Since the heyday of the Colosseum in Rome, sporting spectacles have attracted large crowds, the management of which is inherently difficult. The tragedies that have occurred at sports stadia in recent memory demonstrate the critical need for effective planning, organisation, control and monitoring of such large gatherings, as Ken Mosley explains.
Ibrox 1971, Valley Parade 1985, Heysel 1985, Hillsborough 1989 — a directory of disaster that will place a chill in the heart of everyone who remembers these names.
All were, of course, football-stadium disasters that led to inordinate ‘loss of life’, and all came about as a result of different circumstances. The interim and final ‘Taylor Reports’ into the most recent of them — Hillsborough — published in 1989 and 1990, respectively made recommendations and defined measures that have subsequently made attending events in sports stadia safer, but in the aftermath of any disaster — or accident, for that matter — there will be inevitable accusations and counter-accusations as to responsibility and accountability.
Although Hillsborough is the most recent event and the search for justice in relation to it is ongoing, this article is not about what happened there, specifically. Rather, it concerns the arrangements made to ensure safety at sports stadia in 2013. In particular, it identifies certain anomalies, and questions whether there is sufficient clarity between the roles of the organisation responsible for arranging the event and the Police, who have public-order responsibilities both inside and outside the venue.
On the public highway, the Police are undoubtedly in control, but inside the stadium, who precisely is responsible for the safety of spectators?
It currently works like this: football clubs procure ‘Special Police Services’ (SPS) from their area Police Authority. The Police provide SPS for clubs for the primary purpose of preserving public order at matches and providing other services that can best be provided by the Police at such events. The clubs are responsible for safety at their stadium, and their respective roles and responsibilities are set out in a document called the ‘Statement of Intent’ (SOI). This document is drafted by the Police every year before the start of a new football season and is agreed with the respective football clubs.
Unfortunately, because of anomalies in legislation (HSWA 1974, the Public Order Act 1986 and the ‘Ground Regulations’) there is no accord as to the responsibility and accountability of the two parties when the Police have been requested to take, or have taken ‘primacy’ of an incident. ‘Primacy’ is essentially about control. In the event an incident escalates to a critical stage beyond the capacity of the football club and its stewards the Police can take primacy, or the club’s duty football safety officer (FSO) can ask them to take primacy.
The Police have a specific duty to preserve public order, and to prevent and detect criminal activity and behaviour. Organisations like football clubs can procure Police services to assist in the management of their undertakings. Section 25 of the Police Act 1996 states: “The chief officer of Police, of a Police force, may provide, at the request of any person, special Police services (SPS) at any premises, or in any locality in the Police area for which the force is maintained, subject to payment to the Police authority of such charges on such scales as may be determined by that authority.”
This is the basis on which Police services are procured by football clubs. The ‘Statement of Intent’ (SOI)1 mandates the Police to comply with appropriate Home Office publications and the ACPO requirements of the ‘Keeping the Peace’ manual’2. There are other legislative requirements on the Police regarding public order at football and other sporting events, i.e the Public Order Act 1986.
SOIs usually contain a clause such as: “This Statement of Intent does not create a legally-binding contract or agreement between the Police and the Football Club.” That said, the courts construing such arrangements could well conclude that there manifestly is a contract. The Guide to Safety at Sports Grounds (known as the Green Guide)3 states that “the responsibility for the safety of spectators lies at all times with the ground management”. This is guidance and, as such, is not law but following this advice (considered good practice) is usually sufficient to demonstrate compliance with the law in respect of those specific issues on which the guidance gives advice.
Bear in mind that substantial elements of the Green Guide are incorporated into the ‘Safety Certificate’, which does have legal status. It has to be agreed by the local ‘Safety Advisory Group’ and signed off by its chairman (usually the building control officer of the local council). The SAG comprises representatives of the Council, Police, football club, Fire Service, Ambulance Service and football governing body.
SOIs state that all aspects of the running of an event are the sole responsibility of a football club; however, the requirements of the Health and Safety at Work, etc. Act 1974 (HSWA) and subsidiary legislation, particularly the Management of Health and Safety at Work Regulations 1999 (MHSWR), impact on both parties and, in particular, on the operations of a football club.
Section 2 HSWA 1974 places a duty on a club to ensure, within the bounds of reasonable practicability, the health, safety and welfare of their employees. Section 3 of the same Act imposes a similar duty on clubs with regard to non-employees, which would include the general public (spectators) and the Police.
This duty is qualified by the phrase “as far as is reasonably practicable”. In situations where the Police have clear control, a club may have to rely on this as a defence. Section 4 HSWA 1974 places a duty on a club as the party in control of non-domestic premises where work is being undertaken. In the event of a breach of safety legislation by the ‘body corporate’, and it is proved to have been committed with the consent or connivance of, or attributable to any negligence of, a senior manager within the club, then that individual, as well as the body corporate, may be guilty of the offence and proceeded against accordingly, by virtue of section 37 HSWA 1974. Individuals who may be subject to prosecution would include the club directors, the health and safety advisor and the football safety officer.
Regulations 3, 5 and 8 MHSWR 1999 refer specifically to risk assessment, health and safety arrangements (planning, organisation, control, monitoring, review) and procedures for imminent danger.
A further complicating factor is that safety law at football clubs is enforced by the Local Authority, not the Police. Schedule 1 of the Health and Safety (Enforcing Authority) Regulations 1998 determines that the ‘Local Authority’ is the enforcing authority for the activities of sports and games and, as such, it addresses the activities of football clubs. Meanwhile, regulation 4(3)(d) of the same Regulations determines that the Health and Safety Executive is the enforcing authority for the activities of a Police authority.
As HSWA 1974 is a statutory code, only those agencies authorised to prosecute (i.e. Local Authorities and the HSE) have that power, but to complicate matters further, while environmental health officers would deal with health and safety at work matters it is often building-control officers who deal with safety at sports grounds. The Police would prosecute safety-related offences arising under other legislation, notably corporate manslaughter, or under common law, such as manslaughter by gross negligence.
With regard to civil legislation, any incident resulting in personal injury allows a claimant to sue whoever they feel is culpable for their injuries. This would inevitably lead to the joint tortfeasors (those who commit a civil wrong intentionally or negligently) arguing as to the apportionment of liability.
The Turnbull report on corporate governance,4 while not legislation, requires organisations to address a multitude of risks that could affect a business — for example, environmental, human resources, IT, fiscal, insurance, legal and other risk, in addition to health and safety risk. Organisations that have good risk-management systems in place demonstrate best practice in corporate governance. While the requirements of ‘Turnbull’ are recommendations for public companies with limited liability, and most football clubs are not, it is advisable for all companies to follow this sound practice.
Potential own goal
Going back to situations in which the Police take primacy, a dilemma can arise if an incident occurs at a match and, as a result of Police action, there is potential for a breach of health and safety law. In such a case, the responsibility for any ensuing harm could well be attributed to a failure by the football club to have prevented it from occurring.
The Police are in a somewhat invidious position while providing SPS at football matches, as acknowledged by the HSE in the explanatory note in its document ‘Striking the Balance’.5 In fact, the Police are fulfilling two roles: firstly, they are required to maintain public order and prevent or stop breaches of the peace; secondly, they are also in attendance as a ‘bought-in’ service to assist the football club, the safety officer and the stewards in the safety management of the event. So, it could be argued that by purchasing services from the Police a club is the employer of a ‘sub-contractor’.
This is a particularly contentious issue, as it is difficult for a club to ‘control’ the Police and direct them in terms of tasks. The Police’s offer to provide SPS, a club’s acceptance of that offer, and subsequent payment (consideration) are the three necessary elements of a basic contract, which could indicate a sub-contract exists, not withstanding that the SOI expressly denies that a contract exists!
If a situation were to arise at a football match whereby the Police were requested by the football safety officer to take primacy, or the Police took primacy on their own initiative, then the club would appear to shoulder responsibility under the terms of the SOI for the acts and omissions of the Police, if a breach of safety law occurred as a result of the Police action.
This situation has to be unacceptable to football clubs. No organisation should be accountable for the acts and omissions of the employees of another organisation without the ability to exercise control. The Police, by taking primacy, relinquish control by the football club and take control themselves. This dilemma is at the core of what a small number of clubs are seeking to change by amending the wording of the SOI.
Disputed decision
Preliminary and informal discussions have been held with the Police, which have centred on including in the SOI the following amendment: “In circumstances where the Police exercise their right to take primacy, the Police acknowledge that they will assume responsibility for the health and safety of anyone who is thereby affected by their acts and omissions, until such time as they terminate such primacy.”
Unfortunately, the Police are disinclined to approve any such amendments. Initial responses have included a statement from a Police solicitor “not to approve the proposed inclusion in the Statement of Intent”.
As a result of this impasse it would appear that there is nowhere left to go for football clubs in the protection of the club, its directors and senior managers. One ‘Football League’ club has sought to resolve the issue by drafting a ‘Memorandum of Understanding’ (see panel) in the absence of agreement with the Police, and sending it to the Chief Constable. This MoU has been posted at the ground, as there has been no response from the Chief Constable.
It is imperative that some accord is achieved between football clubs and the Police, and that there is agreement on delineation of duties. John Holden, chair of the IOSH Sports Grounds and Events Group, has commented that “consultation between clubs and the Police, and building up a good working relationship, are critical to ensuring that both parties understand each other’s roles and responsibilities and work together to achieve a safe and comfortable environment for spectators”.
Ex-Metropolitan Police chief superintendent Alex Fish, who specialised in public-order events and is now a football safety officer, has said “a dilemma clearly exists for safety officers and football club-owners if the Police take, or are given, primacy for an incident at an event, but where they do not appear to accept any legal liability for their actions while doing so”.
As a result of the recommendations of Lord Justice Taylor in the wake of Hillsborough, football clubs now offer all-seating stadia, and have installed CCTV, turnstile monitoring systems, and other ‘hard’ safety measures, so watching professional football is now a much safer pastime. The Construction (Design & Management) Regulations 1994 & 2007 have also ensured that safety is now incorporated into the design, use and maintenance of new stadia.
This would seem to make another Hillsborough disaster unlikely, but history teaches us ‘never say never’. It is hoped that football never sees a repeat of the fateful events of that day in April 1989. If something similar were to happen again, both the Police and football clubs need to be fully aware of where each other’s responsibilities lie.
‘Memorandum of Understanding’ between the Police and Football Club
In accordance with the requirements of the Guide to Safety at Sports Grounds (Green Guide) “the responsibility for the safety of spectators lies at all times with the ground management”. Similarly, the Police Statement of Intent (SOI) states that the football club has sole responsibility for the overall safety of an event at its stadium. That said, it must be recognised that neither of these documents has legal status. As guidance, they advise as to what constitutes good practice. Following guidance on good practice is usually sufficient to demonstrate compliance with appropriate legislation.
The principal duties of the Police, when in attendance at football matches at the club’s premises, are to maintain public order and to prevent, or stop breaches of the peace.
There are situations that may arise that require the protocol of the Police having primacy of control. Within the duration of Police primacy the acts and omissions of the Police could lead to a breach of safety legislation, over which the club cannot exercise any control. These situations would place the club in an invidious and subsequently unacceptable legal position, particularly with regard to sections 2, 3, 4 and 37 of the Health and Safety at Work, etc. Act 1974 and regulations 3, 5 and 8 of the Management of Health and Safety at Work Regulations 1999.
Section 3 HSWA 1974 states that: “It shall be the duty of (the football club) to conduct their undertakings in such a way as to ensure, so far as is reasonably practicable, that persons not in their employment who may be affected thereby are not exposed to risks to their health or safety.”
In order to resolve this anomaly the club deems this notification as a ‘Memorandum of Understanding’ regarding the Police acting under the primacy protocol referred to in the SOI.
In the event of any safety incident arising that is attributable to decisions taken by the Police in the exercise of their statutory powers the club reserves the right to draw this memorandum to the attention of any enforcement authority. Furthermore, in circumstances where the Police exercise their right to take primacy, they acknowledge that they will assume responsibility for the health and safety of anyone who is thereby affected by their acts and omissions, until such time as the Police terminate primacy.
This memorandum does not abrogate the football club from their duties and/or responsibilities with regard to any other health and safety legal obligations during primacy.
References
Ken Mosley is a part-time H&S advisor to a Championship football club
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