The Chief Constable of Sussex Police v XGY

Hearing Dates: 24–25 June 2025

Approved Judgment

This judgment was handed down remotely at 10.30am on 8 October 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

The Lady Carr of Walton-on-the-Hill CJ, Dame Victoria Sharp P. and

A. Introduction

This is an appeal by the Chief Constable of Sussex Police (the Chief Constable) and the Crown Prosecution Service (the CPS) from the order of Ritchie J dated 29 July 2024 allowing appeals against the order of HHJ Brownhill dated 25 September 2023.

The claimant, who is the respondent to these appeals, issued claims for damages against the Chief Constable and the CPS under the Human Rights Act 1998 ( HRA) and the Data Protection Act 2018 ( DPA), and for breach of confidence and misuse of private information. We shall refer to the claimant as XGY, as she is entitled to anonymity under section 1 of the Sexual Offences (Amendment) Act 1992. As part of the protection to which XGY is entitled, it is necessary to anonymise her former partner, to whom we shall refer as DYP.

We deal with the facts in more detail below but in brief summary, the claims arise from words spoken by an advocate for the CPS (the advocate) during the course of a bail hearing in Brighton and Hove Magistrates' Court after DYP's arrest following allegations made against him by XGY. 1 The advocate sought a condition of bail designed to protect XGY from DYP. In doing so, he revealed XGY's then address. This address had been provided to the Sussex police (the police) by XGY in confidence. It had then been passed by the police to the CPS as part of the police's file preparation for the bail hearing, without any indication or warning marker that it was confidential.

HHJ Brownhill struck out XGY's claims against the CPS on the ground that there was a core immunity for things said and done by advocates in court. She struck out XGY's claims against the police in respect of the provision of XGY's address to the CPS on the ground that the police were entitled to rely on the same immunity by extension. She also held that XGY had no real prospect of establishing that she was a victim within the meaning of section 7 of the HRA and article 34 of the European Convention on Human Rights (the Convention) and accordingly entered (reverse) summary judgment for the appellants on XGY's claims under section 7.

Ritchie J allowed XGY's appeal against the order of HHJ Brownhill on all grounds. On the central issue of immunity, he considered that there was an immunity, but that recent case law meant that, at least arguably, it was limited, and had to be justified on a case-by-case basis (and could not be justified here).

In this appeal, the appellants challenge Ritchie J's approach to the ambit or scope of immunity for things said or done in court by advocates, and for the actions of the police in supplying information to the CPS in circumstances such as these. They submit that the judge's approach is contrary to settled authority at the highest level, both as to the core immunity and to its necessary extension to things said and done outside court to prevent the circumvention or “outflanking” of that immunity; and that his “fact specific” approach cuts directly across the policy rationale for the immunity. They

Permission to appeal on all grounds was granted by William Davis LJ. The Bar Council of England and Wales (the Bar Council) was subsequently given permission by this court to intervene and to make written and oral submissions.

B. The Law

The core immunity and its extension

Since at least the sixteenth century it has been recognised by the common law that it is necessary for the administration of justice for certain participants in the administration of justice — advocates, parties, witnesses, judges, and jurors — to be immune from suit i.e. that legal claims against them arising from almost anything done or omitted to be done in the course of conducting a case in court are barred (see Darker v Chief Constable of the West Midlands [2001] 1 AC 435 per Lord Hutton at 463). This has been described as the core immunity. 2

The core immunity “is limited to actions in which the alleged statement constitutes the cause of action”: see Taylor v Director of the Serious Fraud Office [1999] 2 AC 177 per Lord Hoffmann at p 215C.

The early cases concerned actions for defamation against advocates and witnesses, as such claims were the obvious way in which to attack what an advocate (or witness) did or said in court: see for example, Cutler v Dixon 76 ER 886; (1585) 4 Co Rep 14, and Munster v Lamb (1883) 11 QBD 588; (1882) 5 LJ QB 46. In order to prevent the immunity being circumvented or outflanked, however, for many years the immunity has been held to apply to whatever claim was being made against the advocate or witness for things done or spoken in court and however ingeniously such a claim was framed. It has for example, barred a claim for conspiracy to give false evidence ( Marrinan v Vibart [1963] 1 QB 528); a claim for breach of confidence ( Watson v. M'Ewan [1905] AC 480; (1905) 7 F (HL) 109) and a claim under the Protection from Harassment Act 1997 ( Crawford v Jenkins [2014] EWCA Civ 1035; [2016] QB 231).

Two more recent first instance examples are King v Stiefel [2021] EWHC 1045 (Comm), where an allegation that the conduct in court of a Queen's Counsel was part of a conspiracy to present false information was struck out in reliance on the core immunity (see [156] and [335]); and El Haddad v Al Rostamani [2024] EWHC 448 (Ch), where it was held that the core immunity was a threshold bar to a claim that lawyers had dishonestly conspired to mislead the court, even if they had misled the court (see [109]–[113]).

An explanation of the rationale for the core immunity was given by Brett CJ in Munster where he stated (at 604) that advocates must be able to speak freely in order to properly perform their duty to the court and their client:

“What [the advocate] has to do, is to argue as best he can, without degrading himself, in order to maintain the proposition which will carry with it either the protection or the remedy which he desires for his client. If amidst the difficulties of his position he were to be called upon during the heat of his argument to consider whether what he says is true or false, whether what he says is relevant or irrelevant, he would have his mind so embarrassed that he could not do the duty which he is called upon to perform.”

The immunity therefore attached to statements, spoken or written in court, regardless of whether the statement was made maliciously or was irrelevant to the court proceedings. 3 As Fry LJ also explained in Munster (at 607):

“The rule of law exists, not because the conduct of those persons ought not of itself to be actionable, but because if their conduct was actionable, actions would be brought against judges and witnesses in cases in which they had not spoken with malice, in which they had not spoken with falsehood. It is not a desire to prevent actions being brought in cases where they ought to be maintained that has led to the adoption of the present rule of law; but it is the fear that if the rule were otherwise, numerous actions would be brought against persons who were merely discharging their duty. It must always be borne in mind that it is not intended to protect malicious and untruthful persons, but that it is intended to protect persons acting bona fide, who under a different rule would be liable, not perhaps to verdicts and judgments against them, but to the vexation of defending actions.”

More recently, the House of Lords and the Supreme Court have emphasised that the scope of the immunity involves a balance between different public interests. The first is that every wrong should have a remedy. The second is the encouragement of freedom of speech and communication in court proceedings, which is necessary to protect the proper administration of justice and the interests of justice: see Taylor at 208; Arthur JS Hall & Co v Simons [2002] 1 AC 615 at 679 and Jones v Kaney [2011] UKSC 13; [2011] 2 AC 398 at [55]–[57], [67], [85]–[86], [87] and [108]–[114].

It would be contrary to the interests of justice, for example, if a witness's willingness to give frank evidence was affected or inhibited by the fear of being sued for what they said in court: see Darker per Lord Hoffmann at 469E. By the same token, the protection afforded to a witness would lack coherence if, for example, the witness could speak freely but their...