R v AKH: Defining “Police Privileges” and “Benefit” under Section 26 of the Criminal Justice and Courts Act 2015

Introduction

This commentary examines the Court of Appeal’s partial judgment in R v AKH [2025] EWCA Crim 542, handed down on 13 March 2025. The case arises out of a challenge to a trial judge’s ruling of “no case to answer” on charges under:

Section 26 of the Criminal Justice and Courts Act 2015 (“improper exercise of police powers and privileges”); and
Section 1 of the Computer Misuse Act 1990 (“unauthorised access to computer material”).

The Registrar sought leave to appeal under s. 58 of the Criminal Justice Act 2003. The central issues on appeal concerned:

The proper scope of “powers and privileges” in s. 26;
Whether “privileges” extends beyond formal statutory powers;
Whether the statutory definition of “benefit” can include feelings of sexual gratification.

The prosecution conceded that no formal police power was exercised, so the focus was on “privileges.” The defendant argued for a narrow construction to avoid criminalising minor misconduct or mere emotions.

Summary of the Judgment

The Court of Appeal allowed the prosecution’s application for leave to appeal and provided authoritative guidance on key points of statutory interpretation:

“Privileges” in s. 26 is intended by Parliament to extend—and not be co-extensive—with “powers.” It covers any special advantage or opportunity enjoyed by virtue of holding the office of constable.
“Powers,” “privileges,” and “duties” should be given their ordinary and purposive meanings, consistently with Parliament’s intention to capture misconduct beyond the scope of the common law offence of misconduct in public office.
The statutory definition of “benefit” (s. 26(9)) is deliberately wide and does encompass feelings of sexual gratification. Analogous sexual-offence statutes (e.g., voyeurism, up-skirting) support this conclusion.
The prosecution must identify the particular power, privilege or duty improperly exercised; if the court determines the alleged conduct can amount to such an exercise, the jury decides whether the elements are proved.

The court preserved reporting restrictions on the defendant’s identity until the Crown Court proceedings conclude.

Analysis

Precedents and Materials Cited

Statutory Materials: Section 26 CJCA 2015 (improper exercise of police powers and privileges), s. 1 Computer Misuse Act 1990, s. 67 & s. 67A Sexual Offences Act 2003.
Explanatory Notes to the 2015 Act: Emphasise the new offence’s purpose to supplement—and go beyond—the common law offence of misconduct in public office, in response to the Stephen Lawrence Independent Review (Mark Ellison QC).
2016 Law Commission Paper on Misconduct in Public Office: Provides legislative background but offers no direct judicial authority on s. 26’s language.
Analogous Sexual-Offence Judgments: Cases interpreting “for the purpose of obtaining sexual gratification” under the Sexual Offences Act 2003.

Notably, there was no binding authority on the precise interpretation of “privileges” or the ambit of “benefit.” The Court adopted a purposive approach guided by the statute’s context and its clean break from the narrower common‐law offence.

Legal Reasoning

The Court’s reasoning can be divided into three interlocking steps:

Conjunctive and Disjunctive Wording: Section 26 uses “powers and privileges” both conjunctively (“powers or privileges”) and disjunctively (two separate subsections). The Court inferred that “privileges” was meant to add to—not replicate—“powers.”
Purposive Interpretation: Parliament’s aim (per Explanatory Notes) was to cast a wider net than commonlaw misconduct in public office. A restrictive reading of “privileges” would undermine that legislative purpose.
Ordinary Meaning:
- Police Power – A statutory right, authority or licence allowing a constable to act in ways unlawful for others (e.g., stop-and-search).
- Police Privilege – Any special advantage, immunity or opportunity available exclusively by virtue of holding office (e.g., insider information, leverage over witnesses).
- Duty – An obligation imposed by statute, office or superior direction.
- Benefit – Defined widely by s. 26(9) to include any advantage or detriment, whether tangible or intangible, permanent or temporary (including sexual gratification).

These definitional guidelines ensure that future judges can rule, as a matter of law, whether alleged conduct can qualify as improper exercise of a power, privilege or duty; the fact-finder then assesses the evidence.

Impact on Future Cases and Legal Landscape

This decision is significant for several reasons:

It establishes leading authority on the scope of “privileges” under the 2015 Act, preventing under-enforcement of police misconduct where formal statutory powers are absent.
It confirms that intangible interests—such as sexual gratification—can constitute “benefits,” widening the prosecutorial toolkit for addressing corrupt or improper conduct.
By aligning s. 26’s breadth with modern expectations of police accountability, it may encourage more robust CPS charging decisions and judicial scrutiny of alleged misconduct.
It provides a clear, structured test for lower courts to identify the relevant power, privilege or duty, promoting consistency in interlocutory rulings on “no case to answer.”

Complex Concepts Simplified

“Powers” – Formal legal authorities granted by Parliament (e.g., arrest, search, seizure).
“Privileges” – Extra-statutory advantages of office not available to the public (e.g., access to confidential databases, influence over investigations).
“Duties” – Obligations inherent in the role of a constable (e.g., protect life, preserve evidence).
“Benefit” – Any gain or satisfaction, tangible or intangible, including money, property, status, or personal feelings (even sexual gratification).
“No Case to Answer” – A judge’s ruling, at the close of the prosecution evidence, that no reasonable jury properly directed could convict on the evidence.

Conclusion

The Court of Appeal’s decision in R v AKH provides pivotal guidance on interpreting section 26 CJCA 2015. It clarifies that:

“Privileges” extends beyond formal powers to any special advantage of office;
“Benefit” is to be construed widely, encompassing even non-material satisfactions such as sexual gratification;
Trial judges must identify the specific power, privilege or duty alleged, but leave factual evaluation to the jury;
The statute’s broad scope reflects Parliament’s intent to reinforce police integrity where common-law misconduct in public office might prove insufficient.

This judgment shores up legislative intent to deter and punish corrupt or improper police conduct, and it will shape charging decisions, case-management rulings, and jury directions in future prosecutions under the 2015 Act.