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Those who both are interested in restitution and read "Private Eye", have an unexpected bonus this week. That normally austere publication has let its hair down, and carries what amounts to a casenote on AG v. Blake (HL, 27 July 2000).

For those who do not take this learned periodical, the article is reproduced below. I would have referred you to Private Eye's website (www.private-eye.co.uk), but unfortunately that is devoted to the sober business of political satire, and largely neglects restitutionary concerns. I really don't know how they stick at it, it all seems so serious!! Apparently, casenotes will only be an occasional feature.

While I have spent several seconds (or more) in anxious thought on the issue, nonetheless I do not consider that an action for breach of copyright for this re-publication is very likely. In any event, our esteemed list owner has made good his escape from the jurisdiction, and so has little to fear from the English courts. Or is breach of copyright an extraditable offence? Perhaps you shouldn't unpack that bag just yet, Lionel ;-)

I might add, for those who do not follow UK politics in detail, and so might not understand the first paragraph of the article, that "David Shayler" is a very junior secret service employee, recently in the news, who may soon stand trial for revealing official secrets. And for those who need to be told, "spook" is slang for "spy".

IN THE COURTS ("Private Eye" no 1010, 8 September 2000, page 9)

David Shayler is back in England, apparently confident that the new human rights act will keep him out of jail. But he seems to have forgotten an important legal principle: on hearing the magic words "secret service", British judges will happily twist the law or turn it upside down rather than upset the spooks.

The point is amply confirmed by the recent denouement to an epic contest between Whitehall and George Blake, the former MI6 man who spied for the Russians.

The saga began a full 10 years ago, in September 1990, when Messrs Jonathan Cape published Blake's self-justifying autobiography, "No Other Choice". Although ministers had advance notice of it, they made no attempt to prevent publication - perhaps because they'd been so badly burnt by the "Spycatcher" farce, and because none of the information in the book was remotely secret or damaging to the "national interest".

In May 1991, however, they learned that Cape had promised Blake a £150,000 advance, of which he had already been paid £60,000. The attorney-general then brought a private action against the author (though not against Cape), demanding the remaining £90,000, plus damages, since the spy had breached his "fiduciary duty" to the crown. In keeping with the speedy traditions of British jurisprudence, the case was heard in the High Court a mere five years later.

Blake, who lives in Moscow, was refused legal aid and therefore went unrepresented at the hearing. But the judge, Sir Richard Scott (of arms-to-Iraq fame), nevertheless found in his favour. Although Blake had signed the official secrets act on joining MI6 in 1944, it was "an interference with his rights of free expression" to suggest that this prevented him from writing anything at all, however harmless, even half a century afterwards.

This robust verdict made the spooks very angry indeed since they have always operated on the principle that absolutely everything related to MI5 and MI6, even down to the type of biscuits served in the staff canteen, must remain secret in perpetuity. The attorney-general duly appealed.

By the time the case reached the appeal court, in October 1997, there had been a general election; but the new regime was just as determined as its predecessor to bolster official secrecy. George Blake was again refused legal aid and had no representative in court; the government, by contrast, fielded a veritable battalion of barristers including Tony Blair's chum Lord Falconer QC, Philip Havers QC, Mary Vitoria QC plus junior counsel.

Alas! The appeal judges - Woolf, Millett and Mummery - had to concede that Sir Richard Scott's verdict was legally unimpeachable: there was no known remedy against Blake in private law. But they agreed that it would be most shocking and reprehensible if "a notorious spy" were allowed to earn money from his autobiography. And so, in a patriotic spirit, they helpfully "prompted" the crown counsel to try public law instead.

With the blessing of Lord Woolf and his two colleagues, the attorney-general hastily rewrote his statement of claim. Out went all the guff about fiduciary duty, to be replaced by an argument that in "exceptional cases" where the criminal courts were "powerless to act", the government should be allowed to claim "injunctive relief' to stop the law being brought into disrepute by KGB agents and other ne'er-do-wells.

Delighted that the attorney-general had taken the hint, Woolf and Co granted an "interim injunction" in December 1997 restraining Blake from receiving his royalties "until further order".

Even a first-year law student might notice the rather obvious flaw in this decision: how interim is interim? The money had not been frozen pending a criminal prosecution or a private lawsuit, but was in effect being seized indefinitely. This amounted to a common-law confiscation order, which the courts have no power to make.

Now it was Blake's turn to appeal to the House of Lords, aided by a solicitor and two barristers who agreed to act for him on a pro bono basis. Following three days of hearings in March this year, the law lords published their judgment last month - and revealed an even more remarkable willingness to bend the law than the appeal judges.

All five peers agreed that the injunction against Blake's royalties broke the important constitutional principle that there is no common-law power to confiscate property without compensation. But this left the government in the same horrible position it had been in three years earlier - unable to contemplate letting Blake get his money, but equally unable to find a single legal reason he shouldn't.

It was time for a little more "prompting". With the encouragement and permission of their lordships the attorney-general changed tack yet again - heading back into private law and launching a cross-appeal which claimed that the government was entitled to Blake's £90,000 as "restitutionary damages".

This was even more nonsensical than the appeal court's confiscation order. Restitution (which is not the same as compensation) is normally used only where commercial or proprietary interests are involved. It has a narrow and specific legal meaning that the defendant must return property which rightly belongs to the plaintiff. It can also be used to force someone who is unjustly enriched to reimburse the person at whose expense the enrichment took place. But since the attorney-general hadn't even attempted to argue that the government had a "proprietary right" to Blake's royalties or his book, it was obviously inapplicable in this case.

Nevertheless, four of the five law lords happily found in favour of the crown, on the grounds that Blake was a "notorious traitor" who must be punished somehow, even if this meant bending the law. It was left to the only dissenting voice, Lord Hobhouse of Woodborough, to blow the gaff on his fellow-judges' jiggery-pokery.

As he pointed out, the government failed to stop Blake publishing his book when it could have done, tried to close the stable door in the high court, and lost. It then tried the court of appeal, which froze Blake's payment - but without any legal justification. So, to save the government from embarrassment, the Lords cooked up an entirely novel concept in contract law: that "restitutional damages" can be awarded merely because judges don't like the cut of the defendant's jib. If this precedent is applied to commercial law, he warned, "the consequences will be very far reaching and disruptive".

Never mind: at least the government can celebrate a famous victory. After running up legal bills close to £1m - funded by the taxpayer - it has at last obtained handsome "restitution": a cheque for the grand sum of, er, £90,000.