Criminals who profit by writing accounts of their crimes do not often evoke much sympathy, and there are often loud calls for the removal of this supposedly unjust enrichment.

This is a no-win situation for the courts: either they do exactly as the more strident newspapers want them to do, or they face accusations of being out of touch.

Gitta Sereny's recent account of the Mary Bell case, Cries Unheard, led to an instant controversy when it became clear that it was written with the active co-operation of Bell herself, and that Bell had been paid substantial amounts for her assistance.

The Government has promised a review of the relevant law, though they have sounded properly gloomy about the prospects for legal action against Bell herself under the current law.Coincidentally, this area of law was already in ferment over George Blake's No Other Choice, which described the author's career as a spy first for the UK and then for the Soviet Union.

The Attorney-General's action to prevent payment of royalties to Blake was legally similar to the Spycatcher case (A-G v Guardian Newspapers (No 2) [1990] 1 AC 109), but with the difference that none of the Blake text could be regarded as confidential or harmful to the public interest.

The Attorney claimed that it was enough that the matters of which Blake wrote were confidential at the time they happened, or at least that the standard undertaking signed by members of the secret services generated a legal duty not to discuss them later.

For those seeking a clear statement of the law, A-G v Blake [1998] 1 All ER 833 concluded unsatisfactorily.

The Court of Appeal granted an injunction to prevent payment of royalties to Blake himself.

But the Attorney's attempt to claim the money from the publishers failed, none of the reasons suggested by the Attorney seeming adequate.

However, the court of its own motion suggested another possible ground for recovery, which it strongly hinted would be more acceptable than anything the Attorney had suggested -- yet it was a point which the Attorney refused to take! The result is a powerful set of dicta in favour of recovery, given without the benefit of argument on the points they raise, from a court which nonetheless unequivocally refused to allow the claim.Two sets of arguments were suggested in Blake.

The private law arguments, if successful, would have entitled the Attorney to claim the royalties which Blake's publishers proposed to send him.

The public law arguments did not go so far, but would justify the Attorney from forbidding the publishers to pay Blake, while not allowing him to claim them for the Crown.THE PRIVATE LAW ARGUMENTSThe Attorney's private law claim in Blake was based on the fiduciary duty owed by Blake to his employers, the Crown.

This claim, however, failed.

Certainly Blake, like any other employee, owed a duty of loyalty to his employers, which would have prevented his writing a candid autobiography while still in service.

However, this duty did not last any longer than the actual employment to which it related.

The duty is owed to the current employer, not to former employers, and so on the termination of his service with the Crown his duty of loyalty terminated also.

Additionally, Blake owed the Crown a duty of confidentiality, which might in principle outlast his employment.

Confidential information gained in the course of the employment must remain confidential, and the Attorney would be entitled to claim profits made from breaching this confidence, as Peter Wright found in Spycatcher.

But the Attorney, having conceded that nothing in Blake's book was confidential in this sense, the claim failed.Surprisingly, the Court of Appeal suggested another ground, that as Blake's publication was clearly in breach of contract -- because to publish it without submitting it for clearance it went against the undertaking he signed on joining the secret services -- then the Attorney might recover the royalties as restitutionary damages for that breach.

But does such a claim lie for this breach of contract, or for any breach of contract? It is certainly a novel claim.

The Court of Appeal conceded that there was little warrant for a claim of this sort in the cases, and suggested that it was only available in exceptional circumstances.

What circumstances would do? The court agreed that it was not enough that the breach of contract was deliberate or "cynical".

They named two classes of case where the restitutionary remedy would be available.

First, where the breach of contract was a deliberate skimping on contractual performance.

Secondly, where the contract term was a prohibition on engaging in a particular profit-making activity, which the defendant had then deliberately indulged in.

It was the second head which applied here -- "This covers the present case exactly" -- and the Court of Appeal considered that Blake might well have been found liable had the Attorney relied on it.Yet neither of the "exceptional" grounds named by the court seem very uncommon or remarkable.

Indeed, unless we assume that the defendant made the profit by some sort of fluke, it is very hard to see how at least one of them could not apply.

The Court of Appeal's suggestion that the remedy should only rarely be available rings rather hollow.How does the private law claim ap ply in the slightly different circumstances of the Bell case? Here there was no breach of contract, but a tort -- the battery of her victims which led to her conviction for manslaughter.

Could an action lie from the estate of her victims, to 'waive the tort' and claim the profits made from her subsequent arrangements with the author of the book ? A number of difficulties suggest themselves.First, there is no good authority for a general doctrine of recovery of profits gained from torts -- any more, pace the Blake case, than there is for breach of contract -- and there is plenty of authority against a general doctrine, such as Halifax v Thomas [1995] 4 All ER 673.Secondly, even assuming that a profit is recoverable, how do we calculate it? Bell's crime had many consequences for her.

Drawing up a balance sheet of her life since she committed the crime would no doubt see her moving heavily into the red in consequence.

She did not profit from her crime; she lost heavily.

Can we confine the remedy to gains accruing to her from collaboration with the book's author? It is unclear that this would leave her very much in the black -- the sum she was paid may not have been large, and she may have had substantial expenses, starting with wages forgone to find the time for collaborative efforts, and perhaps not ending there.

But in any event, what would be the justification for confining our attention to the consequences of the book project? The case differs from Blake precisely in that her co-operation with the book's author was not a distinct legal wrong.

Put bluntly, there is no law against Bell's helping to produce Sereny's book, and so an attempt to remove her profit needs very careful justification indeed.

(Matters might be different if it were shown that she broke some legal duty through her co-operation with the author, as for example if she were in breach of some relevant injunction.)Discussing the analogous case of a murderer who sells an account of his case to a newspaper, Goff and Jones suggest that the victims might be able to claim in unjust enrichment.

"The murderer has certainly been enriched; he would not have gained the profit but for the murder of his victim; and the ground of the claim is murder, the most heinous of wrongful acts.

It may be that his lurid tale contains details of a deprived life which led him to a life of crime, or other personal details not directly related to the murder.

But a court should treat him with the utmost severity and deny him any allowances, rejecting any argument that part of the gain which he made was the product of such extraneous details" (Goff and Jones, Law of Restitution, 4th ed 1993, 710-711).Here, as so often elsewhere, enthusiasm for "unjust enrichment" pushes its proponents beyond any defensible common law principle or analogy.

No authority on remotely similar facts is pointed at except the Canadian case of Rosenfeld v Olsen (1986) 25 DLR (4th) 472, which denied recovery.

It would be a huge leap for the common law to reach such a claim; and to reach it on the ground of "unjust enrichment" is no more than a semantic trick, as Goff and Jones' cavalier treatment of expenses shows.

The intent is plainly to punish criminals for having the temerity to write books reminding the world that they still exist.

It is punishment, not the recognition of a civil debt, and if it can be justified at all, it is as punishment that it must be justified.THE PUBLIC LAW ARGUMENTSThe Attorney in Blake, having failed to claim the royalties for the Crown, nonetheless succeeded in his public law claim , that the publishers be restrained from paying the royalties to their author.

It is here that the reasoning of the court is at its weakest, drawing analogies with cases such as Chief Constable of Kent v V [1982] 3 All ER 36, a case of stolen money.

This part of Woolf MR's judgment makes a curious contrast with his discussion of the private law claim.

In the context of the private law claim, Woolf MR carefully discusses the limits of the state's legitimate need for confidentiality, concluding that it did not require removal of Blake's profit.

Yet in the public law context this is suddenly all thrown overboard, the Court of Appeal now claiming that the public interest requires a lifetime of silence from George Blake.An analogy was drawn with the jurisdiction under the Criminal Justice Act 1988 part VI, as amended by the Proceeds of Crime Act 1995, to remove the profits of wrongdoing.

The analogy is certainly a pertinent one, but what is its significance ?First, there would be a serious argument that no analogy is needed, and indeed that the legislation already catches this case.

No serious suggestion to this effect has been made in either case, and it is hard to see how it could be.

Blake is well beyond the reach of the UK courts, and so his case does not fit the scheme of the legislation, which envisages actual criminal proceedings, in the course of which a confiscation order may be made.

In Bell's case, even if a confiscation order did not fall foul of the time limits in the Acts, it would almost certainly fall foul of the European Convention on Human Rights, as being an additional penalty for her crime, imposed under legislation passed well after her original sentence.

The interesting and difficult question is whether, in some fresh case, profits from an account of a crime may be regarded as received "as a result of or in connection with" the crime (CJA 1988 s 71(4)).

This certainly seems to strain the statutory wording.

[Use of the provisions against criminal authors has certainly been contemplated before -- ironically, against Pat Pottle and Michael Randle, for their book The Blake Escape : How we freed George Blake and Why -- but the attempt collapsed when the jury declined to convict them of the offences they had admitted in the book ! (See Freiberg, "Confiscating the literary proceeds of crime" [1992] Crim LR 96.) The point is an open one, though it is clear that the legislation was not aimed at this case, and does not fit it well.]Secondly, if the legislation does not apply, is it nonetheless a useful analogy for the courts to act on ? The Court of Appeal in Blake plainly thought so.

But it should not be obvious that draconian powers to confiscate property should be extended by analogy.

In an area which is evidently fully under Parliamentary scrutiny, the courts should concentrate not on doing Parliament's job for it, but on the contrary on checking the existing legislation for consistency with principles of Human Rights.

"The recent and detailed interventions of Parliament in this field suggest that the courts should not indulge in parallel creativity by the extension of general common law principles" (Chief Constable of Leicestershire v M [1988] 3 All ER 1015, 1018, Hoffmann J).Whatever the precise legal grounds relied on, the essence of the claim is clear : the removal of a profit from a criminal, as punishment either for the crime itself, or for having the temerity to remind society that the perpetrator is still alive.

Yet in the new constitutional arrangements now being ushered in, it is not the role of th e courts to devise new and better punishments for criminals, but on the contrary, to scrutinise punitive behaviour with a jealous eye.

Criminals too have rights, including the right not to be punished twice for the same offence, and it is precisely because others neglect this principle that the courts should act on it.

It cannot be suggested that the area is not fully in the public eye, and there is no justification for heroic feats of judicial creativity.

If these profits are to be removed, the initiative must come from Parliament, not the courts.