Chief Police Officers' Staff Association, R (on the application of) v Police, Fire and Rescue and Crime Commissioner for Staffordshire [2025] EWHC 3047 (Admin)

[2025] EWHC 3047 (Admin)Case No AC-2025-000299
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Birmingham Civil Justice Centre
33 Bull Street
Venue BirminghamDate 19/11/2025
B4 6DS
Before
THE HONOURABLE MRS JUSTICE JEFFORD DBE
Between
REXClaimantPOLICE, FIRE AND RESCUE AND CRIME COMMISSIONER FOR STAFFORDSHIREDefendantREBECCA RIGGSInterested PartiesCHRISTOPHER NOBLEInterested PartySTAFFORDSHIRE POLICE, FIRE AND CRIME PANELInterested Party
Mr Elliot Gold (instructed by 3D Solicitors Limited) for ClaimantMr John Beggs KC and Mr Aaron Rathmell (instructed by Weightmans LLP) for DefendantMr Dijen Basu KC (instructed by way of direct access) for First Interested Party for The Second and Third Interested Parties were unrepresented and did not appear.Hearing Hearing date: 24 th October 2025
Judgment Approved by the court for handing downThis judgment was handed down remotely at 10.30am on Wednesday 19th November 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

[1]On 1 August 2025, the current Chief Constable of Staffordshire was suspended from duty pending an inquiry in respect of 5 allegations of misconduct which had been referred by the defendant Police and Crime Commissioner (“the Commissioner”) to the Independent Office for Police Conduct (“IOPC”). The allegations related to the Chief Constable’s private life and matters that had occurred before he was appointed to his role in Staffordshire in 2021.[2]In a document headed “Rationale for selection of TCC”, the Commissioner set out the priorities that he had considered “In considering the options available to the Commissioner in selecting a Temporary Chief Constable (TCC)”. He identified 2 options which, in short, were(a) to appoint the Deputy Chief Constable (“DCC”) as the TCC or(b) to run a TCC recruitment process. The Commissioner concluded that he preferred option (b) and, in the meantime, would ask the DCC, who is DCC Rebecca Riggs, to “act up” as the Chief Constable for a short period of time while the recruitment process was developed. An advertisement for this post of TCC was published on 22 August 2025.[3]In the course of August and September, the claimant questioned the proposed appointment of a TCC rather than the DCC “acting up”. A Pre-Action Protocol letter was sent on 5 September 2025 and responded to by the Commissioner. In the Commissioner’s solicitors’ letter dated 22 September 2025 it was conceded that ground 1 (as set out below) was arguable. These proceedings were commenced on 19 September 2025 and included an application for expedition.[4]Four grounds were advanced:(1) That the Commissioner had no express or implied power to appoint a temporary chief constable;(2) That the Commissioner had failed to take into account all relevant matters, had taken account of irrelevant matters and reached a decision that was unreasonable;(3) That the Commissioner’s decision to remove the acting chief constable (ie the DCC) from that role was premature; other than in accordance with the statutory requirements; and procedurally unfair; and(4) That the recruitment of a TCC was effectively the de facto recruitment of a permanent chief constable.[5]On 24 September Bourne J considered the application for permission on the papers. He granted permission on ground 1 with an expedited hearing. He directed that, if time permitted, the court should also consider permission for the further grounds at this hearing.

Summary of arguments on ground 1

[6]So far as ground 1 is concerned, Mr Gold, for the claimant, encapsulated the issue as whether Parliament by the Police, Reform and Social Responsibility Act 2011 (“the Act”) had impliedly authorised a Police and Crime Commissioner (“PCC”) to appoint a temporary chief constable where there was no express power to do so and in a manner that was not prescribed by statute. The claimant’s case in broad summary is that the operative and governing relevant legislation, that is the Act, established the role of Police and Crime Commissioner and amongst other things provided a statutory process for the appointment of a chief constable by the PCC at the conclusion of the process. What the Commissioner proposed to do in this case was completely contrary to that statutory scheme.[7]Further, there is express provision in the Act (section 41) enabling the DCC to perform any or all of the powers of the chief constable when the chief constable is unable to perform those functions, being a period when the chief constable is absent, incapacitated or suspended from duty or when the office is vacant. The claimant’s case is that the only lawful option is for the DCC to act as the “acting chief constable”. This is the term expressly used in section 41(10). Further, the claimant submits, the fact that Parliament has made this express provision for the Chief Constable’s absence militates against the Commissioner’s case that he is entitled to appoint a TCC.[8]The defendant accepts that there is no express reference in the Act to a temporary chief constable but contends that there is power to appoint someone to such a role under Schedule 1, paragraph 14 of the Act (set out in full below) which provides that the Commissioner “may do anything which is calculated to facilitate, or is conducive or incidental to, the exercise of the functions of the Commissioner.”[9]The defendant’s case can be summarised as being(i) that he faces extraordinary circumstances in leadership of Staffordshire Police engaging his statutory duty to secure an efficient and effective police force;(ii) that he has sought to adopt the conventional process of appointment to appoint a TCC;(iii) that he has power to do so because that is calculated to facilitate or is conducive to the exercise of his functions;(iv) that he has consulted stakeholders and sought to follow their guidance; and(v) that he intends to submit his preferred candidate to the scrutiny of those stakeholders including the Police, Fire and Crime Panel. It was submitted that it was only because the Commissioner faced extraordinary circumstances that he sought to exercise his power under Schedule 1, paragraph 14 to fulfil his core function of securing an effective and efficient police force.

The potential PII application

[10]The defendant’s Acknowledgment of Service was filed on 3 October and included an application for permission to file a claim for public interest immunity (“PII”). Directions were requested which related to dates for filing any claim, any supporting evidence, the letter required by the Administrative Court Guide at paragraph 19.2.7.1, and any request for directions. I subsequently made those directions which, as I understand it, were complied with.[11]For the avoidance of doubt, prior to the commencement of this hearing, this application was the only document relating to the PII application that I had looked at. The reason for that was that the claimant objected to my looking at anything relating to the PII application as a result of which objection I said that I would not look at anything until I had heard argument about that.[12]The Commissioner, Ben Adams, also provided a witness statement dated 10 October 2025 in which he set out the circumstances that he faced, what he had done and what he intended to do. In that statement, he set out, to put it relatively neutrally, challenges which faced Staffordshire Police. Against that background, he stated that he had concerns about DCC Riggs exercising the powers of the Chief Constable for a “lengthy and indefinite” period. He set out his concerns about the pace of decision making of the IOPC. He said that the IOPC’s “target range” for their investigations was 6-9 months but he was aware that investigations could take substantially longer and be followed by a regulatory decision making process and potential legal proceedings. He concluded: “This may take years to resolve”.[13]The Commissioner’s first concern in relation to DCC Riggs was her limited experience in the role of DCC and Chief Constable. I should make it clear that I recite only what the Commissioner expressed as his concern and I do not express any view as to whether that concern was justified. The court was given some detail as to DCC Riggs’ experience and the claimant undoubtedly has reasons for disputing the Commissioner’s assessment or the validity of his concern. This concern was expressed in the context of what, in argument, was described as operational and/or command resilience in that, at present, there is no other DCC and there are only 2 assistant chief constables both of whom were recently appointed and only one of whom has completed the Executive Leaders Programme.[14]The Commissioner expressed further concerns which were redacted in the open version of the statement.[15]He then explained the steps he had taken before coming to the conclusion that he should advertise the post of TCC. Following his provisional view that he should identify a TCC, these steps, which are also addressed more fully below, included discussions he or his Chief Executive, Louise Clayton, had with relevant persons of bodies and seeking advice from them on the possibility of appointing a TCC and the process for doing so. This included discussions with a Mr Cordy of the Integrity Unit at the Home Office; Ms MacKinlay, Deputy Head of the Police Workforce & Professionalism Unit at the Home Office; Sir Andy Marsh from the College of Policing; Gavin Stephens, Chair of the National Police Chiefs’ Council; and Sir Andy Cooke of His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services. Further advice was also provided in writing by Helen Slimmon, the College of Policing’s Interim Head of Occupational Psychology.[16]The gist of the Commissioner’s evidence was that he had sought appropriate advice and input and that everyone had advised him that it was open to him to appoint a TCC rather than have the DCC act up for as long as the Chief Constable was unavailable by reason of suspension or otherwise. Both the Home Office and the College of Policing also offered written advice on the process, expressly on the basis that it was not covered by the legislative requirements for the appointment of a (permanent) chief constable. Self-evidently none of this was redacted and is not the subject of the proposed application.[17]Against this background, a further issue then arose which was whether it was necessary or appropriate for the court to consider the PII application before hearing argument on ground 1 or whether it was a matter that could await consideration of grounds 2 to 4.[18]I heard argument on this issue in private in the interests of justice to enable the defendant properly to address the relevant material but without looking at any of that material. I decided that it was not necessary to hear the PII application first.[19]For completeness, I set out briefly the arguments and my decision below. Nothing said below seems to me to be other than in the public domain or properly in the public domain.[20]The claimant says that ground 1 – the question of whether the Commissioner has power to appoint a temporary chief constable – is solely a matter of statutory interpretation. On that basis, the defendant had conceded that ground 1 was properly arguable. The claimant had, therefore, not sought disclosure of any documents. The claimant’s position was that, if the court found that the Commissioner does have that power, the court may need to consider whether the Commissioner has properly exercised that power and, at that stage, the issues of the circumstances that the Commissioner faces, whether they are exceptional and whether that entitles him to exercise this power may be live. But that is the subject matter of grounds 2 to 4. There is no need for the court to consider the application, let alone the material in question, before consideration of grounds 2 to 4 is reached – whether at the permission stage or subsequently.[21]The defendant argued that the court ought to be apprised of everything that the defendant has relied on in reaching his decision so that the court’s consideration of ground 1 is on a full and firm footing. In broad terms, as I have said, the defendant submits that he faces extraordinary circumstances and in those circumstances is properly entitled to exercise the power to appoint a temporary chief constable which he considers he has. The issue of whether those exceptional circumstances exist is relevant to ground 1 as well as grounds 2 to 4.[22]On this issue, in my view, the claimant was right. The issue that arises under ground 1 is one of statutory interpretation which does not require evidence. To the extent that it is the defendant’s case that the power to appoint arises in particular circumstances only or that the power can be exercised in particular circumstances, I took the view that it was open to the defendant to articulate that case and what those circumstances might be without reference to the facts of this case. The facts of this particular case go to grounds 2 to 4 and not ground 1. I cannot see that any further information as to the decision making process of the Commissioner would be relevant to or assist on ground 1.

The Police, Reform and Social Responsibility Act 2011

[23]As indicated above, central to both parties’ positions are the provisions of this Act.[24]Section 1(1) provides for there to be a police and crime commissioner for each police area listed in Schedule 1 (that is, areas outside London):(i) Section 1(5) provides that the PCC has the functions provided for by this section and this Act.(ii) Section 1(6)(b) requires the PCC to secure that the police force is efficient and effective.(iii) Section 1(7) provides that the PCC is to hold the chief constable to account for the exercise of the chief constable’s functions and those of persons under his direction or control.(iv) Section 1(10) provides that Schedule 1 has effect.[25]In large part Schedule 1 is concerned with the appointment of the PCC’s staff, remuneration and scrutiny of those appointments.[26]Paragraph 14 then provides:
“(1) A police and crime commissioner may do anything which is calculated to facilitate, or is conducive or incidental to, the exercise of the functions of commissioner. (2) That includes— (a) entering into contracts and other agreements (whether legally binding or not); (b) acquiring and disposing of property (including land); (c) borrowing money. (3) This paragraph is subject to the other provisions of this Act and to any other enactment about the powers of police and crime commissioners.”
[27]Section 2 of the Act (headed Chief constables) provides as follows:
“(1) Each police force is to have a chief constable. (2) The chief constable of a police force is to be appointed, and to hold office, in accordance with – (a) section 38, and (b) the terms and conditions of that appointment. (3) A police force, and the civilian staff of a police force, are under the direction and control of the chief constable of the force.”
[28]Section 38 (headed Appointment, suspension and removal of chief constables) provides:
“(1) The police and crime commissioner for a police area is to appoint the chief constable of the police force for that area. (2) The police and crime commissioner for the police area may suspend from duty the chief constable of the police force for that area. (3) The police and crime commissioner for the police area may call upon the chief constable of the police force for that area to resign or retire. (4) The chief constable must retire or resign if called upon to do so by the relevant police and crime commissioner in accordance with subsection (3). (5) Schedule 8 (appointment, suspension and removal of senior police officers) has effect. (6) This section is subject to Parts 1 and 2 of Schedule 8.”
[29]Section 28 provides for the establishment of a Police and Crime Panel (“the Panel”). The Panel is required to review or scrutinise decisions and actions of the PCC in the discharge of his functions and to make reports and recommendations “in so far as the panel is not otherwise required to do so by subsection (3) or (4) or Schedule 1, 5 or 8.” Subsection 28(3) is expressly concerned with the notification of the proposed appointment of a chief constable and requires the PCC to notify the Panel of the proposed appointment of a chief constable by the PCC and provide specified information (name; criteria to assess suitability; why the candidate satisfies the criteria; and the terms and conditions of appointment).[30]The role of the Panel thereafter in the appointment process is governed by Schedule 8:(i) The Panel is required to hold a public confirmation hearing (paragraph 6) before taking the steps in paragraphs 4 and 5.(ii) Under paragraph 4 the Panel must make a report to the PCC including a recommendation as to whether the candidate should be appointed.(iii) Under paragraph 5 the Panel may veto the candidate and must then include a statement to that effect in its report. Under paragraph 8 the PCC must not appoint a vetoed candidate. Under paragraph 10, the Secretary of State may make regulations about the appointment of a chief constable where paragraph 8 applies and a candidate has been vetoed.(iv) Where the Panel makes a recommendation (and does not veto), the PCC must decide whether to accept or reject that recommendation and then notify the Panel of that decision (paragraph 7).[31]Paragraph 2 of Schedule 8 provides that the PCC must not appoint a person to be chief constable unless that person is eligible for appointment and “the end of the confirmation process has been reached”. Sub-paragraph 2(2) then provides that the end of the confirmation process is reached:
“(a) in a case where paragraph 7 applies, when the first of the events mentioned in sub-paragraphs (3) and (4) occurs; or (b) in a case where paragraph 8 applies, when the first of the events mentioned in sub-paragraphs (3) and (5) occurs.”
In summary, the event in sub-paragraph (3) is a period of 3 weeks ending without a report from the Panel; the event in sub-paragraph (4) is the Commissioner’s notification to the Panel that he accepts or rejects its recommendation; and the event in sub-paragraph (5) is the end of the confirmation process being reached in accordance with regulations made under paragraph 10 - that is the Police and Crime Panels (Precept and Chief Constable Appointments) Regulations 2012.[32]In respect of the position where a candidate is vetoed, those Regulations, at Regulation 9, set out next steps. The PCC shall propose another person for appointment as chief constable. The Panel must hold a further public confirmation hearing and make a further report and recommendation. In these circumstances, on receiving the report, the PCC shall have regard to the report and notify the Panel as to whether he accepts or rejects the recommendation (paragraph 11). The end of the confirmation process is reached when the PCC gives that notification and the PCC may then appoint the reserve candidate or propose another candidate.[33]Section 41 of the Act provides as follows:
“Power of deputy to exercise functions of the chief constable (1) The appropriate deputy chief constable of a police force may exercise or perform any or all of the functions of the chief constable of the force - (a) during any period when the chief constable is unable to exercise functions, or (b) at any other time with the consent of the chief constable. (2) For the purposes of subsection (1), the appropriate deputy chief constable is – (a) if the police force has only one deputy chief constable, the deputy chief constable, … (5) The assistant chief constable designated for this purpose by the chief constable of the force may exercise any or all of the chief constable’s functions during any period when - (a) the chief constable is unable to exercise functions, and (b) a deputy chief constable is unable to exercise functions. … (9) This section is without prejudice to any other enactment that makes provision for a person other than the chief constable to exercise the chief constable’s functions. (10) In a case where a deputy chief constable or assistant chief constable (the “acting chief constable”) is authorised by subsection 1(a) or (5) to exercise or perform the functions of a chief constable – (a) sections 38(2) and (3) apply in relation to the acting chief constable as they apply to the chief constable ….. and (b) section 39(4) and (5) or section 40(3) and (4) do not apply to the acting chief constable. (11) In this section …. (b) a reference to a period when a chief constable is unable to exercise functions is a reference to a period when – (i) the chief constable is absent, incapacitated or suspended from duty, or (ii) the office of chief constable is vacant …” (1) The appropriate deputy chief constable of a police force may exercise or perform any or all of the functions of the chief constable of the force - (a) during any period when the chief constable is unable to exercise functions, or (b) at any other time with the consent of the chief constable. (2) For the purposes of subsection (1), the appropriate deputy chief constable is – (a) if the police force has only one deputy chief constable, the deputy chief constable, … (5) The assistant chief constable designated for this purpose by the chief constable of the force may exercise any or all of the chief constable’s functions during any period when - (a) the chief constable is unable to exercise functions, and (b) a deputy chief constable is unable to exercise functions. … (a) sections 38(2) and (3) apply in relation to the acting chief constable as they apply to the chief constable ….. and (b) section 39(4) and (5) or section 40(3) and (4) do not apply to the acting chief constable. (b) a reference to a period when a chief constable is unable to exercise functions is a reference to a period when – (i) the chief constable is absent, incapacitated or suspended from duty, or (ii) the office of chief constable is vacant …”
The parties’ submissions The relationship of the PCC and chief constable and the appointment of a chief constable

The parties’ submissions

[34]The functions and corresponding powers of a PCC derive from the Act. There can be no dispute about that and he/she has no non-statutory power or function. A cornerstone of Mr Gold’s argument on behalf of the claimant was that the Act brought about a “profound” change by providing, through the role of the PCC, democratic oversight of the police; that the role of the chief constable and his operational independence was a matter of constitutional significance; and that the statute introduced a careful balance between the PCC and the chief constable.[35]In support of that submission, Mr Gold relied, of course, on the provisions of the statute itself but also on the Policing Protocol Order 2023, issued in accordance with section 79 of the Act. Section 79(6) defines the “policing protocol” as:
“a document which sets out, or otherwise makes provision about, ways in which relevant persons should (in the Secretary of State’s view) exercise, or refrain from exercising, functions so as to – (a) encourage maintain or improve working relations (including co-operative working) between relevant persons, or (b) limit or prevent the overlapping or conflicting exercise of functions.”
[36]The Protocol, therefore, addresses the functions of both a PCC and a chief constable. The PCC must not fetter the operational independence of the police force and the chief constable (see paragraph 18) and paragraph 32 emphasises that the operational independence of the police is a fundamental principle of British policing. Paragraph 37 provides that the PCC and the Chief Constable must work together “to safeguard the principle of operational independence while ensuring that the PCC is not fettered in fulfilling their statutory duty.” Paragraph 38 states:
“The relationship between the PCC and the Chief Constable is defined by the PCC’s democratic mandate to hold the Chief Constable to account, and by the law itself: primary legislation and common law already provide clarity on the legal principles that underpin operational independence and the Office of Constable.”
[37]At the same time, paragraph 23 states that the Chief Constable is accountable to the PCC for the matters there set out and the Divisional Court in R (Crompton) v South Yorkshire Police & Crime Commissioner [2017] EWHC 1349 (Admin) at [78] – [79] recognised that matters relevant to operational independence were not excluded from the scope of the PCC’s powers of scrutiny.[38]None of this principle was seriously in issue, if in issue at all, but it provided the context for Mr Gold’s submission that the court should scrutinise with care any interpretation of the Act that disturbed the careful balance provided by Parliament in the relationship between a PCC and a chief constable and, as an aspect of that careful balance, any “hiring and firing” not expressly addressed in the Act.[39]The claimant’s central submissions then seem to me to be as follows:(i) The Act, which creates the balance between the role and powers of the PCC and the chief constable, makes detailed provision for the appointment of a chief constable with the statutorily defined involvement of both the PCC and the Panel and similarly provides a defined procedure for removal of a chief constable from office. A proper interpretation of the statute cannot be one that permits a temporary chief constable to be appointed and/or removed from office without any procedure endorsed by statute.(ii) The general power in Schedule 1 paragraph 14 cannot be construed as investing the Commissioner in any circumstances with power to create such a role or conduct a non-statutory appointment process. Arguments about extraordinary circumstances are irrelevant.(iii) In any case, the Act expressly provides for what is to happen in the absence of the chief constable and for the deputy chief constable to be the “acting chief constable”. It makes no reference at all to a temporary chief constable.[40]Taking (i) and (ii) together, Mr Gold’s first submission was that the Act provides for there to be a chief constable and only one chief constable. Again there is no dispute about that. Although the chief constable is suspended from duty and from performing his functions, he still holds the office of chief constable. Accordingly, it was self-evident that there could not be (another) temporary chief constable. That simple argument has a superficial attraction and could lead to a short finding in the claimant’s favour. The argument, however, ignores the fact that the Act itself clearly provides for someone else to perform the functions of the chief constable and the defendant’s submission seems to me to be not that the temporary chief constable is somehow a second chief constable but rather that he is a person who may be lawfully be appointed to perform the functions of the chief constable in certain circumstances.[41]More importantly, the Act provides a detailed procedure - and one that involves the PCC, the Panel and the public - for the appointment of a chief constable. The Panel has a material role in making a recommendation in respect of any candidate and significant power in its ability to veto the PCC’s first proposed candidate. As the claimant submitted, the PCC is accountable to the electorate in respect of his acceptance or rejection of any recommendation.[42]Correspondingly, there are statutory provisions that govern the removal of a chief constable (and a deputy chief constable). The claimant submits that such provisions are consistent with respecting the operational independence of the chief constable and serve the purpose of promoting stability in leadership and thus in the police force:(i) The Police Regulations 2003, at paragraph 11(2), provide that an appointment to the rank of chief constable or deputy chief constable shall be for a fixed term and fix a maximum term of 5 years subject to extensions.(ii) The said Regulations at paragraph 11A further require the PCC, if he is proposing to call on a chief constable to retire or resign, to obtain the views of the chief inspector of constabulary; to have regard to those views; and in turn to provide his explanation for removal to the chief inspector.[43]Part 2 of Schedule 8 to the Act provides that a PCC must not call on a chief constable to retire or resign until the end of the scrutiny process. That process includes notification to the chief constable of written reasons for proposing to call for his retirement or resignation; an opportunity for the chief constable to make representations; notification to the Panel; and a recommendation from the Panel before making which they must hold a “scrutiny hearing” (as defined in paragraph 15(9)) which is held in private. The recommendation thereafter must be published. The PCC must consider the recommendation and accept or reject it.[44]The claimant submits that Parliament cannot have intended some other provision of the Act to confer power on the PCC to make an appointment of a temporary chief constable with no prescribed procedure and which results in the appointment of a person who could be subject to unfettered powers of removal, that is with none of the checks and balances provided for the removal of a chief constable.[45]As I have said, the defendant Commissioner’s case is one that emphasises that the most significant duty of a PCC is to secure that the police force is efficient and effective (section 1(6)). The defendant submits that the power provided in Schedule 1, paragraph 14 to do anything which is calculated to facilitate, or is conducive or incidental to, the exercise of the functions of the PCC should be read broadly to give the PCC the power to do what the Commissioner seeks to do in this case, that is, appoint a temporary chief constable to ensure that he, the Commissioner, discharges his most significant duty.[46]In pointing to the operational challenges the Staffordshire Police Force faces and the potential deficit in command resilience, the thrust of the defendant’s submission seems to me to be that if the Commissioner is unable to exercise his powers in this way, he runs the risk of failing in his most significant duty. Mr Beggs KC submitted that paragraph 14 provides an express power to do what is necessary in exceptional circumstances. The relevance of reliance on exceptional circumstances must, to my mind, be that, if the Commissioner’s broad powers were used unnecessarily or, as Mr Beggs put it, as a matter of whimsical convenience, the exercise of those powers would be open to challenge by way of judicial review and the implicit limitation of “exceptional circumstances” guards against this risk of misuse.[47]Although it has to be accepted that the appointment of a temporary chief constable is not something that is expressly found in the Act, so that there is in turn no express procedure for making such an appointment, the defendant submitted that what he intends to do does not undermine the statutory provisions. He has consulted widely; he intends to refer the proposed appointment to the Panel; there is no minimum term of appointment for a chief constable so there can be no objection to a short fixed term appointment of a TCC with the possibility of extension; and the balance in the Act and the Protocol in terms of oversight and operational independence will continue to apply.[48]Even without consideration of the claimant’s further arguments, I cannot accept the defendant’s position on this issue.[49]Firstly, having regard to the context of paragraph 14 itself, it is directed towards powers incidental to matters in Schedule 1. That is evident from the two express examples given in paragraph 14(2) – entering into contracts and acquiring/ disposing of property. It would be curious to say the least if Parliament had seen fit to make express that these two matters were included but leave unsaid the rather more striking power to something which flies in the face of the careful and detailed provisions relating to one of the PCC’s primary powers and functions, namely the appointment of the chief constable.[50]Secondly, paragraph 14(3) expressly provides that the paragraph is subject to the other provisions of the Act and to any other enactment about the powers of PCCs. The powers to which the paragraph is subject must, therefore, include section 38 and Schedule 8. I do not see how a power to appoint someone to a role not referred to in the Act (a temporary chief constable) to perform the functions of a person who is expressly referred to (a chief constable) whose appointment and removal are carefully managed by the Act can sit with sub-paragraph 14(3). Put another way, the appointment of someone to perform the functions of the chief constable must be subject to the provisions of the Act for the appointment of a chief constable.[51]Thirdly, section 41 which I come to further below, at sub-section (9) provides:
“This section is without prejudice to any other enactment that makes provision for a person other than the chief constable to exercise the chief constable’s functions.”
Schedule 1, paragraph 14 is on its face not such an enactment. It seems to me that the fact that section 41(9) contemplates that there may be such an enactment militates against reading paragraph 14 as giving the Commissioner power to appoint someone to exercise the functions of the chief constable when it does not expressly say so.[52]The Commissioner also relied on a number of authorities in support of his interpretation of paragraph 14.[53]The court was referred to Hazell v Hammersmith and Fulham LBC [1992] 2 AC 1. In that case, the House of Lords was concerned with the meaning of section 111 of the Local Government Act 1972 which provided: “Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act . . . a local authority shall have power to do any thing (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions." The argument that the local authority’s power to borrow was not a function and that the local authority could do nothing that was only intended to facilitate borrowing was rejected, although the swap transactions that the council had entered into were found not to facilitate borrowing.[54]Whilst it was submitted that this was a wide interpretation of incidental powers that might assist the court in resolving ground 1, it seems to me of little relevance. Although the wording is in the same terms as paragraph 14, section 111 does not appear in a similar context and the local authority was expressly given power to borrow money to facilitate the discharge of its functions. The PCC is not expressly given power to appoint a chief constable other than in accordance with the Act. As the defendant further submitted, referring to Independent Commission of Investigations v Police Federation (Jamaica) [2020] UKPC 11 at [40], in appropriate circumstances powers may be implied but whether such an implication is possible will depend on the statutory scheme. In the present case, the statutory scheme militates against finding either that the express power in paragraph 14 can be taken to include the power to appoint a TCC or that there is such an implied power.[55]The defendant further referred the court to R (OWD Ltd. in liquidation) v HMRC [2019] UKSC 30 at [28] and [42]-[49]. The Alcoholic Liquor Duties Act 1979, by amendment and under section 88C, had introduced a regulatory scheme under which wholesalers supplying duty-paid alcohol had to be approved by HMRC. A refusal could be challenged by appeal to the FTT. The first issue before the court was whether, where HMRC had refused an application for approval, they had power to permit the person to carry on trading pending appeal. The wholesalers argued that such a power arose under section 88C or, alternatively, under section 9 of the Commissioners for Revenue and Customs Act 2005. That latter section provided that “The Commissioners may do anything which they think –(a) necessary or expedient in connection with the exercise of their functions, or(b) incidental or conducive to the exercise of their functions”, where function meant any power or duty and any power or duty ancillary to another power or duty (section 51(2)).[56]At [45], Lady Black concluded that section 9 did not confer such a power:
“Section 9 concerns ancillary powers which are necessary or expedient in connection with the Commissioners’ exercise of their functions, or incidental or conducive to that exercise, not ancillary powers which undermine or contradict those functions. I do not accept that recourse can be had to it to provide an alternative route to time limited approval, supplementing section 88C in the way that the wholesalers suggest. I say that not only because of the terms of section 88C itself, which permit authorisation only under that section (approval given by the Commissioners under this section), but also because of the attributes of the whole scheme of which section 88C forms part. Rather than assisting the Commissioners’ exercise of their functions under the scheme, such a use would, in my view, undermine the scheme.”
[57]In the analysis in the following paragraphs, she set out in greater detail the provisions of the statutes that led to that conclusion. It is sufficient to say that this decision does not seem to me to assist the defendant’s argument because, for the reasons I have given, in my judgment, to find that paragraph 14 does give the Commissioner power to appoint a temporary chief constable outwith any statutory scheme does undermine the statutory scheme.

Section 41 and the role of the DCC

[58]The claimant’s case is also supported by the fact that Parliament has made express provision for what is to happen in the event that the chief constable is unable to perform his functions, including in the event of suspension. These are the provisions of section 41 of the Act set out above.[59]The defendant submitted that the use of “may” in section 41 leads to the conclusion that the DCC “acting up” is one option but not the only one. It may be the default position but it is not the required one. It is permissive wording not mandatory. The defendant relied on cases cited in Stroud’s Judicial Dictionary 11th ed. and the discussion of “Discretion and Duty” in Supperstone, Goudie and Walker on Judicial Review.[60]In this context, however, it seems to me that the word “may” is used to demonstrate that the DCC is permitted to perform the role of the Chief Constable and may exercise any or all of his functions but is not, at all times which may fall within section 41(11), obliged to do so. It may, for example, be the case that the DCC does not need to exercise some of the chief constable’s functions or that, say in the event of illness or vacation, the chief constable continues to perform some functions. The permissive wording allows that practical flexibility rather than prescribing that, in the circumstances set out in the section, the DCC shall or must take over the chief constable’s role in its entirety.[61]Mr Beggs submitted that that flexibility supported the Commissioner’s interpretation of the Act because it demonstrated that the section was permissive rather than mandatory but, in my judgment, that does not meet the point that the DCC having the power to perform these functions is the intention of Parliament and not some other unspecified person. Indeed, the passage in paragraph 7.4 of Supperstone, Goudie and Walker on which the defendant relied offers this analysis:
“The purpose for which the power is conferred must also be considered, and to this end the rest of the statute may need to be taken into account as disclosing the overall Parliamentary intention and the context within which the power is conferred.”
That is apt here and I repeat that to my mind the intention of Parliament is clearly that the DCC should perform the functions of the chief constable.[62]The claimant also pointed to the fact that by section 41(10)(b), Parliament has expressly limited the powers of a DCC acting as chief constable. The DCC may not suspend another DCC or an ACC or call on another DCC or ACC to retire or resign. Mr Gold submitted that that was intended to ensure that a DCC could not reshape a police force in terms of its most senior officers when acting as chief constable. Whether or not that was the underlying intention, it is clear that no such limitation would apply to a temporary chief constable. It would again be surprising if Parliament had made express and indeed careful provision for a DCC to act as chief constable but at the same time provided a power that entitled the PCC to appoint someone to take over the role without any such careful provision.[63]Returning to the claimant’s submission that there can only be one chief constable, even if the appointment of a temporary chief constable to perform the chief constable’s functions would not create a second chief constable, it would still create a second person with power to perform those functions. That shows the further difficulty with the defendant’s position. If the DCC may perform the functions of the chief constable in the circumstances set out but a temporary chief constable is also appointed, there would be a second person entitled to perform those functions. That creates an incoherent situation. To resolve that incoherence, section 41 would have to be read as saying that the DCC may perform the functions of the chief constable but only if there were no temporary chief constable appointed. Unsurprisingly given that the Act makes no reference to a temporary chief constable, section 41 says nothing to that effect or from which that could be implied.[64]Lastly and for completeness:(i) The claimant also submitted that Parliament had removed any other route to the appointment of a TCC. The statutory history was set out in Mr Gold’s skeleton argument (reflecting the Statement of Facts and Grounds). It does not appear to be in dispute that there is no power to temporarily promote a DCC to the rank of chief constable. Similarly, the Police Regulations 2003 and the Secretary of State’s Determinations do not provide for a DCC to receive an “acting up allowance” or to be temporarily promoted to a higher rank. Rather regulation 27, Annex I, provides, in effect, for a temporary salary for a DCC required to perform the duties normally performed by a higher rank. I am not entirely persuaded that these provisions positively preclude the appointment of a TCC even if they complicate the possibility of a DCC being appointed to that role but they do militate against the interpretation of Schedule 1, paragraph 14 which gives power to do something not contemplated by other statutory provisions.(ii) Mr Gold also pointed to numerous statutory provisions which refer to an “acting chief officer” – the Special Constable Regulations 1965 regulation 1ZC(3); the Police Reform Act 2002, section 29(1); the Police Regulations 2003, regulation 7(3); the Policing and Crime Act 2017, section 28; the Police Appeals Tribunal Rules 2020, rule 11; the Police (Vetting) Regulations 2025, regulation 2. In particular, section 29(1) of the Police Reform Act 2002 was amended by the Police, Reform and Social Responsibility Act 2011 to provide that for the purposes of the definition of “appropriate authority” for the handling of conduct matters or complaints, acting chief officer means a person exercising or performing the functions of a chief constable under section 41. There is no statutory or regulatory reference to a temporary chief constable. I agree that this yet further supports the claimant’s position.

The appointment of Temporary Chief Constables of other forces

[65]As I have indicated already, a significant part of the Commissioner’s evidence and the submissions on his behalf were concerned with the steps the Commissioner had taken to obtain advice on the appointment of a temporary chief constable and the advice that he had been given. This evidence went to the case that the Commissioner was in no way seeking to act inappropriately. At this stage, I proceed on this basis. The issue on ground 1 is one of lawfulness and not irrationality.[66]The evidence also went to a broader submission that other forces had appointed a temporary chief constable and done so, in most cases at least, without any challenge to the lawfulness of that appointment. That led to an argument that if this court was to conclude that such an appointment was not lawful, there would be consequences for other forces.[67]The evidence from the Commissioner and the documents was as follows:(i) On 25 June 2025, the Chief Executive, Ms Clayton, held a Teams call with Michael Cordy of the Integrity Unit at the Home Office, during which he informed her that it was possible to appoint a TCC and recommended others she should speak to for support with the process.(ii) On 8 July 2025, Ms Clayton met Harriet MacKinlay, Deputy Head of the Police Workforce & Professionalism Unit at the Home Office. Ms MacKinlay advised that it was not necessary to choose the DCC to “act up” as the chief constable.(iii) On 29 July 2025, the Commissioner met online with Sir Andy Marsh of the College of Policing, Gavin Stephens, Chair of the National Police Chiefs’ Council and Sir Andy Cooke of His Majesty’s Inspectorate of Constabulary and Fire and Rescue Services (HMICFRS). Amongst other things, the Commissioner explained his provisional view that a TCC needed to be identified. No-one indicated that this would be inappropriate but rather said words to the effect that a fair and transparent process was appropriate and offered support for this. In particular, Sir Andy Marsh offered support for the recruitment process from the College of Policing which led to the introduction of Ms Clayton to Helen Slimmon, the College’s Interim Head of Occupational Psychology.(iv) By email on 31 July, Sir Andy Marsh put Ms Clayton and Ms Slimmon in contact and forwarded to Ms Clayton the views of Ms Slimmon on matters he had raised with her. Ms Slimmon’s email included the following:
“When the substantive chief constable is unavailable (e.g. planned absence, illness or position becomes vacant) there is a need for someone to step in and temporarily hold that position. As you know in most cases routinely that will be the DCC. If you'll rememberone of the reasons Gloucestershire were particularly vulnerable when Rod Hansen was suspended was, they did not have a DCC in post at the time to delegate this vicarious liability to. The Police Act 1996 requires a Chief Constable to designate a senior officer (usually DCC) to exercise their powers and duties during their absence. … The key relevant points in my view are that in the absence of the substantive chief constable through suspension the PCC must appoint an acting/temporary/interim chief constable to lead the force on a temporary basis to ensure continuity in command and operational responsibility. Whilst PCCs in this position often choose to appoint the DCC this is not a requirement. A temporary appointment doesn’t require the same formal confirmation hearing by the Police and Crime Panel in the same way a substantive appointment does. … I believe that if the temporary appointment is for longer than three months it requires approval from the Home Secretary. …” (v) On 4 August 2025, there seems to have been a Teams meeting between Ms MacKinlay (Home Office) and Ms Clayton to discuss the process for appointing a TCC. The Commissioner’s evidence was that, amongst other things, Ms MacKinlay advised that the Commissioner could run a short recruitment process followed by a formal panel interview and she confirmed that there was no requirement for a confirmation hearing for a temporary appointment. Ms MacKinlay sent an email on the same day confirming her advice with particular reference to pay. She concluded: “In terms of the temp CC appointment itself, to confirm that it’s a fairly automatic process from our point of view as it is not covered by the same legislative requirements as a substantive appointment.”
[68]The Commissioner’s evidence was that Ms Clayton had also made inquiries with the offices of other PCCs and the feedback was consistently that a TCC could be appointed and that, as the role was temporary, it was not necessary to hold a public confirmation hearing.[69]The Commissioner also said that, on 5 August 2025, Ms Clayton and Ms Slimmon met to discuss in more detail how to run a TCC process. Ms Slimmon’s advice included that the appointment should be for a six month maximum period with any extension to be confirmed by the Home Secretary.[70]There can be no doubt that the Commissioner sought advice and guidance from appropriate bodies and individuals and that the guidance he consistently received was that he could appoint a TCC. However, the issue is whether that advice was right and not whether it was given. Evidence that there was a common understanding of what could be done and even a related practice cannot change the position in law.[71]In the course of argument, I asked on a number of occasions whether any of these bodies or people had identified the legal basis for their views, whether in writing or otherwise. I gained the clear impression that no basis had been identified and that there had just been an assumption that such an appointment could be made, not least because a temporary or interim chief constable had been appointed elsewhere on previous occasions. As Mr Basu KC submitted, this may have been an understandable misapprehension because all ranks other than that of chief constable could be held on a temporary basis but it was a misapprehension nonetheless. Even though Mr Beggs had emphasised that the Commissioner only sought to take this approach because of exceptional circumstances, the other examples I was taken to (tabulated in the defendant’s solicitors’ letter dated 20 October 2025) did not bear out that other forces had only appointed a temporary chief constable in exceptional circumstances.[72]The only indication of legal analysis of the basis for such an appointment was in Ms Slimmon’s email of 31 July which referred to the Police Act 1996. Section 12(4) of the Police Act 1996, as originally enacted, did contain such a provision and section 12(5) provided that no person should be authorised to act by virtue of such designation for more than 3 months without the consent of the Secretary of State. However, section 12 in its entirety was repealed by the Police, Reform and Social Responsibility Act 2011.[73]Although I have set out this evidence in some detail, and done so with a view to representing the Commissioner’s position fairly, it did not, in my view, assist on ground 1 which turned on the legal position and not on what it may have genuinely been thought to be.[74]As I have said, concern was expressed that if this court decided ground 1 in the claimant’s favour, other forces might be affected. Mr Gold’s answer to that was that existing “temporary chief constables” would be de facto office holders so that their past acts would not be affected. He relied on the principle that a person may be a de facto officer where they have the reputation of being the officer they assume to be, despite that not being good in law - see R v Corporation of Bedford Level (1805) 6 East 356. Their future acts would similarly, he submitted, not be affected or the court could decline to quash any of their decisions. It is not necessary for me to decide this issue of fact and law because it does not arise in this case. If it was intended to be argued that this court should not, in its discretion, quash the decision to seek to appoint a temporary chief constable because of the impact on other previous appointments, I would not accept that as a good argument. It would have the effect that the mere assumption that such appointments were lawful, and the practice of making them, would defeat the legislation and that would never be changed.

Conclusion on ground 1

[75]Accordingly, I find in favour of the claimant on ground 1 and I find that the defendant’s decision to recruit and/or any forthcoming decision to appoint a temporary chief constable is unlawful.