SXM, R (On the Application Of) v The Disclosure And Barring Service

A detailed statutory scheme governing the disclosure of barring information cannot generally be supplemented by implied powers. Under Article 7 of the Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012, a legitimate interest ordinarily arises where a person needs to know whether another person is barred before permitting that person to undertake regulated activity. It does not extend to an alleged victim seeking information for possible judicial review or personal reassurance. The Disclosure and Barring Service performs a protective and forward-looking function. It does not adjudicate complaints or make formal findings that abuse occurred. Article 8 of the Convention does not impose a positive obligation to disclose sensitive information about another person merely because the absence of information causes anxiety. The refusal was therefore lawful.

The claimant alleged that she had been abused as a child by the interested party, who was referred to the Disclosure and Barring Service for consideration for inclusion in the children’s barred list under the Safeguarding Vulnerable Groups Act 2006. She asked to be told whether he had been barred and, if not, the reasons.

The DBS refused, relying on the statutory scheme and the limited disclosure power in Article 7 of the Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012. The claimant sought judicial review on the grounds of access to a court, irrationality or disproportionality, and Article 8 of the Convention. The central issues were whether the scheme required or permitted disclosure to an alleged victim and whether Article 8 imposed a positive obligation to provide the information.

1. Claim dismissed. The claimant was not entitled to disclosure of the barring decision or reasons for a decision not to bar the interested party.
2. The court adopted a structured approach. It first examined the statutory scheme, then the specific disclosure powers, then whether any other express or implied power was consistent with that scheme, and finally whether wider legal considerations required disclosure.
3. The scheme established by the Safeguarding Vulnerable Groups Act 2006 is protective and forward-looking. The DBS determines whether a person should be excluded from regulated activity to protect children. It does not perform a prosecutorial or adjudicatory function and does not make a formal state finding on whether an alleged abuse occurred.
4. Article 7 of the 2012 Order permits disclosure of limited information to a person with a legitimate interest in knowing whether another person is barred. Read in context, that means a person intending to employ or engage the other person in regulated activity. It does not extend to an alleged victim seeking information to assess possible judicial review proceedings, and it does not provide reasons for a decision not to include a person on the barred list.
5. The detailed statutory code governing acquisition and disclosure of sensitive personal information left no room for an additional power requiring disclosure to alleged victims. The implied-powers principles in Attorney General v Great Eastern Ry. Co. (1880) 5 App. Cas. 473 could not justify action inconsistent with that code. The principle stated in Credit Suisse v Waltham Forest LBC [1997] Q.B. 362 applied.
6. The authorities concerning prosecutorial decisions, complaints and parole decisions were materially different. They did not establish a general entitlement to information under this statutory scheme. The claimant’s grounds based on access to a court, unreasonableness and disproportionality therefore failed.
7. The Article 8 authorities recognised a positive obligation to provide information concerning personal health risks or childhood and origins. They did not require disclosure of another person’s sensitive information merely because withholding it caused stress or anxiety. No Article 8 positive obligation arose.