The King on the application of Christian Craighead v The Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn DBE |
| Judgment Date | 03 October 2023 |
| Neutral Citation | [2023] EWHC 2413 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3889/2022 |
[2023] EWHC 2413 (Admin)
THE HON. Mrs Justice Steyn DBE
Case No: CO/3889/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Tim Johnston (instructed by Harrison Clark Rickerbys) for the Claimant
Oliver Sanders KC and Emmanuel Sheppard (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 13 & 14 June 2023
Approved Judgment
THE HON. Mrs Justice Steyn DBE
A. INTRODUCTION
The claimant is a former member of the United Kingdom Special Forces (‘UKSF’, also referred to as ‘the Group’). In accordance with the anonymity order made on 21 November 2022, I shall refer to him in this judgment by his pseudonym, “ Christian Craighead”. While serving in Kenya, in January 2019, Mr Craighead engaged in a counter-terrorist operation at the DusitD2 hotel complex in Nairobi (‘the Dusit Incident’). He was subsequently awarded the Conspicuous Gallantry Cross, an award which may be given to “ all ranks of the services in recognition of an act (or acts) of conspicuous gallantry during operations against the enemy”. As the Ministry of Defence (‘MOD’) readily acknowledges, Mr Craighead served the UK with honour, and he is a valued and respected member of the wider UKSF community.
By this claim for judicial review, Mr Craighead challenges the Secretary of State's refusal on 25 July 2022 to give him “ express prior authority in writing” (‘EPAW’) to publish a memoir he has written which contains an account of his involvement in the Dusit Incident (‘the memoir’). The central issue is whether that refusal unlawfully interfered with Mr Craighead's right to freedom of expression. The focus of the claim, and consequently of this judgment, has been on article 10 of the European Convention on Human Rights (‘the ECHR’). The jurisprudence in respect of that Convention right is substantially at one with the long-established common law right to freedom of expression: see R v Shayler [2002] UKHL 11, [2003] 1 AC 247, [21] (Lord Bingham); R (Lord Carlile) v Secretary of State for the Home Department [2014] UKSC 60, [2015] AC 945, [13] (Lord Sumption JSC).
The parties have taken a cooperative approach to this litigation, with the Secretary of State acknowledging that Mr Craighead has approached this matter appropriately first by seeking EPAW and then, as he is entitled to do, by challenging the refusal through these proceedings. Although the courts have considered, in a number of authorities relied on by the parties and discussed below, issues arising in circumstances where former members of UKSF or of the intelligence services have disclosed information without authorisation, this case appears to be the first in which a public law challenge to a refusal of authorisation has proceeded to a substantive hearing. ( R (A) v Director of Establishments of the Security Service [2009] UKSC 12 [2010] 2 AC 1 concerned an analogous claim which was later transferred to the Investigatory Powers Tribunal – which has jurisdiction in connection with the security and intelligence services – but the proceedings were settled.)
Insofar as it is possible to do so, without damaging the interests of national security or defeating the object of the proceedings, I address the claim in this OPEN judgment. I am handing down, at the same time, a Confidential Schedule to this judgment containing additional reasoning which cannot be disclosed publicly. Both parties and their representatives have seen the full judgment, including the Confidential Schedule.
B. HISTORY OF THE PROCEEDINGS
On 21 November 2022, I made an order pursuant to CPR 39.2(4) protecting the identity of the claimant. In accordance with that order, on 2 December 2022, the claimant re-filed and re-served an anonymised copy of the claim form, statement of facts and grounds and supporting evidence, in which he is referred to as “ Christian Craighead” or “ CC”, and not by his real name.
The Secretary of State filed and served an acknowledgment of service and summary grounds for contesting the claim on 16 December 2022. On 21 December 2022, the Secretary of State filed and served a request for further information/clarification under Part 18 of the Civil Procedure Rules (‘CPR’).
On 17 February 2023, Lang J granted permission to apply for judicial review in respect of two of the three grounds relied on by the claimant, namely, that the refusal of EPAW constitutes an unlawful interference with Mr Craighead's right to freedom of expression pursuant to article 10 of the ECHR (Ground 1) and is irrational (Ground 2). The Secretary of State had not opposed the grant of permission in respect of those grounds.
By the same order, Lang J refused permission in respect of Ground 3, by which Mr Craighead contended, in effect, that the contents of the memoir were such that he did not need EPAW, and publication of the memoir would not breach his contracts with the MOD (or the terms of the Official Secrets Act 1989). Lang J observed that “ on the evidence, the incident described in the memoir plainly fell within the scope of the confidentiality contracts signed by the Claimant”.
Mr Craighead did not renew his application for permission on Ground 3. Although he was granted permission on two grounds, in the light of how the case developed following the service of the Secretary of State's evidence, the claimant did not pursue the allegation that the refusal of EPAW was irrational, expressing the view that Ground 2 did not add anything of substance to his claim based on Ground 1.
On 15 May 2023, by agreement between the parties, Lang J made an order in respect of the handling of the Secretary of State's evidence and documents within a confidentiality ring. Both parties and their representatives are within the confidentiality ring.
Following a hearing on 8 June 2023, on the application of the Secretary of State, and for the reasons given in his ex tempore judgment ( R (CC) v Secretary of State for Defence [2023] EWHC 1804 (Admin)), Lane J made an order that securing the proper administration of justice required the substantive hearing of the claim to be held in private. He approved a public statement, agreed by the parties, which was published on the judiciary website on 9 June 2023, and which states:
“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[s] 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 2019. 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.”
Mr Craighead has made six witness statements, dated 30 November 2022 (‘CCWS1’), 19 January 2023 (‘CCWS2’), 31 January 2023 (‘CCWS3’), 19 May 2023 (‘CCWS4’), 23 May 2023 (‘CCWS5’) and 7 June 2023 (‘CCWS6’); and he has adduced exhibits, including the first and third drafts of the manuscript of his memoir.
The Secretary of State has adduced four witness statements from three witnesses, namely:
i) A statement dated 27 April 2022 made by Nick Gurr (‘GurrWS’). Mr Gurr is a senior civil servant in the MOD who, as Director of International Security, has responsibility for defence policy concerning Africa, the Middle East, the Asia-Pacific region, Latin America and the Caribbean.
ii) Two statements, dated 28 April 2023 (‘BWS1’) and 5 June 2023 (‘BWS2’), made by a...
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