No “Justificationism” and the Reach of Courtroom Immunity: Advocate submissions at bail and police preparatory acts attract absolute immunity, not outflanked by HRA/DPA claims — Chief Constable of Sussex Police & CPS v XGY [2025] EWCA Civ 1230

Introduction

In Chief Constable of Sussex Police & Anor v XGY [2025] EWCA Civ 1230, the Court of Appeal (Civil Division) has emphatically re‑stated the scope, purpose and predictability of the common law immunity attaching to things said or done in court by advocates and its necessary extensions to preparatory acts by investigators (including the police) and statements made by (potential) witnesses. The case arose from a serious error during a bail hearing: a CPS advocate, seeking protective bail conditions, revealed the complainant’s confidential new address in open court. The police had passed that address to the CPS without warning markers. The claimant (XGY) brought claims under the Human Rights Act 1998 (Articles 2, 3 and 8), the Data Protection Act 2018, and for misuse of private information and breach of confidence.

At first instance, HHJ Brownhill struck out the claims against both the CPS and the police on immunity grounds and entered reverse summary judgment on the HRA claims for lack of victim standing under section 7. On appeal, Ritchie J reversed those rulings, proposing a case‑by‑case “justificationism” approach to immunity. In the present appeal, the Court of Appeal (with the Bar Council intervening) sets aside Ritchie J’s decision, restores the strike‑out and the reverse summary judgment, and lays down a clear statement of principle: established courtroom immunities do not require fact‑specific justification; they must be foreseeable and predictable ex ante; they apply to bail hearings; and they cannot be outflanked by creative re‑labelling under the HRA, DPA, misuse of private information or breach of confidence.

Summary of the Judgment

The Court of Appeal allows the appeals of both the CPS and the Chief Constable of Sussex Police, reinstating HHJ Brownhill’s orders:

CPS: The CPS advocate’s words at the bail hearing were “in the ordinary course of court proceedings” and within the core immunity. The immunity does not require case‑by‑case justification and is not limited to narrowly “evidential” matters (paras 62–67).
Police: The police are covered by the established extensions (witness/potential witness and investigator immunities) for providing the address in preparation for the bail hearing. Denying immunity would “outflank” the advocate’s immunity (paras 68–72).
Scope across causes of action: The immunities bar all claims, including under the HRA and DPA, and common law privacy/confidence torts. Parliament has not abrogated common law immunities in the HRA/DPA (paras 73–80).
Section 7 HRA “victim” status: The Court reinstates reverse summary judgment. On the pleaded facts, XGY had no real prospect of establishing that, at the material time, she faced a “real and immediate risk” of death or Article 3 ill-treatment. Ritchie J erred by substituting his own evaluation and by treating speculative disclosure as a reason to withhold summary judgment (paras 81–97).

Analysis

Precedents Cited and How They Shaped the Outcome

The Court situates its decision within several centuries of authority:

Core advocate/witness privilege: From Cutler v Dixon (1585) and Munster v Lamb (1883) to Darker v Chief Constable of the West Midlands [2001] 1 AC 435, the common law has immunised participants (advocates, parties, witnesses, judges, jurors) for things said/done in the course of proceedings to protect the administration of justice (paras 8–14). Free and fearless speech is the rationale (Munster; Brett CJ and Fry LJ).
Extensions to prevent “outflanking”:
- Watson v M’Ewan [1905] AC 480 and Taylor v SFO [1999] 2 AC 177: immunity extends to witness (and potential witness) statements made outside court “with a view to giving evidence”; and to investigators exchanging information integral to investigation (paras 20, 23).
- Rees v Sinclair [1974] 1 NZLR 180; Saif Ali v Sydney Mitchell [1980] AC 198: the extension applies only where the work is intimately connected with the conduct of the cause in court and is strictly necessary in the interests of justice (paras 17–19).
- CLG v Chief Constable of Merseyside [2015] EWCA Civ 836: police transmission of a witness-supporting statement (including a sensitive address) to CPS attracted immunity because denying it would outflank the witness’s in‑court immunity (para 22).
Limits:
- Darker: fabricating or destroying evidence is an actionable, extraneous act distinct from the giving of evidence; not protected (para 24).
- Singh v Reading BC [2013] EWCA Civ 909: pressuring a witness to include inaccuracies relates to the means of procurement; not the content; not immune (para 25).
- Daniels [2015] EWCA Civ 680: misfeasance founded on how disclosure was performed fell outside the immunity (para 25).
Negligence by clients vs core immunity:
- Rondel v Worsley [1969] 1 AC 191 and Arthur J S Hall & Co v Simons [2002] 1 AC 615: modern law abolishes advocates’ immunity from negligence suits by their own clients, but preserves the core courtroom immunity (paras 26–28).
- Jones v Kaney [2011] UKSC 13: expert’s immunity from client negligence suits abolished after policy re‑evaluation, but again without eroding the core privilege for things said in court (paras 29–30).
HRA/DPA interface:
- Crawford v Jenkins [2014] EWCA Civ 1035: immunity applies to statutory causes of action (para 10; para 75).
- Smart v Forensic Science Service [2013] EWCA Civ 783: while arguable limits existed on the facts, the Court of Appeal’s approach assumes that if immunity applies, it bars HRA claims (para 78).
- Mazhar v Lord Chancellor [2019] EWCA Civ 1558: HRA does not abrogate judicial immunity; by analogy, it does not abrogate advocate immunity (para 78).
- Pierson [1998] AC 539: abrogation of common law by statute must be clearly expressed or arise by necessary implication (para 77).
Bail hearings: R (DPP) v Havering Magistrates’ Court [2001] 1 WLR 805 underlines the informal but factually driven nature of bail determinations; Gizzonio v Chief Constable of Derbyshire Police (CA, 1998) treats bail as part of the investigatory or preparatory process such that absolute immunity applies (paras 58, 65(iii)).

These authorities, taken together, dictated the outcome. The Court found that the CPS advocate’s in‑court words fell squarely within core immunity; the police’s preparatory supply of the address to the CPS, intimately connected with the bail hearing, fell within the established extensions; and attempts to re‑characterise the claims under the HRA/DPA or privacy/confidence ran into the anti‑outflanking principle.

Legal Reasoning

1) No case-by-case “justificationism” for established immunities

The Court decisively rejects the notion that whether immunity applies should be justified anew on the facts of every case (paras 46–51, 64–65). The policy reason is practical and constitutional: the immunity exists to secure free and fearless speech and communication in the administration of justice. For that policy to operate, participants must be able to know, at the time they speak, whether their statements attract immunity (Taylor at 214E–G; Jones at [105]). “Justificationism” would make immunity unpredictable, chill advocacy and witness candour, and erode the public interest that the immunity exists to protect (paras 16, 65(i)).

2) Core immunity covers bail-hearing submissions and is not limited to “evidential” matters

The Court emphasises that bail hearings are part of the criminal process and that the determination of bail and conditions routinely relies on a mix of material, not confined to trial evidence (paras 56–61). An advocate’s statement in court is within core immunity whether or not strictly “evidential” in the sense of going to the elements of the charge (para 65(ii)). The complainant’s address can be highly material to calibrating proportionate exclusion zones and thus to the court’s decision on conditions. The error was in stating the address aloud; the existence of error does not negate immunity (paras 60, 62–66).

3) Preventing outflanking: the police’s preparatory acts attract the established extensions

Mirroring Watson, Taylor and CLG, the police’s act of supplying the complainant’s address to the CPS for the purpose of the bail hearing was “intimately connected” with the conduct of the cause and necessary to the administration of justice (paras 68–72). Denying immunity to the police for preparatory transmission would subvert (“outflank”) the immunity enjoyed by the advocate for deploying the same material in court (paras 10, 22, 68). The Court also notes (obiter) that causation remained intact: it was foreseeable that the CPS might deploy content from the police file at the hearing (para 71).

4) Immunity applies across causes of action, including HRA and DPA

The Court reiterates the orthodox position that core immunity (and its necessary extensions) bars all civil claims arising from the impugned speech/act in the courtroom process, regardless of their legal label (defamation, breach of confidence, statutory torts, DPA, HRA) (paras 10, 73–80). Parliament has not expressly or by necessary implication abrogated courtroom immunities in the HRA or DPA (Pierson; Mazhar; paras 77–78). Crawford confirms that even breach-of-statutory-duty claims are caught (para 75).

5) Section 7 HRA “victim” status: no real prospect of proving a real and immediate risk

On standing to sue under the HRA (Articles 2, 3), the Court reinstates reverse summary judgment. The “real and immediate risk” test (Osman; Rabone; Van Colle; Re Officer L) is stringent. On the pleaded facts, there had been no contact or threat by DYP in the five months before the disclosure; the Epsom address had been known and did not lead to harm; and the pleaded materials did not establish a present and continuing risk at the relevant time (paras 81–97). The judge below was entitled to proceed without speculative further disclosure applications; the burden lay on the claimant to show specific further material that would change the assessment (EasyAir; para 91).

Impact and Significance

A. For criminal practice

Advocates can continue to make necessary submissions at bail, sentencing and ancillary hearings without the chilling effect of potential civil liability, even when the information is sensitive (paras 58–61, 65(ii)).
Bail hearings are unequivocally within the protected courtroom zone: immunity attaches to statements made; it is not confined to “trial evidence” (paras 58–61, 65(ii)-(iii)).
The Court’s acceptance of the Bar Council’s practical concerns (paras 61, 80) reinforces that immunity must remain predictable to allow effective representation across privacy‑sensitive areas such as domestic abuse, family, housing and immigration.

B. For police and prosecutors

Police transmission of case‑management information (e.g., addresses) to prosecutors for imminent hearings is protected where intimately connected to the conduct of the cause and necessary to the administration of justice (paras 68–72).
However, the traditional limits remain: fabricating evidence or pressuring witnesses is extraneous and actionable (Darker; Singh) — the immunity is not a charter for wrongdoing (paras 24–25, 30(iii)).

C. For data protection and privacy litigation

Claimants cannot evade courtroom immunities by re‑pleading as DPA, HRA, misuse of private information or breach of confidence. The anti‑outflanking principle applies with full force (paras 10, 73–80).
The Court’s approach safeguards the functioning of criminal courts from becoming mired in DPA‑driven tactical litigation about whether particular “strands” of personal data may be spoken aloud in various hearings (para 80).

D. For victims and witnesses

The Court expresses sympathy for the consequences of the disclosure (para 99). However, the legal remedy is barred by long‑standing public policy. Practical safeguards therefore assume heightened importance (see “Practical guidance” below).
Article 2/3 “victim” status remains a stringent threshold. Absent a contemporaneous real and immediate risk, section 7 HRA standing will not be established (paras 81–97).

Complex Concepts Simplified

Core immunity: A centuries‑old common law rule that bars civil suits against judges, jurors, advocates, witnesses and parties for things said or done in the course of court proceedings. It protects fearless participation in justice and is not displaced merely because a statement is wrong, irrelevant, or malicious (paras 8–14, 30(i)).
Extensions: Necessary additions to prevent “outflanking.”
- Witness/potential witness extension: Statements made out of court with a view to giving evidence are protected (Watson; Taylor) (paras 20–21).
- Investigator extension: Investigators are protected for statements made as part of investigating crime (Taylor) but not for acts wholly extraneous (paras 23–24, 30(ii)-(iii)).
“Outflanking”: Suing via a different legal label (e.g., DPA/HRA) to evade immunity. Courts prevent this to preserve the immunity’s purpose (paras 10, 22, 73–80).
Foreseeability of immunity: Participants must know, at the time of speaking, that immunity attaches; otherwise the protective purpose fails (Taylor; Jones; paras 16, 65(i)).
Reverse summary judgment: The defendant obtains judgment where the claimant has no real prospect of success and there is no other compelling reason for a trial (EasyAir principles). The Court held it was properly granted on the section 7 HRA point (paras 86–97).
Section 7 HRA “victim” status: For Articles 2/3 operational duty claims, the claimant must show a “real and immediate” (present and continuing) risk known or ought to have been known to the authorities at the time (Osman; Rabone; Van Colle; paras 81–84).

Practical Guidance for Practitioners

A. At bail and other ancillary hearings

Confidential information (e.g., a complainant’s address) may be material to proportionality of conditions; avoid stating it in open court. Use alternative methods:
- Provide the address on a written note to the bench and defence marked “confidential – not to be read into the record”.
- Describe exclusion zones by map/grid or generic area parameters without broadcasting the exact address.
- Where unavoidable, seek to address the court in private or on restricted terms with agreement of the defence and court.
Record clearly the basis on which sensitive information has been shared and any confidentiality markers.

B. Police/CPS case preparation

Ensure victim/witness addresses and vulnerability flags are prominently marked as confidential in the NFS-compliant file (paras 56–57, 33–34).
Adopt robust, interoperable systems so that confidentiality markers survive hand‑offs between police and CPS (paras 39–40).

C. Understanding what remains actionable

Immunity does not cover extraneous wrongdoing such as fabrication of evidence or coercing witnesses (Darker; Singh) (paras 24–25).
Advocates may still face negligence claims from their own clients post‑Hall (para 30(vi)), though not from third parties for courtroom statements.

Why This Case Matters

This judgment is important in four respects:

It re‑anchors the courtroom immunity doctrine in predictability and policy necessity, rejecting “justificationism.”
It confirms, in express terms, that bail hearings are within the protective envelope of core immunity and its extensions.
It closes an attempted route to outflank immunity via data/privacy and human rights causes of action, absent clear statutory abrogation.
It restates the high threshold for HRA operational duty claims and the appropriateness of reverse summary judgment where that threshold is not realistically met.

Conclusion

The Court of Appeal’s decision in Chief Constable of Sussex Police & CPS v XGY clarifies and consolidates the law on courtroom immunities in a modern procedural setting where personal data is ubiquitous. The core message is twofold. First, the core advocate immunity and its well‑established extensions are categorical rules, not standards to be justified anew in each case; they must be foreseeable if they are to fulfil their public interest function. That applies to bail hearings, to police‑to‑CPS preparatory transmissions, and to in‑court submissions even when infused with sensitive personal data. Second, these immunities are robust against re‑labelling: HRA, DPA, misuse of private information and breach of confidence claims cannot outflank them absent clear legislative abrogation.

On the human rights aspects, the judgment is a reminder that Article 2/3 operational duty claims are exceptional. The “real and immediate risk” threshold is demanding and must be assessed objectively at the material time. Where the pleaded facts do not meet that threshold, courts may properly grant reverse summary judgment.

While the Court expresses sympathy for the claimant, it affirms that the remedy for such errors lies not in civil suits barred by immunity but in the strengthening of practice and systems: careful handling of confidential data in open court, and robust marking and transmission protocols between police and prosecutors. The judgment thus balances compassion for victims with the constitutional imperative of ensuring that participants in the administration of justice can speak freely and effectively in court.

Key Takeaways

Core immunity attaches to advocate statements made in court, including at bail hearings, and is not limited to “evidential” matters (paras 62–66).
Police preparatory acts that are intimately connected with the conduct of the cause (e.g., supplying a complainant’s address for a bail hearing) fall within established extensions; denying immunity would outflank core immunity (paras 68–72).
HRA/DPA, misuse of private information, and breach of confidence claims cannot circumvent immunity (paras 73–80).
There is no case‑by‑case “justificationism” for established immunities; foreseeability at the time is essential (paras 16, 64–66).
Section 7 HRA standing for Articles 2/3 requires a “real and immediate risk” at the time; speculative disclosure exercises will not defeat reverse summary judgment where the pleaded facts fall short (paras 81–97).