Commando still able to publish and be damned

A New Zealand commando is considering publishing his account of the ill-fated Bravo Two Zero patrol in the last Gulf War despite being knocked back by the Privy Council this week.

The soldier, using the name Mike Coburn, said he wrote Soldier Five to put the record straight after two other members of the elite SAS patrol penned what he says were fictitious accounts, apparently supported by the British Ministry of Defence.

Coburn could still publish his book in several European or old Eastern bloc countries, or possibly elsewhere.

This week the Privy Council in London upheld by a majority of four to one a New Zealand Court of Appeal decision that Coburn's confidentiality contract with the British Ministry of Defence was valid.

Lord Scott of Foscote, the lone dissenter, felt that Coburn had been subjected to undue influence.

"If the MoD wants to impose contractual obligations on soldiers by which they will be bound when they leave the service, it must, in my opinion, at least make available to them independent legal advice.

"Fairness, in my view, requires it and the law requires it. In this case it was not done," Lord Scott said.

But the ministry did not challenge the Court of Appeal's decision not to issue an injunction preventing publication of Soldier Five. This means that Coburn can publish his story if he wishes, but the ministry may claim his profits.

However, with clever accountants, the question of what exactly constitutes a profit could be an issue.

It is also possible that the book could be published in a jurisdiction where the British could not get their hands on the profits.

From Australia, Coburn said the Lords' majority decision was surprising.

"Their Lords' decision that legal advice is not required when an employee is forced to sign a contract that limits his freedoms for the rest of his life defies description," Coburn said.

He said he was still at liberty to publish and would review the position with his legal advisers. Coburn's lawyer, Warren Templeton, said he would discuss what happened next with his client.

One of the few comparable cases involved another New Zealander, former MI6 agent Richard Tomlinson. His memoirs were published in Russia, Germany, France, Italy, Australia and Britain.

It is understood that the British pursued or received profits from the Australian and British sales only.

Coburn's book refers to alleged high-level incompetence that possibly contributed to the deaths of three soldiers in the patrol.

Coburn was a member of the Bravo Two Zero (B20) patrol, dropped by helicopter into northeastern Iraq in January 1991 during the Gulf War. It has been described as one of the most written about incidents in modern warfare.

The patrol's task was to send out information about the location of Scud missiles and cut communications cables. But early in the mission it got into difficulties.

Coburn was shot, captured, interrogated and tortured by Iraqi forces during 48 days in captivity.

In 1993 and 1995 two members of the patrol, McNab and Ryan, wrote accounts of the mission in their books Bravo Two Zero and The One That Got Away, which the ministry had approved.

A later commander of 22 SAS said that both books contained falsified scenes and were "not a truthful account".

It was unfair to denigrate Sergeant Vince Phillips who died on patrol, the commander told the original trial judge, Justice Peter Salmon.

Coburn and other SAS members were deeply upset at the false portrayal. They wanted the ministry to condemn the books and the film of the The One That Got Away but were disappointed by the response.

Because of the controversy created by the film the ministry decided in 1996 to introduce a confidentiality contract for special forces personnel. Those who refused to sign would be removed from 22 SAS.

Coburn said he signed the contract under pressure.

He left the SAS in March 1997, partly, he said, because of the compulsion involved in the contract.

He later discovered that regimental command had received the patrol's radio calls for help and to be pulled out but took no immediate action to help.

During that time three members of the team were killed and the rest, except one, captured.

At the High Court hearing a colleague on the patrol told Justice Salmon that Soldier Five was the first true account of the expedition.