“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 on8 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 underArt.10(2) of the ECHR . If so, it would be unlawful unders.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.”
“I also bear in mind that the principle of open justice can, in the circumstances of this case, be protected by the fact that it will be possible for the court, following the substantive hearing, to provide a judgment which would be in open as well as in closed form. Accordingly, the public will have the opportunity of understanding the matter to a substantial extent without, importantly, there being any risk of inadvertent disclosure of material harmful to the national interest or to the other interests articulated inCPR 39.2 (3).”
“It is clear that much of the work is sensitive and requires that they operate secretly.”
“CONFIDENTIALITY CONTRACT Between MOD and __________________ (full name) In consideration of my being given a (continued) posting in the United Kingdom Special Forces from _______________(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.”
“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 Billière, 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’. 96.8 per cent of the respondents (who were 73 per cent 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.”
“35. The argument that the contract did not as a matter of construction prevent publication of the material in question has not been pursued and their Lordships think that it was always hopeless. 36. It is to be noted that neither the New Zealand courts nor their Lordships were invited to consider whether the MOD had acted unlawfully in refusing consent to publication. The whole basis of R’s case has been a challenge to the validity of the contract and not to the way it has been performed. There is no contractual proviso that consent is not to be unreasonably refused; nor do their Lordships think that one could be implied. Nevertheless, an unreasonable refusal of consent by the MOD could have been challenged as a matter of public law and the appropriate tribunal for such a challenge would have been the court having jurisdiction to grant judicial review of decisions of the MOD, namely, the administrative court in England. The principles upon which that jurisdiction should be exercised were recently discussed in R v Shayler[[2003] 1 AC 247 ]. Of course the considerations which the MOD are entitled to take into account in deciding whether to give consent under the confidentiality agreement are different from those which it may take into account under theOfficial Secrets Act 1989 . As the history of this matter shows, the agreement was intended to prevent the disclosures which would not necessarily be in themselves damaging to the public interest and might even be as to matters already in the public domain. It had the broader object of preventing public controversy which might be damaging to the efficiency of the Special Forces. The United Kingdom Parliament has also taken the view that information about the Special Forces is in a special category: see ss.23(1) and (3)(d) of theFreedom of Information Act 2000 , which declares information relating to the special forces to be “exempt information”, excluded from the general right to information under s.1(1)(b). But their Lordships think that the jurisdiction could in principle have been invoked if R had chosen to do so.” (Emphasis added.)
“What about disclosures which are unlikely to cause harm? 18. It is extremely difficult to quantify in advance the damage caused to UKSF by the disclosure of apparently innocuous information. However, it is widely recognised that the so-called ‘jigsaw’ effect plays a significant role in providing a depth of understanding on UKSF capabilities to potential enemies or terrorists. The harm caused by such disclosures usually only becomes apparent retrospectively, if at all. 19. Much information within the UKSF Group is tightly compartmentalised. It is therefore highly unlikely that you will be in a position to understand fully the damage which even simple disclosures may cause. 20. Because of the ‘jigsaw effect’, MOD maintains a broad policy of limiting comment on UKSF issues and in doing so minimises the potential for cumulative damage. You should understand that disclosure of any information on UKSF, special units or sensitive organisations is in direct breach of your duty of confidentiality, and, regardless of what you may believe to be the truth, may in fact be damaging.”
“If the manuscript is finished, then please send it over. Once I have checked it over and MoD are happy then I will grant you EPAW which is your permission to go to print.”
“If I don’t pick anything major up I will hopefully get your EPAW letter by Friday.”
“I write further to your submission of the second manuscript ‘One Man In’ to disclosure requesting EPAW. HQ MAB Disclosure have reviewed the manuscript and assess that, in its current state you will not be granted EPAW. The manuscript contains a detailed description [of] a UKSF operation covered by the Confidentiality Contract. You will recall that you were provided a redaction table for your first manuscript, followed by a face to face meeting within Regents Park Barracks where it was clearly stated that any account of UKSF operations must be removed. However, the accounts of your life, memories and military service outside of UKSF operations would be considered appropriate for EPAW. Please let me know if you wish to resubmit a further manuscript requesting EPAW in order for one of the team to be allocated to its perusal.” (Emphasis added.)
“explained that the latest version of the Manuscript was not going to receive EPAW as the contents were still in breach of the Confidentiality Contract. [Soldier A] attempted to go through the manuscript and redaction table with [CC], but he stated that he did not want to and just wanted to know whether he was going to get EPAW. [Soldier A] confirmed again that he would not get EPAW in its current format. [Soldier A] again attempted to go through the manuscript and redaction table to show him where changes needed to be made. Once again [CC] refused to engage. [CC] explained that he did not want to write the book, but he just needed to confirm to his publisher and lawyer that he was not being granted EPAW. … [CC] asked if we could confirm the discussions in writing i.e. that he was not being given EPAW for the manuscript and/or to disclose the manuscript to his lawyer.”
“This is especially the case when a manuscript is a memoir of their service with the Group or a fictionalised account of the same. Given the obvious sensitivities, EPAW is very unlikely to be granted in circumstances where a person seeks to disclose information relating to their service in the Group. Consequently, while we have carefully considered the contents of your Manuscript, and as was explained in our meeting of the25 July 2022 , your request for EPAW for the publication of the Manuscript is denied. As we have explained at our meetings with you, should you wish to amend the manuscript to remove those parts that breach the Contract then please re-submit it to the Disclosure Cell for re-consideration.”
“9. As DSF, I am responsible for the operational command, training, development and management of UKSF and answerable to the Chief of the Defence Staff, the Defence Secretary and, ultimately, the nation for the delivery of special forces capability. For these purposes, I have to: advise the chain of command and ministers on all aspects of UKSF capability, employability and management; provide a Directorate function within MOD as well as a deployable task force level Headquarters; advocate for policy and permissions for all special operations in the short-term; and maintain and develop the capabilities of UKSF for the long-term. 10. These responsibilities are not purely administrative and logistical. Internal morale and cohesion have always been integral parts of military leadership and effectiveness and they are something I need to protect.”
“5. My aim in making this statement is to try and convey to the Court the gravity and seriousness of this case and the fact it genuinely engages real risks to national security and the lives of my personnel and those they protect. I have attempted to do this in as much detail as possible within the confines of a confidentiality ring and on the basis that much of it will need to be considered in private. … 15. I have attended many disclosure briefings and read many ‘damage assessments’ and ‘harm statements’ and am acutely conscious that they can appear very dry and abstract, particularly when stripped of classified details. My fear is that something very important could get lost. Although we operate covertly and in secret, we are nevertheless a truly national asset and everyone interested in our national security has a stake in us. Public order, the rule of law, democracy, human rights and our welfare state all depend on and require national security and we are a vital part of the state apparatus which protects and maintains it. The state asks us to go out and risk our lives for its benefit and, in return, we need to know that the state will back us and protect us from harm. I see this as a duty of care issue - duty of care to those acting on our behalf and duty of care to those in front of them. 16. Soldier B rightly refers to our personnel having to take ‘split-second decisions’. These are life or death decisions. Mistakes or even just hesitation can be fatal. Is this a terrorist or a hostage? Is this person concealing a weapon or a bomb? Is my life at risk? Should I shoot? Decisions of this kind are a huge moral responsibility and we should not expect anyone to take them without giving them the best possible chance of getting them right. This of course means training and practice, but it also means ensuring that those concerned have the clarity of thought and purpose to keep focus and ‘do the right thing for the right reasons’. This requires self-confidence and trust in oneself and also implicit trust in one’s comrades and the fact they are also ‘doing the right thing for the right reasons’. … 18. All of the following can cloud judgement and produce mistakes and hesitation: extraneous anxieties, doubts and concerns about possible public criticism by others; internal thoughts about publicity, fame or glory; and worries that a comrade may be distracted by such thoughts. I do not want my personnel wondering in a critical moment whether they might later be accused of dithering or being too gung ho, whether such- and-such a step might lead to a book deal or whether someone alongside them might be a weak link with an eye for the main chance. Former members of UKSF writing books about their own conduct and the conduct of their comrades on operations would introduce all these factors into people’s minds, corrode and erode morale and jeopardise our effectiveness and safety. It would put lives at greater risk than would otherwise be the case.” (Emphasis added.)
“an important difference between public disclosures about UKSF by outsiders and insiders. Disclosures by outsiders will always, to a considerable extent, involve speculation and will accordingly be less authoritative and reliable and have less impact. Disclosures by insiders generally contain and are treated as containing more reliable information and represent a far greater threat. This point has been repeatedly stressed to me by our operational partners and has been of long-standing concern within the Group. Indeed, it has been assessed that the effective Iraqi military response in both the western and north-western deserts in 2003 was assisted by books previously written on the 1991 Iraq War by former UKSF insiders.”
“(1) The jigsaw, mosaic or cumulative damage effect - release of details allowing accurate and inaccurate links to be drawn, deduced and excluded between UKSF and the above matters and thereby compromising: individuals who are, have been or may become rightly or wrongly associated with such matters; and/or the ongoing and future scope for and success of the deployment and redeployment of such matters. A seemingly innocuous disclosure could add to the jigsaw of information in the hands of hostile individuals allowing them to discern or deduce a particular fact either now or in the future. In this regard, disjointed fragments of information can be dangerously revealing when looked at together and no-one is in a position to know all the information which is or may subsequently become available to our enemies. (2) Insider confirmation and reconfirmation - the credible and reliable confirmation or denial of truth or falsity and/or the fact something remained or remains, or ceased or has ceased to be, true or false. This is often accompanied by material embellishment and the release of further information. The insider amplification, confirmation, embellishment or reconfirmation of prior disclosures can add to the sum of information in the public domain and is capable of causing further damage. The fact that a particular topic has been the subject of previous disclosures (whether by insiders or outsiders) is not decisive. The public discussion of a particular matter need not compromise its confidentiality in whole or in part or the confidentiality of associated information. Even if a previous insider book has revealed that UKSF used a particular technique in one specific time and place, confirmation that they used or were still using that same technique at a later time or in another place not only reveals that fact, it suggests more widespread use of the technique and an inability to devise a more secure alternative.”
“8.7 The morale effect / the internal suspicion effect - undermining the essential morale of and mutual trust between members of UKSF and the shared values and ethos which all members must adhere to. There has been a long-standing consensus within UKSF that disclosures of related information by former members undermine individual and collective morale and damage operational effectiveness. We work in exposed positions behind enemy lines and in close proximity with terrorists and other dangerous adversaries and our personnel must be able to trust and rely on each other implicitly. When split-second decisions are called for, lives will often depend upon having this degree of confidence in each other. The publication of ‘insider’ stories can sow seeds of doubt and leave individuals wondering whether colleagues will identify them, reveal the modus operandi of their mission or criticise their actions publicly at some later date. The effect is quite cancerous and it cannot be allowed to arise even at a sub-conscious level: members of UKSF must know implicitly that their colleagues will never discuss their service without MOD agreement.”
“8.10 The suspicion effect / the external suspicion effect - making third parties (such as domestic and allied security and intelligence services and other covert sources) reluctant or unwilling to cooperate with or provide essential assistance or intelligence to UKSF. During the mid-1990s, a number of UKSF’s key operational partners raised grave concerns about the volume of insider disclosures and serious reservations about the scope for ongoing cooperation. These concerns came from, in particular, MI5, MI6, GCHQ, the then Royal Ulster Constabulary, the then HM Customs & Excise (in connection with counter-narcotics functions now conferred on the National Crime Agency) and US Special Forces. In this latter regard, a former DSF was informed by the then Commander in Chief, US Special Operations Forces that the closeness of our relationship depended upon UKSF taking effective action to ensure secrecy. The message was clear from all quarters - UKSF were coming to be seen as untrustworthy and unreliable and we had to get our house in order or face exclusion. This would have been a disaster because the support and assistance of our partners is vital to our operational effectiveness.”
“8.14 The snowball effect / the Bravo Two Zero effect - encouraging further such disclosures by other serving and former members of UKSF or third parties particularly in the case of critical, inaccurate, one-sided or incomplete disclosures. Even without inaccuracy or exaggeration, individuals can quickly feel aggrieved or envious if they feel a former comrade is garnering unfair or unjustified attention, status, recognition or wealth by writing or speaking about their service. The sense of unfairness and injustice is only increased in circumstances where those not seeking publicity and profit have comparable or superior achievements in their histories which remain secret.”
“Grabbing his ballistic body armour, Diemaco C8 assault rifle and Glock 9mm pistol, and with a balaclava pulled over his head to protect his identity, the soldier swept into the area where the firefight was going on, engaged the enemy and led several civilians to safety outside.” ii) Mr Ryan has also published a novel, “Outcast” (2022), which incorporates a fictionalised version of the claimant’s story, using a different character name, and changing the location from Kenya to Mali. On the Amazon.com website it is described as a “thriller ripped straight from the headlines”
“I was being filmed, in real time, during the Incident. Many of the actions that I took were viewed on TV news channels as they occurred. The equipment that I used was visible to the world as was the approach that I took and many of the decisions I made. Those actions that were not immediately visible to the cameras were very widely reported in the following days and have been the subject of detailed memoirs, books and analysis by others after the event.”
“I accept that the claimant’s presence and role at the scene and his image were publicised at the time and that there has been widespread public speculation linking him with UKSF and the award of the CGC, mostly under his pen name. This has included the claimant giving interviews to John Loveday and Evan Hafer in which (without EPAW) he connected himself, the book, the incident and UKSF, publishing a photo of himself during the incident and discussing the case publicly (however briefly) in an interview with the BBC. Furthermore, the claimant’s book has been the subject of advance publicity (without EPAW) and it will be apparent from the fact of these proceedings that he must have been a member of, and the book must contain actual or purported disclosures about, UKSF. In the circumstances, I think it would be unrealistic to think that the claimant’s book could now be effectively or meaningfully anonymised or fictionalised.”
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
“Judges should always be vigilant and fearless in carrying out their duty to ensure that individuals’ legal rights are not infringed by the executive. But judges must also bear in mind that any decision of the executive has to be accorded respect – in general because the executive is the primary decision-maker, and in particular where the decision is based on an assessment which the executive is peculiarly well equipped to make and the judiciary is not.”
“has two distinct sources. The first is the constitutional principle of the separation of powers. The second is no more than a pragmatic view about the evidential value of certain judgments of the executive, whose force will vary according to the subject matter.”
“32 … The executive’s assessment of the implications of the facts is not conclusive, but may be entitled to great weight, depending on the nature of the decision and the expertise and sources of information of the decision-maker or those who advise her. Secondly, rationality is a minimum condition of proportionality, but is not the whole test. None the less, there are cases where the rationality of a decision is the only criterion which is capable of judicial assessment. This is particularly likely to be true of predictive and other judgmental assessments, especially those of a political nature. Such cases often involve a judgment or prediction of a kind whose rationality can be assessed but whose correctness cannot in the nature of things be tested empirically. Thirdly, where the justification for a decision depends on a judgment about the future impact of alternative courses of action, there is not necessarily a single ‘right’ answer. There may be a range of judgments which could be made with equal propriety, in which case the law is satisfied if the judgment under review lies within that range. … 34 … The court is the ultimate arbiter of the appropriate balance between two incommensurate values: the Convention rights engaged and the interests of the community relied on to justify interfering with it. But the court is not usually concerned with remaking the decision-maker’s assessment of the evidence if it was an assessment reasonably open to her. Nor, on a matter dependent on judgment capable of yielding more than one answer, is the court concerned with remaking the judgment of the decision-maker about the relative advantages and disadvantages of the course selected … The court does not make the substantive decision in place of the executive. On all of these matters, in determining what weight to give to the evidence, the court is entitled to attach special weight to the judgments and assessments of a primary decision-maker with special institutional competence.”
“(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression. (2) If the person against whom the application for relief is made (‘the respondent’) is neither present nor represented, no such relief is to be granted unless the court is satisfied – (a) that the applicant has taken all practicable steps to notify the respondent; or (b) that there are compelling reasons why the respondent should not be notified. (3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed. (4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to – (a) the extent to which – (i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the public interest for the material to be published; (b) any relevant privacy code. (5) In this section – ‘court’ includes a tribunal; and ‘relief’ includes any remedy or order (other than in criminal proceedings).” (Emphasis added.)
“When the Human Rights Bill was under consideration by Parliament concern was expressed at the adverse impact the Bill might have on freedom of the press.Article 8 of the European Convention , guaranteeing the right to respect for private life, was among the Convention rights to which the legislation would give effect. The concern was that, applying the conventional American Cyanamid approach, orders imposing prior restraint on newspapers might readily be granted by the courts to preserve the status quo until trial whenever applicants claimed that a threatened publication would infringe their rights under article 8. Section 12(3) was enacted to allay these fears. Its principal purpose was to buttress the protection afforded to freedom of speech at the interlocutory stage. It sought to do so by setting a higher threshold for the grant of interlocutory injunctions against the media than the American Cyanamid guideline of a ‘serious question to be tried’ or a ‘real prospect’ of success at the trial.”
“…However, the fact that the parties have entered into an agreement voluntarily restricting their article 10 rights can be, and in my judgment in this case is, an important part of the analysis which section 12 then requires the court to undertake. Whilst each case must be considered on its facts, where the relevant contract is one in settlement of litigation, with the benefit of expert legal advice on both sides, particularly where article 10 issues are in play in that litigation, it seems to me that it would require a strong case for the court to conclude that such a bargain was disproportionate and to refuse to enforce it other than on ordinary contractual or equitable principles.”
“30. … Whoever is called upon to consider the grant of authorisation must consider with care the particular information or document which the former member seeks to disclose and weigh the merits of that request bearing in mind (and if necessary taking advice on) the object or objects which the statutory ban on disclosure seeks to achieve and the harm (if any) which would be done by the disclosure in question. If the information or document in question were liable to disclose the identity of agents or compromise the security of informers, one would not expect authorisation to be given. If, on the other hand, the document or information revealed matters which, however, scandalous or embarrassing, would not damage any security or intelligence interest or impede the effective discharge by the service of its very important public functions, another decision might be appropriate. Consideration of a request for authorisation should never be a routine or mechanical process: it should be undertaken bearing in mind the importance attached to the right of free expression and the need for any restriction to be necessary, responsive to a pressing social need and proportionate. 31. … In considering an application for judicial review of a decision to refuse authorisation to disclose, the court must apply (albeit from a judicial standpoint, and on the evidence before it) the same tests as are described in the last paragraph. It also will bear in mind the importance attached to the Convention right of free expression. It also will bear in mind the need for any restriction to be necessary to achieve one or more of the ends specified in article 10(2), to be responsive to a pressing social need and to be no more restrictive than is necessary to achieve that end. 32. For the appellant it was argued that judicial review offered a person in his position no effective protection, since courts were reluctant to intervene in matters concerning national security and the threshold of showing a decision to be irrational was so high as to give the applicant little chance of crossing it. … 33. There are in my opinion two answers to this submission. First the court’s willingness to intervene will very much depend on the nature of the material which it is sought to disclose. If the issue concerns the disclosure of documents bearing a high security classification and there is apparently credible unchallenged evidence that disclosure is liable to lead to the identification of agents or the compromise of informers, the court may very well be unwilling to intervene. If, at the other end of the spectrum, it appears that while disclosure may cause embarrassment or arouse criticism, it will not damage any security or intelligence interest, the court’s reaction is likely to be very different. Usually a proposed disclosure will fall between these two extremes and the court must exercise its judgment, informed by article 10 considerations. The second answer is that in any application for judicial review alleging an alleged violation of a Convention right the court will now conduct a much more rigorous and intrusive review than was once thought to be permissible. The change was described by Lord Steyn in R (Daly) v Secretary of State for the Home Department[2001] 2 AC 532 [at [26]-[28]] ....”
“An act motivated by … the expectation of personal advantage, including pecuniary gain, would not justify a particularly strong level of protection”
“The acid test is whether, in all the circumstances, the interference with the individual’s Convention right prescribed by national law is greater than is required to meet the legitimate object which the state seeks to achieve.”