Case Nos: CA-2024-002167 - [2025] EWCA Civ 1230

Fecha: 08-Oct-2025

The CPS Appeal: Is the CPS advocate Protected By The Core Immunity?

The CPS Appeal: Is the CPS advocate Protected By The Core Immunity?

62.

The principles of law summarised in Section B above lead inevitably to the conclusion that HHJ Brownhill was right to conclude that the claims in this case against the CPS must fail. Whilst the disclosure of XGY’s then address should not have occurred, the words of the CPS advocate were spoken indubitably “in the ordinary course of court proceedings” and so covered by the core immunity.

63.

It follows from this that we disagree with Ritchie J’s central conclusion that the core immunity was somehow inapplicable here. This means that we would allow the CPS appeal on its central ground.

64.

With respect to Ritchie J, we consider that his approach was based on an incorrect interpretation of the various authorities. Given the importance of the issues raised, we should highlight the following:

At [73], it was said that Taylor confirmed that extending immunity from witness immunity BC to legal proceedings immunity BC “requires an analysis of necessity”. This appears to be the foundation for the judge’s view that the immunity had to be justified in every case. However, if the facts fall within an existing immunity, there is no need for such individual justification. Taylor was concerned with the justification for an extension to the core immunity, which is a different thing.

ii)

At [77] Darker was said to be authority for the proposition that, if the police were preparing evidence for a witness in a trial, they would be covered by the immunity, but if they were investigating or enforcing the law, they would not be. That is a misreading of Darker and is contrary to Taylor. It was wrong to state that Darker somehow modified Taylor; in fact, it expressly approved Taylor (see Darker at328C, 331F, 335B, 347A and 353B).

iii)

At [79], it was said that, since Darker was authority for the proposition that no immunity attaches to actions which do not form part of the evidence to be given at trial, “the bail hearing file prepared by the Police was arguably extraneous.” That is a misreading of Darker and contrary to Watson.

iv)

At [80], again in the context of Darker, it was said to be arguable that XGY’s address “was not evidence in the rape case, proved nothing of the crime, was irrelevant to the bail hearing and it was extraneous”. However, as set out above, the address was not extraneous to the bail hearing. The address did not have to be relevant to the rape case or prove the crime in order to fall within the definition of matters to which the immunity applies.

At [84], Ritchie J said that Hall showed “a movement away from absolutism towards analysing the justification”. Again that fails to differentiate between the situation in Hall, which involved a specific challenge to an existing immunity based on policy (namely that counsel should be immune from suit by their own clients in negligence) and the situation here, which simply raised the question of whether the facts fell within an existing immunity. In the latter situation, there is no requirement to examine underlying justification.

vi)

Similarly, at [87], it was stated that Jones was “an exposition of the move away from absolutism, towards justificationism”. However, Jones was concerned solely with whether an expert witness’s immunity from suit should continue to include an immunity from claims in negligence by his or her own client.

vii)

At [98], CLG was distinguished on the basis that the address was crucial evidence for the arrest warrant in that case, whereas the address here was confidential and not to be used in evidence whether at the bail hearing or a later criminal trial. This fails to recognise the importance of a complainant’s address at a bail hearing, as set out above.

65.

It follows that in our judgment:

Applications of the core immunity and its established extensions do not need to be justified on a case-by-case basis. As the appellants have argued, it is wrong therefore to elide the requirement to justify categories of immunity with the requirement to justify the actions of a person on the facts of every case. If a claim falls within the scope of the core immunity or its established extensions, the claim must be struck out. To be effective, foreseeability is essential if those involved in the administration of justice are to speak freely. The approach of “justificationism” fundamentally undermines the public policy underlying the existence of the immunity.

ii)

The core immunity is not limited to evidential matters. It is far wider in scope. The core immunity attaches to statements (said or written) made in court. Whether or not a statement is related to evidence, is a limiting factor only in the extension of the core immunity to statements made by potential witnesses outside of court – such statements are only within the scope of the extension if they are made with a view to giving evidence.

iii)

The core immunity and its extensions apply to bail hearings. Bail proceedings are an integral part of proceedings in the criminal court. As the Court of Appeal held in Gizzonio v Chief Constable of Derbyshire Police [1998] Lexis Citation 4431 “matters relating to bail were part of the investigatory or preparatory process in criminal proceedings. Absolute immunity therefore applies.”

66.

Finally, and briefly, it was wrong to consider, as Ritchie J did, that it was incumbent on the CPS to file a defence. The CPS considered that it had a complete answer to the claim by reason of the core immunity, and was entitled to seek to strike out the claim without more on that basis. Similarly, it was wrong to conclude that the question of immunity could only be determined at trial, a conclusion perhaps explicable by reference to the reasoning on “justificationism” which we have rejected. The facts were straightforward and, for the purposes of the striking out application, to be assumed in XGY’s favour as set out in the Particulars of Claim.

67.

For those reasons, we would allow the principal grounds of the CPS’ appeal. The core immunity means that XGY’s claims against the CPS are doomed to fail.