R v Luke Silver

Under section 26 of the Criminal Justice and Courts Act 2015, a police privilege is not confined to protection attached to a formal police power. It includes any special permission, advantage or opportunity available because a person is a constable and unavailable to others. The terms powers, privileges and duties therefore require a natural and broad interpretation, while the prosecution must identify and prove the particular power, privilege or duty relied upon. The statutory concept of benefit is wide enough to include sexual gratification. Conduct involving a constable’s access to members of the public could therefore be left to a jury. The prosecution appeal succeeded on three counts but failed on another.

The prosecution appealed under section 58 of the Criminal Justice Act 2003 against a ruling by the Crown Court at Cardiff that the defendant had no case to answer. The indictment contained seven counts: four under section 26 of the Criminal Justice and Courts Act 2015 and three under section 1 of the Computer Misuse Act 1990. The prosecution did not pursue the appeal concerning the computer misuse counts. The central issues were whether the defendant’s conduct could amount to the exercise of a police privilege and whether sexual gratification could constitute a benefit. The Court also considered whether the evidence on the remaining counts was sufficient to leave the issues to the jury.

1. Appeal and statutory interpretation. The prosecution appeal was allowed in part. The Court held that section 26 of the Criminal Justice and Courts Act 2015 must be given its natural meaning. The use of powers and privileges both conjunctively and disjunctively showed that privileges were intended to add to and extend powers. A restrictive interpretation would be inconsistent with the statutory purpose of addressing police misconduct beyond the common-law offence of misconduct in public office.
2. Meaning of the statutory terms. A police power is a right, authority or licence granted to a constable to act in a particular way. A police privilege is any special permission, advantage or opportunity granted or available to a constable because of that status, but unavailable to others. A duty concerns something required by the nature of the office or by an order or instruction. The judge decides as a matter of law whether alleged conduct is capable of amounting to the exercise of a power, privilege or duty. If it is, the jury decides whether the prosecution has proved that the defendant exercised it.
3. Benefit and sexual gratification. The intentionally wide statutory definition of benefit is capable of including a feeling of sexual gratification. The question whether other feelings or emotions may qualify was left open. The Court also observed that, in some cases, an intention to obtain sexual gratification may support an inference that the defendant intended physical touching if circumstances permitted.
4. Application to the counts. On one view of the evidence, the defendant could have been exercising a police privilege when driving C1 home and entering C1’s and C2’s homes. Those opportunities could have been available because he was a constable and because the women trusted him in that role. The judge had therefore taken too narrow a view of police privileges. The rulings on counts 1, 3 and 4 involved errors of law and there was a case to answer.
5. Count 7 and orders. Conduct involving access to police computer information followed by a private visit might in some circumstances amount to exploiting an opportunity available because of police status. That was not, however, the way the prosecution case was put on count 7, and the evidence was insufficient for a properly directed jury to convict. The no-case ruling on counts 2, 5, 6 and 7 was confirmed and the defendant was acquitted of those offences. Proceedings on counts 1, 3 and 4 could resume in the Crown Court, in practical terms requiring a fresh trial.

1. Court of Appeal (Criminal Division). On a prosecution appeal under section 58 of the Criminal Justice Act 2003, the Court reversed the no-case rulings on counts 1, 3 and 4, confirmed them on counts 2, 5, 6 and 7, ordered acquittals on the latter counts, and permitted proceedings on counts 1, 3 and 4 to resume. The decision is reported at [2025] EWCA Crim 543.
2. Crown Court at Cardiff. The trial judge ruled at the conclusion of the prosecution case that the defendant had no case to answer on all seven counts.