The Administrative Court has given judgment in the case of R (Craighead) v Secretary of State for Defence  EWHC 2413 (Admin) – a claim for judicial review brought by a former member of the SAS against a decision to refuse him authority to publish a memoir about his service. In particular, the memoir, entitled “One Man In”, contains the claimant’s account of his involvement in responding to the major al-Shabaab terror attack at the DusitD2 hotel complex in Nairobi in January 2019.
Like all members of the special forces, the claimant signed a confidentiality contract requiring him to seek authority before publishing such a work and he duly submitted a manuscript shortly after his retirement in 2020. The Ministry of Defence ultimately refused authority on the basis that publication risked damaging the operational effectiveness of the special forces and the claimant challenged this decision on the grounds that it was incompatible with his right to freedom of expression under article 10 of the ECHR.
The substantive hearing took place before Mrs Justice Steyn and, unusually, was conducted entirely in private. The judge handed down open and confidential judgments dismissing the claim on 3 October 2023. In particular, she found that the claimant’s article 10 rights were attenuated by virtue of his contractual obligations and substantially outweighed by the national security interests relied on by the Ministry of Defence.
Oliver Sanders KC acted for the Defence Secretary as defendant, leading Emmanuel Sheppard of 3VB. He has previously worked on 12 claims successfully brought by the Ministry of Defence for breach of a special forces confidentiality contract, but this is the first public law challenge to a refusal of authority under such a contract. Indeed, it is the first time such a challenge has proceeded to trial in connection with a memoir written by any former member of the security or intelligence services.
The open judgment is available here.