Published: Wed, 07 Mar 2018
R v HM Attorney-General for England and Wales  UKPC 22
Contract – Duress – Undue Influence – Consideration – Public Policy
The defendant was a New Zealander and former SAS member. In 1992, one of his commanding officers wrote a book and included a chapter on the personal experiences of SAS members involved in the war in Iraq, including the account of the defendant. After this, the military brought in non-disclosure agreements for military persons to sign to keep SAS operations confidential. In 1997 the defendant was told to sign a non-disclosure agreement which prevented him from publicly disclosing any accounts of his military experiences in the SAS. He was told he was unable to seek legal advice before signing the agreement. If he refused to sign then he would return to the RTU, which was a unit usually imposed for punishment and offered lower pay rates. The A-G brought proceedings against the defendant for breaching the confidentiality agreement. The defendant claimed duress and undue influence.
Whether the defendant had been unduly influenced and or under duress when signing the agreement.
The defendant’s appeal was dismissed. In order for duress to he found, there needed to be a pressure that amounted to a compulsion against the will of the victim and illegitimacy of pressure. It usually involved an unlawful action of sorts. The threat of the RTU was lawful and a legitimate function of the military. Further, the defendant had a choice in whether he signed; the option of being demoted to the RTU was motive to sign, but not illegitimate force or pressure and no order for him to do so. The demand to sign was justifiable as the purpose of the agreement was to protect legitimate concerns around disclosing confidential military combat missions.
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