R v Luke Silver

The Registrar has referred to the full court this application, pursuant to section 58 of the Criminal Justice Act 2003, for leave to appeal against a ruling by a trial judge that a defendant had no case to answer on charges of offences contrary to section 26 of the Criminal Justice and Courts Act 2015 (“section 26”) and section 1 of the Computer Misuse Act 1990.

Reporting restrictions apply to these proceedings by virtue of section 71 of the Criminal Justice Act 2003. We shall return to those restrictions at the conclusion of this judgment. For convenience we shall refer to the applicant as “the prosecution” and to the respondent as “the defendant”.

Before coming to the facts of the case, it is convenient to refer to the relevant statutory provisions and to the issues of interpretation which arise.

Omitting some words, which are not material for present purposes, section 26 provides:

“Corrupt or other improper exercise of police powers and privileges

(1)

A police constable listed in subsection (3) commits an offence if he or she—

(a)

exercises the powers and privileges of a constable improperly, and

(b)

knows or ought to know that the exercise is improper.

(2)

A police constable guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine (or both).

(3)

The police constables referred to in subsection (1) are—

(a)

a constable of a police force in England and Wales...

(4)

For the purposes of this section, a police constable exercises the powers and privileges of a constable improperly if—

(a)

he or she exercises a power or privilege of a constable for the purpose of achieving—

(i)

a benefit for himself or herself, or

(ii)

a benefit or a detriment for another person, and

(b)

a reasonable person would not expect the power or privilege to be exercised for the purpose of achieving that benefit or detriment.

(5)

For the purposes of this section, a police constable is to be treated as exercising the powers and privileges of a constable improperly in the cases described in subsections (6) and (7).

(6)

The first case is where—

(a)

the police constable fails to exercise a power or privilege of a constable

(b)

the purpose of the failure is to achieve a benefit or detriment described in subsection (4)(a), and

(c)

a reasonable person would not expect a constable to fail to exercise the power or privilege for the purpose of achieving that benefit or detriment.

(7)

The second case is where—

(a)

the police constable threatens to exercise, or not to exercise, a power or privilege of a constable

(b)

the threat is made for the purpose of achieving a benefit or detriment described in subsection (4)(a), and

(c)

a reasonable person would not expect a constable to threaten to exercise, or not to exercise, the power or privilege for the purpose of achieving that benefit or detriment...

(8)

In this section—

‘benefit’ and ‘detriment’ mean any benefit or detriment, whether or not in money or other property and whether temporary or permanent...

10

References in this section to exercising, or not exercising, the powers and privileges of a constable include performing, or not performing, the duties of a constable.

(11)

Nothing in this section affects what constitutes the offence of misconduct in public office at common law in England and Wales or Northern Ireland.”

Section 1 of the Computer Misuse Act 1990 creates an offence of unauthorised access to computer material. For reasons which will become apparent, we need not read all or any of that section.

In the present case, no issue of interpretation arose in relation to the 1990 Act. As will be seen, the judge’s ruling in that regard was focused upon the sufficiency or otherwise of the prosecution evidence. In relation to section 26 however, there is an issue as to the ambit of references in that section to police powers and privileges, and an issue as to the ambit of the word “benefit”. Those issues are not the subject of any previous case law.

The phrase “powers and privileges” is not defined in the Act. Subsections (5) and (6) make it clear that the offence can be committed by a failure to exercise a power or privilege, or by a threat to exercise or not to exercise a power or privilege, but do not otherwise assist with the interpretation of the phrase. Similarly, subsection (10) makes clear that the phrase includes the duties of a constable, but does not otherwise assist with interpretation. The judge was therefore faced with a difficult task.

The word “benefit” is defined, but there is an issue in this case as to whether that word extends to a feeling of sexual gratification or to any other feeling.

Having considered the explanatory notes to the Act, and the 2016 Law Commission Paper on Misconduct in Public Office, the judge observed that it should be relatively easy for a prosecutor to identify which power or duty a defendant is said to be exercising, but it is considerably more difficult to identify the relevant privilege. Given that the section also refers to “powers or privileges”, the judge took the view that the offence under section 26 can be committed by a constable who is exercising a privilege but not a power or duty. The judge ruled that a prosecutor must, however, be able to identify and to prove by evidence the particular power, privilege or duty which a defendant is said to have exercised improperly.

As to whether the definition of “benefit” could extend to feelings of sexual gratification, the judge expressed concern about a wide interpretation leading to the criminalisation of what are concurrently minor matters of police misconduct, and noted that the prosecution had not addressed the question of whether feelings of other kinds could amount to a benefit or a detriment.

We have had the advantage of being able to consider not only the judge’s ruling on these issues, but also the submissions to this court of counsel on both sides. We are grateful for their assistance.

It is conceded by the prosecution that the defendant was not exercising a police power at any of the relevant times, but it is submitted that “privileges” should be given a wide interpretation. Counsel argue that the use of the words “powers or privileges” indicates that Parliament intended “privileges” to be different from, and additional to, “powers”. It is submitted that the standards to be observed by a constable should be the same whether or not the constable is exercising a formal duty to act in a particular way. It is further submitted on behalf of the prosecution that action taken, with a view to gaining a feeling of sexual gratification, comes within the ambit of section 26(9) as a temporary benefit, whether or not it could be said that other types of feeling would also come within the meaning of that word.

For the defendant, it is submitted that the judge’s approach was correct, and the term “privileges” should be limited to the protections which are inherent in the operation of police powers. Counsel submit that Parliament cannot have intended that it would be a sufficient privilege for this purpose that a person was simply holding the office of a constable. It is further submitted that a distinction must be drawn between misconduct, which might attract some disciplinary sanction, and a serious criminal offence. Had Parliament intended the word “privileges” to be given as wide a definition as is submitted for the prosecution, it is argued, Parliament would have made that intention entirely clear.

Reflecting on the submissions, our view as to the proper interpretation of section 26 is as follows.

The words “powers and privileges” are used both conjunctively and disjunctively in section 26. That being so, we are satisfied that the reference to “privileges” was intended by Parliament to add to and extend the reference to “powers”.

More generally, we note that the background to the passing of this section of the 2015 Act was concern as to the limited scope of the common law offence of misconduct in public office. The Explanatory Notes to the Act make clear that the intention of Parliament was to create an offence which covered some aspects of police misconduct which would not be within the scope of the common law offence:

“Following the findings of the Stephen Lawrence Independent Review by Mark Ellison QC and the government’s response to it, the Home Secretary announced on 6 March 2014 the introduction of this new offence. Section 26 makes it an offence for a police officer to exercise the powers and privileges of a constable in a way which is corrupt or otherwise improper. It supplements the existing common law offence of misconduct in public office.”

We are satisfied that the terms of section 26 should be given their natural meaning and not interpreted in a restrictive way which would be inconsistent with the intention to catch police misconduct going beyond what would amount to the common law offence.

We note also that by section 26(10), references to “exercising the powers and privileges of a constable” include performing or not performing the duties of a constable.

Taken together, the terms “powers”, “privileges” and “duties” cover a wide range of what may be done or omitted to be done by a constable (which includes a police officer of any rank), who is acting or purporting to act as such, or who is improperly exploiting or taking advantage of the fact that he holds the office of constable.

Without attempting a comprehensive definition of those terms, we think some guidance can be given as to their meaning and ambit. Where an issue arises in a particular case, it will be for the judge to rule, as a matter of law, whether alleged conduct can or cannot properly be regarded as capable of amounting to the exercise of a power, privilege or duty. If the judge rules that it can be so regarded, it will then be for the jury to decide, on the facts, whether the prosecution have made them sure that the accused constable was exercising a power, privilege or duty.

We understand a police power to be a right, authority or licence granted (usually by statute) to a constable to act in a particular way, even if it would be unlawful for a person other than a constable to act in that way. Obvious examples would be powers of entry, search and seizure, which are not granted to or held by the general public.

The Oxford English Dictionary defines “a privilege” as “a special right, advantage or immunity granted or available only to a particular person or group.” Consistently with that definition, but placing it in the context of a statutory provision which penalises the improper exercise of police privileges, references to a police privilege should, in our view, be taken to cover any special permission, advantage or opportunity which is granted or available to a constable because he is a constable, but which would not be granted or available to others.

As to “duty”, we take the view that the term relates to something which a constable is required to do, by the nature of his office or in accordance with an order or instruction from a superior.

In giving the above guidance as to the meaning of “police privilege”, we have kept well in mind the submissions expressing concern about an undue criminalisation of minor misconduct which should more appropriately be dealt with by internal disciplinary procedures. We are, however, satisfied that our interpretation of the term is consistent with the aim of the legislation. Moreover, it must be remembered that the prosecution must prove all the ingredients of the offence, and that the CPS would not commence criminal proceedings unless the public interest element of the Full Code test was satisfied.

Turning to “benefit”, we note the intentionally wide definition given to that word in section 26(9). We see no reason why a feeling of sexual gratification is not capable of coming within that wide definition. We do not accept the submission that the section could not have been intended to criminalise feelings of sexual gratification. After all, section 67 of the Sexual Offences Act 2003 states that the criminal offence of voyeurism, punishable with imprisonment for up to 2 years, is committed if a person “for the purpose of obtaining sexual gratification” observes another person doing a private act. Similarly, the ingredients of the offence of “upskirting” in section 67A(3)(a) of that Act include an intention on the part of the offender that he or another person will look at the image for the purpose of “obtaining sexual gratification”. Whether different types of feeling or emotion might also be capable of amounting to a “benefit” is not an issue with which we are directly concerned in this case, and we think it better to leave any decision in that regard to a case in which the point directly arises.

We note, furthermore, that by section 26(4), the improper conduct which is penalised is the exercise of a power or privilege “for the purpose of achieving” a benefit etc. It seems to us that in at least some, and perhaps many, cases in which an accused constable is alleged to have acted with a view to sexual gratification, there will be ample scope for an inference that his intentions extended to some physical touching, if circumstances permitted.

We turn now to a summary of the facts of the case and our analysis of the judge’s ruling.

The defendant has at all material times been a serving police officer. He was charged on an indictment containing seven counts. Counts 1, 3, 4 and 7 alleged offences contrary to section 26; counts 2, 5 and 6 alleged offences contrary to section 1 of the 1990 Act. The charges related to the defendant’s alleged misconduct in relation to two women (to whom we shall refer as “C1” and “C2”).

We were told today that the prosecution would not seek to pursue the appeal in relation to the judge’s rulings on counts 2, 5 and 6. We therefore need say little more about those charges.

We deal with the remaining allegations in chronological order. On 16 July 2021, C1 was in custody, in relation to an allegation of assault. It was decided that no further action would be taken against her. The defendant, in uniform, drove C1 home in a police car. On the journey C1 alleged that he asked her sexually inappropriate questions. C1 gave evidence that the defendant seemed to gain sexual gratification from the conversation.

On an unspecified later date (not the subject of a count) the defendant attended C1’s home as part of a team conducting house-to-house inquiries. She recognised him and thought he recognised her. He did not say anything improper on this occasion, but he spoke to her about a high crime rate in the area and asked whether she was at home alone at weekends.

On 26 February 2022, C2 called the police to report an incident with her former partner. Officers attended and the defendant remained behind to take a witness statement from her. C2’s evidence was that he behaved professionally. On the following day, 27 February 2022, the defendant attended C2’s home ostensibly to take a further witness statement. On this occasion, C2 alleged that he acted flirtatiously, describing her as “stunning” and asking questions about her sex life (count 3). The defendant asked about the upstairs of her house and remained for an unnecessarily long time. C2 stated she was nice to the defendant because he had said he could help her get legal aid.

On 18 April 2022, the defendant again attended C2’s home and engaged in sexualised conversation (count 4). C2 was so concerned that the next time the respondent was due to visit she asked a friend to attend. C2 decided not to pursue her complaint against her ex-partner, in order to avoid having the defendant come to her house again.

On Saturday 2 July 2022, the defendant, wearing civilian clothing, knocked on C1’s door and said he was from a charity. He asked to use C1’s bathroom and went upstairs. C1 was wearing a dressing gown. The defendant commented on a visible tattoo, asked to see a tattoo on her thigh and brushed her leg with his finger. Again, the defendant asked about C1’s sex life. On leaving, he asked C1 for a hug, which she refused (count 7). C1 made a complaint on 4 July 2022.

The defendant stood trial in the Crown Court at Cardiff before the Honorary Recorder of that city (HHJ Lloyd Clarke) and a jury. At the conclusion of the prosecution case, submissions were made that the defendant had no case to answeron any of the charges. The judge rightly directed herself in accordance with the principles stated in Galbraith (1981) 73 Cr App R 124, at page 127. Also correctly, she identified the following four questions, which the jury would have to answer in relation to each of the counts alleging offences contrary to section 26:

“1.

Was the defendant a constable of a police force of England and Wales?

2.

Was the defendant exercising a power or a privilege of a police constable, which include the duties of a constable?

3.

Was the defendant exercising that power or privilege improperly, i.e. for the purpose of achieving a benefit for himself?

4.

Did he know or ought he to have known that the exercise of that power or privilege was improper?”

The judge noted that there was no dispute as to the first of those matters, and that it was not disputed that if the allegations were made out, the defendant knew or ought to have known that the exercise of the relevant power or privilege was improper. The judge therefore focused on questions 2 and 3.

In relation to count 1, the judge rejected the prosecution submission that the defendant had exercised a privilege of a constable by driving C1 home. The judge held that there was no evidence on which the jury could find that it was a power, privilege or duty of a constable to provide transport home for a released suspect.

As to counts 3 and 4, the judge rejected the prosecution submission that the defendant had exercised a police power or privilege by asking to enter C1’s home to take a statement. The judge observed that a constable has no power to enter someone’s home in order to take a statement, and that C1 was entitled to refuse to allow him to enter. The judge ruled it may be the duty of a constable to take a statement as a part of an investigation, but a constable has no power to enter someone’s home in order to do so “and it surely cannot be said to be a privilege or duty of a police constable to make such a request.” The judge held that there was therefore no evidence of an essential element of the offence.

In relation to count 7, the judge commented that the prosecution had been unable to say which power, privilege or duty the defendant was alleged to have been exercising at the relevant time. The judge rejected the submission that the defendant’s previous dealings with C1 gave him some subsequent unspecified power, privilege or duty. She held that there was therefore no evidence of an essential element of the offence.

At the conclusion of her ruling on counts 1, 3, 4 and 7, the judge helpfully added:

“Although I do not now have to deal with the evidential matters on these counts, for the sake of completeness I will simply say that all of those matters are matters for the jury.”

The judge went on in her ruling to hold that there was no sufficient evidence to support any of the allegations of offences contrary to the 1990 Act. She accordingly ruled that the defendant had no case to answeron any of the counts.

The prosecution gave notice of appeal against that ruling. All necessary procedural formalities were complied with and “the acquittal undertaking” required by section 58(8) of the Criminal Justice Act 2003 was given. The jury were discharged. The judge, very sensibly, fixed a date (14 April 2025) for a further hearing in the Crown Court, at which effect could be given to the ruling of this court, whatever that ruling might be. The defendant was granted bail.

By section 61 of the Criminal Justice Act 2003, this court has the power to confirm, reverse or vary any ruling to which an appeal under section 58 relates. By section 67, it may not reverse a ruling unless it is satisfied:

“(a)

that the ruling was wrong in law

(b)

that the ruling involved an error of law or principle, or

(c)

that the ruling was a ruling that it was not reasonable for the judge to have made.”

We have already indicated our view as to the correct interpretation of section 26. In our judgment, it was open to the jury, on one view of the evidence, that to find that in acting as alleged in counts 1, 3 and 4 the defendant was exercising a police privilege. He was able to drive C1 home, and able to enter the homes of C1 and C2, because he was acting in accordance with a permission, advantage or opportunity, which had been granted to him or was available to him because he was a constable, but which would not have been granted or available to others. It will be open to the jury to find that neither C1 nor C2 would have been alone with the defendant in such circumstances if they did not know him to be a police officer and assume that he could be trusted to discharge his police role in an appropriate manner. With all respect to the judge who was, as we have said, faced with a novel and difficult issue of statutory interpretation, we are satisfied that she fell into error in ruling as she did in relation to those counts. She took too narrow a view of the ambit of the phrase “police privileges”.

We take a different view as to count 7. There may be circumstances in which it could be said that a police constable who accessed the police computer to check details relating to someone with whom he had previously had dealings in the course of his work as a constable and who then went, in his free time, to visit that person, for the purpose of achieving a benefit for himself, was taking an advantage or opportunity which was available to him as a constable but would not have been available to others. That, however, was not the way the prosecution case was put on count 7 and the evidence adduced by the prosecution was insufficient to enable a jury, properly directed, to convict. The judge was therefore correct to rule that there was no case toansweron that count. We note that counsel for the prosecution realistically did not pursue the appeal on count 7 with any great vigour.

For the reasons we have given our conclusions are as follows:

We confirm the judge’s ruling that there was no case for the defendant to answer on counts 2, 5, 6 and 7 and we order, pursuant to section 61(7) of the 2003 Act, that the defendant be acquitted of those offences.

We are satisfied that the judge’s rulings on counts 1, 3 and 4, involved an error of law. We therefore reverse those rulings and rule that there is a case for the defendant to answer on each of those charges.

Pursuant to section 16(4)(a) of the 2003 Act, we order that proceedings on counts 1, 3 and 4 may be resumed in the Crown Court. In practical terms, that will involve the trial starting afresh. The hearing fixed for 14 April will provide a convenient opportunity for a trial date to be fixed.

We must now return, as we said we would do, to the question of reporting restrictions and we will invite submissions in that regard. Mr Hipkin, Mr Rees, the upshot of that is that proceedings can continue on the three counts we have identified. I think I was right, was I, in saying that 14 April is a fixed date not just a possible date?

MR HIPKIN: Yes, it is a fixed date, my Lord, yes.

THE VICE-PRESIDENT: Sometimes in these cases it seems best overall, intending no disrespect, for further proceedings to be at a different court centre, before a different judge. For our part we do not think that is necessary here; does either of you suggest it?

MR REES: No, I do not, no.

THE VICE-PRESIDENT: We will gladly leave it with the Recorder of Cardiff.

MR HIPKIN: My Lord, might I turn my back?

THE VICE-PRESIDENT: Yes. Mr Griffiths and Ms Ferrier, between them, are probably better placed.

MR REES: We think before the end of the year, it may be optimistic in my experience but it is possible.

THE VICE-PRESIDENT: Some months probably.

MR REES: Yes.

THE VICE-PRESIDENT: That leads on then to this question. Often, when a section 58 appeal is before this Court, we are invited to consider whether any part of the judgment can be reported immediately, even if other parts of the judgment cannot be reported until after further proceedings have been concluded. Subject to what you both say, this seems to be a case in which that is very desirable. It was virgin territory, there is now a ruling upon it, and it would be regrettable if there was no report of our decision until, say, the end of this year or perhaps even in to next. The keen ear will have noted that the judgment was, in a sense, back to front, starting with the statutory interpretation questions and then coming on to the facts. In part, that was designed because, depending on the outcome, it might be possible simply to publish the first half and leave the rest to be postponed until the conclusion of a trial.

MR HIPKIN: That would meet with any concerns that the Crown would have. If the judgment -- it is in two parts -- if the first part of the ruling were public, there is no prejudice to anyone and it provides guidance as to how this question should be treated by the trial judge.

MR REES: We agree.

THE VICE-PRESIDENT: Thank you.

MR REES: But also how the CPS… that may be of assistance.

MR HIPKIN: Absolutely, because I know from my dealings with Mr Griffiths, and the Crown Prosecution Service it has been a vexed question for them.

THE VICE-PRESIDENT: Not least because, as Mr Griffiths explained to the Recorder, the general policy is not to charge the common law offence if it is thought that there is a statutory offence available. So it is pretty important to know whether the statutory offence is available.

MR HIPKIN: That might help.

THE VICE-PRESIDENT: Thank you very much. What we will do, when the judgment has been transcribed and I have had a chance to approve it, I will arrange for what, we will call for convenience, the first part to be published, making clear that that is subject to both the section 71 restrictions but also a section 4(2) restriction on publishing anything else pending the conclusion of the trial. The full judgment will then be published and will in practice replace the half-judgment, as and when the further proceedings are concluded. Mr Hipkin, in that regard, would you, please, ask the CPS to ensure that when the proceedings have been concluded the Criminal Appeal Office is notified forthwith.

MR HIPKIN: We will. Thank you.

THE VICE-PRESIDENT: The last matter is this. You will all be familiar with the format of published judgments. In relation to the publication fairly soon of the first part of the judgment, do either of you see any danger in having the name of the court, the name of the judge and your names on the headings. Would it be safer simply to say “on appeal from the Crown Court” and not name either the judge or counsel?

MR HIPKIN: My instinct is it is probably better not to name counsel or the judge, only in case there is some tie up between Mr Griffiths and Ms Ferrier who will be representing the defendant in due course and the case.

MR REES: My instinct would be to err on the side of caution as well my Lords, my Lady.

THE VICE-PRESIDENT: Yes, well I think particularly if it is likely to be the same junior counsel before the same judge, in the same court. No very great detective work might be needed to do detailed research in the local newspaper. Thank you.

THE VICE-PRESIDENT: Well, gentlemen and Ms Ferrier, is there anything else anybody wants to raise?

MR HIPKIN: No, thank you.

THE VICE-PRESIDENT: May we reiterate our thanks to you all for what have been, if I may say so, very helpful submissions. It is not all that often that we are presented with completely virgin territory. It is as much a challenge for us as it is for you and was for the Recorder, so we are very grateful for all the help we can get, and we have had plenty of it today.