Courtesy of The blog of ObiterJ, I do hope he/she doesn’t mind me borrowing it. I find it very useful today.
The Police and Crime Commissioner for Avon and Somerset (Sue Mountstevens) has commenced the process under the Police Reform and Social Responsibility Act 2011 section 38(3) to require the Chief Constable of the Force – Mr Nick Gargan QPM – to “retire or resign” – see Avon and Somerset PCC 19th August 2015. This follows an independent misconduct panel which found against Mr Gargan on 8 counts of breaching of standards of professional behaviour contrary to Schedule 2 of the Police (Conduct) Regulations 2012 .
The Commissioner’s website provides links to a number of documents including the misconduct panel report (the panel hearing was in private) and the Independent Police Complaints Commission (IPCC) report. The IPCC acted on a referral from the Commissioner.
The power to remove:
Sections 38(3) and 38(4) state:
(3) The police and crime commissioner for a 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.
Schedule 8 Part 2 deals with the suspension and removal of chief constables. It requires a police and crime commissioner to notify the police and crime panel if he suspends the chief constable. In relation to removals, it requires the police and crime commissioner to give the chief constable a written explanation of the grounds for wishing to remove him, and allows the chief constable to make written representations which the police and crime commissioner must consider. The police and crime commissioner must also inform the police and crime panel of the proposed removal, and the panel must consider the matter at a hearing. The chief constable has the right to attend and make representations at the hearing. The panel may also consult the chief inspector of constabulary. The panel must make a recommendation to the police and crime commissioner in relation to the proposed removal, which the commissioner must consider.
Criticism of the power:
The House of Commons Home Affairs Committee examined the power of PCCs to remove Chief Constables – report of 20th July 2013. This report noted that:
‘ … the role of the panel is purely advisory. The final decision to dismiss a chief constable rests with the commissioner alone, …’
The committee referred to a number of cases where there had been problems between Commissioners and Chief Constables:
‘It should not have come as any surprise that the election of Police and Crime Commissioners was followed by a number of high-profile clashes between Commissioners and Chief Constables. Within a few days of the election, Avon and Somerset Chief Constable Colin Port declined to re-apply for his job after the incoming Commissioner,Sue Mountstevens, indicated that she wanted to recruit a new Chief Constable whose tenure would cover her entire term of office. In Lincolnshire, Chief Constable Neil Rhodes was suspended by Police and Crime Commissioner Alan Hardwick—who also referred him to the IPCC—but was reinstated following a High Court judgment. In Gwent, Commissioner Ian Johnston invited Chief Constable Carmel Napier to retire, indicating that he was prepared to initiate the statutory process for her removal if she did not do so.’
Following publication of the Home Affairs Committee report, Sir Hugh Orde (President of ACPO) called upon the Home Secretary to review the power given to PCCs – BBC 14th June 2013 but the government defended the present position – BBC 20th July 2013
Home Affairs Committee and Police and Crime Commissioners:
The 16th report of the Home Affairs Committee was published in May 2014. The report recommended amendment of the PCC powers to suspend/remove so that the grounds on which the power may be exercised were stipulated. The committee was also concerned that PCCs could “side-step” the scrutiny process set out in Schedule 8. These recommendations have not been implemented. It may be that, in an appropriate case, the process of removal will come to be tested in the courts.
: A little legal history :
At common law, the development of the rules of natural justice had an interesting history with the important House of Lords decision in Ridge v Baldwin extending rules of natural justice to certain administrative decision-making including the removal of a Chief Constable.
Ridge v Baldwin  AC 40: Following acquittal in a trial on corruption charges in which the judge criticised him, a Chief of Police (Ridge) was sacked without a hearing. After reconsideration by the Police Authority and an unsuccessful appeal to the Home Secretary, Ridge brought an action for a declaration that the dismissal was unlawful. The House of Lords granted the declaration. In cases of dismissal on grounds of neglect of duty, a hearing was required. Neither the reconsideration nor the appeal to the Home Secretary cured the original defect in the decision, as both failed to give Ridge an opportunity to contest the material on which the decision was based. In any event, the original decision was a nullity, so that it could not be rendered valid by the appeal to the Home Secretary, nor did this appeal exclude recourse to the courts. Lord Reid dismissed the Police Authority’s claim that because it was implementing a policy, the principles of natural justice did not apply. For a good article by S A deSmith on Ridge v Baldwin see Online Library. The House of Lords composition for Ridge v Baldwin was particularly eminent: Lords Reid, Evershed, Morris of Borth-y-Gest, Hodson, Devlin. Lord Evershed dissented.