Profits from Wrongdoing:
Private and Public Law Perspectives
Public interest has been aroused recently when those who have committed crimes
have been perceived to be making a profit from their crimes. The first case to
attract publicity involved the payment of money to Mary Bell by Gitta Sereny.
Further controversy followed in respect of money paid to the family of Louise
Woodward and to the two nurses who were convicted of murder in Saudia Arabia.
In the Bell case, the Attorney-General, in his role as protector of the public interest,
investigated whether payment to Ms Bell could be blocked under a recent Court of
Appeal case, Attorney-General vBlake,1barring George Blake, the double agent,
from receiving £90,000 royalties from the sale of his memoirs.
The Blake case, which is the focus of this comment, develops the law in two
important respects. First, it extends the availability of injunctive relief for the
protection of the public interest where a breach of contract involves the commis-
sion of a criminal offence. Secondly, it extends the availability of restitutionary
awards for breach of contract, thereby qualifying the principle that the purpose of
damages awarded for breach of contract is simply to cover the losses of the
innocent party (rather than to nullify any profit or savings made by the contract-
breaker). Although the Court’s remarks on this latter (restitutionary) point are
strictly obiter, they foreshadow a major revision to the law of contract and invite
careful analysis. Before looking at the restitutionary aspect of Blake, however, the
circumstances of the case must be explained.
The case arose because of the publication of the book, No Other Choice,by
Jonathan Cape on 17 September 1990. The book is the autobiography of the
convicted spy, George Blake, and contains information relating to his employment
in the Secret Intelligence Service, his activities on behalf of the KGB, his trial,
imprisonment and subsequent escape to Moscow. A sum of £90,000 remained
payable to the defendant by the publishers. The Attorney-General was seeking to
deprive the defendant of any financial benefit derived from publication of the
book. In an earlier hearing, the Vice-Chancellor, Sir Richard Scott, had dismissed
the argument that the copyright in the book and the profits derived therefrom
belonged in equity to the Crown. The Attorney-General appealed against the
finding that there was no private law remedy and, also, pursued an alternative
remedy in public law. For reasons which will be explained, the public law claim
succeeded and an injunction was granted restraining the defendant from receiving
ßThe Modern Law Review Limited 1999 (MLR 62:2, March). Published by Blackwell Publishers,
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* Faculty of Law, University of Manchester.