By Kian Leong Tan
INTRODUCTION
Do advocates retain an absolute immunity for things and said and done in court, or must the invocation of the immunity be scrutinised on a case-by-case basis? A heavyweight panel of the Court of Appeal – including the Lady Chief Justice and the President of the King’s Bench Division – in Chief Constable of Sussex Police and the Crown Prosecution Service v XGY (Bar Council intervening) [2025] EWCA Civ 1230 (“XGY”) has come down decisively in favour of the former proposition, offering some much-needed clarity on this area of law.
In addition to reviewing the principles underpinning advocates’ immunity, XGY rejects the suggestion that either the Human Rights Act 1998 (“HRA”) or the Data Protection Act 2018 (“DPA”) qualified or limited the scope of that immunity. The Court of Appeal also considered the s 7 HRA ‘victim’ test for the purposes of bringing a claim pursuant to Articles 2 and 3 ECHR under that Act.
BACKGROUND FACTS
XGY had previously been in a relationship with DYP until early November 2019. She then reported DYP to the police for allegedly physically, sexually and mentally assaulting her. She moved out of her home to live with her aunt in Epsom. In March 2020, with the help of a police constable she relocated to an address in Hampshire (“the Hampshire address”).
XGY disclosed the Hampshire address to the police and requested that it be kept confidential from DYP (her previous Epsom address having already been disclosed to him as part of his original bail conditions, causing her to suffer depression from fear of reprisals by DYP). She also made an allegation of rape against him. On 15 April 2020, DYP was arrested for the rape allegation and for breaching his bail conditions. The police prepared a file for the CPS for a magistrates’ court hearing the following day, including the Hampshire address which had not been marked as confidential.
At the bail hearing, the CPS advocate – acting no doubt in XGY’s assumed best interests – sought a new bail condition that DYP be prevented from going to the Hampshire address, thus disclosing it to him. Consequently, XGY felt compelled to leave the Hampshire address. The disclosure also exacerbated her depression and caused her post-traumatic stress disorder.
On 4 February 2022, XGY issued claims for damages against the two Appellants under the HRA (pursuant to Arts. 2, 3 and 8 ECHR), ss 3(2) and 10 DPA,[1] and for breach of confidence and misuse of private information. The Appellants applied to strike out the claims on the basis that (i) the CPS was immune from suit by virtue of advocates’ immunity for things said and done in court, and (ii) that immunity logically extended to include the Chief Constable for having provided the Hampshire address for the purpose of the bail hearing. The Appellants also applied for reverse summary judgment on the HRA claims on the grounds that at the material time, XGY had not been at any ‘real and immediate risk’ from DYP and therefore failed to satisfy the s 7 HRA ‘victim’ test. In the county court, HHJ Brownhill agreed with the Appellants and dismissed XGY’s claims.
XGY appealed to the High Court, where Ritchie J reversed HHJ Brownhill’s decision on all grounds: [2024] EWHC 1963 (KB). His Lordship considered that as a result of Arthur JS Hall & Co v Simons [2002] 1 AC 615 and Jones v Kaney [2011] UKSC 13, the law had moved on from a position of absolute immunity. Consequently, any invocation of the immunity (or its extensions) had to be justified on the facts of that case – a novel approach he termed “justificationism”. A distinction was also to be drawn between evidential matters (to which advocates’ immunity applied) and peripheral or administrative matters (which would generally fall outside the scope of the immunity).
THE DECISION
On appeal by the Appellants (the Bar Council intervening in support), the Court of Appeal unanimously allowed the appeal and set aside Ritchie J’s order.
The Court began by reviewing the case law on the core immunity of advocates from suit for things said and done in the course of conducting a case in court: [8]-[29]. From these, it summarised the following general principles ([30]):
- Although it is trite that every wrong should have a remedy, it is necessary for the proper administration of justice that, inter alia, advocates are immune from suit for statements made in court (“the core immunity”), even if the statement is made maliciously or is irrelevant to the proceedings.
- The core immunity may be extended if necessary for the proper administration of justice. Two such extensions exist: (a) witnesses, including potential witnesses are immune for statements made outside of court with a view to giving evidence; and (b) investigators are immune for statements made as part of the process of investigation (“the extended immunity”).
- The police can claim an extended immunity either as potential witnesses or for statements/conduct which can be said to be part of the process of investigating a possible crime potentially leading to prosecution. Investigators are not immune for statements that are wholly extraneous to the investigation.
- It must be foreseeable at the time a statement is made whether it will be immune.
- Public policy can change over time and be re-evaluated. Where an established immunity is re-evaluated or an extension to the same is sought, careful justification is needed to justify departing from the general principle that every wrong should have a remedy. There is however no basis for importing that need for justification into cases which fall within an established immunity. Doing so would fundamentally undermine the utility and purpose of the core immunity.
- As a consequence of Hall and Jones, advocates can now be liable to their clients for negligent conduct of court proceedings, and expert witnesses may be liable for breach of duty to those who retain them. Beyond that, the core immunity continues to apply.
The Court also considered the written evidence of the Bar Council to the effect that Ritchie J’s distinction between ‘evidential’ and ‘administrative or procedural’ matters was impractical and unworkable: [61]. It would especially affect criminal, family, housing, immigration and social welfare practitioners, who often share personal data outside of the formal evidence in the trial for case management purposes or when drafting orders.
Applying the principles above, the Court concluded that:
- The core immunity plainly applied to the CPS advocate, who had disclosed XGY’s address during the ordinary course of court proceedings: [62].
- Sussex police’s preparation of the case for the bail hearing was covered by the extended immunity, such preparation falling within the process of criminal investigation: [68]. Denying immunity to the police would result in the outflanking of the core immunity.
- This was sufficient to dispose of all possible claims against both the Appellants: [74].
The Court also held that had Parliament intended for either the HRA or DPA to qualify or limit advocates’ immunity (including extended immunity), that intention would need to have been made explicit, or to have arisen by necessary implication: [77]. Neither of the Acts did so. The Bar Council’s evidence on the practicality of Ritchie J’s approach supported that conclusion: [80].
Finally, the Court concurred with HHJ Brownhill that XGY did not meet the s 7 HRA ‘victim’ test: [96]. The evidence showed that by the time the Hampshire address had been disclosed, she had neither been contacted or threatened by DYP since their relationship ended five months prior. The disclosure of the address itself did not create or resurrect any objective risk of death or mistreatment to XGY contrary to Arts. 2 or 3 ECHR. There was therefore no basis for Ritchie J to have interfered with the conclusion on this ground.
COMMENTARY
XGY doubtless comes as a significant relief to advocates and police forces, with the law on advocates’ immunity having been returned to its orthodox position. As others have noted elsewhere, however, the Court’s conclusions on the primacy of the immunity over the HRA may yet be tested.
Per the Court at [99], it is difficult not to sympathise with the Respondent, who has suffered through no fault of her own. That being said, it is equally important to recall the wider context – prior to Hall (decided just over two decades ago), it would have been impossible to bring any claim against an advocate for things said and done in court.
The common law develops in incremental steps, but once a door has been opened even a crack it may well prove difficult to ensure it swings open no further. As the Court itself noted, public policy is not fixed, and in due course there may be good reason to reconsider the law. We return to the orthodox position, then – but orthodox for how much longer?
Kian Leong Tan is a future pupil barrister at 5 Essex Chambers. Members of 5 Essex Chambers appeared on behalf of the Appellants and the Bar Council (intervening) before the Court of Appeal, but were not involved in the writing of this article.
[1] The DPA claim alleged that the Hampshire address amounted to XGY’s ‘personal data’ and/or ‘special category data’ and thus should not have been disclosed.
