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Hello again,

Thanks to Andrew Dickinson for pointing out that Blake did indeed seek to argue, inter alia, that the remedy of account of profits was disproportionate in the circumstances, on the ground that even if the State could rely on national security and the prevention of crime as bases for some remedy, they did not justify the remedy of an account of profits.

In other words, my musings about whether this argument was possible were not misconceived. However, at the admissibility stage, this point failed, but I'm not convinced that it ought to have done.

As a preliminary point, the government rather faintly argued that there was no interference with Blake’s Article 10 rights at all under Article 10 because he was not prevented from publishing the book but merely deprived of part of his royalties, but the Court, quite rightly, would have none of this. Referring to Tolstoy and other cases, the Court brusquely held that a penalty imposed on an individual can of itself an interference with an applicant’s right to freedom of expression, the confiscation of the unpaid royalties clearly amounted to an interference with his right to freedom of expression which required justification under Article 10 § 2 of the Convention.

Furthermore, the Government’s attempts to justify the remedy of an account were rather weak, at least as reported in the Court’s judgment. The government argued that the interference was proportionate, and in particular argued that the need to prevent deliberate and cynical contract breakers from profiting from their breach justified the remedy. Now, the fact that the perceived need to prevent deliberate and cynical contract breakers from profiting from their breach justified the remedy justified the remedy of an account as a matter of domestic law according to the House of Lords is neither here nor so far as the convention is concerned; as Article 10(2) has a closed list of those factors which can be relied upon as justifications for infringement of Article 10(1). They include "the interests of national security ..., for the prevention of disorder or crime, ... [or] for preventing the disclosure of information received in confidence ...". But they do not include the need to prevent deliberate and cynical contract breakers from profiting from their breach.

Blake accepted that these matters iterated in Article 10(2) could justify some remedy as a matter of principle, but argued that they did not justify a remedy as extensive as the account of profits actually awarded. And the Court did indeed consider the substance of Blake’s submissions on that basis (even if, as is usual in these cases, it did so in a rather oblique fashion). The Court held that the book did not contain information which remained confidential in 1990, which (presumably) meant that the government couldn’t really justify the account as being based on the need to prevent the disclosure of information received in confidence. Rather more to the point, the Court held that the account of profits for his breach of contract was closely connected to Blake’s undisputed and serious criminal past as an infamous spy, which (presumably) meant that both the interests of national security and the need to prevent disorder or crime were properly implicated. So, legitimate grounds for some infringement were made out on the facts.

As to whether the infringement [the account of profits] on those grounds was proportionate, the Court seemed to make two points. It said that the account of profits was a relatively minor interference with Blake’s right to freedom of expression, and that members of the secret services have special duties and responsibilities to ensure that their conduct does not undermine the confidence active members may have in their present and future security.

On this basis, the Court concluded that "the applicant’s freedom of expression in the instant case cannot be said to have been disproportionate to the legitimate aims pursued. Accordingly, his complaint under Article 10 is manifestly ill-founded … and must be declared inadmissible …".

So, it all comes down to the two points that the account of profits was relatively minor and he had special duties as one of Her Majesty’s spies which he breached by going over to the Soviets - it all turned in this Court, as it had done in the House, on the fact that he was very much the wrong sort of person.

I borrow that last phrase from the title of Steve Hedley’s note on the House of Lords in Blake in the WebJCLI. Steve’s point there is, as I read it, twofold: that judicial distaste for Blake’s treason drove the result (he was very much the wrong person to seek to evade legal sanction); and that whether or not a confiscatory jurisdiction should be developed is a matter for Parliament and statute (the judges are very much the wrong people to do so).

My initial and tentative view is the first of these points at least must have pervaded the holding here that there was a proportionate interference with Article 10. I am uncomfortable, in particular, with the breezy assertion that confiscating St£90,000 was relatively minor. Admittedly, the sum is not in the Tolstoy range (St£1.5m). On the other hand, in Steel and Morris v United Kingdom (February 15, 2005) (the notorious 'McLibel' decision) the Court held that awards of St£36,000 against Ms Steel and St£40,000 against Mr Morris) were very substantial when compared to the defendants' modest incomes, and that, since McDonald's had not established that the distribution of the leaflets had caused any financial loss, the award of damages was not proportionate to the injury suffered.

So what matters is not the absolute number, but its relative effects in the particular case. And there was no examination of these effects on the facts; nor could there be, as the matter was dismissed as "manifestly ill-founded" before there could be full argument.

Eoin.

Quoting Andrew Dickinson:

Blake tried a number of grounds before the ECHR (including Art. 10 and Art. 1, Protocol 1), but most were rejected at the admissibility stage.