The Chief Constable of Sussex Police & Anor v XGY

The common-law core immunity bars every form of civil claim founded on statements made by an advocate in court. It applies irrespective of malice, alleged irrelevance, or the legal label attached to the claim. Once conduct falls within an established immunity, its public-policy justification need not be re-litigated on the facts of the individual case.

The strict established extensions protect police preparation and transmission of information for criminal proceedings, including bail proceedings, where denying immunity would outflank the advocate’s protection. Neither the Human Rights Act 1998 nor data-protection claims displace that immunity without clear statutory language. A claimant under section 7 must show a real, immediate and objectively established Convention risk.

XGY brought claims against Sussex Police and the Crown Prosecution Service under the Human Rights Act 1998, the Data Protection Act 2018, and at common law. Her confidential address had been included without a warning marker in a police file and was stated by a CPS advocate at a magistrates’ court bail hearing concerning her former partner.

HHJ Brownhill struck out the claims relating to that disclosure and entered reverse summary judgment on the Human Rights Act claims. Ritchie J allowed XGY’s appeals: [2024] EWHC 1963 (KB). The police and CPS brought second appeals. The central questions were whether the advocate’s core immunity, and an established extension for the police, applied; whether the statutory claims escaped immunity; and whether XGY had standing under section 7.

1. Appeals allowed. The CPS advocate’s statement of XGY’s address was made in the ordinary course of a court bail hearing. It was therefore within the core immunity. The disclosure should not have occurred, but the immunity applies to all claims founded on the statement, however framed.

2. Ritchie J’s case-specific “justificationism” was wrong. A court must justify a proposed new immunity or extension, but need not reconsider the policy justification whenever facts fall within the core immunity or an established extension. Certainty at the time of the statement is essential to the immunity’s effective protection of free communication in judicial proceedings.

3. The core immunity is not confined to evidential material. Bail proceedings form an integral part of criminal proceedings. A complainant’s address can be material to the proportionality and formulation of an exclusion condition, even though it must not be stated in open court.

4. The police were protected by the established extension of immunity. Preparing and transmitting the file to the CPS for the bail hearing formed part of the criminal investigatory and preparatory process. Holding the police liable for including information which the advocate used in court would outflank the advocate’s core immunity. The court also observed, obiter, that use of the information in court did not break causation because that use was foreseeable.

5. The immunity covered the claims under the Human Rights Act 1998, the Data Protection Act 2018, misuse of private information and breach of confidence. Parliament had not clearly or necessarily displaced the common-law immunity. Separately, XGY had no real prospect of proving that she was a victim under section 7. The absence of contact or threats for five months entitled HHJ Brownhill to find no real and immediate Convention risk. Her reverse summary judgment was reinstated.

The order of Ritchie J was set aside. The claims based on the Hampshire-address disclosure were struck out, and reverse summary judgment on the Human Rights Act claims was restored.

• Court of Appeal (Civil Division): Allowed the police and CPS second appeals, set aside the High Court order, struck out the disclosure-based claims, and reinstated reverse summary judgment on the Human Rights Act 1998 claims.
• High Court, King’s Bench Division: Ritchie J allowed XGY’s appeals from the County Court: [2024] EWHC 1963 (KB). This decision was set aside.
• Winchester County Court: HHJ Brownhill struck out the claims based on the Hampshire-address disclosure and entered reverse summary judgment on the Human Rights Act claims.