Policing the “extended footprint” of sporting events: public responsibility or private service?

A recent decision will be welcome news for sport clubs and shifts significant costs to the public purse. In Leeds United Football Club Ltd v The Chief Constable of West Yorkshire Police [2013] EWCA Civ 115, the Court of Appeal unanimously upheld Mr Justice Eady’s first instance decision ([2012] EWHC 2113 (QB)). The key question at issue was who should foot the bill of policing public land around sporting events, an activity which can often give rise to considerable costs for local police forces (for instance, it cost £1m per annum for West Yorkshire Police to police Leeds United FC home games by the Court’s counting). Ravi Mehta considers the decision.

The case turned on the distinction between “ordinary police services” (“OPS”) which are publicly funded and “special police services” (“SPS”). The latter are provided as a substitute for private security, pursuant to the power in s.25 of the Police Act 1996 and funded by a charge levied by the police force. SPS are provided in competition with normal market operators (with the arguable consequence that competition rules apply, as noted in this interesting blog post).

In the context of a Club whose “home matches have one of the worst records for football-related violence in the country” (at [2] per Eady J), police forces had developed the notion of a sporting event’s “footprint” (referred to in the latest Home Office Circular, HO 009/2011) to reflect – in their opinion - the breadth of the area that required policing on match days as a direct result of the sporting event. This went beyond the scope of policing the football stadium or the areas immediately outside the stadium owned or controlled by the Club.

However, the Court accepted Michael Beloff QC’s submission for the Club that this approach significantly extended the scope of SPS. It stressed that fans attending sporting events remain members of the public to whom the police owe a duty of protection (at [43]). A line of recent cases (Harris v Sheffield United Football Club Ltd [1988] 1 QB 77, Reading Festival Ltd and Wigan Athletic FC) demonstrate that the result in such cases is likely to be highly fact sensitive. However, Dyson LJ M.R. took the care to identify “useful pointers” (notably Neill LJ’s ‘four factors’ in Harris) to determine whether the police were entitled to charge for policing, including:

―      The location of policing services (the “most important factor” per  [34]): policing in public spaces or in areas outside the control of the Club were more likely to be OPS;

―      The existence or imminence of violence or another emergency: this was likely to engage the police’s general duty to maintain the peace. Further, “policing provided in a public place in order to protect persons and property, even where there is no actual or imminent threat of violence, will usually be in discharge by the police of their ordinary public duty” and therefore OPS (at [30]);

―      Whether the services were requested by the Club: this suggests that the policing was SPS (see Reading Festival Ltd);

―      The ‘benefit’ of the services: The Court accepted that it may be relevant to identify the party or group to benefit from the services: was this the public-at-large or directed at a specific person/venue (at [18] and [32]);

―      And to a lesser extent: the strain on police resources and the nature of the event: was it public or of restricted access? routine or a one-off?

The consequences are potentially extensive. Eady J was keen to stress that a similar finding was unlikely to apply to more public sporting events, such as “policing services […] in respect of cycle races on public roads” (at [50]). However, it is clear that there is a real constraint on the police from treating as SPS the services provided in relation to many sporting events, particularly where there is a clear distinction between private land where the event is held (such as rugby stadia, cricket grounds, etc.) and its public surroundings. Clubs can be comforted in the knowledge that a sufficient connection to their property or the event in question is required for policing services to fall outside the ordinary duties of polices forces. Police forces will need to demonstrate activities over and above the “maintain[enance of] law and order and [the] protect[ion of] life and property in a public place” to treat a service as SPS.