Adagu: Ruling limited scope of advocate immunity
A High Court ruling casting uncertainty over the immunity of advocates for what they say and do in court could have a “chilling effect”, both on the administration of justice and on “fearless advocacy”, the Bar Council has warned.
This was why it intervened in XGY v Chief Constable of Sussex Police and Crown Prosecution Service, an appeal against a High Court ruling heard by the Court of Appeal at the end of last month.
Judgment was reserved and is expected in October.
Writing on the Bar Council website, Enehuwa Adagu, barrister and policy analyst at the Bar Council, recounted that XGY made several reports of domestic abuse against former partner, DYP, and stated that during their relationship he made threats to seriously harm her and members of her family.
Following the end of the relationship, XGY relocated but after DYP found out where she lived, she moved to a new address which she asked to remain confidential.
However, when DYP was brought to the magistrates’ court in a separate case, the police included XGY’s new address in the file without marking it as confidential.
During the hearing, the CPS advocate asked for a bail condition preventing DYP from going to the new address, which the advocate mentioned in open court. As a result, XGY left the property, arguing that this had worsened her depression and given her post-traumatic stress disorder.
She brought a claim against the CPS and Chief Constable of Sussex Police for misuse of private information, breach of the Data Protection Act 2018 and several breaches under the Human Rights Act 1998.
The county court struck out the claim on the basis that an advocate is immune from liability for things that they say and do in court, but XGY successfully appealed to the High Court.
Mr Justice Ritchie said the case law demonstrated a move away from “absolute protection” of advocates to a position where an analysis needed to be made before granting immunity by means of a public interest test.
The circuit judge should have asked whether permitting liability would undermine the advocate’s freedom of speech in court or freedom to represent their instructing party, he said.
“I do not see how it would have,” continued Ritchie J. “Instead, it would make CPS advocates think more carefully before disclosing any vulnerable witnesses’ addresses in court. It would encourage the CPS to impose a safer system.”
He concluded that the judge was wrong to rule that immunity was so well established in relation to the facts of this case that there was no arguable claim.
Ms Adagu explained that, when the CPS and police appealed, the Bar Council decided to intervene because this “significantly limited the scope of advocate immunity” and it wanted to assist 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”.
The Bar Council argued that the “core principle of immunity from liability is absolute and this principle continues to exist”.
There was a public policy justification for the immunity in that “those who participate in court proceedings should be able to speak freely without fear of being sued”.
There was also an alternative remedy for breaches of data protection legislation, in that individuals could complain to the Bar Standards Board or Information Commissioner’s Office.
The Bar Council submitted that Ritchie J’s approach promoted uncertainty and “would be difficult to apply in practice”, Ms Adagu said.
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”.
Where there was a lack of certainty regarding immunity, there was “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”.
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