Six members of chambers involved in significant Court of Appeal case on immunity and the threshold for arts. 2 and 3 ECHR

Six members of chambers acted in XGY v Chief Constable of Sussex Police & Crown Prosecution Service [2025] EWCA Civ 1230, a significant Court of Appeal case addressing the scope of advocates’ immunity and the extent to which that immunity applies to police officers and staff preparing prosecution files.

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.

The case arose after a CPS advocate inadvertently disclosed a victim’s address during a bail hearing. The victim, XGY, brought claims against both the police and CPS under the Data Protection Act 2018, the torts of misuse of private information and breach of confidence, and the Human Rights Act 1998 (relying on Articles 2, 3 and 8 ECHR). At first instance in the County Court, the claim was struck out, with the circuit judge holding that both defendants were protected by the advocate’s immunity, which extended to police preparation of court files. Reverse Summary Judgment was also granted on the basis that there was no real and immediate risk of a violation of XGY’s art.2 or 3 ECHR rights.

XGY appealed to the High Court, where Ritchie J allowed her appeal (XGY v (1) Chief Constable of Sussex Police & (2) CPS [2024] EWHC 1963 (KB). He held that the law had shifted from an absolute immunity for advocates towards a ‘justificationism’ approach, requiring justification for the disclosure in light of the purpose of immunity. The High Court also set aside a summary judgment finding that XGY was not a victim under s.7 HRA.

In an important judgment, the Court of Appeal overturned the High Court’s decision and reinstated the decision of the County Court. The Court of Appeal concluded unequivocally that advocates had absolute immunity for what they said or did in court, irrespective of the cause of action advanced, and that included things said at bail hearings – there was no requirement for the thing said to have to be ‘justified’ on a case-by-case basis. The Court of Appeal held that that immunity extended to the preparation of the file for the prosecution by the police. Finally the Court overturned the appeal against Reverse Summary Judgment in circumstances where there had been no contact between XGY and her assailant for 5 months by the time of the disclosure and it was open to the County Court judge to find that there was no real prospect of a finding that XGY’s life or physical integrity was at real and immediate risk arising from the disclosure, or a violation of XGY’s rights.

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 generally.

Jason Beer KC, Georgina Wolfe and Bobby Talalay were instructed for the Chief Constable of Sussex Police.

Fiona Barton KC and John Goss were instructed for the Crown Prosecution Service.

Beatrice Collier was instructed for the Bar Council.