Clarity on the scope and applicability of advocates immunity and its extension to police forces

6 November 2025

Advocates and police forces alike will be relieved to read the Court of Appeal’s judgment in Chief Constable of Sussex Police and the Crown Prosecution Service v XGY (Bar Council intervening) [2025] EWCA Civ 1230 which considered the scope and applicability of immunity from suit for key participants in the administration of justice.

On appeal by the Chief Constable and Crown Prosecution Service (CPS), with the Bar Council intervening in support, the Court of Appeal unanimously allowed the appeal to set aside Ritchie J’s order.

In brief, the Court clarified the following principles regarding immunity from suit for things said and done during the conduct of a case in court:

(i) Advocates, parties, witnesses, judges and jurors are immune from suit for statements made in court irrespective of the cause of action and regardless of whether the statement was made maliciously or was irrelevant to the court proceedings. This is known as the core immunity.

(ii) The police are an established category of extension to the core immunity either as potential witnesses or for statements or conduct falling squarely in the investigation of crime with a view to prosecution. The test for extensions remains strictly whether the extension is necessary for the proper administration of justice.

(iii) In order for the core immunity and extensions to be practicable and effective, it must be foreseeable at the time of its making whether a statement will be immune. The Court of Appeal rejected Ritchie J’s ‘justificationism’ approach applied in the High Court of retrospectively determining whether a case falls within an established immunity upon scrutiny of the facts.

(iv) As a consequence of the re-evaluation in JS Hall & Co v Simons [2002] 1 AC 615 and Jones v Kaney [2011] UKSC 13, advocates can be liable to their clients for the negligent conduct of court proceedings in circumstances wherein their error is one no competent member of the profession could have made. Expert witnesses can be liable for breach of duty to those who retain them.

The Facts

On 6 November 2019, XGY contacted Sussex Police to report that her former partner, DYP, had physically, sexually and mentally assaulted her including threats to kill her and to throw acid in her and/or her relatives’ faces. XGY asserted DYP had previous convictions for armed robbery, was a drug dealer and had a fierce temper.

Sussex Police proceeded to arrest DYP and release him on police bail whilst conducting their investigation. DYP’s bail conditions included prohibitions on entering the towns of Chichester (XGY’s residential address) and Epsom (XGY’s Aunt’s address). DYP knew of both addresses, save XGY argued the citation of Epsom caused her to suffer psychiatric harm as it inadvertently disclosed the fact she had fled to her Aunt’s address (a fact she had sought to conceal from DYP) and made her fearful he would surmise her whereabouts. Consequently, XGY fled Epsom and went to live in a women’s refuge. Notwithstanding, this disclosure did not form part of the claim against the CPS and was not the subject of the instant appeal.

Four months later, assisted by Sussex Police, XGY relocated to an address in Hampshire which she provided to Officers in confidence. Simultaneously, she made a further allegation against DYP of rape during the course of their relationship. DYP was re-arrested for the rape allegation and breach of his bail conditions. When preparing a file for the CPS to prosecute, the Police disclosed the Hampshire address therein with no indication or warning marker of its confidentiality.

Accordingly, during DYP’s bail hearing the CPS advocate sought an additional bail condition, undoubtedly designed to offer further protection to XGY, prohibiting DYP’s attendance at her Hampshire address. In doing so, the advocate disclosed her confidential address to DYP. XGY was informed of the disclosure by Officers who described it as “a muck up”.

In February 2022, XGY issued claims for damages against the Chief Constable and the CPS pursuant to the Human Rights Act 1998 (HRA) by reference to Articles 2 and 3 of the Convention, the Data Protection Act 2018 (DPA), and for breach of confidence and misuse of private information.

The Decision at First Instance

HHJ Brownhill struck out XGY’s claims at first instance on the ground there exited a core immunity for things said and done by advocates at court. In addition, she struck out XGY’s claims against the police in respect of the provision of XGY’s Hampshire address to the CPS on the ground the police were entitled to rely on the same immunity by extension. HHJ Brownhill granted reverse summary judgment on the HRA claims on the basis XGY had no real prospect of meeting the section 7 ‘victim status’ test (nor were there any other compelling reasons why there should be a trial). The HRA claims were premised upon operational and systemic duties owed by the appellants to XGY to act upon their alleged knowledge of a real and immediate risk to her life and/or physical integrity from DYP, to maintain the confidentiality of her address and to ensure appropriate information sharing systems were in place between them.

XGY’s appeal to the High Court

XGY appealed to the High Court and was successful on all grounds before Ritchie J. He considered recent caselaw supported a limited advocates’ core immunity related to “the witness evidence in the case, not to extraneous or peripheral or administrative matters” [50(ii)] which required justification on a case-by-case basis. He concluded XGY’s address was irrelevant to DYP’s bail hearing and described a movement away from absolutism towards careful consideration of the facts, fuelled by “the implementation of Article 6 of the ECHR and modernity in society” [48]. Furthermore, he considered HHJ Brownhill was wrong to conclude at summary judgment stage there was no real prospect of XGY establishing she had the necessary standing pursuant to section 7 to make the HRA claims.

The Decision of the Court of Appeal

The Court of Appeal disagreed with Ritchie J’s assertion that XGY’s address was irrelevant to DYP’s bail hearing and stated it was necessary for the advocate and the court to know the complainant’s current address when testing the proportionality of any bail condition. In addition, it disagreed things said and done at a bail hearing would fall into the “purely administrative” category to which he determined the core immunity did not apply.

In summary, the Court of Appeal considered the effectiveness of the core immunity and underlying public policy would be “fundamentally undermined” [29(v), 65(i)] if the scope of the protection afforded had to be tested in every individual case. It determined the core immunity applied to all possible claims against the CPS advocate and the extension of the same applied to all possible claims against the police, stating: “immunity cannot be outflanked by other claims, no matter how they are formulated” [74].

As to HHJ Brownhill’s summary judgment on section 7 of the HRA, the Court of Appeal emphasised the threshold for challenging an evaluative decision on appeal was high. Having considered the available evidential material, the absence of an application for specific disclosure by XGY or any evidence in response to the appellants’ application for summary judgment, the Court of Appeal concluded HHJ Brownhill’s decision to proceed without further information was reasonable.

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.

John Goss was not involved in the writing of this post.