing SPS, and the GMP should be allowed to charge for them at a constable’s rates.

So far as the horses are concerned, the match order shows one group of 4 horses at the stadium for each phase, and one in the town centre for each phase. It is reasonable to treat the former group as providing SPS because they were clearly part of the policing of the land surrounding the stadium, and GMP should therefore be allowed the cost of 4 constables for each phase.

That, then, is the extent to which GMP can charge for SPS in relation to this match. The invoice which GMP raised for this match included a charge for a second inspector. None of the material that I have seen shows that this extra inspector was deployed; I allow nothing in respect of him or her.

No match order has survived in respect of this match, so that aid to reconstruction does not exist. This was a category C+ match. 5 PSU’s will therefore have been deployed. 2,500 to 3,000 away supporters were expected; 2,965 actually turned up. The pre-match briefing indicates that it was thought that in addition to 6 away coaches which were actually known about, there might be a number of other “rogue” coaches attending. The coaching strategy (bringing them behind the stand at half time ready for an orderly getaway with a good degree of segragaton of fans) would be operated. Stewards were to patrol the carparks with torches to prevent vehicle crime – that policy seemed to be working. The participants at the briefing anticipated a particular problem with ticketless West Ham supporters. This was obviously a big match for Wigan. PC Broad’s own review form (completed in advance of the match) anticipated some “contact” between prominents – as many as 100 on each side were anticipated. He records:

“Stewards alone will not be able to deal with all the problems that occur in or around the stadium, and therefore police will also be deployed in the relevant areas.”

The overall effect of all the evidence is that this was a big match which required a lot of policing. This last remark demonstrates the need for proper policing outside the stadium. There is no record that anyone at the club went so far as to request the policing to which PC Broad referred, but there is no record of dissent. The implicit request to provide the policing immediately outside the stadium is particularly plain in this case.

Mr Lewis took the point that one could not actually tell how many PSU’s were deployed because there was no match order, but I reject that submission. There are some “154” forms (relating to inter-divisional assistance) which provides for 3 PSU’s (CK401, CK402 and CK403) and the match log refers to serials CK400 and CK404. This coincides with the normal policing requirement for a C+ match, and I find that that number of serials (5) was deployed.

What they were doing in any given phase is a process of reconstruction from Mr Mason’s experience and references in the match log. I make the following findings about that:

As well as those particular PSUs, other individuals and units are claimed for:

Last, for this match, there were personnel on Operation Lynx. As I have indicated, this was a special football-problem related unit. The maximum size of this unit was a sergeant and 4 PCs. At least part of their job was likely to be intelligence gathering, and part of its function was to facilitate the obtaining of football banning orders. At this particular match the match logs show that it was with football supporters in pubs before and after the match, and indeed for part of the first half of the match where supporters had not gone to the ground. Looking at the nature of their activities, and their whereabouts, I consider that none of this unit can be allowed as SPS. While obviously football related, their activities are more related to general policing duties.

This was a category C match. A pre-match safety meeting took place on 23^rd January and the minutes of that meeting record an express request from the club to give support to stewards carrying out searching of fans because this “gives the stewards more confidence in their role”. This sort of remark shows the subtle (or perhaps less than subtle) effect on public order, for the immediate benefit of the club, of the police presence immediately outside the stadium (where the searches take place).

4 PSUs were deployed as follows:

Other personnel for whom a charge is sought to be made are as follows. For this match, and indeed for subsequent matches, I can deal with some of them briefly because some of my reasoning has already been deployed in relation to earlier matches.

This ended up as a C+ game, having started the season as B+. A first pre-match safety meeting on 17^th March was attended by Mr Mason, which was unusual. He said that he would be “staffing a Silver Control” for the match from the Stadium, thereby underlining the importance of the match from the policing point of view. Turnstiles were to be opened an hour earlier than normal. At a full pre-match safety meeting on 22^nd April PC Broad informed the club that mounted police would “assist with any queues outside the ticket office”. The management of queues was of particular concern to the club for this match. Police support (presumably of stewards) was to be provided to car park 3 to prevent home supporters from parking there. This was to happen from 10 am onwards. These sort of express considerations bolster a conclusion that services provided on the leased land were properly part of a legitimate SPS activity. They benefited the club, and although there was no express request for them (apparently) they were services which the club can be taken to have needed for orderly policing of their event. One particular risk was stated to be the propensity of some Sunderland fans to drink to excess and then arrive at the turnstiles late. That is recorded in a police intelligence briefing. That was the sort of thing that a police presence outside the ground would help to control.

5 PSU’s were to be, and were, deployed.

The following additional personnel are sought to be charged for, and my findings are as follows:

This was in the end classified as a B+ match. The pre-match intelligence briefing recorded a history of previous trouble between fans both inside and outside the ground. It was anticipated that the “Wigan risk group” would be out in force because this was a local derby.

3 PSUs were deployed:

This was a match with a higher likelihood of trouble. On 12^th January 2005 an inspector from Leeds wrote to a number of police commanders pointing out the propensity of Leeds supporters to make trouble in a variety of ways both inside and outside the ground. If taken seriously, it plainly justified a high level of policing. It was given a category C+ rating but was actually policed at a much higher level than that (10 PSUs overall). That was a decision which the police were clearly entitled to arrive at, and the decision to deploy large numbers of officers was well within what the legal cases indicate to be the proper area of police decision-making. A preliminary safety meeting on 10^th February was attended by Mr Mason. He is recorded as saying that:

“Police Officers would not patrol the concourse areas and would only be deployed as necessary”.

That demonstrates that flexibility and reserves were a significant feature of the policing of this match. He also:

“agreed to support the East Gate with Police Officers and Mounted personnel.”

It looks as though there was an express request to that effect; if not, in the circumstances there was clearly an implied request. At this meeting Mr Mason also told the club that the money claim for policing had been referred to the legal department, and the chief constable had yet to decide whether to withdraw special police services from the club.

The pre-match safety meeting took place on 17^th February. Contrary to what Mr Mason had said, PC Broad said that he thought the East Concourse would be patrolled, but he would get back to the club on that. That does not detract from the point made above about the appropriateness of reserves. A large number of away coaches were anticipated, together with a number of minibuses. (Interestingly, in the light of the risk of trouble, it also recorded that the Royal Marines would be providing pre-match entertainment in the form of abseiling and a demonstration of unarmed combat; whether anyone appreciated the irony of this is not recorded.)

An interim assessment prepared by PC Broad records specific threat assessments. Car park 3, the north east corner (where there were mixed supporters), the canal bridge (point 5) and the gate at the rear of the East Stand (used to segragate supporters by fencing off the entire area behind the east stand at its southern end) were noted as particular risk areas. All officers were to wear overalls and “Nato” helmets – a clear sign of an anticipation of problems. The need to police Wigan “supporters” who make no attempt to get into the ground was also referred to. Leeds supporters are said to have a tendency to stand throughout the match and to be particularly boisterous on the concourse at half time. There is a particular reference to the risk of Wigan prominents meeting up with Manchester United risk groups to engage in disorder with the Leeds risk group in the Wigan area. This demonstrates the need to have policing away from the stadium (non-SPS).

As with other matches, PC Broad has prepared a schedule based on the deployments as per the operational order and other supplemental information, including Mr Mason’s reconstruction. The following PSUs were deployed:

I add one additional point in relation to this match. The extent of the policing appears from what I have considered above. No-one has suggested that it was in any way over the top. A large number of officers were deployed in the stadium itself, and in my view necessarily so. The club’s case would allow only 2 PSU’s to be charged for (on the basis that an outside reserve was deployed inside the ground), with perhaps a bit extra because this was a C+ match. There is no sensible way in which this match could have been safely or properly conducted with that level of policing. Yet the club had the benefit of a vastly higher level of policing of this important match in what turned out to be a promotion season. That demonstrates the essential unfairness, and indeed lack of reality, of the club’s approach in this case. It needed the level of policing it got, and there is nothing unfair or unrealistic in finding an implied request for it, and in imposing an obligation to pay.

I therefore find that GMP is entitled to be paid for SPS calculated in accordance with the above. I believe that with one possible exception, I have made sufficient findings and determinations of the general and particular issues involved to enable the parties to calculate the sums due. The exception is this. It is not clear to me to what extent the parties would need a particular determination as to how long phase 3 actually is. If one looks at the logs, one sees the time at which some PSUs are stood down on some occasions, but there is no complete record of that. I have not sought to deal with that level of detail. If the parties feel the need to indulge in it, then they can apply to me to do so, and I may or may not take a detailed, as opposed to an overall general practical, approach to it. I will leave that to them to consider.

While I have sought to deal with all the detail that arose in this matter, as presented to me, it is conceivable that there are one or loose ends which I have not identified. If there are then they can be dealt with if required. I hope that, if there are any, I will not be called on to deal with them – the parties really ought to be able to sort such matters out by now, with the benefit of this judgment.

When I had heard argument I remarked that this case had been fought in what seemed to me to be a very helpful and co-operative way, in which plainly both solicitors and counsel played their part, and for which they are to be particularly commended (as are the parties, who doubtless instructed them to take that stance). It made trying this matter rather easier than would otherwise have been the case. However, it remained a very unsatisfactory case to have to try so far as the details are concerned. The time taken in dealing with matters of detail on less than a quarter of the disputed matches shows how undesirable it is to approach matters on this basis. There was no alternative in the case before me, but it should not be allowed to happen again. It is vital that the club and police get together before each season and reach an agreement as to how policing is to be paid for. Each side will have to be flexible, and there will have to be give and take. Doubtless any responsible senior police officer will want to bear in mind matters going beyond what strict entitlement and a strong bargaining position might otherwise drive him towards. Equally, any responsible club management will recognise that a workable regime will require flexibility on their part as to what may or may not strictly be SPS – debates which proceed on a dog by dog, horse by horse, phase by phase basis should not be allowed to happen again. As this judgment indicates, it is not an exact science, and there will doubtless have to be compromises to obtain a proper, and above all workable, bargain. It is to be hoped that the courts will not be faced with having to carry out this exercise again.