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

The Relevant Context: A Bail Hearing

In advance of a bail hearing, the police are obliged to prepare a file for the CPS. The file has to comply with the statutory guidance on charging. Paragraph 9.3 of the guidance requires compliance with a National File Standard (NFS). The guidance sets out the material and information required for charging and for subsequent management of the case at initial hearings. At Annex 5 there is a reference to a list of witnesses. The police are required to keep in contact with such witnesses and therefore require a record of their addresses. Annex 5 also expressly refers to “Victims and Witnesses Information” which again, will invariably include the addresses of victims and witnesses.

In both the Magistrates’ Court and the Crown Court, the provision of information from the advocate to the court during a bail hearing is relatively informal. Usually, there are no witness statements and there is no oral evidence. Important information is still provided, however, in various ways (primarily by way of documents and oral submissions) which will comprise the evidence on which the court makes its decision as to whether or not to grant bail and, if it does grant bail, what bail conditions should be attached to that grant.

This point was emphasised in R (DPP) v Havering Magistrates’ Court [2001] 1 WLR 805, a case about breach of bail conditions. There was an attack on the informal way in which those conditions had been imposed. At [39]-[41], Latham LJ explained how bail conditions were decided by a magistrate on the basis of the material supplied, “which was not restricted to admissible evidence in the strict sense”. The material, he said, was likely to range across the spectrum, from mere assertion to documentary proof. Whilst mere assertion was unlikely to have any probative effect, all the material was potentially relevant.

It is in this way that information is provided to the court about, for example, the defendant’s previous convictions, or whether or not he or she is a flight risk and, if so, why. Another element of the information routinely provided by the CPS to the court is the address of a complainant. That is often necessary in a domestic violence case such as this, in order for the court to identify an appropriate and proportionate exclusion zone designed to prevent the possibility of the defendant endeavouring to see or speak to the complainant. Usual exclusion conditions will identify a geographical location into which the defendant may not enter (e.g. that the defendant is prohibited from entering, say, Nottingham, save for the purposes of attending pre-booked appointments with his legal advisors). In order to ensure that such a condition is proportionate in all the circumstances, the Magistrates or the Crown Court judge will need to know the address that forms the basis of the identification of the relevant exclusion zone.

In his judgment, Ritchie J stated that XGY’s address was irrelevant to DYP’s bail hearing. For the reasons just given, we consider this was wrong: when testing the proportionality of any bail condition, it is necessary for both an advocate and the court to know a complainant’s current address. Of course, in a domestic violence case like this, the address should not be referred to expressly in open court: that was the error that occurred. This cannot detract however from the materiality and importance of the address for the purposes of the bail hearing.

These matters link with one aspect of the written evidence of Dr Anton van Dellen of the Bar Council, as to the practical difficulties associated with Ritchie J’s distinction between the immunity applying to ‘evidential’ matters, but not to purely ‘administrative’ matters (which, on the judge’s analysis, included what was said and done at a bail hearing). Dr van Dellen is a practising barrister, an elected member of the Bar Council and has been a member of its Legal Services Committee since 2016. His evidence is directed in particular to the practical implications of Ritchie J’s decision. In his evidence, Dr van Dellen said:

“24.

Advocates working in the areas of crime, family, housing, immigration and welfare will be particularly affected by the uncertainty associated with Ritchie J’s decision on the basis that these practice areas are more likely to concern significant amounts of personal data, including the special categories of personal data (for example, relating to health, sexual orientation, religious belief, ethnicity) and criminal offence data. These are areas in which the individual’s Article 8 rights are more likely to be engaged.

…

26.

The distinction between “evidential” and “administrative or procedural” is not clear in the context of ancillary matters commonly dealt within in the course of litigation alongside the trial on the evidence in the proceedings. In such hearings, for example, to deal with case management matters or ancillary orders, sensitive personal information is commonly shared by counsel outside of the formal evidence in the trial.

27.

With respect to criminal proceedings, alongside reaching a verdict on the evidence, there are other important matters involving addressing factual matters which we do not believe can be categorised as either “evidential” nor “administrative or procedural.” This includes abuse of process applications; sentencing; confiscation proceedings and restraining orders. Whilst evidence may be adduced in the context of these ancillary processes, they arguably do not relate to the “evidence in the case.” Sentencing and other orders (including confiscation and restraining orders) will occur after the verdict “on the evidence” has been returned.

28.

In addition, the disclosure, review and use of unused material by the defence, by definition, will never be “evidential”. Although it is already contempt to use unused material for purposes other than the proceedings in which it is disclosed (section 18 of the Criminal Procedure and Investigation Act 1996), there is a risk that an advocate who refers to personal data within unused material in court in a bail application, sentence, or other non-trial setting will be liable in suit.

29.

It is unclear how a defence advocate could resolve the evident tension between her duties to put forward, fearlessly, the best possible case for her client in all parts of the criminal process and any concerns she may have as to possible claims from victims and witnesses given the lack of clarity concerning the scope of immunity.”