R v Attorney General of England and Wales

JurisdictionUK Non-devolved
JudgeLord Hoffmann,Lord Scott of Foscote
Judgment Date17 March 2003
Neutral Citation[2003] UKPC 22
CourtPrivy Council
Docket NumberAppeal No. 61 of 2002
Date17 March 2003
"R"
Appellant
and
Her Majesty's Attorney-General for England and Wales
Respondent

[2003] UKPC 22

Present at the hearing:-

Lord Bingham of Cornhill

Lord Steyn

Lord Hoffmann

Lord Millett

Lord Scott of Foscote

Appeal No. 61 of 2002

Privy Council

[Majority judgment delivered by Lord Hoffmann]

1

The appellant, designated in these proceedings as "R", is a former member of 22 SAS Regiment, among the most celebrated regiments in the British Army. During the Gulf War in 1991 he was a member of patrol B20 (Bravo Two Zero) which was dropped by helicopter behind enemy lines to find Scud missiles and cut communication cables. The patrol was detected and hunted down by Iraqi forces. Three of the eight members died attempting to escape; one succeeded in getting across the Syrian border and the other four (including R) were captured, tortured and interrogated. After the end of the war they were released and returned to England.

2

At the end of 1992 General Sir Peter de la Billiere, commanding officer of the British forces in the Gulf War and himself a former commanding officer of 22 SAS, wrote a book about the war which included a chapter on the Bravo Two Zero patrol. This appears to have been the first time that a member or former member of SAS had published an account of one of its operations. Until then, the ethos of the regiment had been for its members to preserve total secrecy. In 1993 a member of the patrol, under an assumed name, published a book called Bravo Two Zero which gave his own account of the affair. It sold very well. In 1995 the member who had escaped published his version under the title The One That Got Away. Films were made based on both books and shown on television.

3

The publication of these books and films caused great concern among the surviving members of the patrol who had not gone into print and the regiment generally. They felt that the writers (as might be expected) presented themselves in the best possible light and (in the case of the second book) unfairly blamed a dead member of the patrol for what went wrong. The films were even worse, portraying incidents that were entirely fictitious. The whole controversy, attended by a glare of commercially motivated publicity, was distasteful and contrary to the traditions of the regiment.

4

Some members urged the authorities to make some public comment to correct the errors in the books and films. The Ministry of Defence appears to have taken the view that nothing could be done to suppress what had already been published and that it would not be productive to engage in public controversy with the authors. Least said, soonest mended. R was disappointed and angry at this reaction, feeling that the Ministry had failed to support him and the other members of the patrol, living and dead.

5

There was however a strong feeling in the regiment and among its former members that something should be done to prevent anything similar from happening in the future. The books about Bravo Two Zero had been followed by numerous other accounts of SAS activities, for which the public seemed to have an insatiable appetite. In February 1996 the SAS Regimental Association (to which former and serving members of 22 SAS and other SAS regiments belonged) polled its members on whether they supported a proposal emanating from 22 SAS for all members of the United Kingdom Special Forces (which included the SAS regiments and the Special Boat Service) to sign binding contracts to "prevent unauthorised disclosure". Ninety six point eight percent of the respondents (who were 73% of the membership) said that they did. In May 1996 the Ministry of Defence accepted the recommendation and arrangements were put in hand for contracts to be signed.

6

In May 1996 R was serving with A Squadron of 22 SAS, taking part in an exercise in the United States. The regimental commanding officer came over and spoke to the squadron. He told them that confidentiality contracts would soon be introduced and that all members who wanted to remain in the regiment would be required to sign one. If they did not, they would be returned to unit ("RTU"). This meant going back to the regiment from which they had joined the SAS; in R's case, the Parachute Regiment, to which he had a formal attachment but in which he had never actually served. Involuntary RTU was normally imposed as a penalty for some disciplinary offence or on grounds of professional unsuitability for the SAS. It involved exclusion from the social life of the regiment and loss of its higher rates of pay. The Ministry of Defence took the view that someone who was unwilling to accept an obligation of confidentiality was unsuitable for the SAS.

7

In due course R returned to England and was seconded to assist the civilian Security Services (MI5). Towards the end of October 1996 he was summoned to a meeting in London by another SAS member ("ST"), where he found some soldiers reading and signing their confidentiality contracts. R was told that his confidentiality contract was waiting for signature before the adjutant at the regimental headquarters in Hereford and that he should go there as soon as possible. ST told him that he could not read the contract until he received his own copy. R said in evidence that he asked whether he could be able to obtain legal advice on the contract and was told that he could not. ST, on the other hand, said that he did not remember being asked and that if he had been, he would have told R to apply in Hereford. If he had himself thought it necessary to seek legal advice, he would have insisted on being able to do so.

8

R went to Hereford and met another SAS member ("Z") who had also come to sign the contract. Both announced themselves to the adjutant's chief clerk in his outer office. According to the written evidence of Z, who was not cross-examined, the adjutant asked his clerk to give them the contract and its accompanying explanatory memorandum. They read the documents; Z sitting in a chair and R leaning against a filing cabinet. The adjutant went on with his work. Z says that he understood the documents and was willing to sign. R also signed and they left together. The adjutant also gave evidence and said that he thought (though he could not be certain) that he explained the contract and that R raised no misgivings about signing it. R, on the other hand, said that the adjutant yelled through the door to the clerk to give him and Z the contracts to sign and that they read and signed it in the clerk's outer office. He says that he asked the clerk "whether anyone was allowed to look at [the] contract" and the clerk said no, but that he could ask the adjutant. He decided that this was "a non-starter" because the adjutant was "not known as an easy man" and that, as he wanted to stay in the SAS, there was nothing for it except to sign. He felt that there was no point in raising the question of legal advice with the adjutant. He was not allowed to retain a copy of the contract, which was classified "restricted" before signature, and after signature, when it enabled R to be identified as a member of SAS, was given the higher classification of "confidential". The judge accepted R's version of events, although he seems to have been under the impression that his evidence was supported by Z.

9

The terms of the contract were straightforward. It read:

"In consideration of my being given a (continued) posting in the United Kingdom Special Forces from 28 October 96 (date) by MOD, I hereby give the following solemn undertaking binding me for the rest of my life:

(1) I will not disclose without express prior authority in writing from MOD any information, document or other article relating to the work of, or in support of, the United Kingdom Special Forces which is, or has been in my possession by virtue of my position as a member of any of those Forces.

(2) I will not make any statement without express prior authority in writing from MOD which purports to be a disclosure of such information as is referred to in paragraph (1) above or is intended to be taken, or might reasonably be taken, by those to whom it is addressed as being such a disclosure.

(3) I will assign to MOD all rights accruing to me and arising out of, or in connection with, any disclosure or statement in breach of paragraph ( 1) or (2) above.

(4) I will bring immediately to the notice of MOD any occasion on which a person invites me to breach this contract."

10

The explanatory memorandum, in the familiar form of "Frequently Asked Questions", explained in some detail why the contract was deemed necessary. In answer to the question "What extra rights will contracts give MOD?" it said:

"14. The contract prohibits you from making, without specific prior MOD authority, any disclosures in any form about the work of the UKSF, special units, and of sensitive organisations and about those who work in support of them. The MOD will not hesitate to seek an injunction to prevent anyone publishing material in breach of contract.

15. If disclosures are made in breach of contract, the MOD is entitled to initiate proceedings under the contract to remove from you any profits accruing from a breach."

11

Less than a fortnight later, R changed his mind and decided to apply for premature voluntary release. He was asked by the commanding officer to reflect upon his decision but he renewed his request and left the Army in March 1997. At that time he told the commanding officer that he had no intention of writing about the Gulf War patrol or anything else. R is a New Zealander and went home to New Zealand where he took up civilian employment. In the course of 1998 he decided that he should put his own version of Bravo Two Zero before the public and entered into a contract with a New Zealand publisher. They offered the UK rights to Hodder & Stoughton,...

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