High Court rules that former SAS Serviceman cannot publish memoir about terrorist incident

03/10/23

Christian Craighead is a former member of the United Kingdom Special Forces (“UKSF”). In January 2019 he was involved, while serving in Kenya, in a counter-terrorism operation at the Dusit D2 hotel complex in Nairobi (“the Incident”). He was subsequently awarded the Conspicuous Gallantry Cross for his actions that day.

Mrs Justice Steyn has today refused Mr Craighead (a pseudonym) permission to publish a memoir that covers that Incident. As a member of the UKSF, Mr Craighead signed a contract which provides that he cannot publish such a memoir without Express Prior Authorisation in Writing (“EPAW”). He sought EPAW to publish a memoir that described the Incident, on the grounds that the Incident – and his role in it – were widely known and discussed in the public domain (including in extensive media coverage at the time). He relied, in support of that argument, on the fact that he was actively encouraged to speak about the Incident by his superiors, including to 640 teenage army recruits. During the course of the hearing the Secretary of State accepted that it was not appropriate to maintain the ordinary Neither Confirm Nor Deny position in relation to the Incident and accepted that Mr Craighead could state that he was the individual involved in it.

The Secretary of State accepted that the claim was arguable but submitted that publication would be harmful to the operational effectiveness of UKSF. In particular he argued that publication would harm morale and would damage relations between the UKSF and other states.

Mrs Justice Steyn found that, by virtue of signing the contract, Mr Craighead had qualified his Article 10 rights in two respects: first, he had to seek permission to publish (this was agreed); second the weight to be lent to his Article 10 rights, when considering the lawfulness of any refusal to publish, was diminished.

Given the gravity of the harm that the Secretary of State argued would follow from publication, the Judge found that a “precautionary approach” was justified: the decision to refuse permission to publish was a proportionate interference with Mr Craighead’s freedom of expression.

The hearing was held in private because of the sensitivity attaching to the Secretary of State’s evidence. As well as the open judgment, the Judge prepared a Confidential Schedule addressing matters that could not be addressed in public.

The Judgment is here.