A Scrivener QC and T Mackinnon (Birnbergs) for the Applicants
D Smith (Crown Prosecution Service) for the Respondent
On 22nd October 1966 George Blake, who had been sentenced on 3rd May 1961 to 40 years' imprisonment for spying for the Russians, escaped from Wormwood Scrubs prison.
On 1st June 1988 the applicants signed an agreement with certain publishers by which they undertook to write and deliver to the publishers the completed text of a book which was eventually entitled "The Blake Escape. How we freed George Blake and why". By that agreement the publishers agreed to pay the applicants £30,000 on account and, in anticipation of royalties due under the agreement, payable as to £10,000 on signature of the agreement, £10,000 on delivery and acceptance of the manuscript and £10,000 on publication. Each of those three sums have been paid, by payments of £5,000 on each occasion to each of the two applicants. The book was published in 1990.
On 10th July 1989 the applicants were charged on indictment with three offences: with having, on 22nd October 1966, aided George Blake to escape from prison; with having, on divers dates between 1st May and 31st December 1966, conspired together and with another knowingly to harbour George Blake; and with having, between the same dates, conspired together and with that other to give assistance to George Blake after his escape. Those offences are offences to which Part VI of the Criminal Justice Act 1988 apply. Where a person is found guilty of an offence to which that part of the Act applies the Court may make an order against him, requiring him to pay such sum as the Court thinks fit, if the Court is satisfied that he has benefited from that offence. By section 71(4) of the Act:
"For the purposes of this part of this Act a person benefits from an offence if he obtains property as a result of or in connection with its commission and his benefit is the value of the property so obtained."
Section 102(5) provides that references to property obtained in connection with the commission of an offence:
"Include a reference to property obtained . . . both in that connection and in some other connection."
By virtue of sections 76(1) and 78(1) of the Act, where proceedings have been instituted for such an offence and have not been concluded and where there are reasonable grounds for thinking that a confiscation order may be made in those proceedings, the High Court may make a charging order on realisable property for securing the payment to the Crown of an amount equal to the value from time to time of the property charged. For those provisions to apply the prosecution must show that a person has been charged with an offence to which those sections apply, that there are reasonable grounds for thinking that he will be found guilty of that offence and that the Court will make an order against him under section 71(4).
On 11th April 1990 Mr Justice Kennedy, on the ex parte application of the Crown Prosecution Service, ordered that two dwelling houses, one owned by each of the applicants, be charged under those provisions.
The applicants have now applied to the Court to discharge that order on the ground that there was no jurisdiction to make it since, they contend, the payments by the publishers to them, upon which the Crown Prosecution Service relied as constituting benefits obtained from the offences charged, were not capable, as a matter of law, of constituting such benefits because they did not constitute property obtained as a result of or in connection with the commission of those offences within the meaning of section 71(4) of the Act. For the purposes of this application they have not contended that there were no reasonable grounds for thinking that they will be found guilty of at least some of the offences.
If they are convicted will the receipt of those payments have constituted a benefit obtained as a result of or in connection with the offences or in connection partly with those offences and partly in some other connection? The relevant sections of the Criminal Justice Act 1988 are, in a sense, penal provisions which can entail a deprivation of the private rights of persons who, until convicted, are to be presumed innocent. The provisions should, therefore, be construed "strictly" if there is any ambiguity in them. But if there is no ambiguity they should be construed according to the fair common sense meaning of the language used; see Craies on Statute Law 7th Edition page 533 citing Bowers v. Gloucester Corporation [1963] 1 QB 881at pages 886 to 887, and The Gauntlet (1872) LR 4 PC 184 at 191.
Applying these principles in this particular context the words "as a result of" would appear to be intended to be distinguishable from "in connection with", although the possibility of some overlap need not necessarily be excluded. Giving all the words used their ordinary meaning, I unhesitatingly conclude that if the payments to the applicants fall into one or other of those two categories they fall into the category of property obtained in connection with the commission of the offences rather than as a result of them -- if only because the offences charged were committed in 1966 and the payments not received until over 20 years' later, in 1989 and 1990; and because the receipt of those payments is the direct result of the writing of the book and the applicants' contract with the publishers, two facts which, in my view, sufficiently break any chain of causation, between the commission of the offences (if they were committed) and the receipt of those payments, which would have to exist for anyone fairly to be able to say that the payments resulted from the offences.
The next question, therefore, is whether those payments were connected with the commission of the offences or with the commission of the offences and some other matter? It is pointless to attempt to construe definitively in this or any other context the meaning of the words "connected with". But common sense would seem to lead almost inevitably to the conclusion, and certainly to the prima facie conclusion, that a book entitled (as this one is) "The Blake Escape. How we freed George Blake and why" is fairly to be regarded as connected with the commission of offences of aiding that escape and of conspiring to harbour and assist the escaper, unless it be shown, which naturally has not been attempted, that the apparent connection is misleading and that there is no connection whatsoever between the offences in question and the book or any payment for it. It was the commission of the offences by the applicants, if they are found guilty of them, that will have enabled them to write the book, and the payments were the result of writing the book. This conclusion is fortified by a short passage at page 83 which reads:
"We also discussed the kind of sentence we could expect if convicted . . .; we knew that if we were convicted of conspiracy there was no statutory limit to the sentence that could be imposed . . . we could, however, offset the disaster to some degree by writing up the story; this would help to defray the legal costs and provide some minimal support for" (the family of one of the applicants).
If it can fairly be said that the payments were not connected exclusively with the offences because the book could not have been written without the applicants' skill as authors, then I would conclude that the payments were obtained partly in connection with the commission of the offences and partly in connection with their skill as authors.
For these reasons I decline to discharge the order of 11th April 1990.
I have been asked by both sides to give this decision in open Court. I have been assured by both counsel that to do so would not prejudice the fair trial of the action or that, if it is thought by either side, having heard this judgment, that there is any risk that it might do so, an application can be made under section 4(2) of the Contempt of Court Act 1981 to postpone the reporting of this decision until the criminal proceedings have been concluded.
Application refused