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Glasbrook Brothers, Limited Vs. County Council of Glamorgan and Others - Court Judgment

LegalCrystal Citation
CourtHouse of Lords
Decided On
Case Number[1924] UKHL 3
Judge
AppellantGlasbrook Brothers, Limited
RespondentCounty Council of Glamorgan and Others
Excerpt:
lord blanesburgh. my lords, during the national coal strike which was settled on the 4th of july 1921, the safety men at the collieries throughout the country were left undisturbed. the responsible leaders of that strike, shrinking as they rightly as well as wisely did, from the wantonness of wrecking the mines on which the livelihood of the miners themselves ultimately depended, refused to countenance the policy of withdrawing the safety men from their posts, when effective pressure short of such a step could be brought to bear upon the employers. in the sectional strike at the appellants' collieries which persisted after the national strike had ended, the ability of the strikers to impose their will upon the owners was obviously less compelling, and, very likely for that reason, the.....
Judgment:

Lord Blanesburgh.

My lords, during the national coal strike which was settled on the 4th of July 1921, the safety men at the collieries throughout the country were left undisturbed. The responsible leaders of that strike, shrinking as they rightly as well as wisely did, from the wantonness of wrecking the mines on which the livelihood of the miners themselves ultimately depended, refused to countenance the policy of withdrawing the safety men from their posts, when effective pressure short of such a step could be brought to bear upon the employers.

In the sectional strike at the appellants' collieries which persisted after the national strike had ended, the ability of the strikers to impose their will upon the owners was obviously less compelling, and, very likely for that reason, the withdrawal of the safety men became apparently very soon an objective of the strike. On the 7th of July, after a demonstration in front of one of the appellants' collieries, a deputation of the strikers sought an interview with the safety men still at work there and pressed them to come out in sympathy. Their reply was that their own association had decided that work was to continue and they were resolved to remain. As the men were not to be persuaded, it was necessary to determine whether they were to be coerced. Accordingly a mass meeting of the strikers was held later in that afternoon; and it was then decided that all the safety men should be compelled to come out. On the next morning this resolve, which had doubtless already become notorious in the district, was communicated by the workmen's committee to the appellants' manager, Mr. James, and he, when he sought to reason with the committee, was informed that the matter was no longer one for discussion and that the decision was final.

This decision I should have thought changed the whole character of the strike, although it does not seem so to have struck the police superintendent, Colonel Smith, who, apparently assumed that the orderly character of the national strike would continue to be preserved. What had happened, however, was that a campaign which hitherto had been constitutional and responsible had become one charged with the possibility of serious disorder. Indications of the change were soon apparent. Atkin, L.J. gives one in his judgment. On Friday, the 8th of July, the superintendent of police attending at Tirdonken, an adjoining colliery affected also by the strike, with 34 extra men had met a crowd of 800 strong led by three rows of women carrying babies in the front rank. The crowd was hostile to the management and police. Moreover a new attitude of menace was assumed towards the safety men. As early as the afternoon of the 7th, the winding engine man was stopped by strikers on the common and prevented from reaching the colliery, and on the next morning one of the safety men was pulled off his bicycle on his way to work and hostile demonstrations were being made outside their homes.All this had, and very naturally, an immediate effect upon these men. On the morning of the 8th one only turned out; on the 9th none of them appeared at all During the afternoon of the 8th they had as a body met and decided to cease work, and Mr. James was informed that they had thus decided because of the severity of the pressure brought to bear upon them and the insufficiency of the police protection afforded them. It was conveyed, however, to him that with adequate protection they would be willing to return. Now, the police protection which they regarded as insufficient had been in operation on the 7th and 8th. Their lack of confidence in it, confirmed possibly by the events of the 8th, had doubtless contributed to the resolution of that afternoon and was the explanation of their complete absence from work on the 9th. The form of protection so far in force and to which Colonel Smith remained wedded as being best in the circumstances, had as its main feature the provision of what he termed a mobile body of police with scouts and telephone arrangements, whereby the column could always arrive at a threatened colliery in advance of any crowd. The safety men were not impressed. Like some people in other circumstances, they preferred cash to credit. The support of the visible presence of the police while they were working the pumps seemed to them to be essential. They were, perhaps, less confident in the complete mobility of the Colonel's column than he was. Scouts are sometimes at fault; telephones do not always work; tyres puncture even when no strikes are on. All the mischief might be done before any column arrived, and not necessarily by crowds. Mr. James put their view in his evidence. He told Colonel Smith on the 9th, he said, that it was hopeless to try and keep the safety men at work with the local police dodging about in motor cars from one place and another. Accordingly, at his instance and on terms which are the subject of this Appeal, the following protective scheme was ultimately adopted. A garrison of police was located at each of the appellants' three collieries; the safety men were billeted there, and their homes were protected by the outside police. These arrangements, when completed, were entirely successful; the reassured safety men returned to work, and they and the collieries were kept in safety till the strike was ended.

In the course of his evidence Mr. James was asked: "In your" opinion, if you had not had this force of police at the collieries “would you have been able to get your safety men to work?" And his answer, which is neither cross-examined to nor contradicted by any other witness, was " No, absolutely not."

My Lords, it is unfortunate that owing to the intervention of the learned Judge, the appellants' witnesses on this part of the case were not fully heard. But I cannot doubt, from a survey of the evidence which was adduced, that, almost as a matter of common consent, this statement of Mr. James's expressed the actual situation.

And there is no suggestion, either in the police reports at the time or anywhere else, that the requirements of the safety men were unreasonable or their conduct unworthy. As Atkin, L.J. says, it is perhaps easier to be heroic in London years after the occurrence than it was at Gosseinon in July 1921. The men exhibited notable moral courage in returning to work at all, and it must be remembered that although they had in preserving the mines the same real interest as the strikers they were under no higher duty in that matter than any other of His Majesty's subjects. Why, then, should any exceptional exhibition of physical hardihood be expected or required of them ?

What, however, is more immediately relevant is that without a force of police at the collieries these safety men could not have been induced by the appellants to take the place of the marine stokers who were unequal to the work, and there is no suggestion that in the emergency any other men were obtainable on any terms at all. No laxity or default of any kind in this matter is attributed by anybody to the appellants. In these circumstances the sufficiency of the police protection for their collieries must, I think, be determined from the standpoint indicated by the learned Judge, when he says that it was of course very necessary that the safety men should remain working the pumps in order to keep the collieries from being flooded, because everyone who knows anything about collieries knows that that is absolutely necessary, and when he adds:

"There is no doubt that the safety men got very " frightened, and there is no doubt that the safety men " would not have continued to work without police " protection; indeed, as a matter of fact, they did abstain " from work—perhaps that is the right way to put it-— " for a period of four or five days. Their places were" endeavoured to be filled by some marine stokers, but " those marine stokers proved inefficient and ultimately " the safety men were induced to come back " by, I may add, the police dispositions, which had by that time been made and were thenceforth continued.

In view of that statement by Bailhache, J., it is interesting to inquire what was the precise ground on which the learned Judge nevertheless decided that the appellants must pay for the protection afforded by these dispositions. The answer is not in doubt. It was because he accepted Colonel Smith's evidence that he would have given adequate protection in another and a different form, that is to say, by his mobile column, and the learned Judge proceeds:

"While not desiring for a moment to suggest that " it was not the bounden duty of the County Council " to protect this colliery and not for one moment suggesting " that the performing of a legal duty will support a promise " to pay, I have come to the conclusion that when a colliery " company or an individual requisitions police protection " of a special character for a particular purpose he must " pay for it, and he must pay for it whether he makes a " contract to pay or whether he does not—a promise to " pay would be implied under these circumstances."

Now, my Lords, Colonel Smith was undoubtedly convinced of the efficiency of his own scheme, and if the whole of his evidence with reference to it is borne in mind his opinion that the mobile force method would have given ample protection may, open to criticism as it is, be accepted, as the learned Judge accepted it. But an examination of Colonel Smith's evidence shows what I think the learned Judge did not perhaps fully appreciate, that that opinion was held by him, so to say, in vacuo. So far as the safety men were concerned his view was never more than this, that if they had been as wise as he they would have recognised that his mobile column was as complete a protection for them as the actual presence of the police at the collieries. Colonel Smith, however, nowhere suggests that the safety men did so believe or that they could timeously have been induced so to believe. In truth, in propounding and adhering to his scheme, the attitude of these men towards it, so graphically described by Mr, James, was discounted by him if indeed it was not entirely ignored. The superintendent, convinced of the sufficiency of his proposals in the abstract, never seems to have even asked himself the question whether any scheme was in the circumstances of any value at all if it was not by reassuring the safety men and bringing them back to the pumps effective to protect the collieries from the only danger which threatened them.

While, therefore, Colonel Smith's opinion may so far be accepted, I nevertheless conclude, on what I consider to be the uncontradicted evidence in the case, that that scheme, however technically adequate, was lacking in the one thing needful to make it of any practical utility. It has, in my judgment, been shown that in the then emergency it was no alternative to the garrison scheme which was adopted with complete success. It is also to my mind shown that there was no other scheme either suggested or offered which would have had the same result and the liability of the appellants to bear the expense of the protection they were in fact afforded must, I think, be determined on that footing.

Now, my Lords, with reference to the garrisons actually set apart for the duty of protection, it is to be observed that the number of men employed was fixed by Colonel Smith himself and that the number was altered from time to time at his direction; the men remained throughout under his control, they had their part in the measures from time to time taken by him to maintain order. They made the situation, as Colonel Smith admitted, very much stronger for him. In a word, they were and remained integral units of the divisional police as truly as any other constables under Colonel Smith's command. Nor did the setting apart of the men for that garrison duty in any way interfere with the discharge by the County police force of its other duties. There is no evidence that it involved the authorities in any expense which the county would not otherwise have had to bear, and it is admitted that the police protection was required at the appellants' collieries in sonic shape or form.

Now, I am not myself disposed to underrate the responsibilities of the police in an emergency like that with which your Lordships are here concerned. Their absolute duty to afford protection to life and property was only, I think, limited by the extent of their available resources and by the urgency of competing claims upon their services. The protection in this case supplied was not made difficult of provision by any such considerations; it was adequate, but not extravagant; it was not improper, because otherwise it would not, I assume, have been rendered even in expectation of reward.

In these circumstances, accepting as I do the learned Judge's view of the law, I am myself unable to see how any payment for this police service can legally be demanded; the request by the appellants to Colonel Smith to place these garrisons at their collieries is, I think, shown to have been no more than a request to him as representing the County Council to perform its legal duty in the only way in which that duty could properly be discharged, and such a request cannot support a promise to pay for what the Council were in the circumstances bound, as 1 think, to provide without payment.

Accordingly, my Lords, I arrive at the conclusion which has also been reached by the noble and learned Lord who has just spoken, and I reach it by reference to the facts of this case as I see them, so that the important questions so powerfully discussed by Atkin, L.J. do not, from my point of view, in this ease arise for decision.

I think it right to say, however, that in agreement with, I believe, all your Lordships, I find myself unable to subscribe to the extreme position that arrangements under which on the requisition of individuals police constables are assigned in consideration of payment to perform duties in the nature of maintaining order or preventing crime, are necessarily either illegal or made without consideration. The legislative recognition of the existence of some such arrangements to which reference has already been made was, I think, too emphatic to be ignored, and it would be highly inconvenient if it were now to be declared that a promise to pay for such services can never have any binding force.

But the discussion in this case has, I think, shown that the exaction of payment for police services is only legitimate in exceptional circumstances, and it is, in my judgment, unfortunate that it has apparently come to be regarded as a normal incident more particularly in cases where the police are actually billeted in private premises. It is true that while the duty of the police to afford protection is undoubted, the nature of the protection to be supplied must primarily be left to them to determine. If, however, such protection can only or best be afforded by placing constables on garrison duty in private premises, payment cannot, as I think, properly be exacted merely because the protection takes that form as seems on both sides to have been assumed in the present case.

On the other hand, such protection ought not to be provided even for payment if its provision unduly interferes with the discharge by the police of their duties to others. These considerations appear to lead inevitably to the conclusion that unless demands of payment for police services are jealously safeguarded the power to make them may readily become oppressive to the individual and injurious to the general interest.

Where payment is required for protection in the nature of a luxury rather than a reasonable necessity, and where that protection is provided by the employment of the margin of reserve strength of the force not at the time otherwise more urgently employed, then, I suppose, everyone would agree with Bankes, L.J., that a demand and promise of payment are advantageous to all concerned.

Where, further, an extra force being again available, protection beyond what the police deem necessary is on requisition supplied, then a demand for payment of a sum not greater in amount than the expense of the excess protection—which amount may properly be agreed beforehand—might well be justified. But when payment is demanded irrespective of the necessity for protection, and merely because protection is afforded in a particular way and in response to an individual requisition, and most especially when the payment represents the total cost to the police authorities of the entire protection supplied, then the whole aspect of the arrangement is altered. In many cases it would become, as Sir John Simon put it, a mere sale of the police discretion, and such arrangements, if they came to be regarded as always permissible, would be, I cannot doubt, vicious in tendency. The possibility of making them would place the authorities in a position in which their interest would frequently conflict with their duty, tending to relegate to a secondary place their primary responsibility to provide adequate gratuitous protection to persons and property within their area, and calculated, on the one hand, to lead to the withdrawal or refusal of proper protection from or to an individual who cannot pay for it and, on the other, to a too ready compliance with the requisition of the individual who can and will pay the total cost of the protection he receives, in relief of the rates, but it may well be in prejudice of the general interest.

My Lords, this case will, I cannot doubt, be of great public advantage if it attracts the attention of those concerned to a practice so far unregulated, but which, if not carefully circumscribed, is readily open to abuse even by most honourable people.

I am for allowing this Appeal, for the reasons I have given.

Lord Carson.

MY LORDS,

I am of opinion that this Appeal should be allowed. The questions raised are of great public importance, and as the decision I have come to is at variance with that of the three noble and learned Lords who have already addressed this House, I feel bound to state my reasons for the conclusions at which I have arrived at some length. Before examining the facts of the present case it is necessary to make it perfectly clear what the duties of the police as preservers of the King's peace are in cases where either the person or the property of a subject is criminally assailed or threatened by the action of any other person or persons. I do not think, my Lords, that upon this point there is any difference of opinion. I notice that the Lord Chancellor, in the speech which he has just read, has stated as follows :—

No doubt there is an absolute and unconditional " obligation binding the police authorities to take all " steps which appear to them to be necessary for keeping the peace for preventing crime or protecting property " from criminal injury and the public who pay for this " protection through the rates and taxes cannot lawfully be called upon to make a further payment for that which is their right.

He quotes with approval the statement made by Lord Justice Pickford in the case of Glamorganshire Coal Co. v. Glamorganshire Standing Committee (L.R. 1916, 2 K.B. 206, at p. 229), and he adds, "with this " statement of the law I entirely agree and I think that any attempt " by a police authority to extract payment for services which fall " within the plain obligations of the police force should be firmly " discountenanced by the Courts." I should like also to add the declaration made in the same case by Lord Justice Phillimore:

Nor can I pass over the contention frequently made in the course of the proceedings, that it was the duty of the plaintiffs to protect themselves against rioters. Such a contention strikes at the basis of all civilised society and logically leads to private war. The subject pays rates and taxes to ensure himself protection against domestic as well as foreign foes and it is the duty of the Government to provide him with it.

Mr. Justice Bray, in the same case, states:

The real reason for the refusal of the county council to pay these claims seems to have been that they thought that the colliery proprietors ought to pay for having the lives of their employees and their property protected. The colliery proprietors have to pay rates like other persons living and owning property in the county.

If I might with respect offer any criticism on the Lord Chancellor's statement, I would myself prefer to lay down that it is the duty of the police to take all steps that are necessary for the purposes mentioned by the Lord Chancellor.

I should like to supplement these statements by one further observation, namely, that it is not in the power of the executive through the Secretary of State or otherwise to limit the rights of the subject in obtaining such protection for life and property and that any attempt to do so would be absolutely unconstitutional and illegal. A perusal of the judgments of the case of Miller v. Knox, 4th Bingham, New Cases, 574, a case in your Lordships' House though not upon this exact point, affords very useful commentary upon the right of the executive to refuse assistance in cases where it is necessary to apply for the assistance of the police. My Lords, it is necessary therefore to examine carefully the facts of the present case and to ascertain whether, under the circumstances, the steps taken to protect the safety men and thus avoid the drowning of the colliery, for which the appellants are asked to pay, were outside the proper and necessary duties of the police which the appellants were entitled to have performed under the law to which I have just referred.

My Lords, it was admitted at the trial that at the time when the requisition relied upon and the basis of this action was signed by Mr. James police protection hi some shape or form was required to protect the safety men, but I cannot help thinking that it was a pity that the learned Judge, on obtaining such an admission, prevented further evidence being given of the exact state of affairs which rendered such protection necessary. There is, however, a considerable amount of information to be gathered from the records and the evidence as to what the exact state of affairs was. It appears that on 7th July 1921, 700 strikers went to the collieries in order to compel the safety men to abstain from work, and that in consequence of this interference with the safety men the appellants' agent, Mr. James, interviewed Police Inspector Nicholls and informed him of the danger to the pits and to the safety men, and asked for police protection. On the next day, the 8th July, picketing was actively continued at the collieries and the approaches thereto. Large crowds of hostile workmen assembled near the collieries and interfered with the safety men. Instead of the normal number of safety men who were required to keep the pumps going, only one safety man attended work at the No. 1 Colliery, and the workmen's committee informed the said Mr. James that they were going to get all the safety men out. It was on the afternoon of this day that the safety men held a meeting at which they resolved that, owing to interference by the strikers and to the insufficiency of the police protection, they could not continue at work.

On Saturday, 9th July, none of the safety men came to work at any of the collieries and the fires had to be drawn, with the result that if this continued the colliery would have been drowned out in a few days'. It was in this condition of affairs that Mr. James pointed out to Superintendent Smith that it would be necessary to have police billeted at the collieries if the safety men were to be given adequate protection to enable them to continue at work. There was some discussion as to the number of police required, and eventually Superintendent Smith said that 70 police officers would be sufficient, and, as a condition of sending the 70 police, procured the signature of Mr. James to the requisition upon which this action is founded. On the same day the 70 police came to the collieries for duty and some of them remained at the collieries until the strike ended on the 26th August 1921. It is to be specially noted that this action was not taken until the safety men had left owing as they said to the want of sufficient police protection.

A few days after the arrival of the police the safety men returned to the colliery, where they also were billeted, and maintained the colliery in safety until the strike was ended and work was resumed.

An examination of the police journals which were put in evidence at the trial throws further light upon the matter. It states that, under the entries of July 10th, 1921, " the men were afraid to remain " in consequence of the attitude of the workmen, and, fearing their " homes would be wrecked, they left the collieries, hence the importing of extra police for protection and restarting the fire at the boiler. It further shows the steps taken by Smith to co-operate with the men at the colliery premises and under date Tuesday, 12th July 1921, there is the following entry:

"Col. F. W. Smith, Inspector Nicholls and 15 men from 'H' Division arrived at the colliery premises at " 4 a.m. The whole of the men kept on reserve at the " colliery premises in consequence of a meeting announced " to be held at Cadle Common, and in the event of the " colliers deciding to march on the colliery in a body with " a view to endeavouring to get the imported stokers to  discontinue the work.

And as late as the 29th July there is an entry as follows:—

It has been reported locally that at the meeting held "at the Workmen's Hall, Treboath, it was decided not to "allow the management to have any men to work the "pumps after the holidays. This means that if the" officials decide to come to work at the colliery they will be "only able to work under police protection, as feeling ran " very high in that locality against the employment of

" safety men. The following officials employed at the "colliery were taken home under police protection at " 10.45 p.m. ... "

It is instructive also to note that in a letter dated the 29th May 1923, from the Chief Constable of the County of Glamorgan to the Under Secretary of State at the Home Office, the following statements were made :—

"A colliery company, having signed agreements to " employ some constables of his force on their private " premises so as to induce the workmen out on strike to come back to work, have now refused to pay the county " for the services of the constables on the ground that it " is illegal In this particular case our position is a very strong one. We sent the men employed on "special duty from the most distant divisions in the "county, thus keeping nearer divisions at hand as reserves. We also put a strong force of extra men at " the county's expense and also from the most distant "division in the strike area, while a military officer came " down to examine the position with a view to bringing " military help there if necessary. The result of these " precautions was that the men went back to their work " and the strike, which had been hanging on for a long time, terminated without any disorder."

This letter gives some idea of the necessity for and the success of placing " the garrison " in the colliery. On the other hand, Supertendent Smith stated, in his evidence, when asked what was his view as to the necessity of having these 70 men at the pits during this time, that it was against his advice, because he was able to protect, and had made arrangements to protect, the colliery without them. He also said that he preferred a mobile body in his own hands that he could move about, that the 70 men in the garrison did not help him in his scheme at all and that they were not part of his scheme at any time. The following questions and answers are very material. These are questions to Colonel Smith:—

Q. You recognise that it was necessary to have the safety men at work if the property was not to be " destroyed?

A. Someone must work the pumps, yes.

Q. Do you think that the safety men would have remained at work if there had not been police protection " always there ?

A. I do not think they would, they were over anxious in my opinion.

Q. In fact, if you had not had men always there the " collieries would have drowned out?

A. Not at all.

Q. Do you mean that the collieries do not drown " out so soon or what is it ?

A. I am certain that with the men in my district, " without anyimportation at all, we could have protected " any men whom Mr. James could have got to work the " pumps. I quite understand that the pumps must be worked and we could have protected them, but he would " have what he desired and he did have it.

Q. But you agreed that the safety men would not " have remained without the police protection.

A. My opinion is that they were very nervous. I know their temperament very well; they were unduly nervous because there never had been trouble at that "group of pits for 25 years"

The learned Judge who tried the case stated that he accepted the evidence of Smith that if the matter had been left to him without the said requisition ho would have protected the appellants' collieries and would have protected them amply but in quite a different way.

Lord Justice Bankes felt bound to accept the trial Judge's view and Lord Justice Scrutton stated, I am not satisfied he was wrong " and I am impressed by the difficulties of the Courts interfering with " the judgment of the police authorities when in fact no danger has " occurred." I am inclined to think the word danger is a misprint for " damage."

My Lords, having examined the evidence with great care I cannot myself come to any other conclusion but that the supplying of the garrison, as it has been called, under the circumstances in this case was an essential and necessary part of the protection which the police were bound to supply, both to the owners of the colliery and to the men who had to leave their work because of the want of protection and who wanted to work there if they were left unmolested, and in ray opinion without such protection it is reasonably probable that the appellants would have been unable to procure the services of the safety men and thus save the colliery from drowning.

Under these circumstances I find it impossible to come to the conclusion that anything was done by the police which was outside or beyond their obligations to the appellants in accordance with the law as laid down in the quotations which I have already made. My Lords, it is said by the Lord Chancellor that these were services of a " special kind " which were not within the obligations of a police authority and were of such a character as entitled the police authority to lend the services of constables for that purpose in consideration of payment. Having regard to what I said I cannot come to that conclusion. I notice that Lord Justice Bankes treats the matter in this way. He says:

If people for their own pleasure or for their own " profit or because any special cases of their peculiar circumstances desire special police protection, I see no " reason why they should not be called upon to pay for it.

My Lords, I would find it impossible to hold that the facts of the present case could possibly be brought within this formula. Lord Justice Scrutton says:

It does not appear to me to prohibit the police authorities from asking people who desire police protection " which is rather a luxury than a reasonable necessity, to " pay for it."

I cannot, on the facts of this case, myself see that the demands of the colliery owners were for anything in the nature of a luxury. The circumstances speak for themselves, and we must in the calmer atmosphere of this House be quite sure we realise the facts as existing at the time. The safety men had left the colliery under compulsion, owing, as they said themselves, to want of police protection, and it is not to my mind any justification for not protecting them that, to use the words of Superintendent Smith, they were very nervous or unduly nervous. When the protection in the form in which it was asked for had been granted they returned to work, and I cannot help thinking that it was in this way a great disaster was avoided. My Lords, I find great difficulty in trying to define " special services " in a case where there is actually being carried on an open invasion of the rights of subjects and when riot and violence threaten the destruction of property of such individuals and the right to work of other individuals, and indeed it would, I think, render the law difficult to carry out under similar circumstances if those demanding protection were to be told at any moment in the course of such attacks that the limit of protection had been reached unless they were rich enough to buy further protection by agreeing to pay a sum which in this case amounted to some 3,000l. to the police authorities.

The Lord Chancellor has referred to other instances of "lending" or hiring out constables, e.g., on the occasions of large gatherings in and outside private premises as on the occasion of weddings, athletic or boxing contests, andc. My Lords, with great respect, I cannot see how any useful comparison can be made between arrangements of that kind freely entered into without any relation to violence and acts of terrorism in progress and which the police are bound to put an' end to and the case such as the present, where it required every possible effort to save the colliery from destruction. As well might one compare a case where the burglar is already in possession of a person's house to one where there is no reasonable likelihood of any such terrifying incident.

My Lords, where are we to get a definition or how are we to give any guide as to what are "special services" in such cases Who is to lay down what are special services" and what are ordinary services in relation to protection of life and property Can the rich man buy greater protection than the poor man; or arc all to be equally entitled to protection in the eye of the law ?

I observe that in the letter to which I have already referred it is said there are regulations for special duty laid down by the Home Office, although they could not find the original authority from the Home Office for authorising a police force to charge private individuals for special services of police. The Home Office has no authority to lay down when the police are to charge for their services and when they are not in such circumstances as arose in the present case.

When asked by the Chief Constable of Glamorgan to supply an answer to the assertion by the appellants that the charges sued for in this case were illegal, I notice that the Secretary of State justifies the charge by stating " that the principle of the employment " of county constables at private cost is as established by s. 19 " of the Police Act of 1840." As he himself states in the letter, that section only has reference to swearing in additional constables at the expense of an applicant and has no relation to the present state of affairs when much larger forces of police are maintained and consequently a greater burthen thrown upon the ratepayer. However that may be, the section can have no reference to such a case as the present as no such additional constables were appointed.

It is said by your Lordships who have preceded me that it is within the powers of the Superintendent to himself say when a charge is to be made and when it is not, and indeed the trial Judge laid it down that without any special contract the person who asks for the services may be charged upon an implied contract. My Lords, I cannot think that that can be a correct application of the law. If it were so, the subject would appear to me to have no means whatever of challenging a breach of duty upon the part of the police, nor do I see how the dictum of the Lord Chancellor, which 1 have already quoted, that any attempt by a police authority to extract payment for services which fall within the plain obligations of the police force should be firmly discountenanced by the Courts, can be carried out. When the emergency arises, the subject who asks for protection would be entirely at the mercy of the police if payment were demanded. He would not be contracting as a free agent, as, taking for example the present case, he would have no option, and indeed in this case he was given no option but to enter into a contract of payment or lose his property. Moreover, the police on such an occasion would, in such a case, be demanding payment under instructions and regulations which had been already laid down by the executive power.

Having arrived at the conclusion of fact which I have already stated, I think I am bound to come to the conclusion that the requisition and promise to pay signed by the appellants and sued upon in this case was without consideration. It was a promise made under pressure of the circumstances to pay for services which the appellant was entitled to have rendered without such payment. It is unnecessary to consider the further point that has been contended for, namely, that in every case the practice which has existed of hiring out the police to those who are able to pay is illegal, but I am prepared to hold that in such cases it is necessary for the police authorities to justify a demand for payment in accordance with the principles I have already laid down. For these reasons, as I have already stated, I think this Appeal should be allowed.

My lords,

I concur.

I hold it to be established that the position of the safety men in this mine was such as to justify the special attention of the police authority being called to their protection. As to the powers, position and duty of the police I venture to quote on this matter the judgment of Lord Justice Pickford in The Glamorgan Coal Company v. Glamorganshire Standing Joint Committee (1916, 2 K.B.D., at page 229). I respectfully and entirely agree with that judgment. The learned Judge says of the police authority that "they have " to make proper police arrangements to maintain the peace. If "one party to a dispute is threatened with violence by the other " party he is entitled to protection from such violence whether '' his contention in the dispute be right or wrong, and to allow '' the police authority to deny him protection from that violence " unless he pays all the expense in addition to the contribution " which with other ratepayers he makes to the support of the police " is only one degree less dangerous than to allow that authority " to decide which party is right in the dispute and grant or withhold " protection accordingly."

The circumstances of the situation which brought about a just call for police protection in the present instance were that in addition to the peril of the safety men there was, of course, a serious danger to property, for the reason that the stoppage of or impediment to pumping might flood the mines. The interview accordingly between Colonel Smith, the police superintendent, and Mr. James on this subject was very natural; it was also, I think, an interview creditable to both parties. In the view which 1 take of their attitude and action I am of opinion that Colonel Smith fully recognised the duties to which I have alluded, and was of opinion that he could sufficiently and properly carry out these duties by a thin shield of police round the pits, with such mobility of the general force as would permit of the special protection of the homes and families of the safety men if these should also be attacked. On the other hand, I think that Mr. James was honestly of opinion that that would not be enough, and held this opinion so strongly that he willingly agreed that if a garrison or a resident force were furnished this would be upon the terms of that force being paid for.

In a conflict of view of that description I think that naturally Courts of Law should, to begin with, pay a considerable deference to the experience and view of the authority set up by law for the preservation of peace and order. This view, however, does not go very far, if it is confronted with the careful and experienced opinion of a man like Mr. James, who knew the locality, the industrial position, and the personnel On the question accordingly whether the police did require the special force for due police protection in the circumstances and cannot therefore charge for providing that force I am driven to consider the verdict upon the whole evidence which was formed by the learned Bailhache, J. at the trial. The issue trial was whether the installation of a garrison or resident police force at the colliery was what may be called a police necessity. The learned Judge puts his verdict upon that topic in this way: " Colonel Smith says that if the matter had been " left entirely to him without this requisition" (that is, the requisition for a garrison) "he would have protected this colliery, " and he would have protected it amply, but in quite a different " way " i.e., by the thin shield already referred to; and the learned Judge adds : " and I accept his evidence that this is so."

The majority of their Lordships in the Court of Appeal agree with that opinion. I cannot see my way to differ from it. I accordingly hold that the result of the evidence as found is that the safety of the mine, the object in view, would have been attained without the extra force, which was agreed to be paid for, being called in.

But a question remains—one carefully and anxiously considered in the opinion of Atkin, L.J.—whether calling in such a force to act as an additional precaution, and to make assurance of safety doubly sure, is outside of the sphere of the duty committed to the police. The statutes have been cited by the noble Viscount on the Woolsack, and by my noble and learned friend who has just resumed his seat. A perusal of these, taken along with the practice to which my colleagues have alluded, convinces me that there are functions of a surplus or extra character to which available policemen may be detailed on special terms, and that the moneys obtained for such services have been recognised by the Legislature to be paid over in a particular manner, whether by way of assistance to a police pension fund or in the relief of general taxation. The question, accordingly, is whether in exercising the power to act in this fashion the police authority has gone beyond the sphere of its duty. I cannot see my way to hold that it has. That authority has acted intra vires.

I desire, however, to add that the whole of this part of the case depends upon the necessity for a special force being, in a reasonable sense, established. If that is done I clearly am of opinion that no charge can be exacted from a private citizen for the performance of a public duty. Furthermore, I would also add that, on the assumption that a payment is made to induce or secure that the public authority will perform such a duty, moneys paid under such a bargain are recoverable by the private citizen on the double ground, first, that it is against public policy that the performance of public duty shall be a matter of private purchase, and second, that a promise or agreement to pay, accepted from a citizen in times of nervous alarm or anxiety, fails in legality on the ground of duress, and sums paid under it must be restored.

In the present case, however, as I have explained, the agreement for payment must be supported, because it was for something which, although within the power of the police to give, could not be declared as a protection proved to be necessary for the reasonable demands of the occasion.

Viscount Finlay.

MY LORDS, the Appellants are the owners of collieries on the Garngoch Common in the county of Glamorgan. In 1921 there was a national coal strike which began on the 1st April and lasted till the 4th July, at which date work was generally resumed. The men at the Appellants' collieries were, however, dissatisfied with the terms of settlement and refused to resume work. In these collieries over 1,000 men had been employed and they remained idle until the 4th September 1921. The " safety men," as they are called, who were engaged in working the pumps on which the preservation of the mine from flooding depended, remained at work. If the working of the pumps had been stopped the mine in the course of a few days would have been most seriously damaged by the accumulation of water. The strikers endeavoured to get these " safety men " to join in the strike, the effect of which would have been that in three or four days the mine would have been drowned out. Under these circumstances the agent of the owners, Mr. Alfred James, went to the Gowerton Police Station to arrange with the Superintendent, Colonel Smith, for police protection. He asked that an adequate force of police should be billeted in the houses in the immediate vicinity of the collieries. Colonel Smith thought that protection would be best afforded by a flying column moving from point to point as required, but Mr. Alfred James insisted that a " garrison " near the mines should be provided and Colonel Smith acquiesced. Mr. James in his evidence described what ensued as follows (Appendix, p. 35) :-

"Q. Did he then tell you something about a form?

"A. Yes.

"Q. What did he say exactly about the form?

"A. As near as I remember he said, ' You will of

"'course have to sign a form of requisition.' I said, ' Yes—

"'that is the usual procedure in matters of this description' "—and he told me it was, so I said, ' All right, I will sign " 'the form'."

The form was accordingly signed. It is headed:—" Form of "Requisition for Special Services of Police." It stated that certain men, seventy in all, were required for special duty at the Garngoch and Cape Collieries on the occasion of a strike from 6 p.m. on the 9th July. The form concluded—

"I hereby guarantee payment on the conditions " specified in Clause ' C' in the Second Schedule to this " form."

This was signed by Mr. James and addressed to the Chief Constable, The schedule stated the terms as to payment, accommodation and food.

The seventy men arrived on the evening of the same day. The safety men remained at work, and it was admitted at the trial that police protection in some shape or form was required. No pressure was put upon Mr. James to sign the requisition; as his evidence shows, he was prepared to sign it and knew that it was usual in such cases.

The action in this case was brought to recover the amount due on the terms of the requisition.

The colliery owners repudiated liability on the grounds that there was no consideration for the promise to pay for the police protection and that such an agreement was against public policy. The case was tried by Mr. Justice Bailhache and he entered judgment for the Plaintiffs, saying :—

"There is an obligation on the police to afford efficient " protection, but if an individual asks for special protection " in a particular form, for the special protection so asked for " in that particular form, the individual must pay.'.'

This decision was affirmed by a majority on the appeal (Bankes, L.J. and Scrutton, L.J.; Atkin, L.J. dissenting). The colliery owners now appeal and ask that judgment should be entered for them.

It appears to me that there is nothing in the first point made for the colliery owners that there was no consideration for the promise. It is clear that there was abundant consideration. The police authorities thought that it would be best to give protection by means of a flying column of police, but the colliery owners wanted the " garrison " and promised to pay for it if it was sent. I pass at once to the second objection made by the colliery owners, on which we have had a prolonged argument.

A great number of cases have been cited to us in which it has been held that fees extorted colore officii must be returned. These authorities seem to me to have no application to the present case.

There is no doubt that it is the duty of the police to give adequate protection to all persons and to their property. In discharging this duty those in control of the police must exercise their judgment as to the manner in which that protection should be afforded. If a particular person desires protection of a special sort and the police can give this without interfering with the discharge of other duties elsewhere, it is difficult to see on what ground of public policy it should be illegal that a charge should be made in respect of special protection. The police must, of course, have a certain margin of strength to draw upon as from time to time occasion may arise, and for this purpose, it is essential to have at the disposal of the authorities a force in excess of the bare amount which would in normal circumstances be sufficient for the discharge of their duties. For a long series of years it has been the practice to supply special police protection on the promise of payment. There has been a great deal of legislation about the police, but no attempt has ever been made to interfere with this practice. On the contrary it has been recognised and regulated by the authorities. I may refer in illustration to the memorandum from the Home Office, dated January 1892, as to receipts in respect of the services of constables lent to private employers. Of course, if it were illegal to take such payments no amount of sanction by Government Departments would legalise what was against the law. But the fact that the Home Office has regulated such payments goes a long way to show that there is nothing illegal about them. We have not been furnished with any substantial argument on the ground of public policy against such payments. Why should not the reserve strength of the police be used in this way on the terms that those who desire such special protection should make payment for it in aid of the expenses of maintaining the Force, and so to that extent relieving the ratepayer. It was suggested that such a practice would enable those who could afford to pay for it to get special police protection which would not be given to their poorer neighbours. The police authorities may be trusted to see that such special service is never to be allowed in cases where it would interfere with the other duties of the Force. I can see no ground of public policy on which employers should not make some contribution to the special cost of police required on emergency for the protection of their works.

I have referred to the fact that the Legislature has never interfered with this practice, the existence of which for eighty years or upwards has been known to everyone. But the Legislature has actually made provision as to the application of the moneys to be derived from such payments. The Police Act, 1890 (53 and 54 Victoria, chap. 45), by section 16 (1), made the following provisions :—

There shall be a pension fund of every police force "and there shall be carried to that fund .... " (e) Such proportion of any sum received on account of constables whose services have been lent in consideration of payment as the police authorities may " consider to be a fair contribution to the pension fund "in respect of these constables."

The subsequent repeal of this Act as no longer necessary does not affect the inference to be drawn from this recognition of the practice. It was indeed a recognition that the practice was legal, as it cannot be supposed that Parliament would have directed such application of payments which were in themselves illegal.

A much earlier statute, the County Police Act, 1840 (3 and 4 Victoria, chap. 88), by section 19, makes provision for the appointing and swearing in of special constables " at the charge of the person or " persons by whom the application shall be made," such special constables to be discontinued on the request of those who have applied for their appointment. This enactment seems to me to destroy the contention of the Appellants that there is some legal principle which makes it illegal to pay for special police assistance.

The case for the Appellants is summarised in a sentence of the dissenting judgment of Atkin, L.J. as follows (Appendix, p. 76):—

Either they were performing this public duty in giving the protection asked for, in which case I think they cannot charge, or, which no one suggests, they "were at the request of an individual doing something 'which it was not their duty to do, in which case it seems to me both public policy and section 10 of the Act of 1839 make the contract illegal and void.

I think that this argument, like most arguments put in the form of a dilemma, fails to cover the whole ground. There was no duty on the police to give the special protection asked for, but it does not follow that it was their duty not to give it. Section 10 of the Act of 1839 seems to me to have no relevance to the circumstances of the present case, as it merely prohibits constables from taking for hire or gain work other than in the execution of their duties under the Act. It has no reference to special protection given by the police authorities to particular persons and the work done by the constables in that respect under their orders.

It would be useless to go through the cases in which exactions by officials of fees to which they have no right have been treated as illegal. The question here is an entirely different one. It is simply whether a charge may be made for special police protection desired by a particular person for which he is willing to pay and which the police are in a position to render without interfering with their ordinary duties. Beyond all question it is the duty of the police to give protection to the persons and property of all His Majesty's subjects. The police must never be taken off for special duty so as to withdraw such protection as is wanted elsewhere. The fact that the system has so long existed without giving rise to any complaint that it interferes with the ordinary duties of the police is the best evidence that the objections to the practice are not real. These objections are indeed merely theoretical. The practice has existed for nearly a century and has not been attended by any of the mischiefs which it has been suggested might follow, if a particular person gets special police protection in a particular form on his promise to pay for it, he is bound by his contract legally as well as morally. In my opinion this Appeal must be dismissed with costs.

The Lord Chancellor.

MY LORDS, the national coal strike, which commenced on the 1st April 1921, came to an end on the 4th July of that year, certain terms being then agreed upon as to the payment of wages to the miners. The Appellants, Glasbrook Brothers, Limited, who are the owners of a valuable group of collieries in Glamorganshire situated about two miles from Swansea, proposed to pay their men (numbering about 1,000) on the agreed scale; but this was not agreeable to the men, some of whom had before the strike been receiving better terms, and they refused to return to work. During the strike the " safety men " at the Appellants' collieries—that is to say, the men employed to attend to the pumping which was necessary in order to preserve the mines from flooding—had been allowed to continue at work; but when the miners decided to remain out on strike they insisted (doubtless as a means of forcing the Appellants to accept their terms) that the safety men should cease work and put severe pressure upon those men to comply with their wishes. During the week beginning on the 4th July crowds of miners went to the collieries, and a deputation representing the miners was admitted to the works and had an interview with the safety men. Picketing which was not of a peaceful character took place, one of the safety men when on his way to the works was pulled off his bicycle; and the workmen's committee informed Mr. James, the agent for the collieries, that " they meant to get all the safety men out." As a result of this pressure the safety men held a meeting and resolved that owing to the pressure put upon them and the insufficient police protection, they would not work any longer; and on Saturday the 9th July the safety men who were expected (six at each of the two principal collieries) did not turn up, and the fires had to be drawn and the pumping discontinued.

On the same day—the 9th July—Mr. James went to the police station at Gowerton and saw Lieutenant Colonel Smith, the Superintendent of the " H " Division of the Glamorganshire Constabulary, told him the facts, and said that it would be necessary to have police billeted in the colliery. Colonel Smith demurred, saying that he was able to protect the collieries without installing a police garrison. He had been keeping what he called a thin shield of police at the colliery to watch and give information if any large body of miners appeared and in that event an ample force of police could at once be sent up; and he thought that with such a body of watchers at the points of danger and a mobile force of police ready for action wherever they might be required he was stronger than with the garrison. Mr. James, however, insisted on his view and asked for a garrison of 100, adding: " I am of opinion that a garrison is the only thing that will inspire our fellows with confidence to work "; and Colonel Smith gave in, but suggested that 70 men would be enough for the purpose, and said that as it would be " special duty " a requisition must be signed containing a promise to pay. Mr. James, who had been previously authorised by his directors to sign such a requisition, assented, and at once signed a requisition in the following form:—

Glamorgan Constabulary. Form of Requisition for special services of police.

Garngoch Collieries, Gorseinon, 9th July, 1921.

Sir,

Superintendent, two Inspectors, two Sergeants, and 66 Constables (in accordance with the First Schedule to this Form), are required for Special Duty at the Gamgoch and Cape Collieries on the occasion of a strike from 6 p.m. on the 9th July, 1921 to m. on the • 1921.

I hereby guarantee payment on the conditions specified in clause 'C' of the Second Schedule to this form.

(Signed) A. JAMES.

To the Chief Constable."

The Second Schedule to the above requisition specified the amounts to be paid and the quality of the food to be supplied to the police. This matter having been settled, the police authorities, without reducing the force of police employed in the district, brought in 70 police from other Divisions in the County and sent them up to the collieries, where they remained until the dispute was settled. For a few days the Appellants employed some naval stokers, but this expedient was not successful and the fires were not at once re-lighted. On the following Tuesday, the 12th July, some of the safety men came to the works and expressed their willingness to resume work if they were billeted at the colliery; and ultimately they all came back and the fires were lighted on the 15th July and pumping resumed. The safety men were informed that a force of police was in billet at the works, and no doubt their presence inspired confidence; but the duty of protecting the wives and families of these men, against whom some cowardly threats had been used, remained of course with the general body of police outside. After these events the behaviour of the miners appears to have improved, and no attack was made on the collieries or (so far as the evidence goes) at the homes of the safety men employed at the works. On the 26th August the dispute came to an end and the garrison of police was withdrawn.

The charges for the pay and expenses of the billeted police, ascertained in accordance with the terms of the requisition, amounted to 2,200Z. 11s. 10d., and payment of that sum was demanded of the Appellants, but refused; and thereupon the Glamorganshire County Council, with the Standing Joint Committee and the Chief Constable, brought this action against the Appellants claiming payment of that amount. The Appellants by their Defence did not contest the correctness of the charges claimed, but pleaded that the police officers in respect of whom the charge was made were supplied for the purpose of carrying out the legal duties and obligations of the plaintiffs, which included the prevention of riot and violence and the protection of the Appellants' servants and property against the danger or apprehended danger of injury by reason of riots, violence or tumults, and accordingly that there was no consideration for the agreement to pay, which was signed under compulsion, and they counterclaimed for the expenses of housing and maintaining the police, amounting to 1,330Z. 4s.

The action was heard by the late Mr. Justice Bailhache, who gave judgment for the plaintiffs (the Respondents) on the claim and counterclaim with costs; and on appeal this judgment was affirmed by a majority of the Court of Appeal (Bankes and Scrutton, L.JJ. Atkin, L.J. dissenting). Hence the present Appeal.

Upon the argument of the Appeal, two points were raised. First, it was argued that, when a subject has need of police protection and has done nothing to increase the risk, he is entitled to protection without payment and an agreement to pay is without consideration and contrary to public policy. Secondly, it was said, following a suggestion made in the Court of Appeal, that on general principles the police authorities are not entitled, except in the cases specifically provided for by statute, to make a charge for police services. It is convenient to deal first with the latter and more general contention.

My Lords, the practice by which police authorities make a charge for *' special services," that is to say, for services rendered outside the scope of their obligations, has been established for upwards of sixty years and is constantly followed by every police authority in the country with the approval of the Secretary of State; and it is difficult to understand on what grounds it should now be treated as illegal. No doubt there is an absolute and unconditional obligation binding the police authorities to take all steps which appear to them to be necessary for keeping the peace, for preventing crime, or for protecting property from criminal injury; and the public, who pay for this protection through the rates and taxes, cannot lawfully be called upon to make a further payment for that which is their right. This was laid down by Lord Justice Pickford in the case of Glamorganshire. Coal Company v. Glamorganshire Standing Joint Committee (L.R. 1916, 2 K.B. 206 at p. 229) in the following terms:—

If erne party to a dispute is threatened with violence by the other " party he is entitled to protection from such violence whether his contention in the dispute be right or wrong, and to allow the police authority to deny him protection from that violence unless he pays all the expense in addition to the contribution which with other ratepayers he makes to the support of the police is only one degree less dangerous than to allow that authority to decide which party is right in the dispute and grant or withhold protection accordingly. There is a moral duty on each party to the dispute to do nothing to aggravate it and to take reasonable means of self-protection, but the discharge of this duty by them is not a condition precedent to the discharge by the police authority of their own duty."

With this statement of the law I entirely agree, and I think that any attempt by a police authority to extract payment for services which fall within the plain obligations of the police force, should be firmly discountenanced by the Courts. But it has always been recognised that, where individuals desire that services of a special kind which though not within the obligations of a police authority can most effectively be rendered by them, should be performed by members of the police force, the police authorities may (to use an expression which is found in the Police Pensions Act, 1890) " lend " the services of constables for that purpose in consideration of payment. Instances are the lending of constables on the occasions of large gatherings in and outside private premises, as on the occasions of weddings, athletic or boxing contests or race meetings, and the provision of constables at large railway stations. Of course no such lending could possibly take place if the constables were required elsewhere for the preservation of order; but (as Lord Justice Bankes pointed out) an effective police force requires a margin of reserve strength in order to deal with emergencies, and to employ that margin of reserve, when not otherwise required, on special police service for payment is to the advantage both of the persons utilising their services and of the public who are thereby relieved from some part of the police charges. Atkin, L,J. put the contrary view in the form of a dilemma when he said:—

Either they were performing this public duty in giving the protection asked for, in which case I think they cannot charge, or, which no one suggests, they were at the request of an individual doing something which it was not their duty to do, in which case it seems to me both public policy and section 10 of the Act of 1839 make the contract illegal and void."

With great respect to the learned Lord Justice I am disposed to think that this reasoning rests on an ambiguous use of the word "duty." There may be services rendered by the police which, although not within the scope of their absolute obligations to the public, may yet fall within their powers, and in such cases public policy does not forbid their performance. I do not understand the reference in the above passage to section 10 of the Act of 1839.

The above view of the law is in accordance with certain passages in the judgments of Phillimore and Pickford, L.JJ., in the previous Glamorganshire case cited above (see L.R. 1916, 2 K.B., pp. 22and-9, and 114 Law Times, pp. 718-728), but in that case the point did not actually arise. The argument also derives considerable support from the statutes dealing with the police. By the Police Act, 1838 (1 and 2 Vict. cap. 80), it was provided that when the appointment of special constables had been occasioned by the behaviour or by reasonable apprehension of the behaviour of the persons employed upon any railway, canal or other public work made or carried on under the authority of Parliament, the justices might make orders upon the company making or carrying on such railway, canal or other public work for the payment to such special constables of reasonable allowances for their trouble, loss of time, and expenses. By the County Police Act, 1840 (3 and 4 Vict. cap. 88, section 19), it was enacted that it should be lawful for the chief constable of any county with the approval of the justices in Quarter Session on an application of any person showing the necessity thereof to appoint and cause to be sworn in any additional number of constables at the charge of the person making such application, but subject to the orders of the chief constable and for such time as he should think fit. It is true that the provisions of this section are confined to the appointment of " additional " constables; but it would seem somewhat absurd to require that, if in any case where constables are required for special duty there are members of the existing force who can be spared for the purpose, the services of those constables shall not be utilised but additional constables shall be appointed. And by the Police Act, 1890 (53 and 54 Vict. cap. 45, section 16), it was provided that there should be carried to the pension fund of every police force among other sums " (e) such proportion " of any sum received on account of constables whose services have " been lent in consideration of payment as the police authority " may consider to be a fair contribution to the pension fund in " respect of those constables." No doubt the above provision of the Act of 1890 was repealed by the Police Pensions Act, 1921; but that repeal was rendered necessary by reason of the fact that by section 22 of that Act all pensions were directed to be paid out of the police fund and the pensions funds were abolished, and the repeal does not detract from the significance of the fact that by the terms of the Act of 1890 the lending of the services of constables in consideration of payment was expressly recognised by the Legislature. I find it difficult to believe that if the Legislature had considered the practice of lending constables for special duty, which in the year 1890 was of daily occurrence, to be against public policy, it would have provided for the application of payments received in consideration of such lending to pension purposes; and it appears to me that this statutory recognition of the practice in question affords a strong argument in favour of its legality.

I conclude, therefore, that the practice of lending constables for special duty in consideration of payment is not illegal or against public policy; and I pass to the second question, viz., whether in this particular case the lending of the 70 constables to be billeted in the Appellants' colliery was a legitimate application of the principle. In this connection I think it important to bear in mind exactly what it was that the learned trial Judge had to decide. It was no part of his duty to say—nor did he purport to say—whether in his judgment the billeting of the 70 men at the colliery was necessary for the prevention of violence or the protection of the mines from criminal injury. The duty of determining such questions is cast by law, not upon the courts after the event, but upon the police authorities at the time when the decision has to be taken; and a court which attempted to review such a decision from the point of view of its wisdom or prudence would (I think) be exceeding its proper functions. The question for the Court was whether on the 9th July 1921, the police authorities, acting reasonably and in good faith, considered a police garrison at the colliery necessary for the protection of life and property from violence, or, in other words, whether the decision of the chief constable in refusing special protection unless paid for was such a decision as a man in his position and with his duties could reasonably make. If in the judgment of the police authorities, formed reasonably and in good faith, the garrison was necessary for the protection of life and property, then they were not entitled to make a charge for it, for that would be to exact a payment for the performance of a duty which they clearly owed to the Appellants and their servants; but if they thought the garrison a superfluity and only acceded to Mr. James' request with a view to meeting his wishes, then in my opinion they were entitled to treat the garrison duty as special duty and to charge for it. Now, upon this point the Divisional Superintendent Colonel Smith, who was a highly experienced officer, gave specific and detailed evidence; and the learned Judge having seen him in the witness box and heard his examination and cross-examination accepted his evidence upon the point, as the following extract from the judgment shows :—

"Colonel Smith says that if the matter had been left entirely to him without this requisition, he would have protected this colliery, and he would have protected it amply, but in quite a different way, and I accept his evidence that that is so. He would not have sent this garrison there, and in my judgment, while not desiring for a moment to suggest that it was not the bounden duty of the county council to protect this colliery, and not for one moment suggesting that the performing of a legal duty will support a promise to pay, I have come to the conclusion that when a colliery company or an individual requisitions police protection of a special character for a particular purpose, he must pay for it, and he must pay for it whether he makes a contract to pay or whether he does not—a promise to pay would be implied under those circumstances. In this case, of course, there is an express promise, and in my judgment this promise is not without consideration and must be fulfilled."

Upon this point Sir John Simon in his powerful argument for the Appellants contended that the true inference to be drawn from the evidence was that the police authority, having a discretion to elect between protecting the collieries (which admittedly required protection in some form) by means of the " mobile body " to which Colonel Smith referred or by means of a garrison, chose the latter alternative in consideration of payment, and that they could not so (as he put it) " sell their discretion." Upon the evidence, I do not think that they did anything of the kind. Colonel Smith said clearly that the police garrison was no part of his scheme of protection and did not help him in his scheme at all; that he had an ample force by which to protect the collieries from outside and was well able to cope with the situation. It does not appear that the provision of the garrison, who were brought in from distant parts of the county, relieved the force on the spot from any of their duties, or that the local force was reduced in consequence; and I think that the true inference is that the garrison formed an additional and not a substituted or alternative means of protection.

There is another argument to be noticed. It was said that if the police garrison had not been provided the " safety men " would not have attended to work the pumps and the mines would have been flooded, and from this it is inferred that the garrison was necessary for the protection of the Appellants' property. I think that there was evidence to that effect, but it does not appear to me to follow that it was the duty of the police authority to provide the garrison. They were no doubt bound to protect the " safety men" from violence, but it was not for the safety men to decide the form "in which that protection should be given; and if they declined to safeguard the collieries from flooding unless protection was given in a particular form which the police authorities thought unnecessary, it was for the owners of the collieries and not for the police to overcome their reluctance.

Upon the whole matter, I have come to the conclusion that the decision of the learned trial Judge and of the Court of Appeal was right, and that the Appellants, who deliberately entered into an agreement to pay for the services and maintenance of the police garrison and did not dispute their liability until they had had the benefit of those services for a period of nearly two months, cannot now repudiate their agreement upon any of the grounds put forward.

In my opinion, therefore, this Appeal fails and should be dismissed with costs.


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