R v AKH

Section 26 of the Criminal Justice and Courts Act 2015 is not confined to the formal exercise of a police power or duty. A police privilege includes a special permission, advantage or opportunity available because the person is a constable and unavailable to others. The provision covers conduct by a constable acting, purporting to act, or improperly exploiting the office of constable.

The trial judge decides whether alleged conduct is capable in law of amounting to the exercise of a power, privilege or duty; the jury then decides whether that is proved. A feeling of sexual gratification is capable of being a temporary benefit under section 26. The question whether other feelings or emotions may be benefits was left open.

The prosecution sought leave under section 58 of the Criminal Justice Act 2003 to appeal a Crown Court ruling that the defendant had no case to answer on charges under section 26 of the Criminal Justice and Courts Act 2015 and section 1 of the Computer Misuse Act 1990.

The published part of the judgment addresses two questions of statutory interpretation under section 26: the scope of a constable’s “powers and privileges”, and whether “benefit” can include sexual gratification. The later factual analysis and detailed orders were withheld under reporting restrictions, but the court recorded that proceedings were to continue in the Crown Court on some charges.

1. The prosecution appeal was allowed in part. The published judgment does not disclose the detailed factual analysis because reporting restrictions applied, but records that the court ordered the continuation of Crown Court proceedings on some charges.

2. Section 26 of the Criminal Justice and Courts Act 2015 uses “powers and privileges” both conjunctively and disjunctively. Parliament therefore intended “privileges” to extend the reference to powers. The provision should receive its natural, non-restrictive meaning, consistently with its purpose of covering some police misconduct outside the common-law offence of misconduct in public office.

3. A police power is a right, authority or licence, usually statutory, permitting a constable to act in a way unavailable to the public. A police privilege is any special permission, advantage or opportunity available because the person is a constable but unavailable to others. A duty is something required by the nature of the office or by a superior’s order or instruction. Together, the terms cover a wide range of acts or omissions by a constable acting or purporting to act as such, or improperly exploiting the office.

4. In a particular case, the judge must decide whether the alleged conduct is legally capable of amounting to the exercise of a power, privilege or duty. If it is capable, the jury must decide whether the prosecution has proved that the accused was exercising it. The breadth of the construction does not dispense with proof of every ingredient of the offence or the ordinary public-interest safeguard governing a prosecution.

5. The definition of “benefit” in section 26(9) is intentionally wide. A feeling of sexual gratification is capable of being a temporary benefit. The court left open whether other feelings or emotions may also amount to a benefit. It further observed that, where sexual gratification is alleged, the evidence may permit an inference that the constable intended physical touching if circumstances allowed.

• Court of Appeal (Criminal Division): The prosecution appeal under section 58 of the Criminal Justice Act 2003 was allowed in part. The court recorded that proceedings would continue in the Crown Court on some charges.
• Crown Court: The trial judge ruled that the defendant had no case to answer on charges under section 26 of the Criminal Justice and Courts Act 2015 and section 1 of the Computer Misuse Act 1990. No citation for that ruling was stated.