Craighead -v- Secretary of State for Defence (agreed statement)

Administrative CourtCivilHigh CourtKing's Bench DivisionJudgment

Claim Number: CO/3889/2022

In the High Court of Justice
King’s Bench Division
Administrative Court

9 June 2023

Between:
The King
(on the Application of Christian Craighead)
-v-
The Secretary of State for Defence

Agreed statement for the
Judicial Communications Office

  1. Following a directions hearing on 8 June 2023, Mr Justice Lane determined that the hearing listed for 13-14 June 2023 in this matter would be held in private in its entirety and accepted the proposal that the parties agree a statement for use by the Judicial Communications Office in response to press or other enquiries regarding this matter.

  2. For that purpose, the following statement has been agreed by the parties for use by Judicial Communications Office:

    “This is a claim for judicial review. The Claimant is challenging a decision by the Defendant to refuse permission for the publication of a book. The substantive hearing will take place at the Royal Courts of Justice on 13-14 June 2023. At a directions hearing on 8 June 2023, following the Defendant’s application (which the Claimant did not oppose), Mr Justice Lane determined that this substantive hearing will be heard wholly in private. This means that the public and press will not be able to attend, as they otherwise usually would.

    However, the following summary of the case can be provided. The Claimant is a former member of the United Kingdom Special Forces (“UKSF”). He is challenging the Defendant’s refusal to give him “express prior authority in writing” (“EPAW”) for the publication of a book he has written. The Claimant must obtain EPAW before he can publish the book because, as is required of all those upon joining UKSF, he signed a confidentiality contract in which he agreed that, unless he obtained EPAW first, he would not disclose any information about the work of UKSF or statement which purport to be such a disclosure.

    The basis of the refusal of EPAW is the Defendant’s assessment that the material in the book is covered by the confidentiality contract and its publication would cause damage to national security. The issue in the case is whether that refusal is incompatible with the Claimant’s right to freedom of expression under Art.10(2) of the ECHR. If so, it would be unlawful under s.6. of the Human Rights Act 1998.

    The book contains the Claimant’s account of his involvement in the response to a terrorist attack at the DusitD2 hotel complex in Nairobi, Kenya in January It is agreed that the draft version of the book contains disclosures or statements caught by the Claimant’s confidentiality contract. However, the Defendant neither confirms nor denies whether the information contained in the book is true or false. Similarly, the Defendant neither confirms nor denies anything in relation to the incident at the DusitD2 hotel and does not comment publicly on the activities of UKSF.

    The reason why Mr Justice Lane decided the substantive hearing needed to be in private is because any public discussion of the lawfulness of the Defendant’s national security assessment would reveal the information which the refusal of EPAW was designed to protect, thereby defeating the object of the hearing.

    The Court intends to issue public and private judgments on the claim in due course and has requested the parties to make submissions on the matters that may safely be made public in an open judgment.”

    9th June 2023