Christian Craighead, R (on the application of) v The Secretary of State for Defence

A refusal to authorise publication by a former member of UK Special Forces engages article 10, but may be justified where it is prescribed by law, pursues national security objectives and is proportionate.

The court must make its own proportionality assessment, while giving substantial evidential weight to expert executive assessments of national security, operational effectiveness and foreign relations. The assessment should consider the gravity and likelihood of feared harm and may adopt a precautionary approach.

A confidentiality contract is an important contextual factor and may reduce the weight of the claimant’s expressive interest. Information is not necessarily no longer confidential merely because related material is publicly available. The court dismissed the claim because the refusal was rationally connected to important objectives, no less restrictive measure was required, and the community interests substantially outweighed the claimant’s interests.

The claimant, a former member of UK Special Forces, sought judicial review of the Secretary of State’s refusal to grant express prior authority in writing for publication of a memoir describing his involvement in a terrorist attack in Nairobi.

He challenged the refusal principally under article 10 of the European Convention on Human Rights. The parties accepted that the refusal interfered with his freedom of expression, was prescribed by law and pursued a legitimate national security aim. The issues were whether section 12 of the Human Rights Act 1998 applied, whether the information remained confidential, and whether refusing any account of the incident was proportionate in light of the claimant’s contractual undertaking, the public-domain material and the assessed risks to national security, operational effectiveness, morale and international cooperation.

1. Claim dismissed. The refusal to grant express prior authority in writing for publication of the memoir was a proportionate interference with article 10 rights.
2. Section 12 of the Human Rights Act 1998 applied because the court was considering whether to make an order affecting freedom of expression. The court therefore had to have particular regard to the importance of that right, the public availability of the material and the public interest in publication. Section 12(4) did not require additional weight to be given to those matters.
3. The court had to form its own view of proportionality, but should not simply substitute its assessment for that of the executive. Special weight was appropriate for evidence from decision-makers with particular expertise, information and institutional competence in national security, operational effectiveness and foreign relations.
4. The proportionality assessment involved the familiar questions of the importance of the objective, rational connection, less intrusive means and fair balance. The gravity and likelihood of feared national security consequences were relevant, and a precautionary approach was justified where the potential consequences were grave.
5. The confidentiality contract was not an absolute prohibition because disclosure could be authorised and the refusal was subject to public law and human rights review. Nevertheless, the claimant had voluntarily accepted a substantial restriction on publication, and the contract and disclosure policy formed important context. His predominantly personal and financial interest in publication attracted reduced weight.
6. Related public-domain material did not make the memoir generally accessible. The memoir was an insider account, included material not captured by cameras or existing reports, and brought together information which would otherwise require collation.
7. The evidence established rational and significant risks from publication, including compromise or reconfirmation of sensitive information, adverse effects on morale and trust, damaging public controversy and harm to relations with foreign partners. Substantial amendments might have addressed some operational details, but the wider risks justified refusing authorisation for an account of the operation in the form submitted.
8. The claimant’s expressive interests, the publisher’s interests and the public interest in reading the memoir were outweighed by the interests of protecting lives, national security, UK Special Forces’ morale and efficiency, and defence relationships.