Attorney General v Blake, [2001] 1 A.C. 268 (2000)
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8
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. Sir Richard Scott V-C rejected this claim
and dismissed the action [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.
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
MR, Millett and Mummery LJJ, allowed the appeal
[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] AC 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 ..."
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 MR
said [1998] Ch 439 , 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,
eg 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."
*277
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."
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.
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