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R on the application of SXM v The Disclosure And Barring Service

[2020] EWHC 624 (Admin)

Case details

Neutral citation
[2020] EWHC 624 (Admin)
Court
High Court
Judgment date
17 March 2020
Subjects
Administrative lawSafeguarding / Child protectionData protectionHuman rights
Keywords
judicial reviewDisclosure and Barring Servicechildren's barred listlegitimate intereststatutory schemeArticle 8 ECHRGDPRconfidentialityaccess to court
Outcome
other

Case summary

The claimant sought disclosure from the Disclosure and Barring Service (DBS) of whether the interested party had been placed on the children’s barred list under the Safeguarding Vulnerable Groups Act 2006 and, if not, the reasons for that decision. The court held that the request must be assessed within the statutory scheme: the 2006 Act, related schedules and the interim disclosure mechanism in Article 7 of the Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012.

The court concluded that Article 7 permits disclosure only to persons who can show a "legitimate interest" in the narrow sense of intending to employ or otherwise permit the person to engage in regulated activity; it does not extend to alleged victims seeking the decision or reasons in order to consider public law challenge. The broader statutory code and related provisions (including duties and limits on disclosure to specified public bodies) reflect Parliament’s balancing of competing interests and do not permit the DBS to disclose the decision and reasons to alleged victims as a matter of course.

Accordingly the DBS’s refusal to disclose was lawful; disclosure was not required by domestic public law, nor was there a positive obligation under Article 8 ECHR to provide the information in the circumstances of this case.

Case abstract

This judicial review concerned a claimant who alleged historic sexual and physical abuse by an instructor and who asked the DBS to disclose whether that instructor had been placed on the children’s barred list and, if not, the reasons for that decision. The statutory framework examined included the Safeguarding Vulnerable Groups Act 2006 (provisions on the children’s barred list, referral duties, information acquisition and disclosure), the Protection of Freedoms Act 2012 (DBS establishment) and Article 7 of the Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012 (interim disclosure where a requester has a "legitimate interest").

The nature of the claim / relief sought: disclosure of the DBS barring decision and, if the person was not barred, the reasons for that decision so the claimant could consider judicial review.

Issues framed by the court:

  • whether, within the statutory scheme, the claimant had a legitimate interest entitling her to disclosure under Article 7;
  • whether the DBS had other express or implied powers permitting disclosure to alleged victims;
  • whether refusal to disclose unlawfully frustrated the claimant’s right of access to the court or was otherwise disproportionate or unreasonable; and
  • whether Article 8 ECHR imposed a positive obligation on the DBS to disclose the information.

Reasoning and outcome: the court started from the statutory code and concluded Article 7 is directed at persons with a legitimate interest in the narrower sense (those who will or may permit or employ someone in regulated activity) and does not cover alleged victims seeking the decision or reasons. The wider statutory disclosure provisions demonstrate Parliament’s deliberate limitation on dissemination of sensitive material and the court would not read into the statutory scheme an implied power to disclose to alleged victims. The court distinguished authorities concerning prosecutorial decisions and victims’ rights in other contexts, held that there was no basis to require disclosure as necessary for access to court, and concluded that Article 8 did not impose a positive obligation to disclose in these circumstances. The claim was dismissed.

Held

The claim is dismissed. The court held that the statutory scheme (including Article 7 of the 2012 Order and the provisions of the Safeguarding Vulnerable Groups Act 2006) does not entitle alleged victims generally to be told whether a person has been placed on the children’s barred list or to be given reasons for a decision not to include a person; the DBS’s refusal was consistent with the statutory scheme and lawful. Nor did Article 8 ECHR impose a positive obligation to disclose the information to the claimant in the circumstances of this case.

Cited cases

  • Attorney General v Great Eastern Ry. Co., (1880) 5 App. Cas. 473 neutral
  • MG v United Kingdom, (2003) EHRR 3 neutral
  • Roche v United Kingdom, (2006) 42 ECHR 30 neutral
  • R v General Council of the Bar ex p. Percival, [1991] Q.B. 212 neutral
  • Credit Suisse v Waltham Forest LBC, [1997] Q.B. 362 positive
  • R v B (Brian S), [2003] EWCA Crim 319 neutral
  • R (Anufrijeva) v Secretary of State for the Home Department, [2004] 1 AC 604 neutral
  • R v Killick, [2012] 1 Cr. App. R. 10 neutral
  • Szulc v Poland, [2013] 57 EHRR 5 positive
  • Re McBride’s Application for Judicial Review (No. 2), [2013] NICA 23 neutral
  • R (Privacy International) v Revenue & Customs Commissioners, [2015] 1 WLR 397 negative
  • Richard v British Broadcasting Corporation, [2019] Ch. 160 neutral
  • R (D and another) v Parole Board, [2019] Q.B. 285 negative

Legislation cited

  • Safeguarding Vulnerable Groups Act 2006: section 2(1)(a) of the 2006 Act (children's barred list)
  • Safeguarding Vulnerable Groups Act 2006: section 3 of the 2006 Act (effect of inclusion)
  • Safeguarding Vulnerable Groups Act 2006: section 4 of the 2006 Act (right of appeal to the Upper Tribunal)
  • Safeguarding Vulnerable Groups Act 2006: section 5 of the 2006 Act (definition and related provisions)
  • Safeguarding Vulnerable Groups Act 2006: section 35 of the 2006 Act (referrals by regulated activity providers)
  • Safeguarding Vulnerable Groups Act 2006: section 36 of the 2006 Act (referrals by personnel suppliers)
  • Safeguarding Vulnerable Groups Act 2006: section 37 of the 2006 Act (DBS may require prescribed information)
  • Safeguarding Vulnerable Groups Act 2006: section 39 of the 2006 Act (local authority power to provide information)
  • Safeguarding Vulnerable Groups Act 2006: section 40 of the 2006 Act (power to require information)
  • Safeguarding Vulnerable Groups Act 2006: section 41 of the 2006 Act (keepers of relevant registers)
  • Safeguarding Vulnerable Groups Act 2006: section 43(3) of the 2006 Act (duty to inform a keeper of a relevant register)
  • Safeguarding Vulnerable Groups Act 2006: section 47(2) of the 2006 Act (duty to inform supervisory authorities)
  • Safeguarding Vulnerable Groups Act 2006: section 50A of the 2006 Act (disclosure to chief officer of police and others)
  • Safeguarding Vulnerable Groups Act 2006: section 30 of the 2006 Act (relevant to earlier and prospective disclosure; not brought into force in full)
  • Safeguarding Vulnerable Groups Act 2006: Schedule Schedule 7 – 7 to the 2006 Act (persons listed for information under section 30 A when commenced)
  • Safeguarding Vulnerable Groups Act 2006: paragraph 4 of Schedule 3 to the 2006 Act (definition of relevant conduct)
  • Safeguarding Vulnerable Groups Act 2006: paragraph 13(1) of Schedule 3 to the 2006 Act (DBS consideration of information received)
  • Safeguarding Vulnerable Groups Act 2006: paragraph 16 of Schedule 3 to the 2006 Act (entitlement to make representations on information relied upon)
  • Safeguarding Vulnerable Groups Act 2006: Paragraph 1 and 2 – paragraphs 1 and 2 of Part 1 of Schedule 4 to the 2006 Act (automatic inclusion and related criteria)
  • Protection of Freedoms Act 2012: section 87 of the Protection of Freedoms Act 2012 (establishment of DBS)
  • Protection of Freedoms Act 2012: paragraph 16 of Schedule 8 to the 2012 Act (information use by DBS)
  • Protection of Freedoms Act 2012: paragraph 18 of Schedule 8 to the 2012 Act (DBS powers to do things necessary or expedient)
  • Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012: Article 7 of the Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012 (interim disclosure to persons with a legitimate interest)
  • Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012: Article 6 of the Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012 (temporal application of Article 7 pending commencement of section 30A)
  • General Data Protection Regulation: Article 6(1)(f) of the General Data Protection Regulation (legitimate interests processing)
  • Data Protection Act 2018: Paragraph 6 of Schedule 9 to the Data Protection Act 2018 (conditions for processing special categories of personal data)