Court of Appeal — Summary of Opinion

Factual and Procedural Background

The prosecution sought leave to appeal under section 58 of the Criminal Justice Act 2003 against a trial judge's ruling that the Defendant had no case to answer on multiple counts alleging offences under section 26 of the Criminal Justice and Courts Act 2015 ("section 26") and section 1 of the Computer Misuse Act 1990. Reporting restrictions applied under section 71 of the 2003 Act.

The Defendant, a serving police officer, was indicted on seven counts: counts 1, 3, 4 and 7 alleged offences under section 26; counts 2, 5 and 6 alleged offences under section 1 of the Computer Misuse Act 1990. The allegations arose from the Defendant's interactions with two complainants (referred to here as Complainant 1 and Complainant 2) on various dates between July 2021 and July 2022, involving alleged sexualised questioning, invitations into homes, touching and requests for hugs. The trial judge (Judge [Last Name]) ruled at the close of the prosecution case that there was no case to answer on all counts. The prosecution appealed that ruling to the full court. Procedural formalities including the acquittal undertaking under section 58(8) were complied with; the jury was discharged and the Defendant was bailed. A hearing date in the Crown Court at The City was fixed.

Legal Issues Presented

1. Whether the phrase "powers and privileges" in section 26 of the Criminal Justice and Courts Act 2015 extends beyond statutory powers and duties to include "privileges" available to a constable by virtue of holding office.
2. Whether the term "benefit" in section 26 can include feelings such as sexual gratification.
3. Whether, applying section 26, the prosecution had adduced sufficient evidence that the Defendant was exercising a power, privilege or duty improperly (for the purpose of achieving a benefit) on the facts alleged in counts 1, 3, 4 and 7.

Arguments of the Parties

Prosecution's Arguments

• "Privileges" should be given a wide meaning distinct from "powers", such that privileges supplement powers and may cover opportunities or advantages available because one is a constable.
• The standards expected of a constable should be the same whether operating under a formal duty or otherwise, and conduct undertaken to obtain sexual gratification falls within the definition of "benefit" in section 26(9).

Defendant's Arguments

• "Privileges" should be limited to protections inherent in the operation of police powers; merely holding the office of constable is not, by itself, a privilege that can ground criminal liability under section 26.
• A distinction must be maintained between misconduct appropriate for disciplinary sanction and serious criminal offences; Parliament would have made clear if it intended to criminalise mere feelings or emotions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Galbraith (1981) 73 Cr App R 124	Principles governing a submission of no case to answer (direction to the judge on whether evidence is such that a jury properly directed could convict).	The trial judge was directed to follow Galbraith; the appellate court accepted that the judge had correctly identified the Galbraith questions but concluded she erred in applying them to counts 1, 3 and 4.

Court's Reasoning and Analysis

The court began by construing section 26. It observed that "powers and privileges" are used conjunctively and disjunctively and that Parliament intended "privileges" to add to and extend "powers." The court emphasised the legislative background (to supplement common law misconduct in public office) and concluded the statutory language should be given its natural, non-restrictive meaning consistent with that aim.

The court offered guidance on the terms:

• "Power" — a right, authority or licence usually conferred (often by statute) enabling a constable to act in ways others may not.
• "Privilege" — any special permission, advantage or opportunity available to a constable because of office that would not be available to others.
• "Duty" — something a constable is required to do by office or instruction.

On "benefit," the court noted section 26(9)'s wide definition and held that a feeling of sexual gratification can fall within "benefit," drawing attention to analogous provisions in the Sexual Offences Act 2003. The court declined to decide whether other feelings might qualify, leaving that to an appropriate future case.

Applying those interpretations to the facts, the court concluded it was open to a jury to find that the Defendant, by virtue of being a constable, had certain privileges (such as being trusted, being permitted to enter homes or to drive a released person) which provided special opportunities not available to others. The appellate court therefore found the trial judge erred in ruling there was no case to answer on counts 1, 3 and 4 by taking too narrow a view of "police privileges."

Regarding count 7, the court agreed with the trial judge that the prosecution had not presented evidence sufficient for a jury properly directed to convict on that count as it was prosecuted; the court acknowledged a hypothetical factual presentation might succeed but that was not the case made.

Holding and Implications

RULINGS PARTIALLY REVERSED

Holdings and direct consequences:

• The court confirmed the trial judge's ruling that there was no case to answer on counts 2, 5, 6 and 7 and ordered the Defendant acquitted of those counts pursuant to section 61(7) of the Criminal Justice Act 2003.
• The court held that the trial judge's rulings on counts 1, 3 and 4 involved an error of law; those rulings were reversed and the court ruled there is a case for the Defendant to answer on counts 1, 3 and 4.
• Pursuant to section 16(4)(a) of the 2003 Act, proceedings on counts 1, 3 and 4 were ordered to be resumed in the Crown Court (the trial will start afresh); the previously fixed hearing date in The City was to provide an opportunity to fix trial dates.

Broader implications: The court provided authoritative guidance on the meanings of "powers," "privileges" and "benefit" in section 26, including that "privileges" may cover advantages or opportunities available to a constable by reason of office and that sexual gratification can amount to a "benefit" under the section. The opinion does not purport to decide other questions about what other feelings may qualify as a "benefit."

Other Procedural and Reporting Matters

The court noted reporting restrictions under section 71 of the 2003 Act and directed that an initial part of the judgment (statutory interpretation guidance) could be published subject to those restrictions and to a further restriction under section 4(2) pending conclusion of the resumed proceedings. The court invited submissions on reporting and suggested anonymised headings for the published extract. The parties and prosecuting authority were to notify the Criminal Appeal Office when proceedings conclude so the full judgment can be published thereafter.