“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…” Those were the words of Lord Hutton spoken in the case of Darker v Chief Constable of the West Midlands [2001]. A previous blog discussed the erosion of the principle of immunity from suit as a result of the Appeal decision in XGY v Chief Constable of Sussex Police and Another ([2024] EWHC 1963 (KB)).
That decision has been appealed further.
Factual background
The Respondent, anonymised as XGY, was a victim of domestic violence and rape. After reporting her former partner (DYP) to the police, she relocated to a confidential address. During a bail hearing, a CPS advocate disclosed XGY’s new address in open court—a detail that had been passed from the police to the CPS without any confidentiality marker. As a result, XGY was forced to move again, suffering significant distress and exacerbation of her mental health conditions.
XGY brought claims against both the police and the CPS under the Human Rights Act 1998 (HRA), the Data Protection Act 2018 (DPA), for misuse of private information and breach of confidence.
The legal issues
The central legal question was whether the police and the CPS were immune from suit for the disclosure of XGY’s address, given the doctrine of core immunity for things said or done in the course of court proceedings.
What is core immunity?
Core immunity is a long-standing common law principle that protects participants in the administration of justice—advocates, parties, witnesses, judges, and jurors—from legal claims arising from almost anything done or omitted in the conduct of a case in court. This immunity is designed to ensure the proper administration of justice by allowing participants to speak and act freely, without fear of subsequent litigation.
The competing decisions
- HHJ Brownhill (first instance): Struck out XGY’s claims, holding that both the CPS and the police were protected by core immunity (or its extension).
- Ritchie J (High Court): Allowed XGY’s appeal, suggesting that immunity should be justified on a case-by-case basis and that the facts here arguably fell outside the established scope of immunity.
- Court of Appeal: Reinstated the original decision, holding that the facts clearly fell within the established scope of core immunity and its extensions. The Court rejected the idea that immunity must be justified in every individual case, emphasising the need for certainty and the public policy rationale behind the doctrine.
Key findings
- Scope of Core Immunity: The Court confirmed that core immunity applies to statements made in court, regardless of whether they are evidential or administrative. The immunity is not limited to evidence but covers all statements made in the ordinary course of proceedings, including bail hearings.
- Extension to Police: The police’s preparation of the case file (including the confidential address) was covered by an established extension of core immunity, as it was part of the investigatory and preparatory process for criminal proceedings.
- No Exception for Human Rights or Data Protection Claims: The Court held that neither the HRA nor the DPA overrides core immunity unless Parliament has expressly provided otherwise, which it has not.
- Victim Status under the HRA: The Court also found that XGY did not meet the high threshold required to be considered a “victim” under section 7 of the HRA at the relevant time, as there was no real and immediate risk to her life or physical integrity at the time of the disclosure.
Conclusion
Whilst the Court expressed sympathy for XGY and acknowledged the distress caused by the disclosure, it held that public policy and established legal principles meant she had no remedy in these proceedings. The decision underscores the balance between individual rights and the need for robust protections for those participating in the justice system. After all, it would be a disaster if justice could not be fulfilled as individuals, such as witnesses refused to take part in proceedings for fear of being sued.
How can we help?
Kevin Modiri is a Partner in our expert Dispute Resolution team, specialising in civil disputes, insolvency, inheritance disputes, data breach claims and defamation claims.
If you have any questions concerning the subjects discussed in this article, please do not hesitate to contact Kevin or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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