The cost of Policing football

The tenuous link between Matuzalem and this blog entry is Dave Whelan, the current chairman of Wigan Athletic FC. Whelan is no stranger to litigation or calls for proper governance of the professional game. His team was intimately connected with the Webster ruling[1]  – the direct progenitor of Matuzalem; and his has been a strong voice in support of Sheffield United’s grievances and claims against West Ham in the continuing Carlos Tevez saga. As recently as October 2008 he called upon the Premier League to mete out punishment on West Ham to include, if necessary, a deduction of points for fielding Tevez in breach of Premier League ‘third party ownership’ rules. It may seem a little counterintuitive that the team that effectively consigned Sheffield United to relegation (by beating them at Brammal Lane[2]  in the last game of the 2006/07 season) should be so supportive of their case; and it may be asked whether that support motivated by a degree of guilt on Whelan’s part. Not so. Whelan’s concern is motivated by the fact that had Wigan lost or drawn that game, The Latics[3] and not The Blades[4] would have gone down, with all the financial consequences attendant on relegation. As a businessman, Whelan is clearly acutely conscious of the financial implications of running a football club – witness his recent hard-nosed bargaining with Sunderland over Steve Bruce’s switch[5] from the JJB[6] to The Stadium of Light[7] – and he would not have taken kindly to the cost of relegation had the boot been on the other foot.

Given Whelan’s business acumen and willingness to resort to legal mechanisms of redress, it seems highly likely that Whelan and Wigan would have adopted Sheffield United’s course of action had Wigan been relegated in 2007. That assumption is fortified by the observation that Wigan ended up in court after their promotion in 2003.[8] The Safety of Sports Grounds Act 1975 provides that for a football club to stage football matches at its stadium it is required to hold an appropriate ‘certificate’ granted by the relevant local authority. A condition of the certificate in Wigan’s case was that the club had “to secure at its expense the attendance of “such number of police officers as in the opinion of the Chief Constable is sufficient to ensure orderly behaviour of spectators” [italics added].”[9] Although the police have both a statutory and common law duty to ‘maintain the Queen’s Peace’ and therefore to make available police officers for that purpose, section 25 of the Police Act 1996 provides that

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

The key words here are “special policing services” (‘SPS’). Whereas the police usually provide their services gratuitously,[10] as s.25 states, SPS are not ‘free’. Moreover, the scale of payment is at the discretion of the Chief Constable.[11] Unhelpfully, there is no definition of what amounts to SPS as opposed to ‘ordinary’ policing duties. To add to the confusion, in October 2000 the Home Office issued a circular[12] requiring police forces to recoup the full cost of policing football matches from Clubs. In other words, although normally the cost of policing is usually borne by the tax payer, section 25 allows the police to ‘charge out’ their time for SPS – the implication being that ‘ordinary policing’ would not incur any charge – whereas the Home Office circular required, on its face, the recouping of all policing costs from the relevant football club and the certificate also suggested that Wigan would bear the expense. There were clearly inconsistencies between the legislative framework, the Home Office circular and the terms of the certificate, and something had to give.

Following promotion in 2003 Wigan met with the Greater Manchester police on a number of occasions with a view to determining the extent of policing needs over the following season. Presumably because promotion usually means larger gates, the police took the view that a larger police presence was required at games than in previous seasons. In addition, the police increased the rate at which they charged for individual officers.[13] Although Wigan always accepted that some policing was required in principle, they continually resisted the police’s assertions both as to the level of manpower and the charge-out rate. Over the following two years both Wigan and the police failed to reach agreement as to the extent of police resources required and the appropriate rate. Yet over the same period, the Chief Constable supplied the manpower deemed appropriate by his Chief Superintendent despite Wigan refusing to pay for all of the services in fact provided. Eventually on 6th August 2005, the Chief Constable sued Wigan in respect of SPS.[14] The legal issue was to determine how an obligation to pay arose in circumstances where both parties agreed that s.25 of the Police Act did not give rise to a cause of action and where the police was not privy to the certificate. The Chief Constable only pleaded his case in contract although, as will become apparent, the case was also argued in restitution (unjust enrichment).

It ought to be fairly obvious from the foregoing sketchy outline of the facts that a claim in contract looked pretty doomed from the outset. It is trite law that the essence of a contract is agreement; there were few signs of any real agreement on the fundamental terms here. Even so, at first instance, the Chief Constable won. Mann J held that despite the absence of any ‘proper’ agreement (the parties were never ad idem[15]), Wigan could be said to have made an “implied request” for SPS and therefore an obligation to pay a reasonable sum[16] in respect of those services arose either as a matter of contract or restitution. The Court of Appeal, by a majority (Maurice Kay LJ dissenting), did not agree with Mann J.

Interestingly, despite the contents of the Home Office circular requiring police services to recoup all the costs of policing football from the clubs, the claim made by the Chief Constable here related only to policing provided inside the stadium and in the immediate surroundings, all of which was private land. In the earlier case of Harris v Sheffield United Football Club[17] (a case turning on the predecessor of s.25), Sheffield United had declined to pay for policing provided inside their ground, claiming that such policing was simply a matter of the police’s ‘ordinary duties’. Neill LJ did not agree. In his opinion,

If the club is to hold matches at Bramall Lane it is necessary for police officers to attend inside the ground. Their presence is necessary to enable the club to meet its responsibilities to the players, the staff and the spectators as well as to comply with the rules imposed by the football authorities … It may be that the request for the police services can only be implied from all the circumstances and that it is made without enthusiasm. But if the police attend in order to enable the match to take place then, in the circumstances existing in this case, I consider that a request is to be implied (p.93 of the judgement).

On that basis, it could be argued that Wigan Athletic ‘unenthusiastically requested’ SPS in circumstances where the police’s attendance was necessary “to enable the match to take place” and that this request should therefore be implied. However, all the Court of Appeal judges in Wigan disagreed with this analysis.

The Chancellor gave the leading judgment and in his opinion, the Harris case had to be read in conjunction with West Yorkshire Police Authority v Reading Festival Ltd[18] in which the Court of Appeal had held that where a festival promoter had policed the festival itself with privately hired security staff and the police confined its presence to the surrounding areas (albeit in large numbers), the police presence – apart from traffic management – did not amount to SPS for which the promoter was liable. Scott Baker LJ, in paragraph 21 of his judgment, referring to s.25 said:-

The section does not speak of a contract as such but it seems to me there would ordinarily need to be agreement between the promoter and the police as to what was being provided – at least in broad terms –  before a liability to pay arises.

Scott Baker LJ went on to say that although as a matter of principle it is always a matter for the police to decide how to deploy their manpower when exercising their ‘ordinary’ duties, when it comes to SPS that principle

has to be applied with some care to a situation where the police are providing ‘special police services’  where regard must be had to the actual services requested ... the request under section 25(1) cannot be divorced from the special services for which a charge is to be made.[19]

In other words, there has to be a link between the ‘request’ and the SPS in fact provided and that link is made by reference to what was discussed between the parties; or more simply put:-

In my judgment, although it does not expressly say so, it is very difficult to see how section 25(1) can operate absent a contract.[20]

 In reliance on Reading, but without expressly endorsing the need for a contract as such, the Chancellor in Wigan held (and on this point, all the Appeal judges agreed) that although the request had to ‘match’ the SPS in fact provided,

the match need not be exact because it is for the Chief Constable to determine the level of policing required.[21]

On the facts in this case, there was no ‘match’ between what Wigan wanted and what the police provided because Wigan had always objected to the extent of manpower deemed appropriate and the rates charged.

It is at this point in the analysis that the majority and the minority really part company[22] because it will be recalled that in relation to the scale of charges, s.25 leaves this entirely at the discretion of the Chief Constable. Moreover, the Chief Constable could always have refused to provide SPS if he was of the opinion that the levels suggested by Wigan would be inadequate for crowd control and/or safety. And although the terms of the certificate provided that Wigan could only play football at the JJB if they paid for policing at their own expense for such numbers of police as the police authority deemed appropriate – thus suggesting that Wigan really had no power to disagree with the Chief Constable’s assessment – the Chancellor continued by suggesting that

if the Club’s objection was to the level of policing, irrespective of whether it was entitled to do so, it is impossible to infer a request for the provision of the special police services to which it objected [emphasis added][23]

In short, a request for SPS under s.25 can in principle be implied, but not if it contradicts the evidence suggesting that there was in fact fundamental disagreement between the parties about what type of SPS was appropriate – even if one party has no real say in the matter.

In practical terms, therefore, as long as one party objects to the level of policing suggested by the police, even if that type of policing is in fact provided, there cannot be a request for SPS under s.25. If on the other hand the objection is not voiced, then the request will be implied. It seems to follow from this that Scott Baker LJ’s observation in Reading that is difficult to see how a request under s.25 can come into play in the absence of a contract is accurate and the Chancellor indicates as much in paragraph 36 his judgment. On the other hand, if the police authority had refused to provide any SPS in this case because of Wigan’s refusal to meet the attendant costs, then Wigan would not have been permitted by the terms of their certificate to stage any games at the JJB. It was this factor which appears to have swayed Mann J at first instance and Maurice Kay LJ in his dissenting judgment in the Court of Appeal. Put at its simplest, it looked as if Wigan had only been able to play football in the Premiership at home for two seasons because the police decided to provide manpower despite Wigan’s refusal to pay: that Wigan had therefore been unjustly enriched at the expense of the Greater Manchester police.

As stated above, the Chief Constable had only pleaded his claim in contract although Mann J and the Court of Appeal nevertheless allowed him to argue his case in the alternative on the basis of unjust enrichment or restitution. This argument only arose in the absence of a request under s.25 on which all three judges agreed. The judges disagreed on the issue of unjust enrichment. All three agreed that the relevant law was to be found in the High Court decision of Rowe v Vale of White Horse[24] where Lightman J set out the principles as follows:-

 …there are four essential ingredients to a claim in restitution:

(i) a benefit must have been gained by the defendant;

(ii) the benefit must have been obtained at the claimant’s expense;

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

(iv) there must be no defence available to extinguish or reduce the defendant’s liability to make restitution

Despite agreeing on the principles, the judges’ interpretation of Rowe and its application to the facts in Wigan differed markedly. Although the Chancellor gave the leading judgment of the majority, it is convenient to consider first the dissenting judgement of Maurice Kay LJ.

Kay LJ held that Wigan Athletic had been unjustly enriched at the expense of the Chief Constable. His analysis was pretty straightforward: Wigan Athletic had benefited from the provision of police services because, at its simplest, without that police presence they would have been in breach of the terms of the safety certificate. Furthermore, although the Chancellor took the view that a benefit had to be freely accepted for the first criterion (of benefit) to be satisfied, Kay LJ took the view that ‘free acceptance’ was not relevant at this stage of the analysis. ‘Free acceptance’ might be relevant to one or two of the other criteria, but not to ‘benefit’ where that benefit was “incontrovertible” as found by the trial judge.[25] The fact that the football Club effectively had ‘no choice’ but to accept the Chief Constable’s assessment could have been challenged by way of judicial review, but wasn’t here, and they were therefore “stuck with it”. That benefit was admittedly obtained at the expense of the Chief Constable because he had had to pay his police officers, and for the same reasons (the terms of the safety certificate and the absence of any public law challenge) it would not be unjust to require the Club to the pay for the services provided by the police. Conclusively,

it may be burdensome for the Club, but, having taken this particular benefit, it would be unjust if it did not make appropriate payment for it.[26]

The Chancellor, on the other hand, held that the football Club had not been unjustly enriched at the expense of the Chief Constable. His reasoning was somewhat more nuanced than that of Kay LJ. According to the Chancellor, and perhaps as a sideways swipe at the Chief Constable’s legal team, the argument based on restitution had to be placed in its evidentiary context: not only had the Chief Constable not pleaded restitution on the face of the pleadings, but

the evidence at the trial and the primary focus of the arguments addressed to Mann J were directed to issues relating to [the s.25] request not these [restitution] ingredients. One consequence is that there are no clear findings of primary fact in relation to all of them[27].

The absence of evidence ‘going to’ restitution therefore allowed the Chancellor to assert that the Chief Constable had failed to prove that the extra police in fact provided had in fact benefited the Club. Whereas Mann J and Kay LJ held that the Club derived a benefit by virtue of their compliance with the terms of the safety certificate, the Chancellor took a narrower view of the benefit in issue. The Chief Constable was only suing for the extra manpower not for all the police provided and so, for the Chancellor, the question was whether the provision of extra staff was a benefit conferred on the Club. According to both the Chancellor and Lady Justice Smith, the Chief Constable had not adduced evidence proving that the extra staff in fact conferred an additional benefit on the Club. In the Chancellor’s words:

It is not self-evident that the extra manpower deployed in the seasons 2003/04 and 2004/05 was of extra benefit to the Club. There was no evidence directed to that question. It may be that policing at the lower level enjoyed in the earlier seasons would have been sufficient. It is idle to speculate [emphasis added]. [28]

Smith LJ agreed stating:

there was no evidence that the Chief Constable had ever said that the greater number of officers which he intended to deploy were necessary because any fewer would not be sufficient to ensure the orderly behaviour of spectators … It seems that he mistakenly believed that the Club had (impliedly) requested the greater number and could be required to pay for them [emphasis added].[29]

As can be seen here, having also implicitly chastised the Chief Constable’s legal team for not leading sufficient evidence on the issue of benefit, Lady Justice Smith unjustifiably draws an inference that the Chief Constable in fact made a mistake about the appropriate level of policing. There does not seem to be any evidential basis for drawing this inference, but the reason why she does this is in order to bolster her argument that in any event there can be no ‘unjust factor’ under the third criterion of Rowe. Thus in response to the submission that the ‘benefit’ was in fact that the Club could stage football in compliance with the safety certificate, Lady Smith continued:

Mann J also held that the Club obtained a benefit because it was able to fulfil the requirements of its safety certificate and thus play its matches. I can see how that could be said to be a benefit to the Club. But, if as I have explained above, the Chief Constable was labouring under a misapprehension as to the level of SPS requested, I do not see why, in justice, the Club ought to pay for the extra officers.

Unlike the Chancellor who treated the four Rowe criteria separately, Lady Justice Smith self-consciously conflated the first and the third whereas Kay LJ preferred to treat ‘free acceptance’ as part of criterion two and/or four. The Chancellor, on the other hand, also held that even if the Club had derived a benefit from the additional manpower (which he did not accept) then that benefit had not been ‘freely accepted’ because the Club was presented with “Hobson’s Choice”.

The Club was unable to reject those services unless it also rejected the services which it did want and had requested. To do that would have meant that the Club could not play their home matches in the Stadium at all. In my view it is clear that there was no free acceptance of the services in dispute because the Club were, in practice, unable to reject them alone.[30]

This view can be contrasted with Kay LJ who considered that there was in fact a choice here: Wigan could have judicially reviewed the decision of the Chief Superintendent if they did not agree with it. There was a choice: seek redress through public law. The Chancellor did not deal with this point in his judgement and was content to reiterate the Hobson’s Choice point in support of his conclusion that there could not be an unjust factor under the third limb of Rowe either. Lady Justice Smith added some padding to this part of the judgment by suggesting that there was an explanation (other than an unjust factor) for the provision of extra manpower by the police in this case:

if the police wished to deploy a greater number than had been requested, there was a perfectly rational explanation for why they might choose to do so. They could do so in the exercise of the common law powers.[31]

The explanation is a cute one, but sits uneasily with the fact that the football stadium is private land! That said, the dividing line between SPS and ‘ordinary’ policing was clearly at the forefront of the Chancellor’s mind too as he felt that

To allow a restitutionary claim in circumstances outside those for which s.25 provides might be thought to be an illegitimate alteration of that boundary[32].

And it was perhaps this thought which explains why the Chancellor’s analysis of the unjust enrichment claim closely mirrored his analysis of the contractual basis of a claim under s.25: just as there could be no “implied request” because the Club did not agree with the Chief Constable’s assessment, so too there could be no ‘freely accepted benefit’ because the club was never in a position to freely accept that benefit. So, according to the majority, the Club was not liable for the extra policing provided by the Chief Constable of Greater Manchester Police and Mr Whelan saved himself about £300,000.

From the foregoing it can also be seen that another link with Matuzalem is the observation that the law of contract as a prime source of obligation is alive and well. Whereas Matuzalem re-affirms the proposition that contracts must be kept, so Wigan re-affirms the principle that contractual obligations will only be binding if they are freely assumed.  The case also suggests a continuing judicial unease with the importation of restitutionary solutions to disputes between large organizations. But what the case does not acknowledge, of course, is that the final cost of two years ‘additional policing’ at the JJB plus the legal costs of pursuing the claim up to the Court of Appeal now falls squarely on the shoulders of the tax payer. On the other hand, it is reassuring to note that the legal system does not seem to accept the notion that obligations can be imposed by way of Home Office circular. 


[1] The case arose after Andy Webster moved from Heart of Midlothian to Wigan Athletic for a nominal fee. CAS 2007/A/1298, 1299 & 1300, Wigan Athletic FC v/ Heart of Midlothian, Heart of Midlothian v/ Webster & Wigan Athletic FC and Webster v/ Heart of Midlothian.

[2] Home of Sheffield United FC.

[3] Nickname of Wigan Athletic FC.

[4] Nickname of Sheffield United FC.

[5] Sunderland has agreed to pay Wigan almost £3 million in compensation. The Guardian, 3rd June 2009.

[6] Home of Wigan Athletic FC.

[7] Home of Sunderland FC.

[8] Chief Constable of the Greater Manchester Police v Wigan Athletic AFC Limited [2008] EWCA Civ 1449

[9] ibid. paragraph.

[10 They are obviously in fact paid for via local and national taxation.

[11] “on such scales as may be determined by that authority”

[12] In the Court of Appeal judgment, this is referred to as a circular from 2003, but it appears that the relevant circular is 34/2000.

[13] There is nothing sinister in this: it would seem that these charges increase every year in line with annual pay increases.

[14] A sum of £293,085.07, being the unpaid balance of 34 invoices for the total sum of £528,749.97 over two years.

[15] ‘Meeting of minds’.

[16] It is curious that the judge should use this expression in circumstances where s.25 very clearly leaves the relevant rate at the complete discretion of the Chief Constable.

[17] [1988] QB 77

[18] [2006] 1 WLR 2005

[19] ibid. paragraphs 49 and 55.

[20] ibid. paragraph 50.

[21] Op.cit note viii. Paragraph 32.

[22] Although not expressly so in relation to the first issue as to whether there was a request under s.25 of the Police Act.

[23] Op.cit note viii paragraph 35.

[24] [2003] 1 Ll.R 418.

[25] Op.cit note viii paragraph 66

[26] ibid paragraph 70

[27] ibid paragraph 45

[28] ibid paragraph 46

[29] ibid paragraph 57

[30] ibid paragraph 47

[31] ibid paragraph 58

[32] ibid paragraph 51

Leave a Reply