Attorney General v Blake, [2001] 1 A.C. 268 (2000)
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*268 Attorney General v Blake (Jonathan Cape
Ltd Third Party)
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House of Lords
27 July 2000
[2001] 1 A.C. 268
Lord Nicholls of Birkenhead , Lord Goff of Chieveley ,
Lord Browne-Wilkinson , Lord Steyn and Lord
Hobhouse of Woodborough
2000 March 7, 8, 9; July 27
Analysis
Confidential Information—Breach of confidence—
Public interest—Former
Crown servant convicted
of espionage publishing autobiography—Use of
information acquired in course of service as secret
intelligence officer—Breach of undertaking not to
disclose information without consent—Information
no longer confidential or secret—Whether fiduciary
duty owed to Crown not to use position so as to
generate personal profit—Whether royalties and other
payments recoverable by Crown—Whether Crown
entitled to restitutionary
damages for breach of
contract
Attorney General—Powers and duties—Public
interest—Enforcement of criminal law—Whether
Attorney General entitled to injunction in public
interest
The defendant was a former member of the
Secret Intelligence Service ("SIS") who in 1944
signed an undertaking not to divulge any official
information gained as a result of his employment.
Between 1951 and 1960 he disclosed valuable secret
information to the Soviet Union. In 1961 he was
convicted of spying and sentenced to 42 years'
imprisonment, but in 1966
he escaped and went
to live in Moscow, where he remained. In 1989
he wrote an autobiography, substantial parts of
which were based on information he had acquired
in the course of his duties as an SIS officer. By
section 1(1) of the Official Secrets Act 1989 it
was an offence for a person who had been a
member of the intelligence services without lawful
authority to disclose
any information relating to
intelligence which was in his possession by virtue
of his position as a member of those services.
The defendant entered into a publishing contract
with a publisher under which he was to receive an
advance of £50,000, a further £50,000 on delivery
of the final manuscript and £50,000 on publication.
The defendant neither obtained permission from
the Crown nor submitted the manuscript for prior
approval, and the Crown had no knowledge of the
book until its publication was announced in the
press. After he had already received some £60,000
from the publisher, the Attorney General brought a
private law action against the defendant claiming
damages for breach of fiduciary duty and payment
of all moneys received and to be received by him
from the publisher, on the ground that the defendant
owed the Crown a fiduciary
duty not to use his
position as a former member of the SIS or make
use of secret or confidential information received
during his service so as to generate a profit for
himself. The judge dismissed the action on the
grounds that the lifelong
duty owed by members
of the security services not to disclose secret or
confidential information acquired during the course
of their employment did not extend to information
no longer secret or confidential and the disclosure of
which would not damage the national interest, that
the defendant had not expressly contracted not to
publish any information relating to the intelligence
service without the Crown's prior approval, nor
could such an equitable obligation be implied,
and that the breaches of section 1(1) of the 1989
Act did not establish
any breach of duty under
the civil law for which the civil remedies sought
could be claimed. The Attorney General appealed,
amending the statement of claim to raise issues of
public law and claiming an injunction to restrain
the defendant from receiving any payment or other
benefit resulting from his criminal conduct. The
Court of Appeal dismissed the appeal on the private
law issues and held that the defendant was in breach
of the undertaking he signed when he joined the
service of the Crown and was therefore in breach
of contract but that since the Crown could not
