By NAOMI LARKIN
A New Zealand soldier has beaten off a British Government attempt to gag him in a case which will have far-reaching implications for secrecy contracts in the shadowy world of spies and special forces.
The decision by the High Court at Auckland yesterday allows Mike Coburn (not his real name) to publish his book Soldier 5, an account of the ill-fated SAS Bravo Two Zero's mission behind Iraqi lines during the Gulf War.
Mr Coburn's lawyer, Grant Illingworth, said it was a victory for free speech. A confidentiality contract which Mr Coburn signed with Britain's Special Air Services was invalid because he had a right to freedom of expression, he said.
This opened the door for other members of the SAS to challenge similar attempts to muzzle them.
"They [the British Ministry of Defence] were trying to prevent a person from expressing his views on an area which was his right to comment on."
Mr Coburn has also been granted costs which Mr Illingworth said would be substantial.
This is not the first time the ministry has failed to block information being released about Mr Coburn. Two years ago a TVNZ Assignment programme was shown after the ministry failed in a bid to take it to the Privy Council.
Ministry spokesman Sean Tully said from Britain yesterday that it was too early to say if the Government would appeal.
The ministry had argued that the confidentiality contract imposed a lifelong ban on disclosures about Mr Coburn's time with the SAS. The contract was introduced in 1996 to stop a flood of disclosures which compromised the unit's effectiveness and security.
Mr Coburn claimed that the contract was signed under duress, he was not able to seek legal advice and the fundamental right to choose - the essence of contract law - was seriously compromised. He said there was nothing confidential in the book which was not already in the public domain.
The decision will have implications for a book by the former head of MI5, Stella Rimington.
MI5, the British security service, had asked Dame Stella to censor her book but she refused to make further cuts until the Coburn case was resolved.
Yesterday's ruling, released by Justice Peter Salmon, follows an October hearing at which witnesses were not allowed to be photographed or recorded and screens were put around the witness box and sections of the public benches to protect their identities.
Justice Salmon said it was unlawful for the ministry to order Mr Coburn to give up his civil rights to disclose information (putting aside his obligations under Britain's Official Secrets Act) once he left the armed forces.
"The Ministry of Defence has used its power to issue orders for the improper purpose of restricting the defendant's right to freedom of speech and expression."
When he signed the contract, Mr Coburn had been under economic pressure which was "illegitimate and so constituted duress," Justice Salmon said. Mr Coburn was told if he did not sign he would be "returned to unit," ending his status as an SAS soldier and the special pay allowances which went with it.
Two minor passages of the book which contained confidential information would have to be amended, Justice Salmon ruled.
The chairman of the British House of Commons defence select committee, MP Bruce George, yesterday told the Herald that it was of some concern that a New Zealand judge was making decisions on British national interests.
Bravo Two Zero was a behind the lines mission in the Gulf War which went horribly wrong, killing three of Coburn's SAS friends. It has been the subject of a number of books, TV programmes and a movie.
Coburn was captured by the Iraqis during the mission. He had served in the New Zealand SAS before going to Britain and joining the British unit.
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