Structured and Anonymised Summary of the Opinion

Factual and Procedural Background

This appeal arises from an order dated 29 July 2024 by Judge Ritchie allowing appeals against an earlier order (25 September 2023) of Judge Brownhill. The civil claimant (hereinafter, the Plaintiff) issued claims for damages against two public prosecutorial and policing bodies (referred to in this summary as Appellant (CPS) and Appellant (Police)) under the Human Rights Act 1998 (HRA) and the Data Protection Act 2018 (DPA), and for breach of confidence and misuse of private information. The Plaintiff was granted statutory anonymity in the original proceedings; her former partner is anonymised here as the Defendant.

In brief: the claims derive from statements made by an advocate for the prosecuting authority (the advocate) during a bail hearing at the magistrates' court. The advocate sought an exclusionary bail condition designed to protect the Plaintiff from the Defendant and, in doing so, disclosed the Plaintiff's confidential address in open court. That address had been provided to the police in confidence and passed to the prosecuting authority as part of the police file for the bail hearing; the file did not indicate the address as confidential.

At first instance Judge Brownhill struck out the Plaintiff's claims against the prosecuting authority on the basis that a core common-law immunity protects things said and done by advocates in court. She also struck out the claims against the police on the basis that the police could rely on the same immunity by extension. She additionally held that the Plaintiff had no real prospect of establishing victim status under section 7 of the HRA and Article 34 of the European Convention on Human Rights (the Convention) and entered reverse summary judgment for the appellants on the HRA claims.

On first appeal, Judge Ritchie allowed the Plaintiff's appeal against Judge Brownhill, concluding that while an immunity exists, its scope had to be justified on the facts in each case (an approach he termed "justificationism") and, applying that approach, immunity was not justified in the present circumstances. The current Court (the appellate court whose opinion is summarised here) was asked to resolve whether Judge Ritchie's approach to immunity was correct and whether Judge Brownhill was right to conclude the Plaintiff did not meet the section 7 criterion.

Legal Issues Presented

1. Whether the core common-law immunity protecting statements and acts performed in court by advocates applies to the words spoken by the prosecuting advocate at the bail hearing in this case.
2. Whether that core immunity extends, by established common-law principles, to police conduct in preparing and passing the confidential address to the prosecuting authority (i.e. whether an established extension of immunity covers the police file preparation and communication to the CPS in the circumstances described).
3. Whether any immunity that applies to the advocate or to the police bars all causes of action pleaded by the Plaintiff, including claims under the HRA and the DPA and for misuse of private information and breach of confidence.
4. Whether the Plaintiff met the standing / “victim” requirement in section 7 of the HRA (i.e. whether, at the time of the Hampshire disclosure, the Plaintiff was at a real and immediate risk such that she would be a victim within Article 34 of the Convention) such that HRA claims could be brought at all.

Arguments of the Parties

Appellant (CPS) and Appellant (Police) — Principal Arguments

• Appellants argued that a long-established core immunity protects things said and done by advocates in court and that it would be contrary to the administration of justice for that immunity to be applied only after a fact-specific justification on every occasion (i.e. the court should not accept "justificationism").
• The prosecuting appellant contended that the advocate's words at the bail hearing were plainly within the core immunity and that Judge Ritchie erred by treating the immunity as an evidential question requiring case-by-case justification.
• The police appellant argued that an established extension of the core immunity covers the police conduct of preparing and passing material to the prosecuting authority where that material forms part of the investigatory or preparatory process for criminal proceedings (so that liability for the disclosure would outflank the core immunity if it were allowed).
• Both appellants contended that, even if the disclosure was regrettable, the immunity applies to all causes of action pleaded against them (including HRA and DPA claims), and that they were entitled to have the claims struck out without the need for the CPS to file a formal defence.
• They also argued (alternative and subsidiary) that Judge Brownhill was right to find that the Plaintiff failed the section 7 test and that Judge Ritchie wrongly substituted his own view for hers on the summary judgment/reverse summary judgment application.

Plaintiff — Principal Contentions (as pleaded)

• The Plaintiff alleged that the disclosure of her confidential address by the prosecuting advocate (derived from material supplied by the police) breached Articles 2 and 3 (operational and systemic duties), Article 8, the DPA, and principles of breach of confidence / misuse of private information.
• She contended that the police breached duties by failing to mark or otherwise protect the address when preparing the file and that the prosecuting authority undermined confidentiality by disclosing the address in court.
• She asserted she suffered mental injury (depression and post-traumatic stress disorder) and had to relocate as a direct consequence of the disclosure.
• The Plaintiff maintained that the HRA claims were of a different character and ought not to be displaced by common-law immunity (although no authorities supporting that proposition were cited in the opinion).

Table of Precedents Cited

Court's Reasoning and Analysis

The appellate court proceeded through the following principal analytical steps (each step is described only from the material in the opinion):

1. Re-affirmation of the core immunity and established extensions:

   The court summarised the core immunity as a long-standing common-law rule protecting participants in court from suit for things done or said in the course of conducting judicial proceedings, founded on public policy to protect freedom of speech in court and the proper administration of justice. It restated that the core immunity is historically broad and applies regardless of maliciousness or irrelevance, subject to limited, well-defined exceptions and strictly controlled extensions (e.g. Watson and Taylor extensions for witnesses/potential witnesses and investigators respectively).

2. Rejection of "justificationism" as applied by Judge Ritchie:

   The court disagreed with Judge Ritchie's approach that immunity categories and their application must be justified on a facts-by-facts basis in every case (labelled "justificationism"). It considered that Ritchie J conflated two distinct inquiries: (a) whether to create or expand an immunity category (which requires detailed public-policy justification), and (b) whether the facts of a given case fall within an already-established immunity (which does not require re-justification of the policy underpinning the category). The court held that imposing a case-by-case justification requirement would undermine foreseeability and the utility of the immunity.

3. Application of the law to the CPS advocate's conduct:

   The court concluded that the words spoken by the prosecuting advocate at the bail hearing were "in the ordinary course of court proceedings" and therefore covered by the core immunity. It rejected Ritchie J's view that the immunity applied only to 'evidential' matters and not to the bail hearing submissions in this case, stressing that bail hearings regularly involve informal, but material, information (e.g. addresses) necessary to assess proportionality of conditions. The court emphasised authorities (including R (DPP) v Havering and Gizzonio) showing bail material is part of the preparatory process and integral to proceedings.

4. Application of the law to the police conduct:

   The court held that the police's preparation of the file and the passing of the Plaintiff's address to the prosecuting authority were part of the investigatory and preparatory process and fell squarely within the established Taylor/Watson extensions to the core immunity (and analogous CLG authority). It observed that a ruling to the contrary would allow the core immunity to be outflanked by liability for the preparatory exchanges that make in-court advocacy possible.

5. On the scope of immunity against statutory causes of action:

   The court rejected the submission that the HRA (or the DPA) should be treated as displacing common-law immunity unless Parliament had clearly expressed such an intention in statutory language. The court referred to authorities indicating that the HRA does not plainly abrogate common-law immunities and concluded that statutory causes of action are caught by the immunity where the facts fall within its scope (citing Crawford and Watson analogies).

6. On the section 7 victim criterion for HRA claims:

   The court reviewed the established high threshold for Article 2 and 3 breaches (derived from Osman and elaborated in Re Officer L, Van Colle, Rabone). It summarised Judge Brownhill's approach to the reverse summary judgment application: in the absence of evidence or a specific disclosure application by the Plaintiff, she was entitled to assume pleaded facts and draw inferences. The appellate court found that Judge Brownhill's evaluative assessment—that the Plaintiff had no real prospect of establishing that at the time of the Hampshire disclosure she faced a real and immediate risk meeting the Article 2/3 standard—was open to her and that Judge Ritchie erred by substituting his own view, relying on material not before the court and applying too low a threshold on summary judgment.

Holding and Implications

Holding: The appellate court set aside the order of Judge Ritchie and reinstated Judge Brownhill's earlier rulings. It concluded that (i) the prosecuting advocate's statements at the bail hearing were protected by the long-established core immunity for things said or done in court; (ii) the police conduct in preparing and supplying the Plaintiff's confidential address to the prosecuting authority fell within an established extension of that immunity (investigators/witness preparation); and (iii) in any event the Plaintiff had no real prospect of establishing the section 7 victim criterion for the HRA claims based on the Hampshire disclosure.

Direct Consequences:

• DISPOSED OF (i.e., struck out) — The Plaintiff's claims against Appellant (CPS) based on the Hampshire disclosure are struck out on the basis of core immunity.
• DISPOSED OF — The Plaintiff's claims against Appellant (Police) based on the Hampshire disclosure are struck out on the basis of the established investigatory/witness extension to the core immunity.
• The HRA claims founded on the Hampshire disclosure were also dismissed on summary judgment for failure to satisfy the section 7 "victim" criterion; the court reinstated Judge Brownhill's reverse summary judgment on this point.

Broader Implications and Observations:

• The court emphasised that the judgment does not diminish the seriousness of the harm caused to the Plaintiff by the disclosure and expressed sympathy for her situation, but held that public policy and long-established common-law principles mean no civil remedy is available in these proceedings for what occurred.
• The court rejected a fact-specific "justification" approach to established immunity categories. It emphasised the need for foreseeability so participants in the administration of justice can know in advance whether immunity applies.
• The court confirmed that statutory claims (including under the HRA and the DPA) do not automatically escape common-law immunities absent clear parliamentary language to that effect; therefore, statutory causes will be caught where the facts fall within the immunity's scope.
• The decision reiterates the narrowness of permitted extensions to the core immunity: extensions are available only where necessary to preserve the administration of justice and to prevent circumvention of the core immunity, and they must be coherent with existing authorities.
• The court noted practical concerns advanced in evidence (from the intervening professional body) about the consequences of adopting a fact-sensitive distinction between "evidential" and "administrative" material, endorsing the view that such a distinction would be practically unworkable in many areas of criminal practice (bail, case management, sentencing, ancillary orders).
• No novel doctrinal expansion of immunity was undertaken; the court applied established categories (core immunity and recognised extensions) to the facts and rejected a change to the approach that would require re-justification each time an immunity is invoked.

If a Section Is Omitted

This summary is compiled strictly from the provided opinion. No additional facts, procedural steps, or authorities beyond those contained in the source text have been introduced. Where the original text did not supply particular categories of information (for example, detailed adverse-party witness evidence at trial), that specific information is not present in this summary.

Note on anonymisation: All individuals identified in the original opinion who were parties to, or participants in, the underlying proceedings have been anonymised in this summary as follows: the claimant is referred to as "Plaintiff"; the former partner who was the criminally accused is referred to as "Defendant"; the prosecuting and policing bodies whose names appear in the original opinion are referred to as "Appellant (CPS)" and "Appellant (Police)"; judges cited in the opinion are referred to as "Judge [Last Name]"; legal representatives and expert witnesses quoted are referred to by the generic style "Attorney [Last Name]". Case names and citations from the authorities relied on in the opinion are reproduced so that the legal principles and precedent references remain clear for doctrinal analysis.