Ipswich Town Football Club Company Ltd v Suffolk Constabulary

Introduction, summary and conclusions

There is before the Court a trial of an issue of liability. This issue concerns the right of the Police to charge for the provision of policing services in two roads adjoining “Portman Road”, the football stadium used by Ipswich Town Football Club. All along these two roads (Portman Road and Sir Alf Ramsey Way) are situated the series of gates and turnstiles at which football supporters both enter and depart the ground. There are 25 turnstiles on Portman Road and 33 on Sir Alf Ramsay Way. The two roads are the subject of a traffic control order by the local authority so that for a short period both prior to and after matches the club, through its stewards, closes the roads by placing bollards and others signs and barriers at entry points and monitors and controls the closed area. Under the order there is strictly controlled access by vehicles into these roads during these times and entry is, in practice, administered by the club’s stewards. Close to the gates and turnstile on the pavement of the two roads the Club’s stewards erect a series of crowd control barriers which are designed to segregate the home and away teams and create safe and sterile areas in close proximity to the turnstiles so that spectators can enter the ground in an orderly fashion and be separated from the supporters of the opposing team.

In this area the stewards operate routine stewarding functions such as refusing entry to intoxicated or excessively rowdy or aggressive spectators. The use of these closed roads by the Club is integral to its ability to ensure that fans enter and exit the stadium in a secure and peaceful manner.

These measures are the logical continuation of the crowd control measures which the stewards operate inside the stadium. In a stadium very large numbers of persons meet in a confined space. Stewarding is essential for safety and good order. The entry and exit gates and turnstiles are even more accentuated pinch points and require very careful control. Before a match tens of thousands of supporters coalesce within a short time frame at these points as they seek to enter and stewards must be present on the outside to ensure orderly entry as well as on the inside to ensure an orderly procession of spectators once inside to their seats. Equally after a match that same number of supporters will gather at these same points but within an even more constrained time frame. Again there will be stewards in attendance on the inside and on the outside to ensure safety and order. A Ground Layout plan, prepared by the Club, is annexed to this judgment. It can be seen from this just why these two roads have warranted special treatment given the fact that before and after matches thousands of people will, in a relatively limited time period, be seeking to get through these gates to either enter or exit the ground.

The local Constabulary do not police every match played in the stadium. Instead matches are graded according to the general risk of disorder and Police resources are then allocated according to that assessment. Some matches are played without any significant Police presence at all. In fact, Ipswich Town Football Club has an exceptionally good record of supporter behaviour and it is said by the Police, without challenge from the Club, that both the behaviour of the Club’s fans and the Club’s general ability to ensure a safe and orderly environment for games are amongst the very best in the Championship.

When the Police maintain a presence at matches they will do so around the town in hot spots where fans might congregate, in the areas immediately adjacent to the gates and turnstiles, and inside the stadium. The nature of the policing activity may vary according to location. Trouble hot spots might for instance occur at the railway station (about 1 mile away from the stadium) or in pubs where away fans traditionally congregate before and after matches. But the Police may also maintain a presence in the two roads covered by the traffic control measures and in this limited area they assist stewards in the discharge of their stewarding functions. The evidence given in this trial which I accept is that in this closed area generally the Police attend in a preventative capacity in order to demonstrate a presence and thereby set a peaceful and orderly tone for the behaviour of the fans and supporters. Of course if real disorder or crime is witnessed or anticipated as imminent then the Police will, in a far more interventionist and reactive manner, act and secure arrests. But their essential aim when they do attend is to keep a low profile and to instil an air of peace and order.

In law the Police have a duty to provide policing without charge to all citizens. However, the Police also have a statutory power, when requested, to provide what are termed “Special Police Services” for which they can charge the recipient. But the Police can only charge for such services in relation to policing which falls outwith the scope of their general duty to provide policing. Whether the Police can therefore charge for services at a football match or other major event thus depends upon whether the services they provide fall, in essence, within their duty or whether they fall outside of that duty and are provided on a different basis. In this judgment I have used various expressions to describe the difference between the policing services that can and cannot be charged for. These are not terms of art but are useful in differentiating between the most important situations that arise in cases such as the present. I provide below a brief description of these terms:

The power of the Police to charge for SPS is long established in the law and derives from 19^th century common law jurisprudence. It is now embodied in statute in section 25 of the Police Act 1996.

However, the principles which govern the divide between the services that the Police can, and cannot, charge for are not wholly clear and have caused some uncertainty amongst both Police forces and recipients of services in recent years. In the present case there is agreement that: (i) the Police have the right to charge for preventative policing services within the ground itself; but also (ii), that the Police do not have the right to charge for reactive or preventative services which are provided away from the ground for instance at the railway station or bus station or in nearby car parks or across the bridge from the station coming into town and along the roads towards the stadium.

Where the parties disagree lies in relation to policing in the narrow strip immediately abutting the stadium in the two roads where the main entrances and exits and turnstiles into the ground are situated and which are delineated by the local authority order.

There is no authority which bears precisely upon this particular situation. However, over the years the Courts have identified a series of indicia which, when applied, should lead to a conclusion as to whether charges can be applied or not. According to this case law whilst it is accepted that there may be some considerations or factors which, if present, indicate prima facie where the answer lies, everything is ultimately fact and context sensitive. There are no clear bright lines of demarcation.

In the judgment I have sought to apply all of the potentially relevant considerations and to assess them in the light of the facts as I have found them to be. At the end of the day I have concluded that the Police can charge for the provision of services in the disputed area bounded by the local authority order. This is because on the facts there is a strong nexus between the crowd control services which the Police provide in this limited location relative to those they provide inside the stadium which are agreed to amount to SPS. In both areas the Police provide support to the stewards who have taken control and assume responsibility for safety and public order. If the provision of policing inside the stadium is SPS then I see no logical or legal reason why, by an extension or parity of reasoning, equivalent Police services outside the stadium within these two roads should not equally amount to SPS.

The nature of the legal disputes between the parties

The trial before the Court concerns an issue of liability only but there are a range of other issues arising in relation to principles of recovery and quantum. The claim arises in the following way.

The Club issued proceedings on 29^th April 2015 against the Defendant for a declaration that the Police have charged the Club “... for Special Police Services when it was not entitled to do so. Such charges were therefore ultra vires and recoverable ...” from the Police. The Defendant (in an Amended Defence and Counterclaim) admits that policing which took place on land which was neither owned, leased nor controlled by the Club does not constitute SPS and cannot be the subject of charges. However, it denies that any charges were made in respect of policing “...other than on land owned, leased or controlled by the Claimant from 5^th August 2011, but admits that such charges were made before that date”.

The practical effect of this is that: (i) the Defendant argues that the provision of policing within the area covered by the traffic control order was properly subject to charges; (ii) the provision of policing outside of that area was not properly subject to charges; and (iii) prior to 5^th August 2011 charges were made for services that included those that the Police had no power to levy.

The Defendant seeks to raise a set-off against the claims it feels compelled to admit. The Defendant thus:

The Police also raise a Counterclaim under which they seek to recover the sum of £96,000.54 in relation to unpaid invoices or such portion thereof attributed to services properly provided for compensation and/or on the basis of quantum meruit.

In a Reply to Amended Defence and Defence to Counterclaim the Club: (i) denies that any service provided by the Police on land that it owns, leases or controls necessarily amounts to an SPS for which charges can be levied except in the stadium; (ii) denies that the Police had any lawful right to charge for services in the locality (i.e. away from the stadium); (iii) denies that it is liable to pay for any services in excess of those actually agreed to even if such services were otherwise capable of amounting to SPS; and, (iv) denies that in the roads covered by the traffic control order the Club exercised any control or these areas were otherwise areas in which Police services could be charged for.

In relation to limitation the Club says that its claim is for restitution of sums paid under a mistake of law and/or pursuant to ultra vires demands by the Police. It is averred that the Club mistakenly believed that the agreements it entered into with the Police and the statutory power “...gave rise to an obligation to pay for the policing of the Roads and/or other areas outside the Ground”. It is then argued that the Club did not discover the mistake until 24^th July 2012 when the High Court gave judgment in a case involving the charging for policing services at Elland Road, the stadium used by Leeds United, and the Club could not with reasonable diligence have discovered its mistake earlier than this or alternatively before a date no earlier than six years prior to the issue of its claim. In consequence pursuant to section 32(1)(c) of the Limitation Act 1980 no part of the claim is barred by limitation.

Boiled down this means that there is (a) a live dispute as to the proper classification of the Police services provided in the traffic control area and (b) a dispute about the basis upon which the Club can recover sums paid to the Police including in respect of areas outside the traffic control area if the Claimant is correct in their analysis of the traffic control area. In relation to recovery there are also a variety of live issues as to set-off, quantum meruit, and limitation.

Relevant facts

The Claimant owns and operates Ipswich Town Football Club (“the Club”). It holds a long lease, with 78 years remaining, over “Portman Road Football Club Stadium and Practice Pitch”, Portman Road, Ipswich, IP1 2DA. The local authority owns the freehold reversion. The ground is colloquially known as “Portman Road”. The ground is an all-seater stadium and has a capacity to accommodate in excess of 30,000 spectators. Its actual maximum capacity is somewhat lower than this being limited by safety factors. Typically, around 20,000 supporters attend matches though for some games as many as 29,000 might attend. The Defendant points out that during a capacity attendance the population of the stadium effectively makes it the fourth largest town in Suffolk with the entire population squeezed into a limited space.

The Defendant is the Chief Constable of Suffolk Constabulary. (Footnote: ¹) The Chief Constable has a budget of c. £112m with which to police the County of Suffolk. On home match days the city centre of Ipswich requires additional levels of policing in consequence of fans attending Portman Road. This results in an increase in cost to the Defendant, for example because it entails the cancellation of officers’ rest days in order to increase police capacity.

The conduct of football matches at Portman Road can be profitable. The Defendant drew attention to the following information in the public domain. In the financial year ending 30^th June 2015 average attendances at Portman Road were 19,603. The sale of tickets enabled the Claimant to earn c. £6.5m in gate receipts. The Club, in addition, received an income including television and radio fees in excess of £5m. Over the same period the Club earned additional commercial income exceeding £4.8m comprising sales of merchandise, corporate sales and hospitality, etc. The combined income enabled the Claimant to make a profit of £5.3m before tax on a turnover of £16.4m. The Club has questioned the Defendant’s depiction of the profitability of the operation pointing out that these figures are unrepresentative and that the Club’s finances are dependent upon owner support. It is not necessary for me to form a conclusion on general profitability. It is however clear that the Club is engaged in a substantial for-profit commercial operation.

It is the position of the Chief Constable, and is not only unchallenged by the Club but asserted by the Club as a justifiable matter of pride, that notwithstanding the substantial number of persons attending matches at Portman Road there is an extremely low incidence of violent or criminal conduct. The Chief Constable submits that matches at Portman Road are “very peaceful indeed”. On the basis of data provided by the Defendant (and with which the Club does not materially disagree) the number of arrests and ejections made during or before and after matches at Portman Road is set out in the table below:

The way in which risk is assessed at Portman Road is governed by a statutory procedure. It is necessary to summarise the legislative framework and then describe how it applies in practice.

Portman Road is a designated sports ground requiring a safety certificate under section 1(1) of the Safety of Sports Grounds Act 1975 (“SSGA”). By section 2(1) SSGA a safety certificate shall contain such terms and conditions as the local authority consider necessary or expedient to secure reasonable safety at the sports ground. It provides: “No condition of a safety certificate shall require the provision of the services at the ground of any members of a police force unless the extent of the provision of their services is reserved for the determination of the chief officer of police of the force”.

Under section 4 a safety certificate may be amended or replaced by notice to the holder and may be brought about by an application of the holder. The local authority must consult the Chief Officer of Police (and others) about any such proposal.

Section 10(1) confers upon the local authority a power to prohibit or restrict access to the ground in cases where it considers that an unacceptable risk arises:

“If the local authority are of the opinion that the admission of spectators to a sports ground or any part of a sports ground involves or will involve a risk to them so serious that, until steps have been taken to reduce it to a reasonable level, admission of spectators to the ground or that part of the ground ought to be prohibited or restricted, the authority may serve a notice (in this Act referred to as a “prohibition notice”) on such persons as are specified in subsection (6) below”.

A prohibition notice may restrict the number of spectators and may include directions as to the steps to be taken to mitigate risk to reasonable levels (e.g. directing earlier kick-off times, bar closures within the ground, restrictions on home and/or away supporters, etc). Non-compliance with a prohibition notice is an offence as is admission of spectators in breach of a notice (cf section 12).

Section 10(5) limits the power of the local authority by preventing it from issuing a prohibition notice which would require the provision of policing services unless the Police consent to both their inclusion in the order and as to the extent of the services they are to provide:

“No prohibition notice shall include directions compliance with which would require the provision of the services at the sports ground of any members of a police force unless the chief officer of police of the force has consented to their inclusion and the extent of the provision of their services is reserved for his determination”.

In relation to the safety certificates of the Club both the certificate for 2007 and that for 2011 imposes duty of consultation upon the Club. Paragraph [B4.1(a)] of the 2007 and 2011 certificates requires that before any match (etc.), the club shall “consult with the police regarding the general arrangements for that activity” and paragraph [B4.1(b)] requires that they “notify the Police of every specified activity at least 10 days before such activity takes place when possible, or such shorter time as the Police may accept and consult with him/her concerning the attendance of a sufficient number of Police Officers for the purpose of maintaining the lawful and orderly behaviour among persons attending the sports ground”.

Paragraph [B4.2] of the 2007 and 2011 certificates assumes that the Club will pay for the provision of such services and it requires that: “The Holder shall secure, at the Holder's expense, the attendance at the sports ground of the appropriate number of Police Officers, as is deemed appropriate after consultation with the Police”.

Paragraphs [B4.10] and [B4.13] of the 2007 and 2011 certificates explain that the Club must maintain monitoring and public address facilities capable of covering areas outside of the stadium:

“B4.10 The public address system shall be capable of communicating information to areas both outside and inside the ground including the playing area. Important announcements shall be preceded by a loud signal and the arrangement prominently advertised in every programme. The P.A. System shall be fitted with an override facility for use by the Stadium Control Room personnel

…

B4.13 Closed circuit television and the associated emergency power supply, shall be maintained to enable densities outside the ground, within concourse areas and in compounds and other standing areas to be monitored by Stadium Control Room personnel during every specified activity”.

The 5^th February 2014 certificate is in different terms. Paragraph 10 requires:

“The Holder shall maintain and comply with all sections of the Operations Manual at appendix 1 which relates to the safety of spectators at the sports ground”.

Paragraph [20] imposes an obligation on the holder of the certificate (i.e. the Club) to agree a Statement of Intent with the Police governing their “respective roles” (see below at paragraphs [45ff]).

In relation to the categorisation of the risk attached to any particular match the Operations Manual (paragraph [6.4]) contemplates that this will be performed jointly by consent as between the Club’s Safety Officer and the Police one month prior to a fixture and will be achieved through the creation of a “Risk Assessment Matrix”. That assessment is not conclusive. Importantly the Manual provides that: “... the matrix score provides the basis for further discussions between the Club and Police in determining the appropriate match grade for a particular match”.

There is no evidence before the court that the risk assessments have been the subject of any real disagreement as between the parties. Further, although the most up to date Safety Certificates are in terms which differ from the predecessors it was common ground between the parties that this had not materially altered the manner in which the Club and the Police conducted the process for consultation concerning match categorisation. It is right to record that both the Police and the Club referred to a cooperative relationship in this regard.

In respect to whom, in the event of disagreement, technically has the final say, the Club points out that under the agreement which governed policing from 2011 onwards clause 3 conferred upon the Police the “final say in regard to the level of deployment at any match”. The Police point out that if in fact a disagreement arose as to “the need for police at a match ... the local authority would have to decide between two competing views”. It might be that this is a disagreement about two different matters, i.e. (a) the need for any presence at all and (b) the subsequent level of deployment once a decision to deploy has been taken. It is not in dispute that in relation to reactive policing all operational decisions rest ultimately with the Police. At all events it is not an issue I need to delve into in detail for the purposes of deciding this case.

On 18^th July 2000 Ipswich Borough Council, pursuant to arrangements made under section 101 of the Local Government Act 1972 with Suffolk County Council in the exercise of powers under sections 1-4 of the Road Traffic Regulation Act 1984, adopted an Order and Regulations governing access to Portman Road between its junctions with Princess Street and Sir Alf Ramsay Way, and, Sir Alf Ramsay Way between Portman Road and Constantine Road (Hereafter “the TCO” to describe the order; and the “TCO area” to describe the area bounded by the order). A Statement of Intent entered into between the Club and the Police states that it was the Club that applied for the TCO: See paragraph [47] below. The significance of this is that the entrance and exit gates and turnstiles for Portman Road are located on these two roads. As such they are focal points for supporters entering and exiting the stadium before and after matches. The TCO thus permits those roads to be closed during key points in time to enable the Club stewards to perform their normal function of shepherding fans safely in and out of the ground.

The Ground Layout Plan provided to the Court as evidence of the relationship between the two roads and the entrance and exit points and turnstiles situated on those roads is at Annexe 1 to this Judgment (see below). The very close proximity between the TCO area roads and the entry and exit points from the stadium is evident from the Plan.

Pursuant to the TCO a prohibition is placed upon any person “except upon the direction or with the permission of a Police constable in uniform or a traffic warden” from causing or permitting any vehicle to enter any of the roads referred to above. The restrictions apply on match days from 90 minutes prior to kick-off to 30 minutes after final result.

The TCO provides for certain exceptions to this prohibition: in relation to vehicles gaining access to or egress from any premises; enabling vehicles in the Fire, Police or Ambulance Services to be used on operational duty; to enable the use of vehicles in an emergency in connection with the laying, erection, alteration or repair in or on land adjacent to the roads or any sewers or any main pipe or apparatus for the supply of gas, water or electricity or of any telecommunication apparatus; and, finally, where access has been expressly authorised by a defined category of authorised person including a Police constable in uniform.

The TCO is contingent upon implementation of an “Operational Plan” detailed in Schedule 1 to the Order. The Operational Plan is required to include, inter alia, the following: the placing of Police No Waiting cones in possible waiting areas at least 4 hours prior to the start of the match; flap down road closed signs at identified locations 90 minutes prior to kick-off (the locations being Portman Road and Sir Alf Ramsay Way); flap down advance warning signs at identified locations 90 minutes prior to kick-off (including Sir Alf Ramsay Way, Chancery Road on approach to Constantine Road, Portman Road, Russell Road, Princes Street, and Sir Alf Ramsay Way); the placement of barriers and bollards across identified roads adjacent to the “road closed” signs 90 minutes prior to kick-off (including Portman Road and Sir Alf Ramsay Way).

Schedule 1 states in relation to the placement of such barriers and bollards for traffic and public order purposes:

“In the absence of the Police there is a need to make the closures self-enforcing and adequate barriers/bollards should be installed. To ensure crowd safety and prevent vandalism it is considered necessary to temporarily erect barriers/bollards in the street. If the barrier/bollards are intended solely to prevent motorised traffic entering the street then it may be more appropriate to use reflectorised steel posts retained by padlocks when in use. These can be removed and stored safely when not required”.

Finally, the TCO requires access to off-street parking within identified closed streets. These including a variety of car parks accessed via Hanford Road, Portman Road, and Princes Street (all of which can be seen on the plan at Annexe 1).

I have already referred at paragraph [34] above to the fact that the Club was required pursuant to the Safety Certificate to seek to agree a Statement of Intent with the Police. In January 2011, the parties agreed such a “Statement of Intent”. The version before the Court was unsigned but it is common ground that it accurately reflects the true position. It is stated not to constitute a legally binding contract or agreement between the parties but “…simply defines the respective duties of the Club and the Police”. The document is stated to have as its “purpose” the establishment of an “agreed position” as to the relative roles and responsibilities of the Suffolk Constabulary and Ipswich Town Football Club during league/cup, friendly, and international games held at Portman Road.

In relation to on-site safety, emergencies and incidents paragraph [1.1] stated that the sole responsibility for the safe management (i.e. safety, control and monitoring) of the crowd entering, leaving and within the stadium rested with Ipswich Town Football Club. Paragraph [1.2] stated that all aspects of running events within Portman Road were also the sole responsibility of the Club. In particular, paragraph [1.3] provides:

“The Club will be responsible for erecting and removing all necessary Traffic Regulations signs and road bollards in accordance with Schedule 1, 2 and 3, as set out in the Road Traffic Regulation Act 1984, Ipswich Borough Council (Portman Road – Sir Alf Ramsay Way) (Prohibition of Entry) Order 2000”.

In relation to “External Areas” these were the responsibility of the Police. However, the TCO area was excluded from the definition of External Areas. Paragraphs [3.1] and [3.2] thus provided as follows:

“3.1

External areas including the Public Highway are the responsibility of the Police. This excludes the area defined under the Road Traffic Regulation Act 1984, referred to in paragraph 1.3, that have been applied for by the Club.

3.2

No persons other than Police Officers or PCSO are authorised to undertake the direction of traffic on the Public Highway”.

It follows from this that there is no prohibition on persons other than the Police directing traffic inside the TCO area (which is not treated as being part of the Public Highway).

In section 5 entitled “Role of the Police” it is explained that the Police Commander would meet with the Club Safety Officer prior to each match to ensure that the level of resources provided by the Police and by the Club were sufficient to prevent crime, violence and disorder (said to be the responsibility of the Police) and to ensure safety (said to be the responsibility of the Club). This relates to safety and order generally, and not only in relation to the TCO area. The Statement explained further that where there was a very low risk of crime and disorder the parties could agree to grade an event as “Club Security Only”, i.e. where no material Police presence would be provided. Where the Police maintained a presence the Police Commander had tactical responsibility for the deployment of all Police resources and it was acknowledged that the Commander had the right to deploy officers within Portman Road to meet any operational policing needs that might arise. Paragraph [5.3] emphasised the supportive role of the Police:

“The Police will support the Club in seeking to minimise unnecessary disruption to the local community and inconvenience to event spectators and other persons attending the event”.

In relation to traffic regulation the Police operate within legal powers provided by statute but these are said to be set out in paragraphs [1.3] and [3.1], i.e. they apply outside of the TCO area.

I turn now to the contractual provisions governing the provision of Police services to the Club. On 23^rd July 2008 the Claimant and Defendant agreed a Memorandum of Understanding (“MOU”) governing the provision of Police services by the Defendant to the Claimant. The MOU was valid “…for 2008/09 financial years 1^st July 2008 to 30^th June 2011”. The MOU could be terminated at any time upon the giving of one month’s notice. Pursuant to the MOU the Suffolk Constabulary was required to provide “policing service” to Ipswich Town Football Club “…sufficient to facilitate the safety of both home and away spectators and to prevent crime, violence and disorder”. For each match, the parties assigned a “grade” where grade A represented a low risk of disorder, grade B a medium risk and grade C a high risk of disorder. Deployment of officers was dependent upon the allocated grade and reflected the expected level of additional policing required. The MOU then assigned a financial charge net of VAT for each grade for the year 1^st July 2008 – 30^th June 2009. According to the MOU: grade A was charged at £5,926; grade B was charged at £10,928; and, grade C was charged at £25,242. The grading applied to each match was capable of being revised and altered depending upon intelligence gathered closer to the date of the match. The ultimate decision, however, upon the deployment of resources rested exclusively with the Suffolk Constabulary who reserved the right to charge for such services in accordance with its decision as to categorisation of risk. The MOU was applicable to all Championship games, all cup games, all European/International games and all friendly games to be played at Portman Road.

The charges levied under the MOU covered all policing operations and no distinction was drawn geographically as between policing: (i) within the stadium itself; and/or (ii) within the area covered by the TCO; and/or (iii), elsewhere in Ipswich (for instance, at the railway station).

In relation to variations in charges, the MOU stipulated that the charging rate was based upon national police pay scales as at 1^st July 2008 and that over the three year period of the MOU the charge would be increased in line with the nationally agreed percentage increases in Police officer pay effective from the date of the increase and taking into account any national staging of payments. The MOU stated: “The intention is to reflect the true increase in pay costs for the Constabulary of providing the service”.

The MOU stipulated that it did not cover the policing of any other events and that in the event of the promotion of Ipswich Town Football Club to the Premiership Division the agreement would be automatically terminated as new rates would need to be agreed. Pursuant to clause 5 of the MOU Ipswich Town Football Club agreed to pay all charges in accordance with the MOU within 30 days of receipt of an invoice.

Upon 18^th March 2011 the Claimant met with the Chief Constable of Suffolk Constabulary with a view to discussing the terms of a request for and provision of special policing services upon expiry of the MOU. The minutes of a meeting held on 18^th March 2011 were included in the documents before the Court. These indicate that the position of the Defendant was that as from 1^st April 2011 it was required to follow guidance provided by the Association of Chief Police Officers (“ACPO”). The guidance is entitled “Paying the bill 2 – ACPO/APA guidance on charging for Police services” (“the ACPO Guidance”). The document is described as providing “…comprehensive advice on costs recovery in respect of policing events common to most forces…”. The guidance was developed by the Finance and Resources Business Area and was approved by the ACPO Cabinet on 7^th July 2010. The foreword to the document states the following:

“There are many competing demands on Police resources and it is important that managers recognise that meeting those demands often has a significant cost implication. The key principle of this document is ensuring that Forces can properly balance resources to provide a level of policing that is fit for purpose by making appropriate decisions on when and what to charge for Police services.

For the most part policing is part of centrally and locally tax-funded services. In this way the majority of policing is provided as a public service. There are some functions that Police officers perform that are provided beyond day to day policing, and in some of these cases there are powers in law for the Police Authority to recover the costs of this additional policing under the provision of “Special Police Services”.

The ACPO Guidance states that it is intended to offer a clear charging framework that would be of value to Police resource managers and to organisers of events who may incur costs connected with policing. In relation to the charging for events at particular localities the July 2011 version of the guidance stipulates (at paragraph [5.22]) that where the event takes place at a single location (for example a concert or a festival) the service should be based upon the concept of servicing the additional policing required over and above that which would normally have been used to Police the location. In paragraphs [5.23] – [5.24] the guidance states as follows in relation to the determination of what may be charged for where there is or may be a form of spill-over beyond the particular location where the event is taking place into the broader locality:

“5.23

In a number of cases, the location is less easily determined and the concept of locality needs to be considered. There are occasions when the character of the immediate locality is substantially or significantly altered by the event itself and agreement is needed on the basis of the definition of locality to be used for Special Police Services. Locality in this context can include private land and also, where relevant, public land that is controlled for the purpose of the event and for the benefit of the event organiser. This is an important issue in relation to understanding the organisation of an event and needs to be clearly identified and agreed by both the organiser and force as part of the agreement.

5.24

The locality should be defined to encompass the need to properly protect or benefit the persons organising the event or their attendees. It should not be determined on the basis of a need to protect the general public at large as a consequence of the event. Where a commercial event attracts protesters who protest outside the locality of the event, event organisers would not be expected to pay for the policing of those who attend the protest. However, organisers would still be liable to pay for the deployment of officers for other duties associated with the event”.

The guidance states that these principles applied also to “…established sites where a series of events” occurred such as football, cricket and rugby events. It was recognised that this regime was subject to the provision of section 25 of the Police Act 1996 (see below). The basic principle of charging was that events should be costed on a full economic basis in accordance with a methodology set out elsewhere in the guidance which (and I summarise) entailed recovery of incremental or variable costs together with an appropriate contribution to fixed costs (i.e. overheads). In determining charging policies the ACPO Guidance also emphasised that it was helpful to distinguish between a number of categories of events. In particular, the guidance identified “Commercial Events” as: “Events where there is a financial gain or profit to the organiser/company/organisation without specific community benefit – usually but not exclusively through members of the public having to pay an entrance fee to gain access to the event”. The guidance distinguished between such commercial events and other “non-commercial events” such as charitable events, community events and not-for-profit community events. In relation to the distinction between commercial and non-commercial events the guidance stated that the principal characteristic of a commercial event was that it was intended to secure private financial gain or profit whereas other categories could be described as non-commercial. The guidance recognised that even some non-commercial events may exhibit the features of a commercial event such as their scale and size. The guidance identifies a third category which it termed “Statutory Events” which were generally regarded as core policing matters for which no charge could be levied. The ACPO Guidance was just that, i.e. “guidance”; it was not expressed to be mandatory rules.

On 5^th August 2011 the parties signed a document entitled “Terms for the request and supply of special Police services under Section 25 Police Act 1996”. It constituted an agreement between the parties for the provision of SPS at Portman Road in areas beyond the stadium delineated on a plan attached as a Schedule to the agreement. This agreement differed from the MOU in that the basis for charging was geographically limited to Police activities within the stadium and within the TCO area, but it excluded the wider locality or environs within Ipswich. The agreement related to matches played during the 2011-2012 football season.

Pursuant to Clause 1 the agreement covered all matches held at Portman Road including all football league Championship games, cup games, European and International games and friendly games. Pursuant to Clause 3 matches were to be categorised according to risk (of violent disorder occurring at matches). Under Clause 4:

“Such Police personnel shall be deployed by the Police within the area at or near the premises of the club, being the areas shown delineated in yellow on the plan attached in Schedule 2”.

The delineated area correlated to the TCO area plus certain other roads and premises.

Pursuant to Clause 5 in accordance with the categorisation of a given match the Claimant agreed to pay the charges specified in Schedule 3 to the agreement for each match at which SPS were provided. Further provision was made for bank/public holiday uplifts; the duration of a Police officer’s attendance for which a charge could be levied; the number, rank and specialist skills of relevant officers; the process for invoicing following each match at which SPS were provided; payments in relation to matches which were cancelled or abandoned; the provision of SPS for matches outside of the times stipulated in the agreement; the provision of services other than those identified in the agreement, and the provision of services for replays, etc.

Pursuant to Clause 20 the Club was “reminded” that it was solely responsible for public safety at Portman Road and that it should take all appropriate steps to ensure public safety in compliance with the Safety Certificate for the stadium. Pursuant to Clause 21 the Club requested the Chief Constable to supply Special Police Services to the Club: “…for all such matches as the Police consider policing to be necessary in accordance with the provisions of this agreement”.

On 1^st August 2012 the parties agreed a further document which was also under the heading “Terms for the Request and Supply of Special Police Services under Section 25 Police Act 1996”. The 2012 agreement was in terms which were essentially similar to the 2011 terms but they related to matches played during the 2012 – 2013 season. The agreement contains an additional Clause 23 which reflected the uncertainty then prevailing over the scope of the power of Section 25 of the Police Act 1996 and which was in the following terms:

“Following the judgment in the Leeds United v West Yorkshire Police case Ipswich Town Football Club reserves the right to re-negotiate the contract once the full extent and consequential effect on the contractual relationship and charging issues of the case and/or any similar case or related matter in relation to the contract with Suffolk Constabulary is fully understood by Ipswich Town Football Club”.

This clause was introduced in view of the judgment, delivered on 24^th July 2012, in Leeds United Football Club Limited v Chief Constable of the West Yorkshire Police [2012] EWHC 2113 (QB). I address this authority and the appeal therefrom in sections D and E below. The Club took the view that it was authority for the proposition that charges could only be levied for Police services provided within the stadium, but not otherwise.

On 17^th December 2012 Mr Simon Clegg CBE, the Chief Executive of the Claimant wrote to Mr Simon Ash QPM, the Chief Constable, in relation to the question of charging. The letter states as follows:

“You will be aware of the verdict in the case of Leeds United v West Yorkshire Police in which the Judge held that Leeds United should only be charged for policing on property owned or directly controlled by Leeds United. This judgment overturned the concept of a club being charged on the basis of a “footprint” and has implications for most football clubs nationally.

Our own initial research for Ipswich Town home matches shows that in the 2010/11 season we were overcharged by £99,000 after considering the location of Police deployed for each home match. For the 2011/12 season the overcharging would have been considerably lower given the increased number of “club security” matches which resulted in lower Police charges overall. We are currently taking legal advice in relation to how far back the Club can claim in respect of overcharges.

We would therefore like to claim for the overpayment £99,000 relating to 2010/11, although I appreciate that you will want your staff to confirm the cost based on location of deployment. Furthermore and going forward, I trust that for this season there will be no further costs relating to policing outside the land controlled by Ipswich Town, i.e. the stadium and practice pitch”.

The Chief Constable replied on 22^nd January 2013. The gravamen of the reply was that the judgment of the High Court was subject to appeal and that any claim by the Claimant to recoup the cost of such Police charges was premature and that the Club should await the outcome of the appeal before attempting to deal with costs that may have been charged outside of the “footprint” of the Club. The Chief Constable also sought clarification as to the computation of the claimed £99,000 for the year 2010/11. In relation to the year 2012/13 the Chief Constable stated that he was satisfied that policing costs had been charged in accordance with the current judgment of the High Court.

The Claimant, thereafter, took matters into its own hands and during the 2012/13 season it did not pay a number of the Defendant’s invoices such that by the close of the season the Claimant owed the Defendant the amount of £96,000. The Claimant’s position is that it had operated a de facto set off against the sums that it claimed were owed to it from the Defendant as a result of having been, hitherto, overcharged.

On 21^st June 2013 the Claimant wrote a letter before claim to the Defendant seeking, inter alia, recovery of charges overpaid since 2008 – 2009. However, no further action was taken pending resolution by the Court of Appeal of the issue arising. See generally the overview of the issues arising in the litigation at paragraphs [12ff] above.

The Club commenced proceedings on 29^th April 2015. Shortly prior to the commencement of the 2015/16 season the Defendant informed the Club that it would no longer provide policing for games unless the Club agreed to sign a new agreement for the provision of SPS. The Club took the view that the charging arrangements contained in the proposed agreement which included the TCO area were unlawful and it refused to sign the new agreement. The Club refused to discontinue these proceedings but offered to continue to pay the Defendant’s invoices for the provision of SPS pending the outcome of the proceedings. Relations between the parties became strained. The Defendant was unwilling to continue to provide services on an ad hoc basis. The Club threatened injunctive proceedings. The Defendant subsequently agreed to provide services upon the basis that the Club would continue to pay its invoices. In December 2015, shortly prior to a scheduled fixture between the Club and Derby County FC, a further dispute arose as to the provision of Police services. The Club applied for injunctive relief. However, a compromise was arrived at during the course of the proceedings. A consent order was agreed whereby the Defendant continued to provide policing services to the Club until at least the end of the 2015/16 season.

In this section I set out my conclusions on the nature of the policing conducted in the TCO area. In particular, this involves considering the relationship between the roles of the Police and the Club in this closed area. The evidence that relates to the division of labour and tasks in the TCO area has come from a variety of different sources including: the contractual agreements; the Statement of Intent; the Club Stewards Handbook; the TCO; internal disclosed documents; and the oral evidence of witnesses for both parties who explained what happened in actual practice. There is not much or indeed any serious disagreement as to the facts. In the text below I summarise the main points. It will be appreciated that the actual relationship between the Police and the Club on any given match day might vary according to circumstances as they unfold. But, it is still possible to draw some general conclusions about the role of the Police in the TCO area.

Club’s general obligations in relation to crowd control / safety / public order: A defining feature of the Club’s responsibility is that it relates to crowd control, i.e. the management of large numbers of individuals coming into and departing from a confined space. It is apparent from the Club Stewards Handbook and from the Statement of Intent that the Club assumes responsibility for: overall safety and order of spectators and staff including avoiding overcrowding; managing persons seeking to enter the ground; erection of management signs and road bollards and traffic control within the TCO area; the monitoring and recording of persons within the stadium; the initial duty to evacuate the stadium in the case of an emergency; the initial responsibility for public order within the site and in the TCO area; and, ensuring the orderly dispersal of spectators after the match. According to the evidence the Club deploys approximately 200 club stewards to work within the stadium and the environs of the ground on any match day where a uniformed Police presence has been requested.

The Club Stewards Handbook describes the overall responsibility in terms of safety control and monitoring. It also makes clear that the obligation neither starts nor ends at the turnstile; it spans the area immediately outside of the stadium and also within it. Paragraph [1.9] states:

“Ipswich Town Football Club is responsible for safety, control and monitoring of the crowd entering, leaving and within the stadium”.

Club’s responsibility inside the stadium: Inside the stadium the Club assumes responsibility for all aspects of safety and public order. The role of the Police inside the stadium is preventative and secondary. It is designed to assist the stewards. It is only rarely reactive. It is rightly accepted that the preventative services provided are SPS for which charges may be made. Inside the stadium the maintenance of a visible Police presence has a positive calming effect upon the crowd. An illustration of this is in relation to the ejection of unruly spectators. The Club Stewards Handbook thus explains that enforcement of order in the stadium is the “predominant” responsibility of the Club stewards (Handbook paragraph [4.12.3]) and that where an ejection occurs whilst the Police are informed they will not necessarily intervene (cf Handbook paragraphs [4.12.6] and [4.12.8]).

Traffic control in the TCO area: One obvious difference between the activities occurring inside the stadium and in the TCO area relates to traffic control. On match days the Club implements the closure of Portman Road at its junction with Princes Street and Sir Alf Ramsay Way and of Sir Alf Ramsay Way at its junction with Portman Road and near to its junction with Constantine Road. These are the roads subject to the TCO (see paragraphs [38] – [44] above). To implement road closures the Club’s employees travel in a van to each of the junctions in order to place the metal bollards into designated holes within the road. The bollards are inserted approximately 1 hour and 45 minutes prior to the commencement of the match. Upon the placement of the bollards no traffic other than permitted vehicles as set out in the TCO may pass through the closed section of the road and the Club stewards therefore implement the order. The road closure remains in place for the duration of the match as also specified in the TCO. No Police officers are involved in this process of road closure. It was explained in oral evidence that this came about because the Police did not consider that they should be responsible for this low level traffic management function so the Club asked the local authority to take responsibility. However, the authority would not agree unless the Club paid them the costs of deploying labour. So, instead of paying, the Club decided to allocate its own stewards to the task and this has proven acceptable to both the Police and to the local authority. As such the Club places road traffic barriers and then regulates traffic in the TCO area. In this respect reference was made to Schedule 1 TCO (set out at paragraph [43] above) which refers to the “need to make the closures self-enforcing” with the reference to “self-enforcing” being understood as permitting the Club to enforce the TCO. This is the way that the parties and local authority construe the instrument.

Requests for additional road closures on match days are made by the Club to the local authority.

At key phases of the match operation the Club therefore deploys stewards to the bollards at the relevant junctions and to the NCP Car Park located on Portman Road to ensure that no vehicles are permitted to travel within the closed sections of the road save for those which are expressly permitted by the traffic control order. No access is permitted by the Club to the NCP Car Park during the currency of the road closure. The Club controls the closed sections of road from the point in time at which bollards are inserted to the point in time in which the Club’s employees remove them after the match. The Police will assist the stewards with traffic control when requested to do so.

Commercial and charitable operations in the TCO area: Within the TCO area the Club locates programme sales kiosks which are small white telephone box sized structures. It is authorised to use the TCO area for commercial purposes in this way by the local authority from whom it obtains a licence upon payment of the appropriate fee. It enjoys this right on a non-exclusive basis since other commercial vendors (for instance selling burgers or replica kit) can also obtain licences. The location of these kiosks is determined by the Club’s employees during the pre-match phase. At an appropriate point in time, determined by the Club, during the match the programme sales kiosks are removed by the Club’s employees and returned to the stadium. The Police gave evidence (which was unchallenged) that the Club also regulates charitable collections in the TCO area. The Club Safety Officer normally notifies the Match Commander if such collections are due to take place prior to or during any match. The Police record these notifications. The Club ensures the safety of collectors and of the money they collect.

Control over turnstiles and erection of crowd control barriers by the Club in the TCO area: From approximately 90 minutes prior to kick-off the Club opens the turnstiles to the stadium and outside the turnstiles at certain entrances the Club’s employees erect metal barriers (described as “crowd control barriers”). Stewards employed by the Club regulate admission to the visitors’ enclosure. Those stewards work on the pavement outside the turnstiles in Portman Road and Sir Alf Ramsay Way. They are also positioned at the main entrance of the ground on Constantine Road. These barriers are placed there with the knowledge and consent of the local authority and of the Safety Advisory Group that comprises representatives of the Police, the Club and the local authority. They are generally used when more than 200 away fans are expected at the ground.

The Club’s employees also regulate queues across Portman Road of visiting supporters who await a search process conducted by the Claimant’s stewards prior to being allowed to enter the stadium. The Defendant’s evidence, which I accept, is that supporters will frequently arrive approximately 20 minutes prior to kick-off having left pubs and bars where they congregate in the pre-match phase. The evidence of the Police is that this can lead to congestion in Portman Road with thousands of supporters making their way into the stadium. The relationship between the Club and the Police is described in the Club Stewards Handbook in the following way which emphasises the secondary role of the Police:

“The role of searching supporters entering the ground is the responsibility of the Search Stewards. Police Offices will only assist where a specific need is identified”.

The Club Stewards Handbook explains that the stewards may refuse entry to spectators on the grounds of their intoxication. This is apparently a relatively rare occurrence. PC Rowland, a Dedicated Football Officer employed by the Defendant, gave oral evidence which reflected the fuller account in his witness statement which was not challenged as being incorrect. He explained how the Police effectively provide a back up or support service to the stewards in the TCO area:

“The stewards tend to refuse entry and then revert to the Police to engage with the supporters and ask them to leave the area. There are occasions where arrests may be made for the offence of being drunk whilst entering a designated sports event. I must stress that it is a small minority of supporters who arrive at the turnstiles intoxicated. The majority of supporters enter the stadium without giving any cause for concern to stewards or Police. However, those that are intoxicated present a threat to the safe running of the event. Identifying, monitoring and dealing with them is an important part of what Police officers do at Policed matches”.

Nature of persons inside the TCO area during the relevant time periods: The evidence of the Police which I accept is that it is overwhelmingly spectators for the match who are in the TCO area during this period and not general members of the public who tend deliberately to keep away. Superintendent Andrew Mason was of the opinion that c. 99% of attendees were spectators though he acknowledged in oral evidence that this was not a scientifically obtained figure but his personal assessment.

Policing inside the TCO area: It is possible to define the scope of the role of the Police within the TCO area by reference to the nature and extent of the Club’s role in the same area. Evidence tendered in the course of the trial highlighted that the Police operated essentially as an adjunct or complement to the Club’s employees. The basic position of the Defendant is that the area covered by the road closure “effectively becomes an extension of the Claimant’s stadium” and that in consequence the role of the Police is preventative and supportive.

Even in relation to higher risk matches the role of the Police remains preventative and secondary. In such cases the most important function for the deployment of officers in the TCO area remains to ensure the safe entry to, and egress from, the stadium of supporters and the safe dispersal of crowds. On occasion in relation to high risk matches the Police may use their vans, strategically placed, as a “filter cordon on Portman Road” (paragraph [11] Witness Statement of Andrew Mason, Superintendent of Western Area Command Team). This entails three Police vans across the road nose to tail which has the effect of forcing all fans through a single small gap between the vans. This means that should problems arise the Match Commander can order the Police at a moment’s notice to deploy officers to plug the gap thereby controlling crowd movement. It also enables the Police to gauge the mood of the crowd as it filters through the gap and to identify higher risk groups of individuals. It ensures that fans moving towards the stewards to be checked and searched before entry into the stadium do so in a controlled, peaceful and orderly manner. Police will also assist by identifying potential areas of congestion that could lead to a risk of injury. This tactic is used only occasionally but was, for instance, used at a derby match between the Club and Norwich City Football Club in August 2014.

At the turnstiles Police officers may provide support to stewards as supporters make their way into the stadium and they may assist the Claimant’s stewards when ejections are made.

Perhaps the most important characteristic of the service provided by the Police in the TCO area is simple presence – which brings with it a calming and pacifying influence which extends into the stadium itself. Evidence from all parties was to the effect that the Club benefited from its excellent safety and public order record which had reputational advantages for the Club. PC Rowland, for the Police, stated:

“The presence of uniformed Police officers inside the closed areas sets the tone for the behaviour of supporters inside the stadium and throughout the match operation. When supporters realise that there is a visible Police presence outside the football stadium, this usually serves as a moderating influence on their behaviour inside the stadium”.

Policing for which charges are not levied (inside and outside the TCO area): All of the above is not intended to suggest that operational services are not also provided. In the stadium and the TCO area these are overwhelmingly reactive, i.e. in response to isolated incidents of actual or imminent serious disorder. Outside the TCO area they may be preventative and reactive. Evidence tendered by the Police in the course of the trial also focused upon services for which the Club was not charged. In relation to category A matches the Defendant routinely additionally deployed two Police dog handlers outside the stadium in the closed part of Portman Road during the 30 minute period prior to kick-off and for 30 minutes post-match. In relation to all category B and C (i.e. higher risk) matches the Defendant adopts a standard deployment on land other than the stadium or the closed roads comprising three additional policing groups with each group consisting of a Police sergeant and 6 Police constables. The locations where additional Police capacity is located are described as potential “hot-spots” connected with the match and include locations such as Ipswich Railway Station, the Station Hotel public house (which is a designated “Away” supporters’ pub), other pubs and bars frequented by supporters of Ipswich Town Football Club, and the areas between the Railway Station and the stadium such as Cardinal Park and the West End Coach Park where visiting supporters usually park their coaches. When no longer required to police “hot-spots” those same officers may then be re-deployed inside the stadium or within the TCO area with a view to enforcing segregation lines between visiting and home supporters and in those corners of the ground where there was a risk of “issues” between home and away supporters. In relation to category C and “C(IR) increased risk” matches (the highest risk category) the Defendant meets the significant additional costs away from the stadium in the provision of mounted division support, road policing unit support (motorcycle escorts); additional Police support units and additional resources such as drivers, medics and evidence gathering teams; additional Beat Duty Units, intelligence cells and, exceptionally, covert assets.

Policing during Club Security matches: In relation to those low risk matches which are not policed by the Defendant which are termed “Club Security” matches, the Club tends to adopt the same deployment patterns for its stewards as I have set out above in relation to the closed areas. There are no uniformed Police officers routinely deployed at the stadium or within the TCO area. However, two trained football spotters attend the stadium in plain clothes together with any trained spotters from the visiting club’s force area. These work from the Club Match control room (see below) and liaise with the Claimant’s Club Safety Officer during the course of the match. They perform a dynamic risk assessment which might lead to requests for uniformed Police responses. Spotters will also assist club stewards with low risk ejections or other low-level supporter behavioural matters. During Club Security matches, when uniformed Police officers are absent, the management of supporter conduct and behaviour is entirely the responsibility of the stewards. As such, stewards may refuse entry to the stadium and conflicts may arise out of the disgruntled behaviour of ejected supporters. The Defendant’s evidence is that on occasion uniformed Police may be summoned to deal with ejected supporters.

The Portman Road control room: In order to perform its functions the Club operate a control room from within the stadium. This includes, inter alia, a bank of CCTV cameras which cover the entrances and exits to the ground and also the closed roads (see paragraph [32] above). The cameras are able to move and thereby the Club may monitor activity both within the ground and within the external TCO area. Evidence was given in the course of the trial by Mr Michael Warden. He is the Match Day Safety Officer at the Club, a position he has held since January 2005. Before that he was a serving Police officer until his retirement in 2004 at which point in time he was a Superintendent and also a football match commander. In his evidence he explained that the Club’s stewards put out bollards to close the roads because the Police would not do so. He explained that the Club then approached the local authority to see if they would close the roads but the authority were unwilling to do so absent an offer of payment by the Club. In those circumstances, Mr Warden explained, the Club chose to provide stewarding in the closed areas itself. He said that the local authority was happy with the club assuming this role because of the reference in the traffic control order to the road closures being “self-enforcing” (see generally paragraphs [71] and [72] above). The Club therefore used the control room to monitor and direct stewarding operations inside the stadium and in the TCO area.

I now set out my principal findings of fact in relation to the TCO area:

Relevant legal framework

I turn now to consider the relevant legal framework. This involves a consideration of both the governing statutory power and also the case law affecting the exercise of that power.

The power of the Police to levy a charge for SPS is now found in Section 25 of the Police Act 1996. This provides in relevant part:

“25.

Provision of special services

(1)

The chief officer of Police of a Police force may provide, at the request of any person, special Police services at any premises or in any locality in the Police area for which the force is maintained, subject to the payment to the local policing body of charges on such scales as may be determined by that body”.

It is plain from section 25 that there is no obligation upon the Police to charge for SPS; the use of the word “may” indicates the existence of a power not a duty. The power is broadly bounded by 3 considerations. First, that there must be a “request” made to the Police for the provision of such services. This makes clear that the Police may not, of their own volition, provide services and then levy a charge upon the recipient of those services who has not, otherwise, sought them. Second, that the services may be provided “at” any premises from which it is plain that this may include the provision of services within a premises; however, there is a dispute as to whether the word “at” indicates that services provided may be charged for if they take place within the immediate external footprint of the premises but not within them. Third, the phrase “or in any locality” makes plain that the Police may charge for services which are provided outside of particular premises and thereby that the power is not limited to the provision of services within (or “at”) premises.

Section 25 of the Police Act 1996 thus confers a broad power but it is silent as to what is meant by “Special Police Services”. The omission is understandable given that the statutory provision, in substantial part, entrenches in legislative form a significant body of pre-existing case law. In order to understand section 25 it is therefore necessary to set out the salient features of the pre-existing jurisprudence.

I turn now to the case law which provides guidance as to the criteria that should be used to determine when the Police may charge for the provision of a policing service.

In Glamorgan Coal Company v Glamorganshire Standing Joint Committee [1916] 2 KB 206 (“Glamorgan”) Pickford LJ, at page 229, stated that where parties to a dispute were threatened with violence from the other party the putative victim was entitled to protection provided by the Police which the Police could not make contingent upon an agreement or promise by the victim concerned to pay all the expense incurred by the Police. He made the point, reflected in subsequent case law, that the obligation upon the Police to provide policing services was the concomitant of the “…contribution...rate payers...make to the support of the Police”. He observed:

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

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

“…an absolute and unconditional obligation binding the Police authorities to take all steps which appear to them to be necessary for keeping the peace, for preventing crime, or for protecting property from criminal injury; and the public who pay for this protection through the rates and taxes, cannot lawfully be called upon to make a further payment for that which is their right”.

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

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

“…I think that any attempt by a Police authority to extract payment for services which fall within the plain obligations of the Police force, should be firmly discountenanced by the Courts. But it has always been recognised that, where individuals desire that services of a special kind which, though not within the obligations of a Police authority, can most effectively be rendered by them, should be performed by members of the Police force, the Police authorities may… “lend” the services of constables for that purpose in consideration of payment. Instances of the lending of constables on the occasion of large gatherings in and outside private premises, as on the occasions of weddings, athletic or boxing contests or race meetings, and the provision of constables at large railway stations”.

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

In Harris v Sheffield United Football Club Limited [1988] 1 QB 77 (“Harris”) the Court of Appeal was concerned with the question of the responsibility for the cost of providing for the attendance of Police officers inside the ground of Sheffield United Football Club at Bramall Lane. Until 1970 the club had made special arrangements for the attendance of officers at matches for which payments had been made. Thereafter the Police continued to attend both inside and outside of the ground but the club formed the view that the Police were obliged to provide all of these policing services in order to fulfil their duty to maintain law and order and to protect life and property and that they were not, therefore, obliged to make payment for such services. The Police commenced proceedings against the club claiming for the cost of services provided upon the basis that those services constituted “Special Police Services” within the meaning of section 15(1) of the Police Act 1964 (which was, mutatis mutandis, in terms identical to those subsequently set out in section 25 of the Police Act 1996). In addition to denying liability the club contended that since December 1983 they had not “requested” Police services and that a request was a condition precedent for the provision of a compensable Special Police Service within the meaning of section 15(1). At first instance the claim on the part of the Police authority was upheld and the club’s counterclaim was dismissed. The appeal against that judgment was dismissed. The Court of Appeal upheld the principles laid down in Glasbrook in the House of Lords (supra) and also endorsed a statement by Lord Justice Scrutton in the same case in the Court of Appeal [1924] 1 KB 879 where he explained that an SPS could include a service “...in the nature of maintaining order or preventing crime” (at pages [890] – [891]):

“There is no doubt that for many years Police authorities have furnished for payment, at the request of individual citizens, Policemen to perform duties in the nature of maintaining order or preventing crime. Instances are where valuable property is temporarily and temptingly exposed to mixed assemblies, as at weddings, to guard the presents, or sales or bazaars; or where assemblies are likely to produce a disorder, as at races, or football meetings, or regulate traffic to private festivities, such as dances. It would take very clear authority to persuade me this is illegal”.

Lord Justice Neill made clear that in delineating between services which could be charged for, and those for which no charge could be levied, it was necessary to avoid laying down any “general rules” (ibid page 91D). He emphasised that it was necessary to look at “...all the circumstances of the individual case”. Further, Neill LJ emphasised that the Police enjoyed discretion as to how to allocate their resources: See pages [90] – [91]. He then went on to identify four factors which he considered should be “taken into account”. These factors have, though with some modification and updating, been endorsed by all subsequent cases. I therefore set out the relevant passage in full:

“I would, however, venture to suggest that the following matters require to be taken into account (1) Are the Police officers required to attend on private premises or in a public place? Though in Glasbrook Brothers Ltd. v. Glamorgan County Council [1925] A.C. 270 the fact that the garrison was to be stationed on private premises was not treated as conclusive, the fact that the Police will not as a general rule have access to private premises suggests that prima facie their presence on private premises would constitute special Police services. (2) Has some violence or other emergency already occurred or is it immediately imminent? I can at present see no basis for an argument that the attendance of Police officers to deal with an outbreak of violence which has actually occurred or is immediately imminent could constitute the provision of special Police services, even though officers who would otherwise be off duty had to be deployed. (3) What is the nature of the event or occasion at which the officers are required to attend? It is to be noted that in Wathen v. Sandys (1811) 2 Camp. 640, which was referred to in the course of argument in the Glasbrook case in the Court of Appeal [1924] 1 K.B. 879, 882, the sheriff was not entitled to charge the candidates for the provision of constables at the polling booth because he was under a duty to procure the peace of the county. But a distinction can be drawn between public events such as elections which perhaps lie at one end of a spectrum, and private events such as weddings which lie at the other end. At various points in the middle may lie events such as football matches to which the public are invited and which large numbers of the public are likely to attend. It may also be relevant to inquire whether the event or occasion forms part of a series or whether it is a single occasion or event. Someone who stages events which require the regular attendance of Police officers will be placing an exceptional strain on the resources of the Police, particularly if the events take place at weekends or on public holidays. (4) Can the provision of the necessary amount of Police protection be met from the resources available to the chief constable without the assistance of officers who would otherwise be engaged either in other duties or would be off duty? It was argued on behalf of the club that though it was relevant to take account of the total number of men available it was not permissible to take into consideration the fact that the use of “off-duty” officers might increase the payment of overtime. I am unable to accept this argument. The chief constable when deciding how to deploy his forces is subject not only to the constraints imposed by the number of men available, but also to financial constraints. The payment of overtime on particular occasions may mean that on other occasions reductions have to be made in the ordinary services provided by the Police or sacrifices have to be made in the provision of equipment”.

When these considerations were applied to the facts the Court concluded that the services provided by the Police within the stadium amounted to SPS. This was for the following reasons. First, the club had responsibilities owed not only to its employees and spectators but also to the football authorities to take reasonable steps to ensure that the game occurred in conditions which did not occasion danger to persons or property and the attendance of the Police was necessary to assist the club in the fulfilment of this duty (cf page 92D). Second, matches occurred regularly but the club was not under any legal duty to convene the matches (cf page 92E). Third, the charges levied by the Police authority related solely to the officers on duty inside the ground and not those in the street or other public places outside (cf page 92E). Fourth, there was evidence that the Police could only provide protection at Bramall Lane by making extensive use of officers who would otherwise have been off duty and substantial sums were thereby incurred by way of overtime (cf page 92F). Fifth, the provision of policing services was to guard against the possibility and for some matches the probability of violence but the officers were not sent to deal with an emergency whether existing or immediately imminent (cf page 92G).

The leading judgment was given by Lord Justice Neill but Balcombe LJ added observations of his own and Lord Justice Kerr agreed with both judgments. Lord Justice Balcombe in particular addressed the significance of the fact that the Police enjoyed a discretion as to the allocation of resources. He recognised that in deciding how a Police authority exercised its public duty to enforce the law the authority “...has a discretion” which the Courts would be slow to interfere with: See page [95C]. He said that in exercising the discretion the authority “...must clearly have regard to the resources available to him” and he endorsed the observation of Lord Justice Scrutton in the Court of Appeal in Glasbrook (ibid page [891]) to the effect that:

“Obviously the Police authorities cannot be expected to, and cannot, protect every citizen completely against possible, even anticipated, crime, the cost would be prohibitive...”

In West Yorkshire Police Authority v Reading Festival Limited [2006] EWCA Civ 524; [2006] 1 WLR 2005 (“Reading Festival”) the defendant was the promoter of a music festival which occurred annually at a site near Leeds. Upon each occasion, from 1999 – 2002, the Police provided large numbers of officers to attend upon the site for which the defendant paid upon the basis that they were SPS within the meaning of section 25(1) of the Police Act 1996. During negotiations over the 2003 festival the Police informed the organisers that it intended to provide very few officers on the site but would deploy larger numbers in the surrounding area who could be on call to deal with any major incidents occurring within the site. The organiser made clear that it would not pay for the cost of officers deployed off the site apart from those managing traffic but that it would be prepared to make a payment if the Police based officers on the site. In the event, the organiser managed the safety of the site using hired security staff and the Police deployed a large number of officers in the surrounding area. Subsequently the organiser refused to make any payment to the authority apart from paying for the cost of traffic officers. The Police commenced proceedings pursuant to section 25. The Judge found that by making it clear that it wanted Police officers to attend on the site the organiser had made an implicit request within the meaning of section 25 and he gave judgment for the Police authority. The Court of Appeal allowed the appeal upon the basis, essentially, that no request had been made. For a “request” to be effective there had to be agreement at least in broad terms between the promoter and the Police as to the services which were to be provided and it was not open to the Police to adopt an open ended discretion to provide such services as it saw fit and then levy a charge upon the promoter for the provision of those services. The observations of the Court of Appeal upon the concept of SPS were thus obiter. Nonetheless, the Court expressed a view upon the issue given its significance in relation to other cases (ibid paragraph [58]). The Court endorsed the test in Harris and made a number of significant points. These observations have been treated as valuable guidance in later cases.

First, the test of what was SPS was not determined by a “but for” analysis. The test was not whether the services were caused by the event but whether the services were provided to the person requesting them for their own benefit and protection (ibid paragraph [59]). In other words, the service had to be “...special to the person requesting them rather than rendered for the benefit of the general public” (ibid). Lord Justice Scott Baker rejected the “but for” analysis in the following terms:

“62.

This argument has considerable superficial attraction, but taken to its logical conclusion it suggests that on every occasion some event causes the police to provide services that go beyond the routine deployment of officers they are providing “special police services”. I do not believe that to be the law. Take, for example, a large demonstration in a public place. The organisers, responsibly, tell the police what is planned and there is dialogue so that the risk of unlawful activity is kept to a minimum. I cannot see that policing such a demonstration can be described as providing “special police services” within the meaning of section 25”.

Second, the Court considered that there was a role to be played by a “predominant purpose” test. By way of illustration a Police operation conducted upon the public highway or in a village would not “ordinarily” be conducted for the benefit or protection of particular persons such as those organising sporting events and their attendees but would, to the contrary, be for the predominant purpose of the protection of the public at large. The application of the predominant purpose test, when applied to the provision of Police services away from the festival site, led to the conclusion that the services were provided for the protection of the public at large albeit that they were occasioned by the existence of the festival (ibid paragraph [63]). On this basis they were not SPS.

Third, it was impossible to lay down a comprehensive definition of “SPS” and that the particular circumstances were always likely to be critical. The guidance in Harris was helpful but “ordinarily” one of two key features would likely be present if the provision of a service was to amount to SPS. Either the service will have been requested but will exceed what the Police will consider necessary to meet their public duty obligations or they will be services which, if the Police do not provide them, “...the asker will have to provide them from his own or other resources”. Lord Justice Scott Baker stated: “Essentially, however, “special police services” will be something that someone wants, hence the importance of the link in the section with a request”. The notion of the provision of a “special service” was also emphasised in paragraph [68].

Fourth, Lord Justice Scott Baker accepted (cf paragraph [70]) that the festival placed an exceptional strain upon Police resources and that the amount of protection provided could not be met without the authority paying overtime, i.e. incurring incremental costs. This was a factor in favour of the service provided being SPS. However, he was unimpressed with the more general point advanced by the Police which was that it was “just” that the Police should be able to recover the incremental cost of policing “run for profit” events:

“72.

There was a strong argument that where promoters put on a function such as a music festival or sporting event which is attended by large numbers of the public the Police should be able to recover the additional cost they are put to for policing the event and the local community affected by it. This seems only just where the event is run for profit. That however is not the law”.

Fifth, whether the service was provided on private property or in a public place is likely to be “...a very strong factor” indicating the answer (cf paragraph [71]).

The leading authority is now Leeds United Football Club v Chief Constable of West Yorkshire [2012] EWHC 2113 (QB) per Eady J; and on appeal [2013] EWCA Civ 115. The case concerned the power of the Police to charge for policing services arising out of matches held at Elland Road football stadium in Leeds.

I analyse in greater detail the implications of this judgment for the present case below in Section E. For present purposes it suffices to summarise the main points arising out of the Judgment of Lord Dyson MR with whom the other members of the Court agreed.

First, the case concerned the provision of policing services away from the stadium in what was described as the “extended footprint”. On the facts this included the provision of policing services up to 200 metres away from the stadium and it was a relevant consideration that Leeds United had one of the worst records for spectator violence and disorder in the country and that accordingly the services provided by the Police were, in a general sense, in anticipation of and to quell disorder.

Second, the Court: (i) endorsed the basic principles laid down in Glasbrook as to the distinction between the core operational duty of the Police and the provision of SPS; (ii) endorsed the guidance given by Neill LJ in Harris as “...in varying degrees useful pointers” (ibid paragraph [29]); (iii) considered that the observations of Lord Justice Scott Baker in Reading Festival were important; and, (iv) accepted therefore that there were no hard and fast rules to be applied and that the analysis was fact and context specific.

Third, the Court accepted that in performing its duty the Police had discretion as to how it allocated its resources and it cited the observations of Lord Justice Balcombe in Harris to this effect: ibid paragraph [13].

Fourth, the Court accepted that the question of for whom the benefit of the policing services were to be provided and/or its predominant purpose was a relevant consideration in deciding whether the service was “special” or whether it fell within the operational duty. However, this was not a decisive or conclusive test: ibid paragraphs [18], [41] and [44]. The test “...should not be regarded as determinative or even necessarily of great weight in all cases” (ibid paragraph [32]). It was too narrow a test: ibid paragraph [33]. For instance the arrest of a burglar “engaged in robbing a jeweller’s shop” after the Police had been “summoned” to help was as public duty even though it was for the benefit the jeweller: ibid paragraph [32]. In some cases (especially well away from the stadium) the test may be of “limited” value: ibid paragraph [44].

Fifth, when a preventative Police service was provided on private land prima facie this was a strong indictor that the service was SPS and this was so even though the Police presence might be to maintain law and order. This may be the most important factor in determining whether a service amounted to SPS. However, even on private land where the Police intervene on a reactive basis (for instance to secure the arrest of a violent spectator) this may still be part of the operational duty of the Police: ibid paragraphs [25] – [34].

Sixth, the provision of Police services in a public place (whether preventative or reactive) was prima facie part of the operational duty of the Police. It is a factor which “... although not conclusive ... militates in favour of treating the service as being performed by the Police in discharge of their duty to maintain law and order”: ibid paragraph [36]. Even in relation to services provided in public places the issue was however still to be determined by reference to an overall consideration of the facts: ibid paragraph [35]. It was, for instance, possible to envisage a policing service performed in a public place which amounted to SPS (for instance the provision of a Police escort): ibid paragraph [30]. In a public place (unlike in a private place) the distinction between reactive and preventative policing was far less relevant in the application of the test: ibid paragraph [27].

Seventh, the fact that large football matches placed an exceptional strain on Police resources was not irrelevant but it was not a factor of “much” weight: ibid paragraph [38].

I set out below a summary of the most important principles which arise from the case law.

For the purposes of section 25 the services provided by the Police can be divided into operational (for which no charge may be levied) and SPS (for which a charge may be levied). There are no hard and fast rules governing whether a policing service is operational or an SPS. The issue is fact and context specific.

The core operational service embraces both reactive policing and preventative policing. Reactive policing is Police intervention in response to actual or imminent crime or disorder; preventative policing is policing designed to prevent or deter the emergence of crime or disorder. The securing of safety and preservation of property may be an inherent aspect of both reactive and preventative policing.

Preventative policing can be both an operational activity and SPS.

There is no authority suggesting that the provision of reactive policing services can amount to SPS and Harris (at page [91F]) suggests that reactive policing may never be SPS.

Assessment is fact specific: In determining whether a service is operational or capable of amounting to SPS there are no hard and fast, black and white rules. Nonetheless there are guidelines arising out of case law which create indicators and some are of much greater weight and importance that others. I identify below some of the main indicators and the weight which has been attributed to them in case law.

Preventative policing on private land or land the recipient controls: Preventive policing performed on private premises or land controlled by the recipient is prima facie SPS. This might indicate that the service is SPS because, but for the permission of the service recipient granted to the Police to enter the land, the Police would have no prima facie right to enter and because the degree of control exercised by the recipient is indicative of the commercial nature of the use of the land and the relationship of the service provided by the Police to the recipient. The relationship in law of the recipient of the Police service to the land in question is not in itself dispositive but it is an important factor which can shed light on the broader question which is as to the essential nature of the service provided by the Police to that recipient.

Preventative policing on public land or on the public highway: Preventative policing on public land or on the public highway will, prima facie, be part of the operational duty. But, it is still capable of being an SPS in appropriate circumstances (such as the provision of a Police escort service on the public highway).

Reactive policing on private land: Reactive policing on private premises will still be operational. There is no case law indicating that the performance of normal reactive policing, for example arresting a person intent on assault or drug dealing in a stadium, is anything other than an activity within the operational duty.

The relevance of the discretion of the Police: The Police have a discretion as to how resources are allocated. The operational duty may arise only after the exercise of discretion. If the unilateral decision is taken not to allocate (say) preventative resources a private person may request those services for consideration as SPS.

The nature of the benefit provided: The identity and nature of the recipient who benefits from the service is a relevant but not conclusive consideration. This may involve a consideration of the predominant purpose of the service. If the beneficiary is the public at large this is an indication that the service is operational. But if it is directed towards a private person for a private gain and/or to a limited category or sub-set of persons that may have some significance. The mere fact that the beneficiary is a sub-set of the public does not without more mean that the service is SPS: See paragraph [111] above in relation to the example given of the apprehension of the burglar, though the illustration given in Leeds United seems to be of reactive policing.

No “but for” test: A Police service is not an SPS simply because it would not have been provided “but for” the existence of the event in question.

Analysis and conclusion

In the light of case law I identify the following issues and questions as relevant to the facts:

It is no answer to the position adopted by the Police in this case to say that preventative policing can fall within the operational duty and therefore cannot be SPS. There is no inconsistency in the fact that preventative policing is recognised as in principle part of the operational duty but is also capable of amounting to SPS outside of the operational duty. In Michael and others (FC) v The Chief Constable of South Wales Police and another [2015] UKSC 2 (“Michael”) the Supreme Court endorsed the principle in Glasbrook as encapsulating the scope of the duty of the Police in terms of the “preservation of the Queen’s peace” and did so (in paragraphs [29] – [32]) in terms making it clear that the core duty in principle included preventative policing. The Supreme Court also cited section 83 of the Police Reform Act 2002 (substituting Schedule 4 of the Police Act 1996) under which every constable is required to make the following attestation:

“I … do solemnly and sincerely declare and affirm that I will well and truly serve the Queen in the office of constable, with fairness, integrity, diligence and impartiality, upholding fundamental human rights and according equal respect to all people; and that I will, to the best of my power, cause the peace to be kept and preserved and prevent all offences against people and property …”.

However, it is also clear (from Glasbrook, Harris, Reading Festival, and Leeds United) that the fact that preventing crime is, in principle, a core operational duty, does not mean that in appropriate circumstances it cannot also be SPS. Hence the categorisation of the activity as preventative is not dispositive. There are good policy reasons for this. As Lord Justice Scrutton observed in the Court of Appeal in Glasbrook (see paragraph [99] above) and as was recognised in Harris (see paragraphs [97] – [99] above) and in Leeds United (see paragraph [110] above) if the Police were duty bound to allocate resources so as to prevent all crime they would be subject to a wholly impossible financial burden. Of necessity the Police have to prioritise and exercise judgment as to when to allocate resources to preventative policing and when not to. The nature of preventative policing is, in this regard, unlike reactive policing by virtue of the difference in the probability of disorder arising. In a reactive situation the offence is actual or imminent; but in a preventative situation it could be a remote possibility (and will never eventuate at all if the policing is effective). As such Police authorities exercise a quite different judgment when deciding whether and if so how to deploy preventative resources. The setting of priorities is accordingly a legitimate part of the discretion of any Police force. Indeed, one of the reasons why the Supreme Court did not impose a private law duty on Police authorities in Michael (ibid) was that it could generally distort their decision making and resource allocation priorities (cf per Lord Toulson at paragraph [121] with whom the majority agreed: “At an institutional level, it is possible to imagine that it might lead to police forces changing their priorities by applying more resources to reports of violence or threatened violence, but if so, it is hard to see that it would be in the public interest for the determination of police priorities to be affected by the risk of being sued.”). The short point is that in the case of preventative policing the Police have a discretion when and how to act and this explains why, in a given case, the Police might recognise that there is prima facie a proper case to be made for allocating preventative resources but yet conclude that in applying existing priorities no resources would in fact be allocated. In such a case a person wishing to request preventative policing services can quite properly be expected to pay for the service as SPS.

The next point concerns the fact that the TCO area is not private land over which the Club can, by virtue of a proprietary interest, preclude the Police from entering. In their skeleton argument the Club argued that this was decisive and that in law the Rubicon was crossed at the border of the stadium, i.e. at the gate or turnstile which marked the divide between private and public land. The correct approach is however more “nuanced” than the Club contends - cf per Lord Dyson in Leeds United paragraph [27] citing Harris with approval:

“27.

...The Court of Appeal did not accept that the fact that the services were to be provided on private land determined conclusively that they were SPS. Nor did they consider that the fact that the Police thought the services were necessary to prevent a breakdown of law and order determined conclusively that they were not SPS. Instead, Neill LJ propounded a nuanced approach suggesting a number of factors which are required to be taken into account in deciding whether the services are to be classified as SPS. Of these, the most important is whether officers are being required to attend on private premises. That is because, since the Police do not as a general rule have access to private premises, their presence there would suggest that prima facie policing on private premises amounts to the provision of SPS.”

The fact that the Police do not, at least generally (i.e. subject to their other statutory and common law powers), have a right of access to private premises is an indication that the service provided at a private premises can amount to SPS. But the categorisation of the interest in the land on which the service is to be provided is not per se the test. It is merely indicative of a wider assessment of whether the service being provided by the Police is more properly to be described as private or “special”. It follows that a service provided away from private land can also be SPS.

In Harris Lord Justice Scott Baker articulated the issue in a slightly different way: “...where the services, as here, are deployed off site it is more difficult to establish “special police services””. The notion of an activity which is “off site” begs the question as to what the “site” is. It has resonance in the present case because, in substance, the Police argue that the TCO area is treated in a pragmatic and practical sense by all concerned (the local authority, the Police and the Club) as part of the Club’s “site” since it actively uses this area to perform essential activities of the same type and nature as it performs inside of the stadium, even though the Club has no proprietary interest in the TCO area and can neither invite the Police into the area nor ask them to leave. Further the Police point out that the language of section 25 supports the argument that such services can still amount to an SPS because it does not focus exclusively upon the premises in issue but contemplates that an SPS might be provided outside “in the locality”.

In Harris and in Reading Festival the Court endorsed the idea that where the recipient of the Police service exercised “control” over land, that this could be relevant as one factor (inter alia) in the overall mix of relevant considerations. However, there was no explanation of what was meant by “control”. In Leeds United Lord Dyson MR stated:

“35.

… The present case concerns the question whether the Club is also required to pay for the services provided in the extended footprint that is on land which the Club does not own or control which is public land. Although we have been shown no authority in which this issue has arisen, it seems to me that it should be resolved by applying the principles that are to be derived from the authorities to which I have referred”.

He then stated that where services were provided on public land this was a “… strong indicator … though not conclusive” that the service was not SPS (ibid paragraph [36]). An illustration has been given in case law (Leeds United paragraph [30]) of the Police being invited to and then providing a road escort (e.g. for a chauffeured VIP) as a case of SPS being provided on the public highway.

At all events it follows from this that the fact that the Club has no private law interest exercisable over the TCO area is not dispositive and that it is necessary to examine much more closely the nature purpose and degree of control exercised by the Club over the TCO and the nature of the services provided by the Police in this area.

I turn therefore to the issue of control. The paradigm example of an ability to control access to land is a freehold interest in the land, but a leasehold interest may also suffice (depending upon its terms). But the concept of “control” may include a lesser right, such as a licence or permission.

There is little of real assistance from case law which guides how to analyse the facts of the present case. In Leeds United at first instance the Judge, applying the principles in Harris, sought to ask whether the club had “control” over some of the areas in which the Police maintained a presence and for which they sought payment (cf paragraph [40]). The Constabulary argued for example that even in relation to certain car parks well away from the Stadium the club had control. The following is illustrative of how the “control” argument was advanced. At paragraphs [44] and [45] the judge expressed himself unimpressed:

“44.

In the course of formulating submissions, WYP resorted to somewhat contorted and artificial arguments on "control". As I have said, none of the nearby car parks was owned or leased by the Club. Several are owned by the City Council and there is also a bus park owned by West Yorkshire Passenger Executive (generally referred to as Metro). On at least one occasion, the Club arranged for its own tractor to clear snow from the Metro bus park to facilitate parking for visiting coaches. This was said to be some evidence of "control" by the Club, but the crucial fact is that before doing so the Club required, and obtained, Metro's permission.

45.

Another argument related to the Club's having engaged the part-time services of a Mr W. He was paid on match days for monitoring CCTV coverage and would pass relevant information to the Police. On 2 May of this year, he was requested by the Club's security officer to open the Fullerton car park for matches on 15 May, and to make charges on behalf of the Council, which owned it and by whom he is usually employed. It was in that capacity that he was requested to make the parking available. That does not evidence control by the Club: quite the contrary. As I have said, there is no evidence that it controls any of the relevant parking areas”.

In my judgment it is necessary to resort to first principles. The reference to the propriety interest exercised by a recipient of services is only relevant because it assists in classifying the nature of the service provided by the Police. If the service is provided in response to an invitation (the “request”) to enter onto private property then it is easy to understand why the service is less likely to be seen as the exercise of the core operational duty. The service acquires more of a private or “special” hue to it. Put this way the question of control acquires a more understandable significance. If a private party controls, to some relevant degree, a piece of land and uses that for commercial purpose and requests the Police to provide low level preventative services of a type which instil a sense of peace and order to the area then, again, it might be understandable that the service provided has the hue of SPS. And that conclusion might be even stronger where the area in question over which the recipient (i.e. the Club) exercises some degree of control (and for which police services are sought) is contiguous physically to land (i.e. the stadium) over which it exercises a fuller proprietary interest. And the conclusion may become even stronger where there is also a strong nexus between the policing activities performed in the controlled land and the policing services performed on the private land. Accordingly, in the present case it is relevant that: (i) the Club exercises a high degree of control over the TCO area; (ii) the TCO area is contiguous with the stadium over which the Club exercises legal control through its long lease; and, (iii) the purpose for which the Police provide policing services in the TCO area to the Club has a strong nexus to the reason it provides services inside the stadium. The situation thus falls, on the facts, within the prima facie SPS situation described in case law.

On balance I am of the conclusion that the issue of control is a significant consideration in favour of preventative services in the TCO area being SPS.

The assessment of the risk of violence and disorder is helpful in that it assists in painting a picture of the nature of the services that the Police habitually provide. In the Leeds United case the Police were routinely providing a reactive service because in the light of the very poor record of the spectators for violence, crime was an ever-present and real prospect. The club had what the trial judge described as “one of the worst records for football–related violence in the country” (High Court ibid paragraph [1]) and this was a point also highlighted by the Court of Appeal (e.g. ibid paragraphs [26] and [43]). Evidence given in the High Court referred to the risk of violence and even rioting as, in effect, frequent (“on many occasions”) (cf High Court ibid paragraph [54]). This is also apparent from the rendition of the facts by Eady J at first instance (ibid paragraph [39]) which shows that the services sought to be charged for were not preventative but were in substance in real anticipation of violence and disorder. He described the sorts of areas where policing was provided and for which the Police sought recompense:

“39.

There is one area which, at least until recently, was a notorious trouble spot and which WYP seek to include within its "footprint" for that reason. It is a small residential area where the Club's fans would congregate regularly, sometimes gathering bits of wood from garden fences and other weapons or missiles (e.g. stones or bricks), with a view to ambushing the fans of a rival club when its coach pulled into car park A, which is adjacent to it. I can well understand why the Police reasonably thought it necessary to have a presence in that public area, and that the only occasion for these displays of hostility was that the Club was hosting a match that day.”

The risk of disorder was thus relevant in that it indicated that the provision of policing was in large measure due to the anticipation of immediate violence and this meant that the services could not easily be described as routinely preventative.

There are two points to make about the risk in the present case.

First, I have set out at paragraph [23] above the statistics produced by the Police reflecting arrests and ejections and it is common ground between the parties that these establish that even in overall terms, in relation to the wider locality in which Portman Road sits, the risk of serious disorder is very low and that therefore the norm is preventative policing.

Second, it follows from the first point that the statistics relate to the total area subject to policing and are not therefore indicative of risk in the TCO area. Other evidence given in Court in the present case indicates that the risk profile is not uniform and that there were various risk hot-spots in well known pubs and along certain roads in the lead up to the stadium, all of which were away from the TCO area. Mr De Marco, for the Club, cross-examined Superintendent Andrew Mason about various police logs addressing the nature and extent of policing before and after matches and in particular he focused upon the record created about a derby match between the Club and Norwich City in which violence was anticipated and occurred (some in or on the border of the TCO area). The object was to show that the Police engaged in traditional core operational activities in the TCO area. The match in question was played on 23^rd August 2014. Planning for the match, which was early identified as high risk, started in July 2014. In the immediate run up to the match there were some relatively isolated incidents. Crowd pressure built up on Princes Street (an approach road from the railway station) as it approached Portman Road. Items were thrown at the Police at Fison’s Corner. Some Ipswich fans sought to mount the barriers to get at Norwich supporters as they sought to enter the stadium. Dogs were deployed as a deterrent and the Police log records that decisive action was needed “... to nip this disorder in the bud quickly”. The disorder seemingly arose quickly but was also dissipated quickly. The Police issued a press release along the lines: “very successful event, only 2 arrests, Silver thanks the public for their cooperation and very peaceful and successful event”. There was no disorder post-match. On analysis of the evidence as a whole this incident reflected the high-water mark of the evidence of reactive policing and this particular match was very unusual since the Club had played Norwich only once in the past four years and was the worst incident during that entire period. But even this high water mark of disorder and violence turned out not to be very serious and real trouble was nipped in the bud. This appears to be the exception that proves the rule. In short, on the evidence before the Court the risk of disorder in the TCO area is low and the services provided by the Police in the TCO area are overwhelmingly preventative and their purpose is to establish a “presence” and create a tone to be transmitted to spectators coming to the stadium which would then continue as the spectators moved on inside the stadium.

Mr De Marco, for the Club, relied upon a dictum of Lord Dyson in Leeds United who said (ibid paragraph [43]): “If the Police consider that the discharge of that duty requires the provision of policing in a public place, it is difficult to see why that is not the end of the enquiry.” Mr De Marco argued that this was an accurate description of what had occurred on the facts of the present case. I do not agree. First, on the facts of this case the risk assessment is for the entire area in Ipswich affected by a match. There has in the present case been no discrete assessment of the risk in the TCO area where the risk assessment may in fact be quite different to other areas and where the need for policing might also be different. Outside the TCO area the Police predominantly provide policing without any assistance from the Club. But within the TCO area the Police provide services as a support to the stewards who have principal responsibility for safety and order and who regularly assume responsibility for traffic, safety and order without any police assistance. It is quite possible, therefore, that if a discrete assessment was made of the TCO area then the Police might decide (absent a request) not to provide services at all and to leave matters in the hands of the stewards. In the Reading Festival case the Police organised their resources so that if a real (reactive) issue arose on the festival site police resources could be called in from outside the site (see paragraph [100] above). Second, the present risk assessment is a consensual exercise which takes account of the Club’s stated needs both inside and outside of the stadium. It is not an assessment conducted unilaterally by the Police solely for the purpose of assessing the limits of its operational duty in relation to a particular match. As such it would appear to play a somewhat different role to the sort of assessment that the police would make if they were to identify exactly where their own operational duty started and finished. Third, it is of some relevance that Lord Dyson in Leeds United was referring to the decision by the police to provide policing in a “public place” which on the facts of that case (a) included areas as far away as 200 metres from the stadium; and (b) was in the context of an ever present high risk of immediate violence which could erupt at any location in the environs of the Elland Road stadium. He did not have in his sights the sort of hybrid assessment which the present assessment addresses.

This is the converse of points (2) and (3) above. Just as the fact that the TCO area is not private land is not decisive the fact that the TCO area is public land is also not dispositive. In Leeds United the Court of appeal made clear that preventative policing in a public setting was prima facie part of the operational duty. As such, in accordance with the more “nuanced” approach to be adopted under section 25 (see the quotation at paragraph [130] above), this did not necessarily mean that preventative policing was always or inevitably operational and in some other contexts could not amount to SPS:

“37.

… In a public setting away from any relevant private premises, the question whether the Police provide services in response to an emergency that has already occurred or is imminent (as opposed to responding to the need to provide protection against the possibility of disorder) is unlikely to shed light on whether the provision of the services is part of the Police obligation to maintain law and order or the provision of SPS. Prima facie, in a public location the provision of Police services in both situations is likely to be in discharge of the duty to maintain law and order. As I have explained at para 30 above, the position is likely to be different in private premises.”

Case law recognises that the provision of preventative policing to a person who controls a piece of public land may, in appropriate circumstances, amount to SPS.

The Police argue that the preventative service provided in the TCO has a private and secondary nature and is directed at the Club stewards. They argue that it is only on those rare occasions that they act reactively that the purpose is directed at the public at large. In Leeds United the Court (ibid paragraph [31]) accepted that a focus on who benefitted from the Police service “may be a relevant part of the analysis of whether the service provided falls within the scope of a Police officer's ordinary duties”. This was how the Court construed the observation of Lord Justice Scott Baker in Reading Festival at paragraph [63]. Lord Dyson MR explained that the benefit test was important in enabling a court to classify a service as falling within the operational duty of the Police since: “... if the Police operation is conducted solely or predominantly for the protection of the public at large, this is a factor which points strongly against the services being SPS”. But the Court did not consider that a benefit test should be regarded as determinative or even necessarily of great weight in all cases. In particular the question did not turn on an ex post facto analysis as to whether the services provided by the Police primarily benefited the general public or particular groups of individuals since this was “not a practical or sufficiently certain approach” and moreover it overlooked the fact that there was a real public interest in the Police maintaining law and order (ibid paragraph [33]).

In the present case the preventative service is provided in the TCO as essentially a secondary and supportive service which enables the stewards to perform their core functions. It is provided pursuant to a request and is provided under contract to the Club. It is the corollary of the services provided inside the stadium. It is thus a service directed at the Club and its fee paying spectators. It is also the case that when the police do not attend a match the Club, through its stewards, manages order and disorder issues perfectly adequately (see observation after the data at paragraph [23] above) which rather reinforces the contention that the regulation of order in the TCO area is essentially a stewarding function with the Police as providers of a supplementary service directed to the Club for its benefit. This is not however conclusive as was made clear in Leeds United. Football spectators are also members of the public and the fact that they are present to attend a match which requires supervision (by Police and/or stewards) does not in and of itself mean that the service provided to them, to keep them safe, is SPS. But it is one consideration that can be taken into account in the overall mix.

For a service to amount to SPS it must, under section 25, be the subject of a request. The existence of a request is thus a necessary but (as is clear from case law) not a sufficient condition for a service being an SPS. It is not sufficient because, in a given case, a club or event organiser might request that the Police provide a service for instance to be provided at the local railway station. But that would prima facie be a request for the Police to perform its operational duty and the mere fact that the Club requests the Police, in effect, to do their duty, cannot without more act as a trigger for the right of the Police to demand payment for complying with that operational duty. In the present case there is no dispute between the parties that section 25 type requests were made. However, Mr De Marco, for the Club, submitted that the Club had little choice but to make the requests because, quite irrespective of the existence of a request, it was a condition of the Club’s safety certificate (see paragraphs [24] – [37] above) that if the Police considered that there should be a Police presence it could not thereafter operate the match either at all or without substantial restrictions. He argued that the making of the request in those circumstances was not therefore the exercise of any free choice in the ordinary sense of the word “request”. He argued also that the fact that the services were requested did not suggest that the service provided pursuant to the request was SPS and indeed could count against the services being SPS because the Club was compelled to request the service essentially for regulatory reasons. A very similar point was made by the club in the Harris case and was firmly rejected by Lord Justice Neill (ibid page 93B-D). He considered that the presence of the Police was necessary to enable the club to meet its responsibilities as the organiser of the match to players, staff and spectators as well as to meet duties imposed by the football authorities. As such, even if the request was “...made without enthusiasm” it was nonetheless a “request”. The Court did not, having arrived at this conclusion, proceed to attach any particular significance (either way) to the circumstances in which the request was made. In my view in this case requests were made (see paragraphs [50] – [67] above). The fact that they might have been made reluctantly in order to comply with regulatory duties does not change their character. Indeed, the fact remains that the club benefited materially from making the requests and having the Police presence, since it is an obvious benefit to the Club that it meets its regulatory requirements and does not have to suffer the adverse commercial consequences of being non-compliant (which could, for example, include restriction on attendances, fixture times, etc pursuant to a local authority prohibition notice – see paragraphs [27] – [29] above).

In Harris the Court of Appeal held that the nature of the event and its impact on Police resources was relevant. There was a spectrum of events ranging at one end from elections to private weddings at the other end, and football events were somewhere in the middle. The Court indicated that regular large scale events which imposed a strain on Police resources might indicate that the provision of policing services was SPS (ibid pages [91] and [92]). In Leeds United the Court has muted somewhat the inference arising in Harris that the strain on resources was a strong indication that the service provided was SPS. The Court pointed out that professional football matches attended by many thousands of members of the public were essentially public events and almost certainly required a greater Police presence than elections which the Court in Harris placed at the opposite end of a spectrum from private weddings. Lord Dyson MR (ibid paragraph [31]) questioned the relevance of whether events placed an exceptional strain upon the resources of the Police: “... whether the provision of Police services places a particular strain on their resources is unlikely to shed much light on whether those services are SPS. The Police sometimes provide law and order services which they are undoubtedly obliged to provide despite the very considerable strains that this places on their resources. A good example is the policing of a large protest march which the Police authority believes may give rise to violence and which therefore requires the deployment of off-duty officers paid on overtime and the deployment of substantial additional resources.” Nonetheless it has not been said that the issue of resources is wholly irrelevant and indeed in Leeds United the Court generally endorsed the analysis and approach of the Court of Appeal in Harris. It is right to observe that although it is plain that the Defendant’s policing budget is under great pressure and it does sometimes have to incur incremented costs (e.g. overtime) to perform policing at matches, this was not a point at the heart of the Defendant’s submissions.

It is not relevant that the Police only provide services in the TCO area because of the existence of a match. The rejection of the “but for” test in Reading Festival was endorsed by the Court of Appeal in Leeds United (cf paragraph [40]). The fact that the Police would not provide services to the Club but for the fact that the Club is seeking to make a profit from operating football matches is irrelevant to the issue. The Club and the fans (home and away) are all tax payers and/or rate payers and, through their fiscal contributions, they pay for Police services. The Defendant did not seek to argue before me that this was a relevant consideration but it is plain from the documents before the Court that there is an undercurrent of thought within the Police that suggests that in these budgetarily constrained times the Club’s owners and shareholders should cover the costs of all of those activities which it needs in order to run its commercial operation. This subplot has been identified and recognised in earlier cases and some mild sympathy or at least understanding for the sentiment has been expressed (see for instance per Lord Justice Scott Baker in Reading Festival at paragraph [72]; and per Lord Dyson MR in Leeds United at paragraph [40]). However, as the Court of Appeal has repeatedly stated: “This is not the law”.

Conclusion

In my judgment, and taking all of the relevant facts in the round and attributing due weight to each factor, the provision of policing services in the TCO area amounts to SPS. This is because:

It follows from the facts of the case that the services provided by the Police within the TCO area constitute SPS and the Police are entitled to impose charges for the provision of such services. I will grant a declaration in appropriate terms to this effect.

Next steps

In this judgment I have addressed only the central issue of liability relating to the classification of the TCO area. As set out in Section B above there are a range of other issues arising. Some of these points were briefly canvassed during the trial. Having reflected on the matter I am uncomfortable in dealing with points of law or practice which could well have wider ramifications upon the abbreviated basis that they have been dealt with thus far. I think that it is fairer to both parties that all issues relating to recovery and quantum are dealt with in one go when the full extent of the evidence and arguments can be gauged.

Accordingly, as to next steps I make the following directions. First, the parties are to draw up a list of outstanding unresolved issues which is to be cross referenced to the pleadings. This should include a more detailed (i.e. quantified) identification of quantum issues. Second, if having given further reflection to the issues either party wishes to refine or develop these points they should do so in the list of issues and then amend the pleadings accordingly. In other words, I wish the parties to move forward on the basis of their most up to date thinking about the outstanding issues but I would also expect the parties to adopt a common sense approach to refining the issues accordingly. If possible the parties should agree this list of issues. Third, the parties are to draw up, and again if possible agree, draft directions for the trial of these outstanding issues. I am anxious that any future trial should occur on the most expeditious and economical basis possible and I invite the parties to seek to agree such steps as can be taken to reduce costs as the case proceeds. Fourth, the parties are to make concise written submissions as to the implications of this judgment (e.g. including permission to appeal).

The above directions are intended to enable the case to progress quickly and efficiently. If the parties wish me to consider alternative directions they should include brief observations to that effect in their response to this judgment.