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

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. (Footnote: 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 further submit that HHJ Brownhill’s conclusion that XGY was not a victim for the purposes of section 7 was one that she was entitled to reach and Ritchie J erroneously substituted his own view for that of HHJ Brownhill.

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.

The Law