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England and Wales Court of Appeal (Criminal Division) Decisions
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AKH, R. v [2025] EWCA Crim 542 (13 March 2025)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/542.html
Cite as:
[2025] EWCA Crim 542
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WARNING: reporting restrictions apply to the partial judgment transcribed in this document, as explained in paragraph 2 and in the Note which follows paragraph 27. The effect of the reporting restrictions is that this partial judgment may be published; but until the conclusion of the proceedings against the defendant in the Crown Court, the remainder of the judgment must not be published, and nothing may be included in any publication which names or may otherwise lead to the identification of the defendant.
Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
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Neutral Citation Number: [2025] EWCA Crim 542 |
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CASE NO 202500605/B1 |
IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT
PROSECUTION APPEAL AGAINST A RULING UNDER S. 58 CRIMINAL JUSTICE ACT 2003
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Royal Courts of Justice Strand London WC2A 2LL
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13 March 2025 |
B e f o r e :
THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION
(LORD JUSTICE HOLROYDE)
MRS JUSTICE FARBEY
MR JUSTICE DEXTER DIAS
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Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 46 Chancery Lane, London WC2A 1JE
Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk
(Official Shorthand Writers to the Court)
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Leading and junior counsel appeared on behalf of the Applicant.
Leading and junior counsel appeared on behalf of the Respondent.
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HTML VERSION OF JUDGMENT(APPROVED)
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Crown Copyright ©
THE VICE-PRESIDENT:
- The Registrar has referred to the full court this application, pursuant to section 58 of the Criminal Justice Act 2003, for leave to appeal against a ruling by a trial judge that a defendant had no case to answer on charges of offences contrary to section 26 of the Criminal Justice and Courts Act 2015 ("section 26") and section 1 of the Computer Misuse Act 1990i
- Reporting restrictions apply to these proceedings by virtue of section 71 of the Criminal Justice Act 2003. We shall return to those restrictions at the conclusion of this judgment. For convenience we shall refer to the applicant as "the prosecution" and to the respondent as "the defendant".
- Before coming to the facts of the case, it is convenient to refer to the relevant statutory provisions and to the issues of interpretation which arise.
Statutory interpretation
- Omitting some words, which are not material for present purposes, section 26 provides:
"Corrupt or other improper exercise of police powers and privileges
(1) A police constable listed in subsection (3) commits an offence if he or she—
(a) exercises the powers and privileges of a constable improperly, and
(b) knows or ought to know that the exercise is improper.
(2) A police constable guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine (or both).
(3) The police constables referred to in subsection (1) are—
(a) a constable of a police force in England and Wales...
(4) For the purposes of this section, a police constable exercises the powers and privileges of a constable improperly if—
(a) he or she exercises a power or privilege of a constable for the purpose of achieving—
(i) a benefit for himself or herself, or
(ii) a benefit or a detriment for another person, and
(b) a reasonable person would not expect the power or privilege to be exercised for the purpose of achieving that benefit or detriment.
(5) For the purposes of this section, a police constable is to be treated as exercising the powers and privileges of a constable improperly in the cases described in subsections (6) and (7).
(6) The first case is where—
(a) the police constable fails to exercise a power or privilege of a constable
(b) the purpose of the failure is to achieve a benefit or detriment described in subsection (4)(a), and
(c) a reasonable person would not expect a constable to fail to exercise the power or privilege for the purpose of achieving that benefit or detriment.
(7) The second case is where—
(a) the police constable threatens to exercise, or not to exercise, a power or privilege of a constable
(b) the threat is made for the purpose of achieving a benefit or detriment described in subsection (4)(a), and
(c) a reasonable person would not expect a constable to threaten to exercise, or not to exercise, the power or privilege for the purpose of achieving that benefit or detriment...
(8) In this section—
'benefit' and 'detriment' mean any benefit or detriment, whether or not in money or other property and whether temporary or permanent...
10 References in this section to exercising, or not exercising, the powers and privileges of a constable include performing, or not performing, the duties of a constable.
(11) Nothing in this section affects what constitutes the offence of misconduct in public office at common law in England and Wales or Northern Ireland."
- Section 1 of the Computer Misuse Act 1990 creates an offence of unauthorised access to computer material. For reasons which will become apparent, we need not read all or any of that section.
- In the present case, no issue of interpretation arose in relation to the 1990 Act. As will be seen, the judge's ruling in that regard was focused upon the sufficiency or otherwise of the prosecution evidence. In relation to section 26 however, there is an issue as to the ambit of references in that section to police powers and privileges, and an issue as to the ambit of the word "benefit". Those issues are not the subject of any previous case law.
- The phrase "powers and privileges" is not defined in the Act. Subsections (5) and (6) make it clear that the offence can be committed by a failure to exercise a power or privilege, or by a threat to exercise or not to exercise a power or privilege, but do not otherwise assist with the interpretation of the phrase. Similarly, subsection (10) makes clear that the phrase includes the duties of a constable, but does not otherwise assist with interpretation. The judge was therefore faced with a difficult task.
- The word "benefit" is defined, but there is an issue in this case as to whether that word extends to a feeling of sexual gratification or to any other feeling.
- Having considered the explanatory notes to the Act, and the 2016 Law Commission Paper on Misconduct in Public Office, the judge observed that it should be relatively easy for a prosecutor to identify which power or duty a defendant is said to be exercising, but it is considerably more difficult to identify the relevant privilege. Given that the section also refers to "powers or privileges", the judge took the view that the offence under section 26 can be committed by a constable who is exercising a privilege but not a power or duty. The judge ruled that a prosecutor must, however, be able to identify and to prove by evidence the particular power, privilege or duty which a defendant is said to have exercised improperly.
- As to whether the definition of "benefit" could extend to feelings of sexual gratification, the judge expressed concern about a wide interpretation leading to the criminalisation of what are concurrently minor matters of police misconduct, and noted that the prosecution had not addressed the question of whether feelings of other kinds could amount to a benefit or a detriment.
- We have had the advantage of being able to consider not only the judge's ruling on these issues, but also the submissions to this court of counsel on both sides. We are grateful for their assistance.
- It is conceded by the prosecution that the defendant was not exercising a police power at any of the relevant times, but it is submitted that "privileges" should be given a wide interpretation. Counsel argue that the use of the words "powers or privileges" indicates that Parliament intended "privileges" to be different from, and additional to, "powers". It is submitted that the standards to be observed by a constable should be the same whether or not the constable is exercising a formal duty to act in a particular way. It is further submitted on behalf of the prosecution that action taken, with a view to gaining a feeling of sexual gratification, comes within the ambit of section 26(9) as a temporary benefit, whether or not it could be said that other types of feeling would also come within the meaning of that word.
- For the defendant, it is submitted that the judge's approach was correct, and the term "privileges" should be limited to the protections which are inherent in the operation of police powers. Counsel submit that Parliament cannot have intended that it would be a sufficient privilege for this purpose that a person was simply holding the office of a constable. It is further submitted that a distinction must be drawn between misconduct, which might attract some disciplinary sanction, and a serious criminal offence. Had Parliament intended the word "privileges" to be given as wide a definition as is submitted for the prosecution, it is argued, Parliament would have made that intention entirely clear.
It is further submitted on behalf of the defendant that Parliament cannot have intended to legislate against mere feelings or emotions.
- Reflecting on the submissions, our view as to the proper interpretation of section 26 is as follows.
- The words "powers and privileges" are used both conjunctively and disjunctively in section 26. That being so, we are satisfied that the reference to "privileges" was intended by Parliament to add to and extend the reference to "powers".
- More generally, we note that the background to the passing of this section of the 2015 Act was concern as to the limited scope of the common law offence of misconduct in public office. The Explanatory Notes to the Act make clear that the intention of Parliament was to create an offence which covered some aspects of police misconduct which would not be within the scope of the common law offence:
"Following the findings of the Stephen Lawrence Independent Review by Mark Ellison QC and the government's response to it, the Home Secretary announced on 6 March 2014 the introduction of this new offence. Section 26 makes it an offence for a police officer to exercise the powers and privileges of a constable in a way which is corrupt or otherwise improper. It supplements the existing common law offence of misconduct in public office."
- We are satisfied that the terms of section 26 should be given their natural meaning and not interpreted in a restrictive way which would be inconsistent with the intention to catch police misconduct going beyond what would amount to the common law offence.
- We note also that by section 26(10), references to "exercising the powers and privileges of a constable" include performing or not performing the duties of a constable.
- Taken together, the terms "powers", "privileges" and "duties" cover a wide range of what may be done or omitted to be done by a constable (which includes a police officer of any rank), who is acting or purporting to act as such, or who is improperly exploiting or taking advantage of the fact that he holds the office of constable.
- Without attempting a comprehensive definition of those terms, we think some guidance can be given as to their meaning and ambit. Where an issue arises in a particular case, it will be for the judge to rule, as a matter of law, whether alleged conduct can or cannot properly be regarded as capable of amounting to the exercise of a power, privilege or duty. If the judge rules that it can be so regarded, it will then be for the jury to decide, on the facts, whether the prosecution have made them sure that the accused constable was exercising a power, privilege or duty.
- We understand a police power to be a right, authority or licence granted (usually by statute) to a constable to act in a particular way, even if it would be unlawful for a person other than a constable to act in that way. Obvious examples would be powers of entry, search and seizure, which are not granted to or held by the general public.
- The Oxford English Dictionary defines "a privilege" as "a special right, advantage or immunity granted or available only to a particular person or group." Consistently with that definition, but placing it in the context of a statutory provision which penalises the improper exercise of police privileges, references to a police privilege should, in our view, be taken to cover any special permission, advantage or opportunity which is granted or available to a constable because he is a constable, but which would not be granted or available to others.
- As to "duty", we take the view that the term relates to something which a constable is required to do, by the nature of his office or in accordance with an order or instruction from a superior.
- In giving the above guidance as to the meaning of "police privilege", we have kept well in mind the submissions expressing concern about an undue criminalisation of minor misconduct which should more appropriately be dealt with by internal disciplinary procedures. We are, however, satisfied that our interpretation of the term is consistent with the aim of the legislation. Moreover, it must be remembered that the prosecution must prove all the ingredients of the offence, and that the CPS would not commence criminal proceedings unless the public interest element of the Full Code test was satisfied.
- Turning to "benefit", we note the intentionally wide definition given to that word in section 26(9). We see no reason why a feeling of sexual gratification is not capable of coming within that wide definition. We do not accept the submission that the section could not have been intended to criminalise feelings of sexual gratification. After all, section 67 of the Sexual Offences Act 2003 states that the criminal offence of voyeurism, punishable with imprisonment for up to 2 years, is committed if a person "for the purpose of obtaining sexual gratification" observes another person doing a private act. Similarly, the ingredients of the offence of "upskirting" in section 67A(3)(a) of that Act include an intention on the part of the offender that he or another person will look at the image for the purpose of "obtaining sexual gratification". Whether different types of feeling or emotion might also be capable of amounting to a "benefit" is not an issue with which we are directly concerned in this case, and we think it better to leave any decision in that regard to a case in which the point directly arises.
- We note, furthermore, that by section 26(4), the improper conduct which is penalised is the exercise of a power or privilege "for the purpose of achieving" a benefit etc. It seems to us that in at least some, and perhaps many, cases in which an accused constable is alleged to have acted with a view to sexual gratification, there will be ample scope for an inference that his intentions extended to some physical touching, if circumstances permitted.
- We turn now to a summary of the facts of the case and our analysis of the judge's ruling.
NOTE:
The court went on to consider the facts and to give its analysis and decisions. Having completed the judgment, the court made orders including an order for the continuation of proceedings in the Crown Court on some of the charges. The court then heard submissions as to whether the above partial judgment could and should be published immediately for the assistance of judges and practitioners. The court decided that it could and should. It confirmed the reporting restrictions imposed by section 71 of the Criminal Justice Act 2003, and made an order pursuant to section 4(2) of the Contempt of Court Act 1996 postponing publication of the remainder of the complete judgment, or of anything which names or is otherwise capable of leading to the identification of the defendant, until after the conclusion of the proceedings against the defendant in the Crown Court.
The effect of the court's orders is that this partial judgment may be published immediately, but nothing more may be published until the proceedings in the Crown Court have been concluded. When those proceedings have been concluded, the court will direct that the reporting restrictions cease to apply: the complete judgment may then be published, and will replace this partial judgment.