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Should a football club be required to pay for policing on match days in areas next to the stadium, which are public land, but over which the club exercises some degree of control?

On 10 October 2017 the Court of Appeal handed down an important judgment in Ipswich Town FC v Chief Constable of Suffolk Constabulary (EFL intervening) [2017] EWCA Civ 1484, which clarifies that, on the law as it stands, the answer is (nearly always) no. The judgment can be found here.

The case is the latest episode in a long running saga over the extent to which the police may characterise their services on match days as “special police services” (“SPS”) under section 25 of the Police Act 1996, and hence charge football clubs for them. It is the fourth occasion in modern times on which the Court of Appeal has had to consider what falls within SPS in a footballing context, following Leeds United Football Club Ltd v Chief Constable of West Yorkshire [2013] EWCA Civ 115; Chief Constable of Greater Manchester v Wigan Athletic [2008] EWCA Civ 1449 and Harris v Sheffield United Football Club Ltd [1988] QB 77.

Police services can only be classed as SPS, and hence charged for, where they fall outside of the “absolute and unconditional” public obligation on the police to take all steps necessary to keep the peace, prevent crime, and protect property from criminal injury (the “public duty”). The public pays for such protection through rates and taxes, and the police cannot lawfully levy further charges for it: Glasbrook Bros v Glamorgan County Council [1925] AC 270.

At the heart of the problem lies the fact that one cannot clearly define what falls within the public duty, at least in this context, without resort to deep policy questions, over which there is no consensus. What is the proper role of the State in relation to (theoretically) profit-making activity which may as a (presumably unintended) by-product increase the risk of disorder? Is the sacred and inviolable institution of Football to be regarded as a public good? In the face of relentless austerity and the fires of Brexit, what services can the public exchequer be expected to cover?  

Parliament has (predictably) offered no assistance whatsoever: there is no definition of SPS in the 1996 Act.

The Courts have therefore been left to evolve a set of principles by which to try to provide some degree of certainty and predictability, and by reference to which the police and football clubs will seek to agree a system of charges.

It has been common ground between football clubs and the police for some time that services provided within the stadium itself on match days constitute SPS. The specific issue in Ipswich was whether the police can charge for services provided in areas around the football stadium which are the subject of a traffic control order (“TCO”). TCOs are made by the local authority. Within the area governed by the order, traffic and crowd control barriers are erected by the club, and vehicular access is restricted, on the delegated authority of the local authority. It was contended by the police that there was a degree of “de facto” control exercised by clubs in such areas.

At first instance, the High Court that the police services provided in TCO areas did constitute SPS, for ten specific reasons, identified by reference to nine different principles said to arise from previous caselaw. The analysis placed considerable weight upon the degree of de facto control found to be exercised by the club in TCO areas, and was very fact sensitive.

The decision of the High Court was overturned on appeal. The main judgment was given by Gloster LJ, with whom Gross LJ and Lord Briggs agreed, adding certain observations. The following important points emerge from the decision:

1.      Whether police services constitute SPS in any particular case is not a matter of the Court’s discretion: there is a single right answer in law (Gloster LJ at ¶36).

2.      On a proper analysis of the previous caselaw, the most important factor in the determination is whether the police services are being provided on private or public land. Although not in itself dispositive, this factor has a special importance, and for good reasons. In particular, the legal status of the land impacts in a number of ways upon the legal powers and duties of both the police and football club (Gloster LJ at ¶38(i) to (v); Gross LJ ¶63, Lord Briggs at ¶72).

3.      The status of the land does not simply establish a prima facie presumption to be rebutted, it is the most important consideration, to be factored in at all stages of the analysis (Gloster LJ at ¶39).

4.      An outcome dependent upon the simple, but critical, factor of whether the land is public or privately owned has the advantage of simplicity and predictability. It obviates the need for irrelevant enquiries (Gloster LJ at ¶58). It avoids the need to draw fine factual distinctions between one case and another, with inevitable attendant uncertainty (Gross LJ at ¶65). It provides the best normal (although not invariable or automatic) means of identifying SPS (Lord Briggs ¶72).

5.      The fact that policing in TCO areas may be preventative, rather than reactive, is wholly consistent with such policing being in the discharge of the public duty, rather than SPS (Gloster LJ at ¶40).

6.      Football matches, where there was a police presence and many thousands of attendees, were essentially public events, as had previously been recognised in Harris and Leeds United. This again pointed away from SPS, at least so far as public land was concerned (Gloster LJ ¶41).

7.      The control by a club of an area will only be relevant where that control results from a proprietary interest in the land in question (Gloster LJ at ¶44).

8.      The High Court had in any event made a number of errors of “secondary fact” when evaluating the extent of the club’s control and responsibility in the TCO area (Gloster LJ at ¶¶46 to 55, with whom Gross LJ concurred). On that subsidiary point, Lord Briggs took a different view (¶70).

9.      It was likewise irrelevant that the area in question was physically contiguous, or had some “nexus” to the stadium (Gloster LJ at ¶56).

10.  Nor, importantly, was it relevant that the club obtained some benefit or value from the policing which occurred outside the stadium. Its legal responsibilities ended at the turnstiles (Gloster LJ at ¶57(iv)).

The main immediate impact of the judgment will be to reaffirm the primacy of the status of the land. This should make future negotiations between the police and football clubs simpler and easier.

However, in circumstances where Ipswich is by no means the only football club to have TCOs imposed around its stadium, the judgment may also lead to actions for unjust enrichment where the police have in the past charged for services provided in such areas, on a basis of an understanding or agreement that is now ultra vires.

It is notable that all three Court of Appeal judges took the time to emphasise that their task was to ascertain the law as it stood, and to which they were bound, following Harris and Leeds United (see Gloster LJ ¶25, Gross LJ ¶¶67 and 68, Lord Briggs ¶72).

Both Gloster LJ and Gross LJ voiced some sympathy with the (as they found, political) argument that an entity which derives a specific benefit or profit from policing services ought to pay for that benefit, referring to the comments of Scott Baker LJ in Reading Festival [2006] EWCA Civ 524 at ¶72). However, they considered that to change the law so as to incorporate such a test would have to be a matter for Parliament and not the courts (at least below the level of the Supreme Court).

The Supreme Court has never itself considered the question of SPS in the context of football matches, and the last time it considered SPS was in Glasbrook (see above) in 1925, in the context of a colliery strike. It remains to be seen whether there will be an appeal in this case.

Michael Beloff QC and Nick De Marco acted for Ipswich Town Football Club. Shane Sibbel was instructed by the English Football League, intervening in the appeal in support of Ipswich Town. 


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