Who dares... loses?

R v Attorney General is a great case to share with your students, not least as it involves the SAS, the Iraq war, and secrecy. Read on for more!

R was a New Zealand-born soldier serving in the SAS during the Gulf War. He was part of the same mission as the author of Bravo Two Zero (who uses the nom de plume Andy McNab). R was captured by Iraqi forces, tortured, and interrogated. He was returned to the UK after the war ended.

As a result of books such as Bravo Two Zero and The One That Got Away, the regiment sought to prevent other soldiers from spilling the beans about SAS operations, due to concerns over inaccuracies amongst others.
Serving SAS soldiers such as R were “asked” to sign confidentiality agreements to prevent such disclosures in future. Should they refuse to sign,soldiers would be RTU’d - “returned to unit”. This meant they would return to their original unit prior to joining the SAS, with the corresponding loss of status and pay. R signed this agreeement under the impression that he would not be allowed to take legal advice.

On returning to New Zealand, R sought to publish a book about his experiences. The government sought an injunction to prevent publication, arguing breach of contract, but the trial judge found that the contract was not valid as it was made under duress.

On appeal, the Privy Council found that, although there was pressure, it was not improper as it was essential to the operation of the SAS, and therefore duress was not present. They also considered undue influence, and reached a similar conclusion - although Lord Scott dissented, citing cases such as The Universe Sentinel.

This case is a great example to students of one of the problems with claiming duress - what is unfair pressure, and what is not? The same problem arises in commercial situations in cases such as Alec Lobb (Garages) Ltd v Total Oil.

It’s also a nice example for AS students of a Privy Council decision (on Appeal from the Court of Appeal of New Zealand - read their judgment here) and of a dissenting judgment as well - both examples of persuasive precedent.

Click here for a worksheet for A2 Law of Contract students.