The Bar Council recently intervened in the case of XGY v Chief Constable of Sussex Police & Crown Prosecution Service (CPS), regarding the degree to which an advocate is immune for what they say and do in court. In this blog, our policy analyst Enehuwa Adagu summarises the facts of the case, why we thought that it was important to intervene, what we said to represent the Bar, and the next steps for this case.
The facts
XGY is a complainant that made several reports of domestic abuse against her former partner – referred to as DYP. XGY stated that during their relationship DYP also made threats to seriously harm her and members of her family. Following the end of their relationship, XGY relocated to Epsom to live with a relative and gain safety. DYP was then arrested and released on bail while the police investigated the allegations, with a condition not to go to Epsom. DYP knew that XGY had a relative in Epsom and knew this address. This bail condition therefore gave DYP knowledge of where XGY had fled to. Due to the disclosure of the Epsom address, XGY relocated to a new address. This new address was disclosed to the police, with XGY requesting that this new address be kept confidential.
DYP was then brought before the magistrates’ court in relation to breaching bail conditions in another separate offence. When the police prepared the CPS file for the magistrates’ court hearing, they included the new address, without marking it as confidential. During the hearing at the magistrates’ court, the CPS’s advocate asked for a bail condition that prevented DYP from going to XGY’s new address, stating this new address in open court, thus directly revealing the address to DYP. XGY needed to leave the new address due to this disclosure, it was asserted that this worsened XGY’s depression and caused her to develop post traumatic stress disorder (PTSD).
XGY brought a claim against the CPS and Chief Constable of Sussex Police (the police) for misuse of private information, breach of the Data Protection Act 2018, and several breaches under the Human Rights Act 1998. This claim was initially struck out in the county court on the basis that an advocate is immune from liability for things that they say and do in court. XGY appealed this strike out at the High Court and was successful. The CPS and police then appealed to the Court of Appeal – at this stage, the Bar Council made a decision to intervene.
Why did we intervene?
At the High Court, the judge (Ritchie J) decided that case law demonstrated a move away from absolute protection from immunity (absolutism) to a position where an analysis needs to be made before granting immunity, by means of a public interest test (justificationism).
XGY argued that following the case of Hall v Simons [2002] 1 AC 615 (in which the Bar Council also intervened), advocate immunity had been completely abolished. We decided to intervene because the High Court ruling significantly limited the scope of advocate immunity and considered that we would be able to provide assistance to the Court of Appeal regarding the practical implications that would arise for our members if XGY’s arguments and the findings at the High Court were upheld.
It's important to note that in our submission we recognised that the legal issues which the court would be examining related to serious harm to XGY at the hands of her violent ex-partner and in connection with the associated criminal justice processes. In seeking to intervene in these proceedings, we wished to assist the court with respect to matters relevant to our commitment to equality, diversity and access to justice, and in no way sought to overlook the deeply distressing experiences of XGY.
What arguments did we make on behalf of the Bar?
To contextualise the principle of advocate immunity and highlight the practical impact on the Bar, we argued that:
- The core principle of immunity from liability is absolute and this principle continues to exist
- There is a public policy justification for this immunity – that those who participate in court proceedings should be able to speak freely without fear of being sued
- Hall did not undermine the public policy justification for absolute immunity and this public policy justification remains persuasive
- There is an alternative remedy for breaches of data protection legislation, individuals can complain to the Bar Standards Board or Information Commissioner’s Office
- The scope of this immunity needs to be certain, Ritchie J’s justificationism approach promotes uncertainty and would be difficult to apply in practice
- This uncertainty would have a chilling effect on the administration of justice, because it would expose advocates to claims which are brought by third parties – an undefined and uncertain class of claimants
- In the circumstance where there is a lack of certainty regarding immunity, there is a substantial risk that an advocate will avoid taking any steps which would lead to a potential claim
- This caution would have a chilling effect on fearless advocacy and an advocate’s overriding duty to the court, both of which barristers are obliged to observe under their code of conduct
Next steps
The Court of Appeal reserved their judgment indicating that they expect to hand down their decision in writing at the beginning of the next legal term. We will have to wait until October 2025 to see whether the legal position as to advocate immunity is settled or if this matter will end up before the Supreme Court for a final determination.
Further reading
A recording of the full hearing, along with the Bar Council’s submissions can be accessed on the Court of Appeal video archive page.
The High Court judgment, XGY v Chief Constable of Sussex Police & Crown Prosecution Service [2024] EWHC 1963 (KB).
Hall v Simons [2002] 1 AC 615
Enehuwa Adagu is a Policy Analyst for Legal Practice and Remuneration at the Bar Council and serves as the executive for the Legal Services Committee and IT Panel. Enehuwa was Called to the Bar by Inner Temple in 2022.