R v Silver: “Police Privileges” Under CJCA 2015 s.26 Include Office-Based Opportunities; “Benefit” Can Include Sexual Gratification

1. Introduction

R. v Silver ([2025] EWCA Crim 543) is a prosecution appeal under section 58 of the Criminal Justice Act 2003 against a trial judge’s ruling of no case to answer on multiple counts, including allegations under section 26 of the Criminal Justice and Courts Act 2015 (“section 26”). The case raised novel questions of statutory interpretation: what counts as the exercise of “powers and privileges” of a constable, and whether a “benefit” can include sexual gratification.

The defendant (a serving police officer) faced allegations of sexually inappropriate conduct towards two women (“C1” and “C2”) in contexts connected to policing—transporting a woman after release from custody and attending at addresses ostensibly in connection with police enquiries. The Crown Court judge terminated the case on section 26 counts by finding insufficient evidence of an essential element: that the defendant was exercising a relevant power, privilege, or duty.

The Court of Appeal (Criminal Division) (Vice-President presiding) used the appeal not only to correct alleged legal error but to give the first appellate guidance on the meaning of “police privileges” and the scope of “benefit” in section 26.

2. Summary of the Judgment

  • The Court held that “privileges” in section 26 must be given a natural, non-restrictive meaning and are additional to “powers”; they include special permissions, advantages, or opportunities available because the person is a constable and not available to others.
  • The Court held that “benefit” (widely defined by the statute) is capable of including a feeling of sexual gratification.
  • Applying those interpretations, the Court reversed the “no case” rulings on counts 1, 3 and 4 (section 26) and ruled that there was a case to answer because a jury could find the defendant exercised a police “privilege” in being able to transport/obtain access and private interaction on the strength of his office.
  • The Court confirmed the “no case” ruling on count 7 (section 26) because the prosecution had not put the case (or adduced evidence) in a way that enabled a properly directed jury to identify the relevant privilege being exercised in that incident.
  • The Court confirmed acquittals on the Computer Misuse Act 1990 counts (2, 5, 6), which the prosecution did not pursue on appeal.
  • The Court addressed reporting restrictions, signalling that the interpretive portion could be published (subject to existing section 71 restrictions and a section 4(2) postponement for the remainder) to ensure timely guidance while proceedings were to be resumed on counts 1, 3 and 4.

3. Analysis

3.1 Precedents Cited

Galbraith (1981) 73 Cr App R 124

The trial judge directed herself by reference to Galbraith (1981) 73 Cr App R 124, the leading authority on submissions of no case to answer. Galbraith frames the question whether, taking the prosecution evidence at its highest, a properly directed jury could convict. The Court of Appeal did not disturb the use of Galbraith as the correct test; instead, it found that the judge’s application of the test was infected by an overly narrow legal interpretation of section 26’s elements—particularly what qualifies as a “police privilege.” Once the legal meaning of “privilege” was corrected, the evidential sufficiency assessment necessarily changed for counts 1, 3 and 4.

Stephen Lawrence Independent Review by Mark Ellison QC (as legislative background)

While not a judicial precedent, the judgment treated the Stephen Lawrence Independent Review by Mark Ellison QC as crucial context for Parliament’s purpose in enacting section 26. The Court relied on the Explanatory Notes (quoted in the judgment) to emphasise that section 26 was designed to supplement the common law and cover police misconduct that might fall outside the boundaries of misconduct in public office. This purposive understanding supported a broad reading of “privileges.”

2016 Law Commission Paper on Misconduct in Public Office (as interpretive aid)

The trial judge had considered the 2016 Law Commission Paper on Misconduct in Public Office. The Court of Appeal did not treat it as determinative, but its presence underscores that the interpretive issue arose against a wider reform conversation: replacing or supplementing a historically uncertain common-law offence with clearer statutory wrongdoing. The Court’s approach aligns with the reform objective: prevent section 26 from being read so narrowly that it recreates the perceived deficiencies of the common law.

Analogies to Sexual Offences Act 2003 provisions (sexual gratification as a purpose)

In determining whether “benefit” can include sexual gratification, the Court drew statutory analogies to:

  • section 67 of the Sexual Offences Act 2003 (voyeurism), which criminalises acts done “for the purpose of obtaining sexual gratification”.
  • section 67A(3)(a) of that Act (“upskirting”), which includes intention that an image will be looked at for the purpose of “obtaining sexual gratification”.

These references were used to rebut the argument that Parliament could not have intended criminal liability to attach to “mere feelings or emotions.” The Court’s point was not that section 26 is a sexual offence, but that sexual gratification is a legally cognisable objective frequently used to delineate wrongful purpose.

3.2 Legal Reasoning

(a) The interpretive structure of section 26: “powers”, “privileges”, and “duties”

The Court began with text and structure. Section 26 uses “powers and privileges” both conjunctively and disjunctively. That drafting choice mattered: if “privileges” merely echoed “powers,” it would add nothing, contrary to ordinary interpretive presumptions. The Court therefore held that “privileges” must extend beyond formal legal powers.

The Court then integrated section 26(10), which states that exercising (or not exercising) powers and privileges includes performing (or not performing) duties. From this, the Court conceptualised three overlapping but distinct categories:

  • Powers: statutory (or otherwise conferred) authorities to do things that would be unlawful for an ordinary person (e.g., entry/search/seizure).
  • Privileges: office-based “special permission, advantage or opportunity” available because one is a constable, but not available to others.
  • Duties: required acts arising from the nature of the office or orders/instructions from a superior.

The critical development is the Court’s explanation of “privilege”: it is not confined to immunities “inherent in the operation of police powers” (the defendant’s submission), but can include the practical social permissions and access that flow from holding the office.

(b) Guardrails: judge/jury roles and the “over-criminalisation” concern

The Court addressed the fear that a wide “privileges” concept could criminalise minor misconduct better handled by discipline. It responded in two ways:

  • Judicial gatekeeping: whether alleged conduct is capable of amounting to the exercise of a power/privilege/duty is for the judge as a matter of law; only then does the jury decide whether it occurred on the facts.
  • Prosecutorial/public interest filter: all statutory elements must be proved, and charging is subject to the CPS Full Code Test (including public interest).

This is an important institutional design point: the Court broadened the legal meaning of “privilege,” but emphasised that criminal liability still depends on proving “improper” purpose and knowledge (“knows or ought to know”), and on sensible charging decisions.

(c) “Benefit” includes sexual gratification

The statutory definition of “benefit” is “intentionally wide” and includes any benefit, temporary or permanent, monetary or otherwise. The Court held that “a feeling of sexual gratification” is capable of being a “benefit” within that definition. It declined to decide, in the abstract, whether other emotions or feelings might also qualify, leaving that question for a case where it arises directly.

The Court also noted that section 26(4) targets conduct done “for the purpose of achieving” a benefit; in many sexualised policing contexts, the alleged purpose may support inferences extending beyond conversation (e.g., intention to escalate to physical touching if circumstances permit), reinforcing why “benefit” should not be artificially narrowed.

(d) Application to the counts: why 1, 3, 4 revived; why 7 failed

On counts 1, 3 and 4, the Court held it was open to a jury to find the defendant exercised a “privilege” because his office enabled (or materially facilitated) the circumstances of private access and trust:

  • Count 1: driving C1 home in uniform in a police car—an “opportunity” available because he was a constable.
  • Counts 3 and 4: attending and entering C2’s home under the guise of taking statements—entry may be consensual, but the Court focused on the advantage that the complainant’s consent, trust, and willingness to be alone with him could be attributed to his police status.

The Court considered the trial judge’s approach too narrow because it asked whether transporting or asking to enter a home was itself a “power/privilege/duty” in a formal sense, rather than asking whether the defendant was taking advantage of a special opportunity available because he was a constable.

By contrast, count 7 failed because—even accepting the possibility that a constable might exploit police-held information to locate and attend a person for an improper purpose—the prosecution had not advanced the case on that footing and the evidence was insufficient to identify the necessary “privilege” being exercised at the time. This part of the judgment illustrates a key practical constraint: a broad definition of “privilege” does not relieve the prosecution from clearly articulating (and evidencing) the privilege said to have been exercised.

3.3 Impact

(a) Substantive criminal law: widening the operational reach of section 26

The decision is a significant early appellate marker on section 26. It confirms that the offence can reach beyond classic “abuse of power” scenarios (e.g., unlawful searches) into conduct where the officer’s wrongdoing lies in exploiting office-based access, trust, and opportunities. The concept of “privilege” now clearly includes the real-world advantages attached to the badge, not merely technical legal powers.

(b) Charging policy: section 26 as an alternative to misconduct in public office

The Court noted the practical importance of clarity because “the general policy is not to charge the common law offence if it is thought that there is a statutory offence available.” This judgment therefore materially influences charging decisions by confirming a broader pathway to section 26 in fact patterns involving grooming-like exploitation of police status.

(c) Trial practice: clearer analytical steps for judges and advocates

The judgment provides a workable framework:

  • Judges: decide as a matter of law whether the conduct is capable of being the exercise of a power/privilege/duty.
  • Juries: decide whether, on the facts, the defendant exercised such a power/privilege/duty and did so improperly for the purpose of achieving a benefit.
  • Prosecution: must precisely identify the relevant privilege and prove it by evidence; count 7 demonstrates the risk of failing to frame the privilege clearly.

(d) Safeguarding and public confidence

By recognising sexual gratification as a “benefit” and office-based access as a “privilege,” the judgment strengthens the capacity of criminal law to address exploitative conduct by officers that may not fit neatly into traditional offence labels, reinforcing the protective function of section 26 in maintaining public trust in policing.

4. Complex Concepts Simplified

“No case to answer”
A mid-trial ruling that the prosecution evidence is legally insufficient for a jury to convict, even if the jury believed it. The governing approach is drawn from Galbraith (1981) 73 Cr App R 124.
Section 58 prosecution appeals (Criminal Justice Act 2003)
A mechanism allowing the prosecution to appeal certain terminating rulings (like a “no case” ruling) before the trial ends definitively. An “acquittal undertaking” is required: if the prosecution loses the appeal, the defendant is acquitted. If the prosecution wins, proceedings may resume (often requiring a fresh trial).
“Powers” vs “Privileges” vs “Duties” (section 26)
“Powers” are legal authorities (often statutory). “Privileges” are special permissions/advantages/opportunities available because of being a constable (e.g., trusted access, being permitted into private spaces, being able to transport someone in a police vehicle). “Duties” are required tasks arising from the office or superior instruction.
“Benefit”
Defined broadly in section 26 to include non-monetary, temporary gains. The Court held that this can include sexual gratification.
Reporting restrictions (section 71; section 4(2))
Section 71 restrictions applied to these proceedings. Additionally, the Court contemplated a section 4(2) postponement order to delay publication of case-specific details until the resumed trial concludes, while allowing earlier publication of the interpretive guidance.

5. Conclusion

R v Silver establishes important guidance on the reach of CJCA 2015 s.26: “police privileges” are not confined to technical incidents of statutory power but extend to special opportunities and access arising from holding the office of constable. It also confirms that “benefit” can encompass sexual gratification.

The judgment recalibrates the boundary between disciplinary wrongdoing and criminal liability by broadening the concept of “privilege” while emphasising procedural and evidential safeguards—judicial gatekeeping, the requirement to prove purpose and knowledge, and careful prosecutorial decision-making. Practically, it will influence how police-misconduct allegations are charged and tried, and it provides a clear roadmap for identifying and proving the “privilege” relied upon—an issue that proved decisive in the different outcomes for counts 1/3/4 versus count 7.