Can the police charge a football club for match day policing on public land immediately outside a stadium, where that land is largely under the control of the club? No, the Court of Appeal re-affirmed in Ipswich Town Football Club v Chief Constable of Suffolk [2017] EWCA Civ 1484.

When police officers are deployed, whether to public or private land, there is usually no question of a charge attaching to their services. The exception to this general rule is where a request is made for so-called special police services (“SPS”) pursuant to s.25(1) of the Police Act 1996 which provides:

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.

There are many scenarios in which a request for SPS could be made but it is common for football clubs to request, and for the Chief Constables to supply, SPS for match day policing. Indeed, many local authority Safety Certificates under the Safety of Sports Grounds Act 1975 require football club to arrange a police presence inside the stadium for matches with an increased risk of disorder.

A question that has arisen in recent years, prompted in part by pressure on police budgets, is how far SPS can extend – that is, for how much of the match day policing operation a police force can require a football club to pay. Clubs have generally accepted that the police can charge for policing inside their stadia and on land they own or lease immediately outside (i.e. clubs’ private land). Police forces have generally accepted that they cannot charge for match day policing outside the broad area of the stadium, even when the need for that policing has arisen only because of the match (e.g. officers at and along the route from train stations). Disputes have arisen about the lawfulness of charging for policing on public land very close to stadia that is, to all intents and purposes, occupied only by ticket-paying football supporters on match days. Football clubs have argued for a test based purely on the ownership of the land, whereas police forces have urged a focus on the occupancy or effective control of public land at the relevant time and on who benefits from police being deployed exclusively for a particular event – the event organiser, or the public at large.

These disputes came to a head in the earlier test-case of Leeds United FC v Chief Constable of West Yorkshire Police [2013] EWCA Civ 115. Leeds United objected to paying for policing on an “extended footprint” of land proximate to their Elland Road stadium that was neither owned nor controlled by the club, including the public highway, residential streets and car parks. West Yorkshire Police pointed to the fact that at least some parts of this land were virtually deserted except on match days, when they were heavily populated by football fans (most of them Leeds United’s paying customers) whose presence created the need for police to be deployed. The High Court (Eady J) and the Court of Appeal disagreed.

The Court of Appeal analysed the decision Harris v Sheffield United [1988] 1 QB 77, the first case to consider the police’s entitlement to charge for policing inside a stadium, where Neill LJ set out the following four factors for determining whether policing amounted to SPS or was part of the general policing duty:

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

(2) Has some violence or other emergency already occurred or is it immediately imminent? 

(3) What is the nature of the event or occasion at which the officers are required to attend? 

(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? 

Lord Dyson MR found in Leeds United that the first factor was of “central importance” and “the most important factor in the context of policing to maintain law and order” [30]. With respect to the second factor, Lord Dyson MR found that where the policing is in a public location, prima facie it is likely to be in the discharge of the duty to maintain law and order and therefore not SPS [37]. He questioned the usefulness of the third factor, and in any event found that football matches were essential public rather than private events [31]. He found the fourth factor he found to be even less relevant [31]. As to the question of who benefitted from the policing, which the Chief Constable had argued was a fifth factor based on the Court of Appeal’s decision in West Yorkshire Police Authority v Reading Festival Limited [2006] EWCA Civ 524, Lord Dyson said at [32]: “I do not consider that a benefit test should be regarded as determinative or even necessarily of great weight in all cases.”

The test laid down by the Court of Appeal in Leeds United was that the most important question in determining whether the policing could be charged for as SPS in the context of a football match was whether the policing was on public or private land. Policing on public land would usually be in pursuit of the police’s general policing duty and could not therefore be SPS. Policing on private land would generally be SPS, unless it was provided in response to actual or imminent violence (e.g. additional officers being called in to deal with an outbreak of disorder – see [34]). The Court of Appeal’s ultimate conclusion at [45] was that:

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

In Ipswich Town, the club sought to recover SPS payments it had made to the Suffolk Police for policing on an area of public highway adjacent to Portman Road stadium over which the club was said to exercise a substantial degree of control on match days. That area was dubbed the “TCO area” because it was the area where the club’s stewards operated a Traffic Control Order obtained from the local authority to exclude traffic on match days. Save for the extent to which the club was said to exert control over the “TCO area”, the disputed land was very similar (or “remarkably similar” as Gloster LJ found at [35]) to the “extended footprint” in Leeds United. Against that backdrop, it is perhaps surprising that Ipswich Town lost in the High Court, where Green J found that the Chief Constable had been entitled to charge for policing inside the stadium and in the TCO area, but not beyond.

The Court of Appeal, overturned Green J’s judgment and remained faithful to its 2013 decision in Leeds United. Gloster LJ found that it was “not possible to distinguish the present case on its facts from the situation in Leeds and the same legal principles should apply” at [35], noting that the only distinguishing features were that (i) there did not appear to be a TCO in Leeds United (as a matter of fact – there was); and (ii) the history of violence amongst supporters at Leeds United’s home and away matches was much greater than at Ipswich Town.

Gloster LJ roundly rejected Green J’s analysis and the Chief Constable’s submission that the degree of control exercised by a club over public land (in this case under the terms of the TCO) was a determining or even a relevant factor in deeming whether the policing in that area amounted to SPS [44]. For good measure, the Court of Appeal (Lord Briggs dissenting) also mounted an extensive attack on the Judge’s factual conclusion that Ipswich Town exercised a significant degree of control over the TCO area [49] – [54].

Conclusion: Certainty and predictability

In the final analysis, the Court of Appeal favoured the certainty and predictability of (i) following the decision in Leeds United; and (ii) the usual means for identifying whether match day policing is SPS being whether it was provided on the club’s private land - see Gloster LJ at [54(iii)]; [58], Gross LJ at [62] – [64] and Lord Briggs, who said at [70]: 

For as long as it remains the law that police operations connected with football matches are in part SPS and in part normal police operations, so that a line has to be drawn somewhere, the drawing of that line along the boundary between the private land of the host club and the public highway outside it seems to me to be the best normal (although not invariable or automatic) means of identifying SPS.

In view of the language used by the Court of Appeal in Leeds United and now Ipswich Town, it is hard to think of a realistic example policing on public land that might permissibly be charged as SPS. A police escort for a wide load travelling on a public highway is the only example that has been offered by the Court of Appeal - in Leeds United at [30].

Where next?

It is not yet known whether the Chief Constable of Suffolk is seeking leave to appeal to the Supreme Court but the issue of who pays for match day policing will undoubtedly come across the Policing Minister’s desk at some point as police forces search for ways to economise.

Perhaps sensing that the broader merits of these cases favour the police (and therefore the general taxpayer) over the organiser of profit making events, the Court of Appeal in both Leeds United at [40] and Ipswich Town at [25] quoted Scott Baker LJ’s dictum in Reading Festival at [72] that:

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

It is likely that a substantial part of the public would support the police’s being able to recover the cost of policing required for a commercial event such as a football match or music festival, even on public land proximate to the event and even if this resulted in some uncertainty and negotiation about exactly where the boundary should be drawn in a given case. But would the public be so keen for charges to attach to the policing of charity or community events? And what if the “commercial” event returns no profit or even a loss? The answer is far from clear, as Gross LJ noted at [68].

Gloster and Gross LJJ were clear that if the law on SPS is to change to allow the police to charge for policing on public land, it would have to be changed by Parliament – although they recognised a role for the Supreme Court, which is yet to consider SPS in the context of policing football matches. There is a risk, however, that the Supreme Court might do the opposite and reverse the police’s prima facie ability to charge SPS for policing even inside stadia on match days. In Leeds United, the club it was argued in the Court of Appeal (see [15]) that the decision in Harris was wrong by reference to the House of Lords’ decision in Glasbrook Bros v Glamorgan County Council [1924] UKHL 3; [1925] AC 270 – an argument that Ipswich Town expressly reserved should the case go to the Supreme Court (see footnote 9).

In Glasbrook, Viscount Cave LC set out a test for SPS of whether the police services were necessary for keeping the peace, preventing crime or protecting property from criminal damage; if so, they fell within the general public duty of the police; if not, they could be charged for as SPS (see p.277). In Harris, the police were required in the stadium precisely because of a known risk of violence. Public order policing of this kind is classically part of the general policing duty. Indeed, even in Ipswich Town Gloster LJ said at [40]:

In the present case, the police only attended to police certain matches at the stadium where there was a perceived risk of public disorder. That is wholly consistent with the discharge of a public duty and not SPS.

Notwithstanding the Glasbrook test, and the reality is that there is one match day policing operation with little distinction between policing inside and outside stadia, the Court of Appeal created a fudge in Harris to allow for policing inside stadia to be charged for as SPS. The Court of Appeal was understandably unwilling to disturb this fudge in Leeds United after it had been treated as good law 25 years. But there is a risk that the Supreme Court might take a more doctrinal approach to Glasbrook and effectively limit SPS to situations where the police are requested to perform a function that (i) falls outside the general policing duty; or (ii) exceeds the Chief Constable’s assessment of the appropriate response to that duty, including the number of officers required (in Glasbrook the House of Lords found that the Chief Constable was entitled to charge a colliery owner for policing to protect his colliery during a strike to the extent that it went beyond what the police considered to be adequate protection, which did not extent to billeting officers at the colliery as the owner had requested).

The stricture of Glasbrook would very rarely apply to match day policing inside stadia, which clubs request only where the is a high risk of disorder, triggering the condition of their safety certificate to arrange policing. While losing the ability to charge for any match day policing would be a major financial blow to police forces across the country, it would almost certainly be a short lived or even a pyrrhic victory for football clubs, because it would force the government to legislate to amend s.25 of the Police Act 1996 and re-open the question of expanding the circumstances in which the police can charge for their services.

James Berry appeared with John Beggs QC in the Leeds United case