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The form of the order
The Attorney General's entitlement to an account of
Blake's profits does not, in this case, confer on the
Crown any proprietary interest in the debt due to Blake
from Jonathan Cape. The Crown is entitled, on the
taking of the account, to a money judgment which
can then be enforced by attachment of the debt in the
usual way. These formal steps may be capable of being
short-circuited. Despite the niceties and formalities
once associated with taking an account, the amount
payable under an account of profits need not be any
more elaborately or precisely calculated than damages.
But in this case there is a complication. Blake has
brought third party proceedings against Jonathan Cape,
seeking payment of £90,000 (less tax). In the third
party proceedings Jonathan Cape has sought to deduct
legal expenses incurred in resisting a defamation claim
and in resisting the Crown's claim. Accordingly, the
Attorney General v Blake, [2001] 1 A.C. 268 (2000)
© 2023 Thomson Reuters.
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appropriate form of order on this appeal is a declaration
that the Attorney General is entitled to be paid a sum
equal to whatever amount is due and owing to Blake
from Jonathan Cape under the publishing agreement
of 4 May 1989. The injunction granted by the Court
of Appeal will remain in force until Jonathan Cape
duly makes payment to the Attorney General. I would
dismiss this appeal.
The public law claim
The public law claim, advanced by the Attorney
General as guardian of the public interest, arises only
if the Crown as Blake's former employer has no private
law claim in respect of the royalties. Accordingly,
having regard to the conclusion already reached on the
private law claim, the public law claim does not call
for decision. However, it is right that I should state
briefly why I cannot agree with the decision of the
Court of Appeal on this point, much as I sympathise
with the court's objective. The public law claim is
founded on the premise that the royalties belong to
Blake. The order made by the Court of Appeal was
not intended to be confiscatory. It was not intended to
extinguish Blake's title. The Solicitor General stated
explicitly
*289
that the order was intended only to
be preservative: a "freezing" order. Indeed, the order is
so drafted. Blake is merely restrained from receiving
payment of the royalties "until further order". This is
the classic form of order that seeks to preserve property
pending the happening of some other event. Typically,
the event is a decision by the court on who is entitled to
the property. Lord Woolf MR said that the injunction
in the present case would serve the ordinary purpose of
preserving assets pending adjudication.
This form of order prompts the question: in the absence
of a private law claim, what is the event pending which
the money held by Jonathan Cape is being frozen
in its hands? What is the anticipated adjudication?
If Blake were to return to this country he could be
prosecuted for a breach of section 1(1) of the Official
Secrets Act 1989 . When criminal proceedings were
launched, the court would have statutory jurisdiction
to make a restraint order to prevent the proceeds of a
criminal offence being used or dissipated. If convicted,
the Crown could seek a confiscation order under Part
VI of the Criminal Justice Act 1988 , as amended by
the Proceeds of Crime Act 1995 . But none of this
is a realistic possibility. The Solicitor General openly
accepted that this is so. There is no prospect of Blake
returning to this country. Thus, the money is not being
preserved pending a criminal prosecution.
This being the case, one must look elsewhere for the
event which will decide what is to happen to the money
thus frozen in Jonathan Cape's hands. I have to say
that one seeks in vain for any satisfactory explanation
of what that event will be. The Crown suggested that
at some stage in the future an application might be
made to the court for the money to be released to
a charity, or used in some other way which would
not benefit Blake. The Court of Appeal envisaged the
possibility of some use for the unpaid royalties which
would not be "contrary to the public interest". But these
suggestions serve only to underline that, although not
so expressed, the effect of this order is confiscatory.
The order will have the effect of preventing the money
being paid to Blake. It is not envisaged that the money
will ever be paid to him. He is being deprived of the
use of the money indefinitely. That is the intention.
Although the order is strictly only interlocutory in
character ("until further order"), the basis on which
the court has made the order is that Blake will never
receive any of the unpaid royalties. That is confiscation
in substance, if not in form. In my view the court has
no power to make such an order. In respect of the
proceeds of crime Parliament has conferred upon the
court power to make confiscation orders and ancillary
restraint orders. In Part VI of the Criminal Justice Act
1988, since amended by the Proceeds of Crime Act
1995, Parliament has carefully marked out when these
orders may be made. The common law has no power
to remedy any perceived deficiencies in this statutory
code. An attempt to do so would offend the established
general principle, of high constitutional importance,
that there is no common law power to take or confiscate
property without compensation: see Attorney General
v De Keyser's Royal Hotel, Ltd [1920] AC 508 ,
Burmah Oil Co Ltd v Lord Advocate [1965] AC 75
and, in this context, Malone v Metropolitan Police
Comr [1980] QB 49 , 61-63, per Stephenson LJ.
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