#6784 - R. V. Attorney General For England And Wales - Restitution of Unjust Enrichment BCL

R. v. Attorney General for England and Wales

Facts

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.

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. 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.

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".

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.

Holding

Lord Hoffmann

Duress

In Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366, 400 Lord Scarman said that there were two elements in the wrong of duress. One was pressure amounting to compulsion of the will of the victim and the second was the illegitimacy of the pressure. R says that to offer him the alternative of being returned to unit, which was regarded in the SAS as a public humiliation, was compulsion of his will. It left him no practical alternative. Their Lordships are content to assume that this was the case.

The legitimacy of the pressure must be examined from two aspects: first, the nature of the pressure and secondly, the nature of the demand which the pressure is applied to support: see Lord Scarman in the Universe Tankships case, at p 401.

In this case, the threat was lawful. Although return to unit was not ordinarily used except on grounds of delinquency or unsuitability and was perceived by members of the SAS as a severe penalty, there is no doubt that the Crown was entitled at its discretion to transfer any member of the SAS to another unit.

Legitimacy of the Demand: It would follow that the MOD was reasonably entitled to regard anyone unwilling to accept the obligation of confidentiality as unsuitable for the SAS. Thus the threat was lawful and the demand supported by the threat could be justified. But the judge held that the demand was unlawful because it exceeded the powers of the Crown over a serviceman under military law.

Legality of the Order:

The judge's reasoning was that R had signed the contract because he had been ordered to do so. The MOD could not give a serviceman an order which, as a matter of military law, he was obliged to obey after he had left the service and therefore it was an abuse of power for the MOD.

If R had signed the contract because as a matter of military law he had been obliged to do so, their Lordships would see much force in this reasoning. But they agree with the Court of Appeal that this was not the case. There was no order in the sense of a command which created an obligation to obey under military law. Instead, R was faced with a choice which may have constituted "overwhelming pressure" but was not an exercise by the MOD of its legal powers over him. The legitimacy of the pressure therefore falls to be examined by normal criteria and as neither of the courts in New Zealand considered either the threat to be unlawful or the demand unreasonable, it follows that the contract was not obtained by duress.

Undue Influence

In the present case it is said that the military hierarchy, the strong regimental pride which R shared and his personal admiration for his commanding officer created a relationship in which the Army as an institution or the commanding officer as an individual were able to exercise influence over him. Their Lordships are content to assume that this was the case. But the question is whether the nature of the transaction was such as to give rise to an inference that it was obtained by an unfair exploitation of that relationship. Like the Court of Appeal, their Lordships do not think that the confidentiality agreement can be so described. As in the case of duress, their Lordships think that the finding that it was an agreement which anyone who wished to serve or continue serving in the SAS could reasonably have been required to sign is fatal to such a conclusion. The reason why R signed the agreement was because, at the time, he wished to continue to be a member of the SAS. If facing him with such a choice was not illegitimate for the purposes of duress, their Lordships do not think that it could have been an unfair exploitation of a relationship which consisted in his being a member of the SAS. There seems to their Lordships to be some degree of contradiction between R's claim, in the context of duress, that he signed only because he was threatened with return to his unit and his claim, for the purposes of undue influence, that he signed because of the trust and confidence which he reposed in the Army or his commanding officer.

On this evidence the New Zealand courts made a finding that R had not been able to obtain legal advice which their Lordships of course accept… The legal question, however, is whether failing to provide an opportunity for obtaining legal advice made the transaction one in which the MOD had...