Attorney-General v Blake (pet. all.)

JurisdictionUK Non-devolved
JudgeLORD NICHOLLS OF BIRKENHEAD,LORD GOFF OF CHIEVELEY,LORD BROWNE-WILKINSON,LORD STEYN,LORD HOBHOUSE OF WOODBOROUGH
Judgment Date27 July 2000
Judgment citation (vLex)[2000] UKHL J0727-2
CourtHouse of Lords
Date27 July 2000
Her Majesty's Attorney General
(Respondent)
and
Blake
(Respondent)

and Another

[2000] UKHL J0727-2

Lord Nicholls of Birkenhead

Lord Goff of Chieveley

Lord Browne-Wilkinson

Lord Steyn

Lord Hobhouse of Wood-borough

HOUSE OF LORDS

LORD NICHOLLS OF BIRKENHEAD

My Lords,

1

George Blake is a notorious, self-confessed traitor. He was employed as a member of the security and intelligence services for 17 years, from 1944 to 1961. In 1951 he became an agent for the Soviet Union. From then until 1960 he disclosed valuable secret information and documents gained through his employment. On 3 May 1961 he pleaded guilty to five charges of unlawfully communicating information contrary to section 1(1)(c) of the Official Secrets Act 1911. He was sentenced to 42 years' imprisonment. This sentence reflected the extreme gravity of the harm brought about by his betrayal of secret information.

2

In 1966 Blake escaped from Wormwood Scrubs prison and fled to Berlin and then to Moscow. He is still there, a fugitive from justice. In 1989 he wrote his autobiography. Certain parts of the book related to his activities as a secret intelligence officer. By 1989 the information in the book was no longer confidential, nor was its disclosure damaging to the public interest. On 4 May 1989 Blake entered into a publishing contract with Jonathan Cape Ltd. He granted Jonathan Cape an exclusive right to publish the book in this country in return for royalties. Jonathan Cape agreed to pay him advances against royalties: £50,000 on signing the contract, a further £50,000 on delivery of the manuscript, and another £50,000 on publication. Plainly, had Blake not been an infamous spy who had also dramatically escaped from prison, his autobiography would not have commanded payments of this order.

3

The book, entitled No Other Choice, was published on 17 September 1990. Neither the security and intelligence services nor any other branch of the Government were aware of the book until its publication was announced. Blake had not sought any prior authorisation from the Crown to disclose any of the information in the book relating to the Secret Intelligence Service. Jonathan Cape has, apparently, already paid Blake about £60,000 under the publishing agreement. In practice that money is irrecoverable. A further substantial amount, in the region of £90,000, remains payable. These proceedings concern this unpaid money.

4

The proceedings

5

On 24 May 1991 the Attorney General commenced an action against Blake, with a view to ensuring he should not enjoy any further financial fruits from his treachery. The writ and statement of claim sought relief on a variety of grounds. The trial took place before Sir Richard Scott V.- C. Blake was not represented at the trial. He had sought unsuccessfully to have access to the further money due and owing to him by the publisher for the purpose of funding his defence. He was refused legal aid. But the court had the assistance of leading and junior counsel as amici curiae. At the trial the Crown rested its claim exclusively on one cause of action: that in writing the book and authorising its publication Blake was in breach of fiduciary duties he owed the Crown. The Vice-Chancellor rejected this claim and dismissed the action: see [1997] Ch. 84. The Vice-Chancellor accepted that former members of the intelligence and security services owed a lifelong duty of non-disclosure in respect of secret and confidential information. But the law did not impose a duty which went beyond this.

6

The Crown appealed. Blake was not represented on the hearing of the appeal but, once again, the court had the assistance of leading and junior counsel as amici curiae. The Court of Appeal, comprising Lord Woolf M.R., Millett and Mummery L.JJ., allowed the appeal: see [1998] Ch. 439. The court upheld Sir Richard Scott V.-C.'s ruling on the breach of fiduciary claim. On this appeal to your Lordships' House the Attorney General has not sought to challenge that decision. However, the Court of Appeal permitted the Attorney General to amend his statement of claim and advance a public law claim. In making this claim the Attorney General asserted, not a private law right on behalf of the Crown, but a claim for relief in his capacity as guardian of the public interest. In this latter capacity the Attorney General may, exceptionally, invoke the assistance of the civil law in aid of the criminal law. Typically this occurs where an offence is frequently repeated in disregard of an inadequate penalty: see Gouriet v. Union of Post Office Workers [1978] A.C. 435. In the present case Blake's disclosure of the information in his autobiography to his publishers was a breach of section 1(1) of the Official Secrets Act 1989:

'A person who is or has been … a member of the security and intelligence services … is guilty of an offence if without lawful authority he discloses any information … relating to security or intelligence which is or has been in his possession by virtue of his position as a member of any of those services …'

7

If Blake's disclosure occurred before this Act came into force on 1 March 1990, the disclosure was an offence under comparable provisions in section 2(1) of the Official Secrets Act 1911. The Court of Appeal held that the jurisdiction of the civil courts, on an application of the Attorney General, was not limited to granting an injunction restraining the commission or repeated commission of an offence. Lord Woolf said, at p. 462:

'If, as here, a criminal offence has already been committed, the jurisdiction extends to enforcing public policy with respect to the consequences of the commission of that crime, e.g. restraining receipt by the criminal of a further benefit as a result of or in connection with that crime….

This is an exceptional case in which the Attorney General is entitled to intervene by instituting civil proceedings, in aid of the criminal law, to uphold the public policy of ensuring that a criminal does not retain profit directly derived from the commission of his crime.'

8

The court made an order in the following terms:

'That the defendant George Blake be restrained until further order from receiving or from authorising any person to receive on his behalf any payment or other benefit resulting from or in connection with the exploitation of No Other Choice in any form or any information therein relating to security and intelligence which is or has been in his possession by virtue of his position as a member of the Secret Intelligence Service.'

9

Blake appealed against this decision of the Court of Appeal. On the hearing of this appeal by your Lordships he was represented by counsel and solicitors acting pro bono. I wish to pay tribute to the thoroughness with which counsel and solicitors prepared the appeal and the expertise with which Mr. Clayton presented it to your Lordships.

10

The private law claim

11

In the course of his judgment Lord Woolf made some interesting observations, at [1998] Ch. 439, 455G to 459D, on a matter which had not been the subject of argument either in the Court of Appeal or before the Vice-Chancellor. The point arose out of the amendments made to the statement of claim in the course of the proceedings in the Court of Appeal. On 16 August 1944 Blake signed an Official Secrets Act declaration. This declaration included an undertaking:

' … I undertake not to divulge any official information gained by me as a result of my employment, either in the press or in book form. I also understand that these provisions apply not only during the period of service but also after employment has ceased.'

12

This undertaking was contractually binding. Had Blake not signed it he would not have been employed. By submitting his manuscript for publication without first obtaining clearance Blake committed a breach of this undertaking. The Court of Appeal suggested that the Crown might have a private law claim to 'restitutionary damages for breach of contract', and invited submissions on this issue. The Attorney General decided that the Crown did not wish to advance argument on this point in the Court of Appeal. The Attorney General, however, wished to keep the point open for a higher court. The Court of Appeal expressed the view, necessarily tentative in the circumstances, that the law of contract would be seriously defective if the court were unable to award restitutionary damages for breach of contract. The law is now sufficiently mature to recognise a restitutionary claim for profits made from a breach of contract in appropriate situations. These include cases of 'skimped' performance, and cases where the defendant obtained his profit by doing 'the very thing' he contracted not to do. The present case fell into the latter category: Blake earned his profit by doing the very thing he had promised not to do.

13

This matter was pursued in your Lordships' House. Prompted by an invitation from your Lordships, the Attorney General advanced an argument that restitutionary principles ought to operate to enable the Crown to recover from Blake his profits arising from his breach of contract. It will be convenient to consider this private law claim first.

14

This is a subject on which there is a surprising dearth of judicial decision. By way of contrast, over the last 20 years there has been no lack of academic writing. This includes valuable comment on the Court of Appeal dicta in the present case: by Janet O'Sullivan, 'Reflections on the Role of Restitutionary Damages to protect contractual expectations' (to be published), and Catherine Mitchell, 'Remedial Inadequacy in Contract and the Role of Restitutionary Damages' (1999) 15 J.C.L. 133. Most writers have favoured the view that in some circumstances the innocent party to a breach of contract should be able to compel the...

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