Court of Appeal clarifies the law on immunity arising from court proceedings and on ‘real and immediate risk’ in HRA claims

In what is an important and significant ruling, the Court of Appeal handed down judgment in XGY v Chief Constable of Sussex Police & Crown Prosecution Service [2025] EWCA Civ 1230, in which the court (a) addresses the scope of advocates’ immunity and the extent to which that immunity applies to participants in legal proceedings and (b) reaffirms the principles for determining when a person is a ‘victim’ within the meaning of s.7 HRA on the basis that there is a real and immediate risk to their life/person.

Facts

The case arose after a CPS advocate inadvertently disclosed XGY’s address to her abuser, DYP. XGY had ended the relationship with DYP in November 2019, alleging serious abuse. She later alleged he had raped her when in the relationship. DYP was arrested on 15 April 2020. He was bailed by police for the rape but remanded and brought to court the following morning for a separate breach of court bail. The police provided the CPS with information for the bail hearing that included XGY’s new (secret) address, but no warning marker was visible to the CPS that this should not be revealed. The prosecutor asked for a bail condition protecting the new address, thus revealing it to DYP. XGY alleged she suffered serious harm as a result of this revelation.

History of court proceedings

The CPS and Sussex Police applied to strike out the claim on the basis that both were immune from suit based on the ancient common law immunity protecting court users from things said and done in court. The position of the CPS was that its advocate was immune in respect of what he said openly at the bail hearing. The position of the police was that they were immune by reason of a necessary extension of the advocate’s immunity as they provided the information to the advocate for that hearing. Both parties also applied for reverse summary judgment on the basis that XGY was not, by April 2020 a victim within the meaning of s.7 HRA (referencing arts.2 and 3 ECHR) as, by over five months after the last alleged instance of abuse, she was not at any ‘real and immediate risk’ from DYP. In a detailed judgment, HHJ Brownhill at the Winchester County Court struck out the claims and ordered reverse summary judgment. Separately, she refused to order reverse summary judgment in relation to disclosures made by the police to DYP on his arrest in November 2019.

XGY appealed and Ritchie J in the High Court allowed the appeal on all grounds. In a novel approach, he determined that the authorities demonstrated a shift from absolutism (where the words spoken by an advocate in court were immune by their function) to ‘justificationism’, a requirement to show justification that the particular words said could be justified against the purpose of immunity. He also allowed the appeal against the summary judgment decision.

The CPS and Sussex Police appealed. The Bar Council intervened to support the appeal.

Decision of the Court of Appeal

The Court of Appeal reversed the decision of the High Court on all grounds.

As to immunity, the Court rejected the High Court’s approach and returned the law to its orthodox position. The Court summarised the law at [30], and of particular importance to all participants in legal proceedings will be [30(i)]-[30(iii)]:

1. It is a general principle that every wrong should have a remedy. Nonetheless, it is necessary for the proper administration of justice that advocates, parties, witnesses, judges, and jurors are immune from suit for statements made in court whatever the cause of action, regardless of whether the statement was made maliciously or was irrelevant to the court proceedings. This is known as the core immunity. It is founded on public policy and is intended to encourage freedom of expression and communication in court proceedings in order to protect the proper administration of justice and the interests of justice.

1. The core immunity can be extended if the extension is necessary for the proper administration of justice, which is a strict test. There are two established extensions: witnesses and potential witnesses are immune from suit for statements made outside of court with a view to giving evidence. This extends to the preparation of evidence they are likely to give in court proceedings, including their preliminary examination to ascertain what they could prove. And investigators are immune from suit for statements made as part of the process of investigation.

1. The police may claim an extended immunity either as potential witnesses or for statements or conduct which can fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution or possible prosecution in respect of the matter being investigated. Investigators are not immune with regard to statements which are wholly extraneous to the investigation.

That ruling returned the law to a conventional understanding of the ambit of immunity in court proceedings and is of importance not only for the police and CPS, but for advocates and other court users.

There remain instances where acts done as part of investigating a crime or a possible crime with a view to a possible prosecution are not protected. For example, the Court affirmed the case law as to acts totally extraneous to the investigation, which include fraudulent statements (which by definition do not concern the evidence) or deliberate disclosure failings. Separately, existing carve-outs such as the tort of malicious prosecution, perjury or contempt of court remain untouched.

Where the line is drawn will depend on the act in question. However, the principle is now clearly set out that the transfer of information from the police to the CPS at any stage of ongoing or anticipated criminal proceedings is prima facie protected by the immunity principle. Importantly, the immunity for court users covers all areas of law, including claims under the HRA and DPA. It remains to be seen how this will interact with a Zenati-type claim and whether there is a statutory exception under the HRA by reference to art.5(4) read with art.5(5) ECHR.

As for summary judgment, the Court criticised Ritchie J’s approach to the appeal, and set the bar high on overturning an evaluative judgment of the court below. As to the substance, the Court held that the judge at first instance had been entitled to conclude that there was no real and immediate risk to XGY by April 2020 on the facts and that, even taking her case at its highest, she could not clear that high threshold. Defendants in HRA claims are likely to find this part of the judgment useful both in reaffirming the threshold and also confirming that the issue is often suitable for summary judgment.

Six members of chambers acted in this case: Jason Beer KC, Georgina Wolfe and Bobby Talalay were instructed for the First Appellant, the Chief Constable of Sussex Police. Fiona Barton KC and John Goss appeared for the Second Appellant, the CPS, while Beatrice Collier (led by Adrian Waterman KC) represented the Bar Council as intervener.