The Non-Disclosure and Barring Service: Victim Access to Information

If you believe that an individual who works with children sexually assaulted you, but was never prosecuted for that allegation, it is understandable that you might wish to know whether that person has been placed on the formal list of persons barred from engaging in regulated activity with children, run by the Disclosure and Barring Service (“DBS”). But it is also understandable why the DBS might not wish to tell you (and thereby the public at large) who is or is not barred, and even more so why the individual accused would not wish that to be revealed. Who’s rights win out?

This was the issue in R (SXM) v Disclosure and Barring Service & TXJ [2020] EWHC 624 (Admin), in which SXM was the person who alleged she had been sexually assaulted as a child on a number of occasions by TXJ, her horse riding instructor. SXM had taken legal action to ensure that TXJ was referred to the DBS by the local authority, despite no prosecution having occurred, but the DBS declined to inform SXM of the outcome of that referral.

The main argument considered by the Divisional Court (Flaux LJ, Lewis J) was whether this refusal was an unlawful frustration of SXM’s right of access to the court, preventing her from challenging the decision. The Court explained, at [36], that the proper approach was to consider the statutory scheme – i.e. the terms of the Safeguarding Vulnerable Groups Act 2006 (“2006 Act”) – and whether any of the disclosure powers extend to victims, whether the exercise of any other power is consistent with that scheme and finally whether any other factors indicate the proper interpretation of the powers in question.

The DBS’s function was described at [38] as being a “protective, forward-looking function”, and not an prosecutorial role, imposing punishments, or adjudicating on complaints by victims. It has powers to acquire a broad range of information from a variety of sources, and there are detailed provisions in the 2006 Act which permit disclosure to specific bodies.

The Court explained that the only relevant power dealing with disclosure to an individual was contained in article 7 of the Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012. It explained that in context the person with a “legitimate interest in knowing” whether an individual is barred is a person who intends to employ or engage that individual in regulated activity with children: at [43]. It did not extend to SXM: at [44]. SXM relied on DBS’s incidental powers, but the Court held that the 2006 Act set out a detailed code addressing how information was to be used and disclosed balancing the different interests, and disclosure to victims under an incidental power would run counter to the limits of the statutory scheme: at [49]. The impact on SXM was understandable, but not a basis to construe the legislation differently given the very specific role of DBS, and DBS would not be able to control the further use of any disclosure made: at [55]. The case law on challenges to prosecuting authority decisions did not assist where DBS was not prosecuting or adjudicating on individual allegations: at [61]. The Court considered that the answer in the 2006 Act context was driven by the particular terms and circumstances of the specific statutory scheme.

Inevitably, DBS had relied on data protection issues as a further bar to disclosure. The Court dealt with this very briefly at [71]-[72]. It indicated a provisional view that disclosure to SXM would be unlikely to be necessary for the exercise of a function of DBS under Article 6(1)(e) GDPR. Some consideration was given to Article 6(1)(f), although it is not clear why as DBS, being a public authority, could not have relied on it anyway.

SXM also relied on a positive obligation arising under Article 8 ECHR to provide her access to information to alleviate anxiety and stress suffered as a result of not knowing the outcome of the referral. The Court considered the effect of Roche v UK (2006) 42 EHRR 30 and Szulc v Poland (2013) 57 EHRR 5 to be that “there may be a positive obligation to provide information concerning health risks to which a person may have been exposed. The obligation does not extend to an obligation to provide information, still less personal and potentially sensitive information, about another person, because not knowing the information contributes to stress and anxiety”: at [84]. The Article 8 claim failed too.

Christopher Knight