Regulating charges for special police services

Police services are generally performed for the benefit of the public at large and provided for out of public funds. However, the police also have the power (under s.25 of the Police Act 1996) to provide “special police services” for which they can levy a charge. To take Northumbria Police as an example, charges can range from £57.98 per hour for a constable to £90.68 for a superintendent.

The principal line of defence against such a charge is typically to argue that the service is an ordinary police service, rather than a special service. Such an argument succeeded in the recent case of Leeds United Football Club Ltd v The Chief Constable of West Yorkshire Police [2012] EWHC 2113 (QB), in which Mr Justice Eady held that even if the need for police services arises from a private event, that policing does not constitute a special service when it is performed on land that is not owned, leased or controlled by the event organiser.

A further line of defence, potentially of much broader interest, is to attack the level of the charges on the grounds that they are contrary to competition law. That was the stance taken by Wigan Athletic FC in an earlier case against Greater Manchester Police ([2007] EWHC 3095 (Ch)). The issue was not, however, resolved, and the applicability of competition law to special police services therefore remains an open question.

There are several good reasons to think competition law would apply to such services. First, special police services are requested when the organiser of an event is under a duty to “ensure that the [event] takes place in conditions which do not occasion danger to any person or property” (John Charles Harris (on behalf of South Yorkshire Police Authority) v Sheffield United Football Club Limited [1987] 3 WLR at 316, per Neill LJ). It is now established that, where such a duty exists, the organiser can discharge it by using private security staff (Reading Festival Ltd v West Yorkshire Police Authority [2006] EWCA Civ 524 at [46] and [53]). Special police services are therefore a substitute for private security, and a strong case can be made that competition law is applicable when police services are provided in competition with a normal market operator.

A second indicator is that whilst there is a statutory basis allowing special police services to be provided for remuneration, the provision of such services is governed by contract law (see Reading Festival at [20]-[23] and [50]).In Reading Festival Scott Baker LJ suggested that those responsible for licencing events might do so on condition that the organiser requests special services ([37]). Indeed, a condition of the certificate in Wigan’s case was that the club 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” ([24]). However, it is questionable whether such a stipulation is legitimate, and similar stipulations have been objected to on competition law grounds.

A final indicator is the express acknowledgement in the ACPO/APA Guidance on Charging for Police Services that when the police engage in an activity designed to generate income under section 18 of the Police Act 1996, the activity is done in competition with other providers and is therefore subject to competition law. The guidance is silent on the competition law status of activities carried out under section 25, but it would certainly seem logical for the same approach to apply. That would also fit with broader guidance produced by HM Treasury, which states that: “For the purpose of wider markets activities, public bodies should assume that they will be treated as ‘undertakings’ and hence subject to UK and [EU] competition law” (“Selling into Wider Markets: A Policy Note for Public Bodies”).

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  1. Pingback: Policing the “extended footprint” of sporting events: public responsibility or private service? | Sports Law Bulletin

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