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

As for the claim under the DPA, Crawford confirms that immunity applies to claims for breach of statutory duty. In addition, since Watson was a claim for breach of confidence, the modern day equivalent of such a cause of action, namely misuse of private information or a claim under the DPA, must also be caught by the core immunity.

The remaining question is whether the HRA is in some way in a different position to any other statute, such that claims pursuant to its provisions are not affected by the immunity. We do not consider that it is.

If Parliament had intended the HRA (or the DPA for that matter) to cut across the common law immunity from suit, such an intention would need to be clearly expressed in the Act, or arise by necessary implication: see R v Secretary of State for the Home Department ex parte Pierson [1998] AC 539 at 573G. There is nothing in the wording of the HRA, however, which demonstrates any intention on the part of Parliament to dilute or modify the core common law immunity.

In Smart v Forensic Science Service [2013] EWCA Civ 783, it was held to be arguable that, on the facts of that case, the immunity did not apply; but it is implicit in the judgments of the court that, if the immunity had applied, it would have applied to the claim under the HRA. Further, we note that in Mazhar v Lord Chancellor [2019] EWCA Civ 1558, it was held that the HRA did not “abrogate or encroach upon the principal of judicial immunity”. As submitted for the CPS, it would be surprising if it nevertheless abrogated or encroached upon the core immunity available to the advocate.

For all these reasons, we conclude that the immunity, which we have found to exist and to be available to the CPS and the police in this case, applies to all the claims made by XGY.

However, we would add this. If, in some way, personal data and claims arising from it were exempt from immunity, the Bar Council’s evidence as to the unworkability of this approach in practice is compelling. It is easy to see how criminal proceedings for example, could become mired in technical debates about which strand of personal data could or could not be referred to at any given stage of those proceedings.