Law Report: Injunction would prevent former spy from profiting from book

Although the Crown had no private law remedy to prevent a former secret intelligence officer who had been convicted of offences under the Official Secrets Act 1911 from receiving royalties for his autobiography, an injunction could be granted to prevent him from profiting from his crime.

Attorney General v Blake; Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Millett and Lord Justice Mummery) 16 December 1997.

The Court of Appeal granted an injunction restraining the respondent, George Blake, 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 of any information therein relating to security and intelligence which was or had been in his possession by virtue of his position as a member of the Secret Intelligence Services.

The respondent had been a member of the SIS from 1944 until May 1961, when he pleaded guilty to five counts of unlawfully communicating information, contrary to section 1(1)(c) of the Official Secrets Act 1911. Between 1951 and his arrest in 1960 he had become an agent for the Soviet Union and had disclosed secret information of considerable value. He was sentenced to 42 years' imprisonment, but escaped from prison in 1966 to Moscow.

The action arose out of his autobiography, entitled No Other Choice, published by Jonathan Cape Ltd in September 1990. He had neither sought nor received any licence or permission from the Crown for the publication of the book, and the manuscript had not been submitted for prior approval. pounds 90,000 remained payable by the publishers.

Lord Falconer QC, Solicitor General, Philip Havers QC, Mary Vitoria QC, Stephen Richards and Aidan Robertson (Treasury Solicitor) for the Attorney General; Lord Lester QC and Pushpinder Saini (Treasury Solicitor) as amici curiae.

Lord Woolf, MR, handing down the judgment of the court, said that the issues on the appeal were whether the Attorney General was entitled to any remedy in private or public law to prevent a former member of the SIS receiving substantial royalties for the publication of his book, when the submission of the manuscript for publication had been in breach of contract and a criminal offence, and when certain information in the manuscript had been, but was no longer, secret or confidential.

Under the private law claim, the Attorney contended that the respondent had acted in breach of the fiduciary duty he owed to the Crown, which was the beneficial owner of the copyright in the book. The respondent was bound by an undertaking signed when he joined the service not to disclose information which was still confidential. By submitting the manuscript without clearance he was in breach of contract, but not in breach of fiduciary duty.

The breach of contract prima facie entitled the Crown to an injunction and damages. Since the Crown had not sought an injunction to prevent publication, and could not now establish any loss, it was entitled to no more than nominal damages. The court had invited submissions on the question whether the Crown might have a claim to restitutionary damages for breach of contract. Although the Attorney had decided not to advance such a claim, the subject was of some importance and the court expressed a tentative, though obiter, view.

The general rule was that damages for breach of contract were compensatory, not restitutionary. The time had now come, however, to accept the view that the law was sufficiently mature to recognise a claim for profits made from breach of contract in appropriate circumstances. In the absence of a substantial claim for damages for breach of contract, however, the private law claim must be dismissed.

With regard to the public law claim, the present case was an exceptional one in which the Attorney was entitled to intervene by instituting civil proceedings, in aid of the criminal law, to uphold the public policy of ensuring that a criminal did not retain profit directly derived from the commission of his crime. The court had power to grant an injunction, and the money which would be subject to it would be liable to confiscation.

The LAW REPORT resumes with the new Law Term on 12 January.