Art.10 rights attenuated by contract: R (Craighead) v Secretary of State for Defence [2023] EWHC 2413 (Admin)

Grabbing his ballistic body armour, Diemaco C8 assault rifle and Glock 9mm pistol, and with a balaclava pulled over his head to protect his identity, the soldier swept into the area where the firefight was going on, engaged the enemy and led several civilians to safety outside.”

In January 2019, five terrorists launched a major attack at a hotel complex in Nairobi, Kenya, killing at least 21 people. A then fully-badged SAS soldier, who goes by the pseudonym “Christian Craighead”, intervened, assisting the Kenyan authorities, and later earned an award for his conspicuous gallantry. Mr Craighead wishes to tell his story.

He wrote a book, which he wants to publish, providing “an insider’s account of how a young man with a difficult upbringing served his country and saved lives during the Incident”. He is bound, however, by a confidentiality contract providing that unless he obtains ‘express prior authority in writing’ (“EPAW”) he would not disclose any information about the work of the UK Special Forces. The Ministry of Defence refused EPAW on the basis of its assessment that the material in the book is covered by the confidentiality contract and its publication would cause damage to national security.

Mr Craighead challenged the MOD’s decision. The issue in this case was whether the MOD’s refusal was incompatible with Mr Craighead’s right to freedom of expression under art.10 of the Convention (and, by extension, whether the MOD’s refusal was unlawful under s.6. of the Human Rights Act 1998). It was not, held Mrs Justice Steyn dismissing the claim in R (Craighead) v Secretary of State for Defence [2023] EWHC 2413 (Admin).

It was common ground that the decision not to grant EPAW to enable Mr Craighead to publish the memoir constituted an interference with his art.10 right to freedom of expression, and that the interference was prescribed by law and pursued a legitimate aim. The essential question was whether the interference was proportionate to the legitimate aim(s) pursued.

Although Steyn J accepted that the proceedings related to journalistic or literary material with the effect that she was required by s.12(4) of the HRA to have “particular regard” to the importance of the Convention right to freedom of expression in determining the claim, she held that the contractual dimension of the case meant that Mr Craighead’s rights under art.10 were attenuated: Mr Craighead had entered into the contract freely, in the clear knowledge that if he chose to serve with the Special Forces, he would not be permitted to disclose information about his service.

This proposition is not without precedent. In Mionis v Democratic Press SA [2017] EWCA Civ 1194, [2018] QB 662, the Court of Appeal considered whether to grant an injunction enforcing an agreement to settle litigation under which the defendants agreed not to publish particular stories. The Court considered that s.12 of the HRA was engaged, notwithstanding the relevant restriction appeared in a contract between private parties, because the grant of relief would interfere with the defendants’ rights under art.10. Although the Court of Appeal rejected the argument that the defendants had “waived” their freedom of expression right by agreeing to the settlement agreement [65], the fact that the parties entered into an agreement voluntarily restricting their art.10 rights was held to be an important part of the analysis which s.12 required the court to undertake. See [67] per Lady Justice Sharp:

“where the relevant contract is one in settlement of litigation, with the benefit of expert legal advice on both sides, particularly where article 10 issues are in play in that litigation, it seems to me that it would require a strong case for the court to conclude that such a bargain was disproportionate and to refuse to enforce it other than on ordinary contractual or equitable principles.”

The contract between Mr Craighead and the MOD was neither a settlement agreement akin to that considered in Mionis, nor even a contract between private parties. Steyn J expressly recognised that the contractual ban on the disclosure of information relating to the work of the Special Forces was not an absolute ban: it was a ban on disclosure without EPAW in circumstances where a refusal was amenable to judicial review on public law and human rights grounds.

Steyn J considered that although the proportionality of the refusal of EPAW primarily depended on the justification based on the interests of national security, the contract – and the objectives underlying it – formed an important part of the context in which the proportionality of that interference fell to be assessed.

Steyn J ultimately concluded that the Secretary of State succeeded in demonstrating that the interference with Mr Craighead’s art.10 rights entailed in refusing to authorise publication of his memoir was proportionate and justified. Mr Craighead’s wish to tell his story was taken into account, although the weight given to that factor was “reduced by dint of the fact that he voluntarily entered into the contract”, particularly in circumstances where the purpose of the disclosure was to advance his own personal interest rather than the public interest [151].

But don’t cancel your pre-orders just yet: Mr Craighead has told The Sun he intends to appeal.

Aliya Al-Yassin