CC, R (on the application of) v Secretary of State for Defence
[2023] EWHC 1804 (Admin)
Christian Craighead, R (on the application of) v The Secretary of State for Defence
3 October 2023
[2023] EWHC 2413 (Admin)
High Court
A soldier wants to write a book about a secret mission. The government says no because it could endanger lives and ruin teamwork. The judge agreed with the government.
Key Facts
- •Christian Craighead (pseudonym), a former UK Special Forces member, challenges the Secretary of State's refusal to grant him express prior authority in writing (EPAW) to publish his memoir about the DusitD2 hotel incident in Nairobi.
- •The memoir contains information covered by a confidentiality contract Craighead signed as a condition of his service.
- •The Secretary of State refused EPAW based on national security concerns, arguing publication would cause damage.
- •The case centers on whether the refusal unlawfully interferes with Craighead's freedom of expression under Article 10 of the European Convention on Human Rights (ECHR).
- •The hearing was held in private due to national security concerns, with a public and confidential judgment issued.
- •Craighead argues that much of the information is already in the public domain, and he was encouraged to share his account in the past.
- •The Secretary of State counters that the memoir provides an insider account containing sensitive information, even if some details are publicly known.
Legal Principles
Article 10 of the ECHR guarantees freedom of expression, subject to limitations prescribed by law and necessary in a democratic society for national security, etc.
European Convention on Human Rights
Proportionality test: A decision interfering with a fundamental right must have a sufficiently important objective, be rationally connected to that objective, use the least intrusive means, and strike a fair balance between individual rights and community interests.
Lord Sumption JSC in Lord Carlile
Section 6(1) of the Human Rights Act 1998 makes it unlawful for public authorities to act incompatibly with Convention rights.
Human Rights Act 1998
Section 12 of the HRA requires courts to have particular regard to the importance of freedom of expression when considering relief that might affect it.
Human Rights Act 1998
Information loses confidentiality only when it becomes so generally accessible that it cannot be regarded as confidential.
Attorney General v Guardian Newspapers Ltd (No 2)
A contract voluntarily restricting Article 10 rights can be an important part of the proportionality analysis; strong case needed to overturn.
Mionis v Democratic Press SA
Outcomes
Claim dismissed.
The court found the Secretary of State's refusal of EPAW proportionate. The potential damage to national security, UKSF morale, and international relations outweighed Craighead's right to publish, especially given the confidentiality contract.