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You are here: BAILII >> Databases >> European Court of Human Rights >> MALONE v. THE UNITED KINGDOM - 8691/79 [1984] ECHR 10 (2 August 1984) URL: https://www.bailii.org/eu/cases/ECHR/1984/10.html Cite as: [1984] ECHR 10, (1985) 7 EHRR 14, 7 EHRR 14 |
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COURT (PLENARY)
CASE OF
MALONE
v.
THE
UNITED
KINGDOM
(Application no. 8691/79)
JUDGMENT
STRASBOURG
2 August 1984
In the Malone
case,
The European Court of Human Rights, taking its decision in plenary session in application of Rule 50 of the Rules of Court* and composed of the following judges:
Mr. G. Wiarda, President,
Mr. R. Ryssdal,
Mr. J. Cremona,
Mr. Thór Vilhjálmsson,
Mr. W. Ganshof van
der
Meersch,
Mrs. D. Bindschedler-Robert,
Mr. D. Evrigenis,
Mr. G. Lagergren,
Mr. F. Gölcüklü,
Mr. F. Matscher,
Mr. J. Pinheiro Farinha,
Mr. E. García de Enterría,
Mr. L.-E. Pettiti,
Mr. B. Walsh,
Sir Vincent
Evans,
Mr. R. Macdonald,
Mr. C. Russo,
Mr. J. Gersing,
and also Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy Registrar,
Having deliberated in private on 22 and 23 February and on 27 June 1984,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The present case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 16 May 1983, within the period of three months laid down by Article 32 para. 1 and Article 47 (art.
32-1, art. 47) of the Convention for the Protection of Human Rights and Fundamental
Freedoms ("the Convention"). The case originated in an application
(no. 8691/79) against the United
Kingdom
of Great Britain and Northern Ireland
lodged with the Commission on 19 July 1979 under Article 25 (art. 25) by a
United
Kingdom
citizen, Mr. James
Malone.
2. The Commission’s request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby the United
Kingdom
recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts of the
case disclosed a breach by the respondent State of its obligations under
Articles 8 and 13 (art. 8, art. 13) of the Convention.
3. In response to the inquiry made in accordance with Rule 33
para. 3 (d) of the Rules of Court, Mr. Malone
stated that he wished to
participate in the proceedings pending before the Court and designated the
lawyers who would represent him (Rule 30).
4. The Chamber of seven judges to be constituted included, as
ex officio members, Sir Vincent
Evans, the elected judge of British nationality
(Article 43 of the Convention) (art. 43), and Mr. G. Wiarda, the President of
the Court (Rule 21 para. 3 (b)). On 27 May 1983, the President of the Court
drew by lot, in the presence of the Registrar, the names of the five other members,
namely Mr. M. Zekia, Mrs. D. Bindschedler-Robert, Mr. G. Lagergren, Mr. R.
Bernhardt and Mr. J. Gersing (Article 43 in fine of the Convention and Rule 21
para. 4) (art. 43) .
Mr. Zekia and Mr. Bernhardt, who were prevented from taking part in the consideration of the case, were subsequently replaced by Mr. B. Walsh and Mr. E. García de Enterría, substitute judges (Rules 22 para. 1 and 24 para. 1).
5. Mr. Wiarda assumed the office of President of the Chamber
(Rule 21 para. 5). He ascertained, through the Registrar, the views
of the
Agent of the Government of the
United
Kingdom
("the Government"), the
Delegate of the Commission and the lawyers for the applicant regarding the need
for a written procedure. On 24 June, he directed that the Agent and the lawyers
for the applicant should each have until 16 September to file a memorial and
that the Delegate should be entitled to file, within two months from the date
of the transmission to him by the Registrar of whichever of the aforesaid
documents should last be filed, a memorial in reply (Rule 37 para. 1).
On 14 September, the President extended until 14 October each of the time-limits granted to the Agent and the applicant’s lawyers.
8. By letter received on 6 October 1983, the Post Office Engineering Union ("the POEU") requested leave under Rule 37 para.
2 to submit written comments, indicating, inter alia, its "specific
occupational interest" in the case and five themes it would want to
develop in written comments. On 3 November, the President granted leave but on
narrower terms than those sought: he specified that the comments should bear
solely on certain of the matters referred to in the POEU’s list of proposed
themes and then only "in so far as such matters relate to the particular
issues of alleged violation
of the Convention which are before the Court for
decision in the
Malone
case". He further directed that the comments should
be filed not later than 3 January 1984.
On 16 December 1983, this time-limit was extended by the President by three weeks. The POEU’s comments were received at the registry on 26 January 1984.
9. On 17 February 1984, the lawyers for the applicant filed
the applicant’s claims for just satisfaction under Article 50 (art. 50) of the
Convention. On the same day, the Government supplied two documents whose
production the Registrar had asked for on the instructions of the President. By
letter received on 19 February, the Government, with a view
to facilitating the
hearings the following day, gave a clarification regarding a certain matter in
the case.
There appeared before the Court:
- for the Government
Mr. M. Eaton, Legal Counsellor,
Foreign and Commonwealth Office, Agent,
Sir Michael Havers, Q.C., M.P., Attorney General,
Mr. N. Bratza, Barrister-at-Law, Counsel,
Mr. H. Steel, Law Officers’ Department,
Mrs. S. Evans, Legal Adviser, Home Office, Advisers;
- for the Commission
Mr. C. Nørgaard, President
of the Commission, Delegate;
- for the applicant
Mr. C. Ross-Munro, Q.C.,
Mr. D. Serota, Barrister-at-Law, Counsel.
The Court heard addresses by Sir Michael Havers for the Government, by Mr. Nørgaard for the Commission and by Mr. Ross-Munro for the applicant, as well as their replies to its questions.
AS TO THE FACTS
I. PARTICULAR CIRCUMSTANCES OF THE CASE
12. Mr. James Malone
was born in 1937 and is resident in
Dorking, Surrey. In 1977, he was an antique dealer. It appears that he has
since ceased business as such.
13. On 22 March 1977, Mr. Malone
was charged with a number of
offences relating to dishonest handling of stolen goods. His trial, which took
place in June and August 1978, resulted in his being acquitted on certain
counts and the jury disagreeing on the rest. He was retried on the remaining
charges between April and May 1979. Following a further failure by the jury to
agree, he was once more formally arraigned; the prosecution offered no evidence
and he was acquitted.
14. During the first trial, it emerged that details of a
telephone conversation to which Mr. Malone
had been a party prior to 22 March 1977 were contained in the note-book of the police officer in charge of the
investigations. Counsel for the prosecution then accepted that this
conversation had been intercepted on the authority of a warrant issued by the
Secretary of State for the Home Department.
15. In October 1978, the applicant instituted civil
proceedings in the Chancery Division of the High Court against the Metropolitan
Police Commissioner, seeking, inter alia, declarations to the effect that
interception, monitoring and recording of conversations on his telephone lines
without his consent was unlawful, even if done pursuant to a warrant of the
Secretary of State. The Solicitor General intervened in the proceedings on
behalf of the Secretary of State but without being made a party. On 28 February 1979, the Vice-Chancellor,
Sir Robert Megarry, dismissed the applicant’s claim
(
Malone
v.
Commissioner of Police of the Metropolis (No. 2), [1979] 2 All
England Law Reports 620; also reported at [1979] 2 Weekly Law Reports 700). An
account of this judgment is set out below (at paragraphs 31-36).
It was admitted by the Government that the single conversation about which evidence emerged at the applicant’s trial had been intercepted on behalf of the police pursuant to a warrant issued under the hand of the Secretary of State for the prevention and detection of crime. According to the Government, this interception was carried out in full conformity with the law and the relevant procedures. No disclosure was made either at the trial of the applicant or during the course of the applicant’s proceedings against the Commissioner of Police as to whether the applicant’s own telephone number had been tapped or as to whether other and, if so, what other, telephone conversations to which the applicant was a party had been intercepted. The primary reasons given for withholding this information were that disclosure would or might frustrate the purpose of telephone interceptions and might also serve to identify other sources of police information, particularly police informants, and thereby place in jeopardy the source in question. For similar reasons, the Government declined to disclose before the Commission or the Court to what extent, if at all, the applicant’s telephone calls and correspondence had been intercepted on behalf of the police authorities. It was however denied that the resealing with adhesive tape or the delivery unsealed of the envelopes produced to the Commission was attributable directly or indirectly to any interception. The Government conceded that, as the applicant was at the material time suspected by the police of being concerned in the receiving of stolen property and in particular of stolen antiques, he was one of a class of persons against whom measures of interception were liable to be employed.
17. In addition, Mr. Malone
believed that his telephone had
been "metered" on behalf of the police by a device which
automatically records all numbers dialled. As evidence for this belief, he
asserted that when he was charged in March 1977 the premises of about twenty
people whom he had recently telephoned were searched by the police. The
Government affirmed that the police had neither caused the applicant’s
telephone calls to be metered nor undertaken the alleged or any search
operations on the basis of any list of numbers obtained from metering.
II. RELEVANT LAW AND PRACTICE
A. Introduction
20. It has for long been the practice for the interception of
postal and telephone communications in England and Wales to be carried out on
the authority of a warrant issued by a Secretary of State, nowadays normally
the Secretary of State for the Home Department (the Home Secretary). There is
no overall statutory code governing the matter, although various
statutory
provisions are applicable thereto. The effect in domestic law of these
provisions is the subject of some dispute in the current proceedings. Accordingly,
the present summary of the facts is limited to what is undisputed, the
submissions in relation to the contested aspects of these provisions being
dealt with in the part of the judgment "as to the law".
Firstly, a Committee of Privy Councillors under the chairmanship of Lord Birkett was appointed in June 1957 "to consider and report upon the exercise by the Secretary of State of the executive power to intercept communications and, in particular, under what authority, to what extent and for what purposes this power has been exercised and to what use information so obtained has been put; and to recommend whether, how and subject to what safeguards, this power should be exercised ...". The Committee’s report (hereinafter referred to as "the Birkett report") was published in October 1957 (as Command Paper 283). The Government of the day announced that they accepted the report and its recommendations, and were taking immediate steps to implement those recommendations calling for a change in procedure. Subsequent Governments, in the person of the Prime Minister or the Home Secretary, publicly reaffirmed before Parliament that the arrangements relating to the interception of communications were strictly in accordance with the procedures described and recommended in the Birkett report.
Secondly, a Command Paper entitled "The Interception of Communications in Great Britain" was presented to Parliament by the then Home Secretary in April 1980 (Command Paper 7873 - hereinafter referred to as "the White Paper"). The purpose of the White Paper was to bring up to date the account given in the Birkett report.
Finally, in March 1981 a report by Lord Diplock, a Lord of Appeal in Ordinary who had been appointed to monitor the relevant procedures on a continuing basis (see paragraphs 54 and 55 below), was published outlining the results of the monitoring he had carried out to date.
22. The legal basis of the practice of intercepting telephone
communications was also examined by the Vice-Chancellor
in his judgment in the
action which the applicant brought against the Metropolitan Police Commissioner
(see paragraphs 31-36 below).
23. Certain changes have occurred in the organisation of the
postal and telephone services since 1957, when the Birkett Committee made its
report. The Post Office, which ran both services, was then a Department of
State under the direct control of a Minister (the Postmaster General). By
virtue
of the Post Office Act 1969, it became a public corporation with a
certain independence of the Crown, though subject to
various
ministerial powers
of supervision and control exercised at the material time by the Home
Secretary. The Post Office Act 1969 was repealed in part and amended by the
British Telecommunications Act 1981. That Act divided the Post Office into two
corporations: the Post Office, responsible for mail, and British
Telecommunications, responsible for telephones. The 1981 Act made no change of
substance in relation to the law governing interceptions. For the sake of
convenience, references in the present judgment are to the position as it was
before the 1981 Act came into force.
B. Legal position relating to interception of communications prior to 1969
24. The existence of a power vested
in the Secretary of State
to authorise by warrant the interception of correspondence, in the sense of
detaining and opening correspondence transmitted by post, has been acknowledged
from early times and its exercise has been publicly known (see the Birkett
report, Part I, especially paras. 11, 17 and 39). The precise origin in law of
this executive authority is obscure (ibid., para. 9). Nevertheless, although
none of the Post Office statutes (of 1710, 1837, 1908 or 1953) contained
clauses expressly conferring authority to intercept communications, all
recognised the power as an independently existing power which it was lawful to
exercise (ibid., paras. 17 and 38).
"If any officer of the Post Office, contrary to his duty, opens ... any postal packet in course of transmission by post, or wilfully detains or delays ... any such postal packet, he shall be guilty of a misdemeanour ... .
Provided that nothing in this section shall extend to ... the opening, detaining or delaying of a postal packet ... in obedience to an express warrant in writing under the hand of a Secretary of State."
"Postal packet" is defined in section 87 sub-section 1 of the Act as meaning:
"a letter, postcard, reply postcard, newspaper, printed packet, sample packet or parcel and every packet or article transmissible by post, and includes a telegram".
Section 58, which is still in force, reproduced a clause that had been on the statute book without material amendment since 1710.
These provisions are still in force.
27. It was held in a case decided in 1880 (Attorney General
v.
Edison Telephone Company, (1880) 6 Queen’s Bench Division 244) that a
telephone conversation is a "telegraphic communication" for the
purposes of the Telegraph Acts. It has not been disputed in the present
proceedings that the offences under the Telegraph Acts apply to telephone
conversations.
28. The power to intercept telephone messages has been
exercised in England and Wales from time to time since the introduction of the
telephone. Until the year 1937, the Post Office, which was at that time a
Department of Government, acted upon the view
that the power which the Crown
exercised in intercepting telephone messages was a power possessed by any
operator of telephones and was not contrary to law. Consequently, no warrants
by the Secretary of State were issued and arrangements for the interception of
telephone conversations were made directly between the police authorities and
the Director-General of the Post Office. In 1937, the position was reviewed by
the Home Secretary and the Postmaster General (the Minister then responsible
for the administration of the Post Office) and it was decided, as a matter of
policy, that it was undesirable that records of telephone conversations should
be made by Post Office servants and disclosed to the police without the
authority of the Secretary of State. The
view
was taken that the power which
had for long been exercised to intercept postal communications on the authority
of a warrant of the Secretary of State was, by its nature, wide enough to
include the interception of telephone communications. Since 1937 it had
accordingly been the practice of the Post Office to intercept telephone
conversations only on the express warrant of the Secretary of State (see the
Birkett report, paras. 40-41).
The Birkett Committee considered that the power to intercept telephone communications rested upon the power plainly recognised by the Post Office statutes as existing before the enactment of the statutes (Birkett report, para. 50). It concluded (ibid., para. 51):
"We are therefore of the opinion that the state of the law might fairly be expressed in this way.
(a) The power to intercept letters has been exercised from the earliest times, and has been recognised in successive Acts of Parliament.
(b) This power extends to telegrams.
(c) It is difficult to resist the view
that if there is a
lawful power to intercept communications in the form of letters and telegrams,
then it is wide enough to cover telephone communications as well."
C. Post Office Act 1969
"A requirement to do what is necessary to inform designated persons holding office under the Crown concerning matters and things transmitted or in course of transmission by means of postal or telecommunication services provided by the Post Office may be laid on the Post Office for the like purposes and in the like manner as, at the passing of this Act, a requirement may be laid on the Postmaster General to do what is necessary to inform such persons concerning matters and things transmitted or in course of transmission by means of such services provided by him."
"In any proceedings against a person in respect of an offence under section 45 of the Telegraph Act 1863 or section 11 of the Post Office (Protection) Act 1884 consisting in the improper divulging of the purport of a message or communication or an offence under section 20 of the Telegraph Act 1868 it shall be a defence for him to prove that the act constituting the offence was done in obedience to a warrant under the hand of a Secretary of State."
D. Judgment of Sir Robert Megarry V.-C.
in
Malone
v.
Commissioner
of Police of the Metropolis
31. In the civil action which he brought against the
Metropolitan Police Commissioner, Mr. Malone
sought
various
relief including
declarations to the following effect:
- that any "tapping" (that is, interception, monitoring or recording) of conversations on his telephone lines without his consent, or disclosing the contents thereof, was unlawful even if done pursuant to a warrant of the Home Secretary;
- that he had rights of property, privacy and confidentiality in respect of conversations on his telephone lines and that the above-stated tapping and disclosure were in breach of those rights;
- that the tapping of his telephone lines violated
Article 8
(art. 8) of the Convention.
In his judgment, delivered on 28 February 1979, the Vice-Chancellor
noted that he had no jurisdiction to make the declaration claimed in
respect of Article 8 (art. 8) of the Convention. He made a detailed examination
of the domestic law relating to telephone tapping, held in substance that the
practice of tapping on behalf of the police as recounted in the Birkett report
was legal and accordingly dismissed the action.
32. The Vice-Chancellor
described the central issue before
him as being in simple form: is telephone tapping in aid of the police in their
functions relating to crime illegal? He further delimited the question as
follows:
"... the only form of telephone tapping that has been debated is tapping which consists of the making of recordings by Post Office officials in some part of the existing telephone system, and the making of those recordings available to police officers for the purposes of transcription and use. I am not concerned with any form of tapping that involved electronic devices which make wireless transmissions, nor with any process whereby anyone trespasses onto the premises of the subscriber or anyone else to affix tapping devices or the like. All that I am concerned with is the legality of tapping effected by means of recording telephone conversations from wires which, though connected to the premises of the subscriber, are not on them." ([1979] 2 All England Law Reports, p. 629)
33. The Vice-Chancellor
held that there was no right of
property (as distinct from copyright) in words transmitted along telephone
lines (ibid., p. 631).
As to the applicant’s remaining contentions based on privacy
and confidentiality, he observed firstly that no assistance could be derived
from cases dealing with other kinds of warrant. Unlike a search of premises,
the process of telephone tapping on Post Office premises did not involve any
act of trespass and so was not prima facie illegal (ibid., p. 640). Secondly,
referring to the warrant of the Home Secretary, the Vice-Chancellor
remarked
that such warrant did not "purport to be issued under the authority of any
statute or of the common law". The decision to introduce such warrants in
1937 seemed "plainly to have been an administrative decision not dictated
or required by statute" (ibid.). He referred, however, to section 80 of
the Post Office Act 1969 and Schedule 5 to the Act, on which the Solicitor
General had based certain contentions summarised as follows:
"Although the previous arrangements had been merely administrative, they had been set out in the Birkett report a dozen years earlier, and the section plainly referred to these arrangements; ... A warrant was not needed to make the tapping lawful: it was lawful without any warrant. But where the tapping was done under warrant ... [section 80] afforded statutory recognition of the lawfulness of the tapping." (ibid., p. 641)
"In their essentials", stated the Vice-Chancellor,
"these contentions seem to me to be sound." He accepted that, by the
1969 Act,
"Parliament has provided a clear recognition of the warrant of the Home Secretary as having an effective function in law, both as providing a defence to certain criminal charges, and also as amounting to an effective requirement for the Post Office to do certain acts" (ibid., pp. 641-642).
The Vice-Chancellor
further concluded that there was in English
law neither a general right of privacy nor, as the applicant had contended, a
particular right of privacy to hold a telephone conversation in the privacy of
one’s home without molestation (ibid., pp. 642-644). Moreover, no duty of
confidentiality existed between the Post Office and the telephone subscriber;
nor was there any other obligation of confidence on a person who overheard a
telephone conversation, whether by means of tapping or otherwise (ibid., pp.
645-647).
34. Turning to the arguments based on the Convention, the
Vice-Chancellor
noted firstly that the Convention was not part of the law of England and, as such, did not confer on the applicant direct rights that could be enforced
in the English courts (ibid., p. 647).
He then considered the applicant’s argument that the Convention, as interpreted by the European Court in the case of Klass and Others (judgment of 6 September 1978, Series A no. 28), could be used as a guide to assist in the determination of English law on a point that was uncertain. He observed that the issues before him did not involve construing legislation enacted with the purpose of giving effect to obligations imposed by the Convention. Where Parliament had abstained from legislating on a point that was plainly suitable for legislation, it was difficult for the court to lay down new rules that would carry out the Crown’s treaty obligations, or to discover for the first time that such rules had always existed. He compared the system of safeguards considered in the Klass case with the English system, as described in the Birkett report, and concluded:
"... Not a single one of these safeguards is to be found as a matter of established law in England, and only a few corresponding provisions exist as a matter of administrative procedure.
It does not, of course, follow that a system with fewer or different safeguards will fail to satisfy Article 8 (art. 8) in the eyes of the European Court of Human Rights. At the same time, it is impossible to read the judgment in the Klass case without it becoming abundantly clear that a system which has no legal safeguards whatever has small chance of satisfying the requirements of that Court, whatever administrative provisions there may be. ... Even if the system [in operation in England] were to be considered adequate in its conditions, it is laid down merely as a matter of administrative procedure, so that it is unenforceable in law, and as a matter of law could at any time be altered without warning or subsequent notification. Certainly in law any ‘adequate and effective safeguards against abuse’ are wanting. In this respect English law compares most unfavourably with West German law: this is not a subject on which it is possible to feel any pride in English law.
I therefore find it impossible to see how English law could be said to satisfy the requirements of the Convention, as interpreted in the Klass case, unless that law not only prohibited all telephone tapping save in suitably limited classes of case, but also laid down detailed restrictions on the exercise of the power in those limited classes."
This conclusion did not, however, enable the Vice-Chancellor
to
decide the case in the way the applicant sought:
"It may perhaps be that the common law is sufficiently
fertile to achieve what is required by the first limb of [the above-stated
proviso]: possible ways of expressing such a rule may be seen in what I have
already said. But I see the greatest difficulty in the common law framing the
safeguards required by the second limb. Various
institutions or offices would
have to be brought into being to exercise
various
defined functions. The more
complex and indefinite the subject-matter the greater the difficulty in the
court doing what it is really appropriate, and only appropriate, for the
legislature to do. Furthermore, I find it hard to see what there is in the
present case to require the English courts to struggle with such a problem.
Give full rein to the Convention, and it is clear that when the object of the
surveillance is the detection of crime, the question is not whether there ought
to be a general prohibition of all surveillance, but in what circumstances, and
subject to what conditions and restrictions, it ought to be permitted. It is
those circumstances, conditions and restrictions which are at the centre of
this case; and yet it is they which are the least suitable for determination by
judicial decision.
... Any regulation of so complex a matter as telephone tapping is essentially a matter for Parliament, not the courts; and neither the Convention nor the Klass case can, I think, play any proper part in deciding the issue before me." (ibid., pp. 647-649)
He added that "this case seems to me to make it plain that telephone tapping is a subject which cries out for legislation", and continued:
"However much the protection of the public against crime demands that in proper cases the police should have the assistance of telephone tapping, I would have thought that in any civilised system of law the claims of liberty and justice would require that telephone users should have effective and independent safeguards against possible abuses. The fact that a telephone user is suspected of crime increases rather than diminishes this requirement: suspicions, however reasonably held, may sometimes prove to be wholly unfounded. If there were effective and independent safeguards, these would not only exclude some cases of excessive zeal but also, by their mere existence, provide some degree of reassurance for those who are resentful of the police or believe themselves to be persecuted." (ibid., p. 649)
35. As a final point of substance, the Vice-Chancellor
dealt,
in the following terms, with the applicant’s contention that as no power to tap
telephones had been given by either statute or common law, the tapping was necessarily
unlawful:
"I have already held that, if such tapping can be carried out without committing any breach of the law, it requires no authorisation by statute or common law; it can lawfully be done simply because there is nothing to make it unlawful. Now that I have held that such tapping can indeed be carried out without committing any breach of the law, the contention necessarily fails. I may also say that the statutory recognition given to the Home Secretary’s warrant seems to me to point clearly to the same conclusion." (ibid., p. 649)
36. The Vice-Chancellor
therefore held that the applicant’s
claim failed in its entirety. He made the following concluding remarks as to
the ambit of his decision:
"Though of necessity I have discussed much, my actual decision is closely limited. It is confined to the tapping of the telephone lines of a particular person which is effected by the Post Office on Post Office premises in pursuance of a warrant of the Home Secretary in a case in which the police have just cause or excuse for requesting the tapping, in that it will assist them in performing their functions in relation to crime, whether in prevention, detection, discovering the criminals or otherwise, and in which the material obtained is used only by the police, and only for those purposes. In particular, I decide nothing on tapping effected for other purposes, or by other persons, or by other means; nothing on tapping when the information is supplied to persons other than the police; and nothing on tapping when the police use the material for purposes other than those I have mentioned. The principles involved in my decision may or may not be of some assistance in such other cases, whether by analogy or otherwise: but my actual decision is limited in the way that I have just stated." (ibid., p. 651)
E. Subsequent consideration of the need for legislation
37. Following the Vice-Chancellor’s
judgment, the necessity
for legislation concerning the interception of communications was the subject
of review by the Government, and of Parliamentary discussion. On 1 April 1980, on the publication of the White Paper, the Home Secretary announced in
Parliament that after carefully considering the suggestions proffered by the
Vice-Chancellor
in his judgment, the Government had decided not to introduce
legislation. He explained the reasons for this decision in the following terms:
"The interception of communications is, by definition, a
practice that depends for its effectiveness and value
upon being carried out in
secret, and cannot therefore be subject to the normal processes of
parliamentary control. Its acceptability in a democratic society depends on its
being subject to ministerial control, and on the readiness of the public and
their representatives in Parliament to repose their trust in the Ministers
concerned to exercise that control responsibly and with a right sense of
balance between the
value
of interception as a means of protecting order and
security and the threat which it may present to the liberty of the subject.
Within the necessary limits of secrecy, I and my right hon. Friends who are concerned are responsible to Parliament for our stewardship in this sphere. There would be no more sense in making such secret matters justiciable than there would be in my being obliged to reveal them in the House. If the power to intercept were to be regulated by statute, then the courts would have power to inquire into the matter and to do so, if not publicly, then at least in the presence of the complainant. This must surely limit the use of interception as a tool of investigation. The Government have come to the clear conclusion that the procedures, conditions and safeguards described in the [White] Paper ensure strict control of interception by Ministers, are a good and sufficient protection for the liberty of the subject, and would not be made significantly more effective for that purpose by being embodied in legislation. The Government have accordingly decided not to introduce legislation on these matters" (Hansard, House of Commons, 1 April 1980, cols. 205-207).
He gave an assurance that "Parliament will be informed of any changes that are made in the arrangements" (ibid., col. 208).
38. In the course of the Parliamentary proceedings leading to
the enactment of the British Telecommunications Act 1981, attempts were made to
include in the Bill provisions which would have made it an offence to intercept
mail or matters sent by public telecommunication systems except pursuant to a
warrant issued under conditions which corresponded substantially to those
described in the White Paper. The Government successfully opposed these moves,
primarily on the grounds that secrecy, which was essential if interception was
to be effective, could not be maintained if the arrangements for interception
were laid down by legislation and thus became justiciable in the courts. The
present arrangements and safeguards were adequate and the proposed new
provisions were, in the Government’s view,
unworkable and unnecessary (see, for
example, the statement of the Home Secretary in the House of Commons on 1 April 1981, Hansard, cols. 334-338). The 1981 Act eventually contained a re-enactment of
section 80 of the Post Office Act 1969 applicable to the Telecommunications
Corporation (Schedule 3, para. 1, of the 1981 Act). Section 80 of the 1969 Act
itself continues to apply to the Post Office.
"... [A]lthough we have no evidence that the existing
controls are inadequate to prevent abuse, we think that there are strong
arguments for introducing a system of statutory control on similar lines to
that which we have recommended for search warrants. As with all features of
police investigative procedures, the value
of prescribing them in statutory
form is that it brings clarity and precision to the rules; they are open to
public scrutiny and to the potential of Parliamentary review. So far as
surveillance devices in general are concerned this is not at present so.
...
We therefore recommend that the use of surveillance devices by the police (including the interception of letters and telephone communications) should be regulated by statute."
These recommendations were not adopted by the Government.
40. A few months later, the Law Commission, a permanent body
set up by statute in 1965 for the purpose of promoting reform of the law,
produced a report on breach of confidence (presented to Parliament in October
1981 - Command Paper 8388). This report examined, inter alia, the implications
for the civil law of confidence of the acquisition of information by
surveillance devices, and made various
proposals for reform of the law (paras.
6.35 - 6.46). The Law Commission, however, felt that the question whether
"the methods which the police ... may use to obtain information should be
defined by statute" was a matter outside the scope of its report (paras.
6.43 and 6.44 in fine). No action has been taken by the Government on this
report.
F. The practice followed in relation to interceptions
(a) the offence must be "really serious";
(b) normal methods of investigation must have been tried and failed or must, from the nature of things, be unlikely to succeed;
(c) there must be good reason to think that an interception would be likely to lead to an arrest and a conviction.
43. As is indicated in the Birkett report (paras. 58-61), the
concept of "serious crime" has varied
from time to time. Changing
circumstances have made some acts serious offences which were not previously so
regarded; equally, some offences formerly regarded as serious enough to justify
warrants for the interception of communications have ceased to be so regarded. Thus,
the interception of letters believed to contain obscene or indecent matter
ceased in the mid-1950s (Birkett report, para. 60); no warrants for the purpose
of preventing the transmission of illegal lottery material have been issued
since November 1953 (ibid., para. 59). "Serious crime" is defined in
the White Paper, and subject to the addition of the concluding words has been
consistently defined since September 1951 (Birkett report, para. 64), as
consisting of "offences for which a man with no previous record could
reasonably be expected to be sentenced to three years’ imprisonment, or
offences of lesser gravity in which either a large number of people is involved
or there is good reason to apprehend the use of
violence"
(White Paper,
para. 4). In April 1982, the Home Secretary announced to Parliament that, on a
recommendation made by Lord Diplock in his second report (see paragraph 55
below), the concept of a serious offence was to be extended to cover offences
which would not necessarily attract a penalty of three years’ imprisonment on
first conviction, but in which the financial rewards of success were
very
large
(Hansard, House of Commons, 21 April 1982, col. 95).
Handling (including receiving) stolen goods, knowing or
believing them to be stolen, is an offence under section 22 of the Theft Act
1968, carrying a maximum penalty of fourteen years’ imprisonment. According to
the Government, the receiving of stolen property is regarded as a very
serious
offence since the receiver lies at the root of much organised crime and
encourages large-scale thefts (see the Birkett report, para. 103). The
detection of receivers of stolen property was at the time of the Birkett report
(ibid.), and remains, one of the important uses to which interception of
communications is put by the police.
In their submissions to the Commission and the Court, the Government supplemented as follows the information given in the White Paper. Except in cases of exceptional urgency, an application will only be considered in the Home Office if it is put forward by a senior officer of the Metropolitan Police, in practice the Assistant Commissioner (Crime), and also, in the case of another police force, by the chief officer of police concerned. Close personal consideration is given by the Secretary of State to every request for a warrant submitted to him. In the debate on the British Telecommunications Bill in April 1981, the then Home Secretary confirmed before Parliament that he did not and would not sign any warrant for interception unless he were personally satisfied that the relevant criteria were met (Hansard, House of Commons, 1 April 1981, col. 336).
46. Every warrant is time-limited, specifying a date on which
it expires if not renewed. Warrants are in the first place issued with a
time-limit set at a defined date not exceeding two months from the date of
issue. Warrants may be renewed only on the personal authority of the Secretary
of State and may be renewed for not more than one month at a time. In each case
where renewal of a warrant is sought, the police are required first to satisfy
the Permanent Under-Secretary of State at the Home Office that the reasons for
which the warrant was first issued are still valid
and that the case for
renewal is justified: a submission to the Secretary of State for authority to
renew the warrant is only made if the Permanent Under-Secretary is so satisfied
(White Paper, para. 11).
(a) the ground on which the warrant is applied for;
(b) a copy of the warrant issued or a note of rejection of the application;
(c) the dates of any renewals of the warrant;
(d) a note of any other decisions concerning the warrant;
(e) the date of cancellation of the warrant (White Paper, para. 14).
49. On the issue of a warrant, the interception is effected
by the Post Office. Telephone interceptions are carried out by a small staff of
Post Office employees who record the conversation but do not themselves listen
to it except from time to time to ensure that the apparatus is working
correctly. In the case of postal communications, the Post Office makes a copy
of the correspondence. As regards the interception of communications for the
purpose of the detection of crime, in practice the "designated person
holding office under the Crown" to whom the Post Office is required by
sub-section 80 of the Post Office Act 1969 to transmit the intercepted
information (see paragraph 29 above) is invariably the Commissioner of Police
of the Metropolis. The product of the interception - that is, the copy of the
correspondence or the tape-recording - is made available to a special unit
of
the Metropolitan Police who note or transcribe only such parts of the
correspondence or the telephone conversation as are relevant to the
investigation. When the documentary record has been made, the tape is returned
to the Post Office staff, who erase the recording. The tape is subsequently
re-used. The majority of recordings are erased within one week of their being
taken (Birkett report, paras. 115-117; White Paper, para. 15).
"1.67 Head Postmasters and Telephone Managers have been given authority to assist the police as indicated in paragraph 1.68 below without reference to Post Office Headquarters, in circumstances where the police are seeking information
(a) in the interests of justice in the investigation of a serious indictable offence; or
(b) when they are acting in a case on the instructions of the Director of Public Prosecutions; or
(c) when a warrant has been issued for the arrest of the offender, or the offence is such that he can be arrested without a warrant; or
...
1.68 Head Postmasters, or (in matters affecting the telecommunication service) Telephone Managers, may afford the following facilities in response to a request made by the officer locally in charge of the force at the town where the Head Postmaster is stationed
...
(g) Telegrams. Telegrams may be shown to the police on the authority of the sender or addressee. Apart from this the Post Office is prepared to give authority in particular cases of serious crime where the inspection of a telegram is a matter of urgency, and will do so at once on telephonic application, by a chief officer of police or a responsible officer acting on his behalf, to the Chief Inspector, Post Office Investigation Division. ...
...
1.69 ...
1.70 As regards any matter not covered by paragraphs 1.67 and 1.68 above, if the police are in urgent need of information which the Post Office may be able to furnish in connection with a serious criminal offence, the police officer in charge of the investigation should communicate with the Duty Officer, Post Office Investigation Division who will be ready to make any necessary inquiries of other branches of the Post Office and to communicate any information which can be supplied."
In May 1984, the Home Office notified chief officers of police that paragraph 1.68 (g), described as containing advice and information to the police which was "in some respects misleading", was henceforth to be regarded as deleted, with the exception of the first complete sentence. At the same time, chief officers of police were reminded that the procedures for the interception of communications were set out in the White Paper and rigorously applied in all cases.
51. The notes or transcriptions of intercepted communications
are retained in the police interception unit
for a period of twelve months or
for as long as they may be required for the purposes of investigation. The
contents of the documentary record are communicated to the officers of the
appropriate police force engaged in the criminal investigation in question. When
the notes or transcriptions are no longer required for the purposes of the
investigation, the documentary record is destroyed (Birkett report, para. 118;
White Paper, para. 15). The product of intercepted communications is used
exclusively for the purpose of assisting the police to pursue their
investigations: the material is not tendered in evidence, although the
interception may itself lead to the obtaining of information by other means which
may be tendered in evidence (Birkett report, para. 151; White Paper, para. 16).
In accordance with the recommendation of the Birkett Committee (Birkett report,
para. 101), information obtained by means of an interception is never disclosed
to private individuals or private bodies or to courts or tribunals of any kind
(White Paper, para. 17).
"to review on a continuing basis the purposes, procedures, conditions and safeguards governing the interception of communications on behalf of the police, HM Customs and Excise and the security service as set out in [the White Paper]; and to report to the Prime Minister" (Hansard, House of Commons, 1 April 1980, cols. 207-208).
It was further announced that the person appointed would have the right of access to all relevant papers and the right to request additional information from the departments and organisations concerned. For the purposes of his first report, which would be published, he would examine all the arrangements set out in the White Paper; his subsequent reports on the detailed operation of the arrangements would not be published, but Parliament would be informed of any findings of a general nature and of any changes that were made in the arrangements (ibid.).
(i) that, in each case, the information provided by the
applicant authorities to the Secretary of State in support of the issue of a
warrant was stated with accuracy and candour and that the procedures followed
within the applicant authorities for vetting
applications before submission to
the Secretary of State were appropriate to detect and correct any departure
from proper standards;
(ii) that warrants were not applied for save in proper cases and were not continued any longer than was necessary to carry out their legitimate purpose.
Lord Diplock further found from his examination of the system that all products of interception not directly relevant to the purpose for which the warrant was granted were speedily destroyed and that such material as was directly relevant to that purpose was given no wider circulation than was essential for carrying it out.
In early 1982, Lord Diplock submitted his second report. As the Secretary of State informed Parliament, Lord Diplock’s general conclusion was that during the year 1981 the procedure for the interception of communications had continued to work satisfactorily and the principles set out in the White Paper had been conscientiously observed by all departments concerned.
In 1982, Lord Diplock resigned his position and was succeeded by Lord Bridge of Harwich, a Lord of Appeal in Ordinary since 1980.
G. "Metering"
In the case of the Post Office, the Crown does not require the keeping of records of this kind but, if the records are kept, the Post Office may be compelled to produce them in evidence in civil or criminal cases in the ordinary way, namely by means of a subpoena duces tecum. In this respect the position of the Post Office does not differ from that of any other party holding relevant records as, for instance, a banker. Neither the police nor the Crown are empowered to direct or compel the production of the Post Office records otherwise than by the normal means.
However, the Post Office do on occasions make and provide such records at the request of the police if the information is essential to police enquiries in relation to serious crime and cannot be obtained from other sources. This practice has been made public in answer to parliamentary questions on more than one occasion (see, for example, the statement by the Home Secretary to Parliament, Hansard, House of Commons, 23 February 1978, cols. 760-761).
H. Possible domestic remedies in respect of the alleged
violation
of the Convention
(i) In the event of any interception or disclosure of intercepted material effected by a Post Office employee "contrary to duty" or "improperly" and without a warrant of the Secretary of State, a criminal offence would be committed under the Telegraph Acts 1863 and 1868 and the Post Office (Protection) Act 1884 (as regards telephone interceptions) and under the Post Office Act 1953 (as regards postal interceptions) (see paragraphs 25-27 above). On complaint that communications had been unlawfully intercepted, it would be the duty of the police to investigate the matter and to initiate a prosecution if satisfied that an offence had been committed. If the police failed to prosecute, it would be open to the complainant himself to commence a private prosecution.
(ii) In addition to (i) above, in a case of unlawful
interception by a Post Office employee without a warrant, an individual could
obtain an injunction from the domestic courts to restrain the person or persons
concerned and the Post Office itself from carrying out further unlawful
interception of his communications: such an injunction is available to any person
who can show that a private right or interest has been interfered with by a
criminal act (see, for example, Gouriet v.
The Union of Post Office Workers,
[1977] 3 All England Law Reports 70; Ex parte Island Records Ltd., [1978] 3 All
England Law Reports 795).
(iii) On the same grounds, an action would lie for an injunction to restrain the divulging or publication of the contents of intercepted communications by employees of the Post Office, otherwise than under a warrant of the Secretary of State, or to any person other than the police.
Besides these remedies, unauthorised interference with mail would normally constitute the tort of trespass to (that is, wrongful interference with) chattels and so give rise to a civil action for damages.
58. The Government further pointed to the following possible non-judicial remedies:
(i) In the event that the police were themselves implicated in an interception carried out without a warrant, a complaint could additionally be lodged under section 49 of the Police Act 1964, which a chief officer of police would, by the terms of the Act, be obliged to investigate and, if an offence appeared to him to have been committed, to refer to the Director of Public Prosecutions.
(ii) If a complainant were able to establish merely that the police or the Secretary of State had misappreciated the facts or that there was not an adequate case for imposing an interception, the individual concerned would be able to complain directly to the Secretary of State himself or through his Member of Parliament: if a complainant were to give the Home Secretary information which suggested that the grounds on which a warrant had been issued did not in fact fall within the published criteria or were inadequate or mistaken, the Home Secretary would immediately cause it to be investigated and, if the complaint were found to be justified, would immediately cancel the warrant.
(iii) Similarly, if there were non-compliance with any of the relevant administrative rules of procedure set out in the Birkett report and the White Paper, a remedy would lie through complaint to the Secretary of State who would, in a proper case, cancel or revoke a warrant and thereby terminate an interception which was being improperly carried out.
According to the Government, in practice there never has been a case where a complaint in any of the three above circumstances has proved to be well-founded.
PROCEEDINGS BEFORE THE COMMISSION
59. In his application of 19 July 1979 to the Commission (no. 8691/79), Mr. Malone
complained of the admitted interception of a
telephone conversation to which he had been a party. He further stated his
belief that, at the behest of the police, his correspondence as well as that of
his wife had been intercepted, his telephone lines "tapped" and, in
addition, his telephone "metered" by a device recording all the
numbers dialled. He claimed that by reason of these matters, and of relevant
law and practice in England and Wales, he had been the
victim
of breaches of
Articles 8 and 13 (art. 8, art. 13) of the Convention.
60. The Commission declared the application admissible on 13 July 1981.
In its report adopted on 17 December 1982 (Article 31) (art. 31), the Commission expressed the opinion:
- that there had been a breach of the applicant’s rights under
Article 8 (art. 8) by reason of the admitted interception of a telephone
conversation to which he was a party and of the law and practice in England and
Wales governing the interception of postal and telephone communications on
behalf of the police (eleven votes,
with one abstention);
- that it was unnecessary in the circumstances of the case to
investigate whether the applicant’s rights had also been interfered with by the
procedure known as "metering" of telephone calls (seven votes
to
three, with two abstentions);
- that there had been a breach of the applicant’s rights under
Article 13 (art. 13) in that the law in England and Wales did not provide an
"effective remedy before a national authority" in respect of
interceptions carried out under a warrant (ten votes
to one, with one
abstention).
The full text of the Commission’s opinion and of the two separate opinions contained in the report is reproduced as an annex to the present judgment.
FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT
"(1) with regard to Article 8 (art. 8),
(i) to decide and declare that the interference with the exercise of the rights guaranteed by Article 8 para. 1 (art. 8-1) of the Convention resulting from the measures of interception of communications on behalf of the police in England and Wales for the purpose of the detection and prevention of crime, and any application of those measures to the applicant, were and are justified under paragraph 2 of Article 8 (art. 8-2) as being in accordance with the law and necessary in a democratic society for the prevention of crime and for the protection of the rights and freedoms of others and that accordingly there has been no breach of Article 8 (art. 8) of the Convention;
(ii) (a) to decide and declare that it is unnecessary in the circumstances of the present case to investigate whether the applicant’s rights under Article 8 (art. 8) were interfered with by the so-called system of ‘metering’; alternatively (b) to decide and declare that the facts found disclose no breach of the applicant’s rights under Article 8 (art. 8) by reason of the said system of ‘metering’;
(2) with regard to Article 13 (art. 13),
to decide and declare that the circumstances of the present case disclose no breach of Article 13 (art. 13) of the Convention".
AS TO THE LAW
I. ALLEGED BREACH OF ARTICLE 8 (art. 8)
62. Article 8 (art. 8) provides as follows:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
The applicant alleged violation
of this Article (art. 8) under
two heads. In his submission, the first
violation
resulted from interception of
his postal and telephone communications by or on behalf of the police, or from
the law and practice in England and Wales relevant thereto; the second from
"metering" of his telephone by or on behalf of the police, or from
the law and practice in England and Wales relevant thereto.
A. Interception of communications
1. Scope of the issue before the Court
63. It should be noted from the outset that the scope of the
case before the Court does not extend to interception of communications in
general. The Commission’s decision of 13 July 1981 declaring Mr. Malone’s
application to be admissible determines the object of the case brought before
the Court (see, inter alia, the Ireland
v.
the
United
Kingdom
judgment of 18
January 1978, Series A no. 25, p. 63, para. 157). According to that decision,
the present case "is directly concerned only with the question of
interceptions effected by or on behalf of the police" - and not other
government services such as H.M. Customs and Excise and the Security Service -
"within the general context of a criminal investigation, together with the
legal and administrative framework relevant to such interceptions".
2. Whether there was any interference with an Article 8 (art. 8) right
Despite the applicant’s allegations, the Government have consistently declined to disclose to what extent, if at all, his telephone calls and mail have been intercepted otherwise on behalf of the police (see paragraph 16 above). They did, however, concede that, as a suspected receiver of stolen goods, he was a member of a class of persons against whom measures of postal and telephone interception were liable to be employed. As the Commission pointed out in its report (paragraph 115), the existence in England and Wales of laws and practices which permit and establish a system for effecting secret surveillance of communications amounted in itself to an "interference ... with the exercise" of the applicant’s rights under Article 8 (art. 8), apart from any measures actually taken against him (see the above-mentioned Klass and Others judgment, ibid.). This being so, the Court, like the Commission (see the report, paragraph 114), does not consider it necessary to inquire into the applicant’s further claims that both his mail and his telephone calls were intercepted for a number of years.
3. Whether the interferences were justified
(a) "In accordance with the law"
(i) General principles
The first such principle was that the word "law/loi" is to be interpreted as covering not only written law but also unwritten law (see the above-mentioned Sunday Times judgment, p. 30, para. 47). A second principle, recognised by Commission, Government and applicant as being applicable in the present case, was that "the interference in question must have some basis in domestic law" (see the the above-mentioned Silver and Others judgment, p. 33, para. 86). The expressions in question were, however, also taken to include requirements over and above compliance with the domestic law. Two of these requirements were explained in the following terms:
"Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail." (Sunday Times judgment, p. 31, para. 49; Silver and Others judgment, p. 33, paras. 87 and 88)
The Court would reiterate its opinion that the phrase "in accordance with the law" does not merely refer back to domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention (see, mutatis mutandis, the above-mentioned Silver and Others judgment, p. 34, para. 90, and the Golder judgment of 21 February 1975, Series A no. 18, p. 17, para. 34). The phrase thus implies - and this follows from the object and purpose of Article 8 (art. 8) - that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by paragraph 1 (art. 8-1) (see the report of the Commission, paragraph 121). Especially where a power of the executive is exercised in secret, the risks of arbitrariness are evident (see the above-mentioned Klass and Others judgment, Series A no. 28, pp. 21 and 23, paras. 42 and 49). Undoubtedly, as the Government rightly suggested, the requirements of the Convention, notably in regard to foreseeability, cannot be exactly the same in the special context of interception of communications for the purposes of police investigations as they are where the object of the relevant law is to place restrictions on the conduct of individuals. In particular, the requirement of foreseeability cannot mean that an individual should be enabled to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. Nevertheless, the law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence.
(ii) Application in the present case of the foregoing principles
This issue was considered under two heads in the pleadings:
firstly, whether the law was such that a communication passing through the services
of the Post Office might be intercepted, for police purposes, only pursuant to
a valid
warrant issued by the Secretary of State and, secondly, to what extent
the circumstances in which a warrant might be issued and implemented were
themselves circumscribed by law.
71. On the first point, whilst the statements of the
established practice given in the Birkett report and the White Paper are
categorical para. 55 of the Birkett report and para. 2 of the White Paper - see
paragraph 42 above), the law of England and Wales, as the applicant rightly
pointed out (see paragraph 56 of the Commission’s report), does not expressly
make the exercise of the power to intercept communications subject to the issue
of a warrant. According to its literal terms, section 80 of the Post Office Act
1969 provides that a "requirement" may be laid on the Post Office to
pass information to the police, but it does not in itself render illegal
interceptions carried out in the absence of a warrant amounting to a valid
"requirement"
(see paragraph 29 above). The Commission, however, concluded that this appeared
to be the effect of section 80 when read in conjunction with the criminal
offences created by section 58 para. 1 of the Post Office Act 1953 and by the
other statutory provisions referred to in paragraph 1, sub-paragraph 1 of
Schedule 5 to the 1969 Act (see paragraphs 129-135 of the report, and
paragraphs 25, 26 and 30 above). The reasoning of the Commission was accepted
and adopted by the Government but, at least in respect of telephone
interceptions, disputed by the applicant. He relied on certain dicta to the
contrary in the judgment of Sir Robert Megarry (see paragraphs 31-36 above,
especially paragraphs 33 and 35). He also referred to the fact that the 1977
Home Office Consolidated Circular to Police made no mention, in the section
headed "Supply of information by Post Office to police", of the
warrant procedure (see paragraph 50 above).
72. As to the second point, the pleadings revealed a
fundamental difference of view
as to the effect, if any, of the Post Office Act
1969 in imposing legal restraints on the purposes for which and the manner in
which interception of communications may lawfully be authorised by the
Secretary of State.
73. According to the Government, the words in section 80 -
and, in particular, the phrase "for the like purposes and in the like
manner as, at the passing of this Act, a requirement may be laid" - define
and restrict the power to intercept by reference to the practice which
prevailed in 1968. In the submission of the Government, since the entry into
force of the 1969 Act a requirement to intercept communications on behalf of
the police can lawfully be imposed on the Post Office only by means of a
warrant signed personally by the Secretary of State for the exclusive purpose
of the detection of crime and satisfying certain other conditions. Thus, by
virtue
of section 80 the warrant must, as a matter of law, specify the relevant
name, address and telephone number; it must be time-limited and can only be
directed to the Post Office, not the police. In addition, the Post Office is
only required and empowered under section 80 to make information available to
"designated persons holding office under the Crown". Any attempt to
broaden or otherwise modify the purposes for which or the manner in which
interceptions may be authorised would require an amendment to the 1969 Act
which could only be achieved by primary legislation.
74. In its reasoning, which was adopted by the applicant, the
Commission drew attention to various
factors of uncertainty arguing against the
Government’s
view
as to the effect of the 1969 Act (see paragraphs 136-142 of
the report).
76. A further difficulty seen by the Commission is that, on
the Government’s interpretation, not all the details of the existing
arrangements are said to have been incorporated into the law by virtue
of
section 80 but at least the principal conditions, procedures or purposes for
the issue of warrants authorising interceptions. Even assuming that the
reference to "like purposes" and "like manner" is limited
to previous practice as opposed to what would have been legally permissible, it
was by no means evident to the Commission what aspects of the previous "purposes"
and "manner" have been given statutory basis, so that they cannot be
changed save by primary legislation, and what aspects remain matters of
administrative discretion susceptible of modification by governmental decision.
In this connection, the Commission noted that the notion of "serious
crime", which in practice serves as a condition governing when a warrant
may be issued for the purpose of the detection of crime, has twice been
enlarged since the 1969 Act without recourse to Parliament (see paragraphs
42-43 above).
77. The Commission further pointed out that the Government’s
analysis of the law was not shared by Sir Robert Megarry in his judgment of
February 1979. He apparently accepted the Solicitor General’s contentions
before him that section 80 referred back to previous administrative
arrangements for the issue of warrants (see paragraph 33 above). On the other
hand, he plainly considered that these arrangements remained administrative in
character and had not, even in their principal aspects, been made binding legal
requirements by virtue
of section 80 (see paragraph 34 above).
79. The foregoing considerations disclose that, at the very
least, in its present state the law in England and Wales governing interception
of communications for police purposes is somewhat obscure and open to differing
interpretations. The Court would be usurping the function of the national
courts were it to attempt to make an authoritative statement on such issues of
domestic law (see, mutatis mutandis, the Deweer judgment of 27 February 1980,
Series A no. 35, p. 28, in fine, and the
Van
Droogenbroeck judgment of 24 June
1982, Series A no. 50, p. 30, fourth sub-paragraph). The Court is, however,
required under the Convention to determine whether, for the purposes of
paragraph 2 of Article 8 (art. 8-2), the relevant law lays down with reasonable
clarity the essential elements of the authorities’ powers in this domain.
Detailed procedures concerning interception of communications on behalf of the police in England and Wales do exist (see paragraphs 42-49, 51-52 and 54-55 above). What is more, published statistics show the efficacy of those procedures in keeping the number of warrants granted relatively low, especially when compared with the rising number of indictable crimes committed and telephones installed (see paragraph 53 above). The public have been made aware of the applicable arrangements and principles through publication of the Birkett report and the White Paper and through statements by responsible Ministers in Parliament (see paragraphs 21, 37-38, 41, 43 and 54 above).
Nonetheless, on the evidence before the Court, it cannot be
said with any reasonable certainty what elements of the powers to intercept are
incorporated in legal rules and what elements remain within the discretion of
the executive. In view
of the attendant obscurity and uncertainty as to the
state of the law in this essential respect, the Court cannot but reach a
similar conclusion to that of the Commission. In the opinion of the Court, the
law of England and Wales does not indicate with reasonable clarity the scope
and manner of exercise of the relevant discretion conferred on the public
authorities. To that extent, the minimum degree of legal protection to which
citizens are entitled under the rule of law in a democratic society is lacking.
(iii) Conclusion
(b) "Necessary in a democratic society" for a recognised purpose
In view
of its foregoing conclusion that the interferences
found were not "in accordance with the law", the Court considers that
it does not have to examine further the content of the other guarantees
required by paragraph 2 of Article 8 (art. 8-2) and whether the system circumstances.
B. Metering
84. As the Government rightly suggested, a meter check
printer registers information that a supplier of a telephone service may in
principle legitimately obtain, notably in order to ensure that the subscriber
is correctly charged or to investigate complaints or possible abuses of the
service. By its very
nature, metering is therefore to be distinguished from
interception of communications, which is undesirable and illegitimate in a
democratic society unless justified. The Court does not accept, however, that
the use of data obtained from metering, whatever the circumstances and
purposes, cannot give rise to an issue under Article 8 (art. 8). The records of
metering contain information, in particular the numbers dialled, which is an
integral element in the communications made by telephone. Consequently, release
of that information to the police without the consent of the subscriber also
amounts, in the opinion of the Court, to an interference with a right
guaranteed by Article 8 (art. 8).
85. As was noted in the Commission’s decision declaring Mr.
Malone’s
application admissible, his complaints regarding metering are closely
connected with his complaints regarding interception of communications. The
issue before the Court for decision under this head is similarly limited to the
supply of records of metering to the police "within the general context of
a criminal investigation, together with the legal and administrative framework
relevant [thereto]" (see paragraph 63 above).
86. In England and Wales, although the police do not have any
power, in the absence of a subpoena, to compel the production of records of
metering, a practice exists whereby the Post Office do on occasions make and
provide such records at the request of the police if the information is
essential to police enquiries in relation to serious crime and cannot be
obtained from other sources (see paragraph 56 above). The applicant, as a
suspected receiver of stolen goods, was, it may be presumed, a member of a
class of persons potentially liable to be directly affected by this practice. The
applicant can therefore claim, for the purposes of Article 25 (art. 25) of the
Convention, to be a "victim"
of a
violation
of Article 8 (art. 8) by
reason of the
very
existence of this practice, quite apart from any concrete
measure of implementation taken against him (cf., mutatis mutandis, paragraph
64 above). This remains so despite the clarification by the Government that in
fact the police had neither caused his telephone to be metered nor undertaken
any search operations on the basis of any list of telephone numbers obtained
from metering (see paragraph 17 above; see also, mutatis mutandis, the
above-mentioned Klass and Others judgment, Series A no. 28, p. 20, para. 37 in
fine).
87. Section 80 of the Post Office Act 1969 has never been
applied so as to "require" the Post Office, pursuant to a warrant of
the Secretary of State, to make available to the police in connection with the
investigation of crime information obtained from metering. On the other hand,
no rule of domestic law makes it unlawful for the Post Office voluntarily
to
comply with a request from the police to make and supply records of metering
(see paragraph 56 above). The practice described above, including the
limitative conditions as to when the information may be provided, has been made
public in answer to parliamentary questions (ibid.). However, on the evidence
adduced before the Court, apart from the simple absence of prohibition, there
would appear to be no legal rules concerning the scope and manner of exercise
of the discretion enjoyed by the public authorities. Consequently, although
lawful in terms of domestic law, the interference resulting from the existence
of the practice in question was not "in accordance with the law",
within the meaning of paragraph 2 of Article 8 (art. 8-2) (see paragraphs 66 to
68 above).
C. Recapitulation
II. ALLEGED BREACH OF ARTICLE 13 (art. 13)
90. The applicant submitted that no effective domestic remedy
existed for the breaches of Article 8 (art. 8) of which he complained and that,
consequently, there had also been a violation
of Article 13 (art. 13) which
provides:
"Everyone whose rights and freedoms as set forth in this
Convention are violated
shall have an effective remedy before a national
authority notwithstanding that the
violation
has been committed by persons
acting in an official capacity."
III. APPLICATION OF ARTICLE 50 (art. 50)
He further sought recovery of interest in respect of the first two items.
The Government have so far made no submissions on these claims.
FOR THESE REASONS, THE COURT
1. Holds unanimously that there has been a breach of Article 8 (art. 8) of the Convention;
2. Holds by sixteen votes
to two that it is not necessary also
to examine the case under Article 13 (art. 13);
3. Holds unanimously that the question of the application of Article 50 (art. 50) is not ready for decision;
accordingly,
(a) reserves the whole of the said question;
(b) refers back to the Chamber the said question.
Done in English and in French at the Human Rights Building, Strasbourg, this second day of August, one thousand nine hundred and eighty-four.
Gérard WIARDA
President
Marc-André EISSEN
Registrar
The separate opinions of the following judges are annexed to the present judgment in accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 52 para. 2 of the Rules of Court:
- partially dissenting opinion of Mr. Matscher and Mr. Pinheiro Farinha;
- concurring opinion of Mr. Pettiti.
G.W.
M.-A.E.
PARTIALLY DISSENTING OPINION OF JUDGES MATSCHER AND PINHEIRO FARINHA
(Translation)
We recognise that Article 13 (art. 13) constitutes one of the most obscure clauses in the Convention and that its application raises extremely difficult and complicated problems of interpretation. This is probably the reason why, for approximately two decades, the Convention institutions avoided analysing this provision, for the most part advancing barely convincing reasons.
It is only in the last few years that the Court, aware of its function of interpreting and ensuring the application of all the Articles of the Convention whenever called on to do so by the parties or the Commission has also embarked upon the interpretation of Article 13 (art. 13). We refer in particular to the judgments in the cases of Klass and Others (Series A no. 28, paras. 61 et seq.), Sporrong and Lönnroth (Series A no. 52, para. 88), Silver and Others (Series A no. 61, paras. 109 et seq.) and, most recently, Campbell and Fell (Series A no. 80, paras. 124 et seq.), where the Court has laid the foundation for a coherent interpretation of this provision.
Having regard to this welcome development, we cannot, to our
regret, concur with the opinion of the majority of the Court who felt able to
forego examining the allegation of a breach of Article 13 (art. 13). In so
doing, the majority, without offering the slightest justification, have
departed from the line taken inter alia in the Silver and Others judgment,
which was concerned with legal issues very
similar to those forming the object
of the present case.
Indeed, applying the approach followed in the Silver and
Others judgment, the Court ought in the present case, and to the same extent,
to have arrived at a finding of a violation
of Article 13 (art. 13).
CONCURRING OPINION OF JUDGE PETTITI
(Translation)
I have voted
with my colleagues for the
violation
of Article 8
(art. 8), but I believe that the European Court could have made its decision
more explicit and not confined itself to ascertaining whether, in the words of
Article 8 (art. 8), the interference was "in accordance with the law",
an expression which in its French
version
("prévue par la loi") is
used in Article 8 para. 2, Article 1 of Protocol No. 1 and Article 2 of
Protocol No. 4 (art. 8-2, P1-1, P4-2), the term "the law" being
capable of being interpreted as covering both written law and unwritten law.
The European Court considered that the finding of a breach on
this point made it unnecessary, in the Malone
case, to examine the British
system currently in force, which was held to have been at fault because of a
lack of "law", and to determine whether or not adequate guarantees
existed.
In my view,
however, the facts as described in the Commission’s
report and in the Court’s summary of facts also called for an assessment of the
British measures and practices under Article 8 para. 2 (art. 8-2).
This appears necessary to me because of the major importance of the issue at stake, which I would summarise as follows.
The danger threatening democratic societies in the years 1980-1990 stems from the temptation facing public authorities to "see into" the life of the citizen. In order to answer the needs of planning and of social and tax policy, the State is obliged to amplify the scale of its interferences. In its administrative systems, the State is being led to proliferate and then to computerise its personal data-files. Already in several of the member States of the Council of Europe each citizen is entered on 200 to 400 data-files.
At a further stage, public authorities seek, for the purposes of their statistics and decision-making processes, to build up a "profile" of each citizen. Enquiries become more numerous; telephone tapping constitutes one of the favoured means of this permanent investigation.
Telephone tapping has during the last thirty years benefited from many "improvements" which have aggravated the dangers of interference in private life. The product of the interception can be stored on magnetic tapes and processed in postal or other centres equipped with the most sophisticated material. The amateurish tapping effected by police officers or post office employees now exists only as a memory of pre-war novels. The encoding of programmes and tapes, their decoding, and computer processing make it possible for interceptions to be multiplied a hundredfold and to be analysed in shorter and shorter time-spans, if need be by computer. Through use of the "mosaic" technique, a complete picture can be assembled of the life-style of even the "model" citizen.
It would be rash to believe that the number of telephone interceptions is only a few hundred per year in each country and that they are all known to the authorities.
Concurrently with developments in the techniques of interception, the aims pursued by the authorities have diversified. Police interception for the prevention of crime is only one of the practices employed; to this should be added political interceptions, interceptions of communications of journalists and leading figures, not to mention interceptions required by national defence and State security, which are included in the "top-secret" category and not dealt with in the Court’s judgment or the present opinion.
Most of the member States of the Council of Europe have felt
the need to introduce legislation on the matter in order to bring to an end the
abuses which were proliferating and making vulnerable
even those in power.
The legislative technique most often employed is that of criminal procedure: the interception of communications is made subject to the decision and control of a judge within the framework of a criminal investigation by means of provisions similar to those governing searches carried out on the authority of a warrant.
The order by the judge must specify the circumstances
justifying the measure, if need be subject to review by an appeal court. Variations
exist according to the types of system and code of criminal procedure.
The governing principle of these laws is the separation of executive and judicial powers, that is to say, not to confer on the executive the initiative and the control of the interception, in line with the spirit of Article 8 (art. 8).
The British system analysed in the Malone
judgment - and held
by the Court not to be "in accordance with the law" - is a typical
example of a practice that places interception of communications within the
sole discretion and under the sole control of the Minister of the Interior,
this being compounded by the fact that intercepted material is not disclosed to
the judicial authorities (in the form of evidence), which therefore have no
knowledge of the interception (see paragraph 51).
Even in the case of interception of communications required by the imperative necessities of counter-espionage and State security, most systems of law include strict rules providing for derogations from the ordinary law, the intervention and control of the Prime Minister or the Minister of Justice, and the recourse to boards or commissions composed of judges at the peak of the judicial hierarchy.
The European Court has, it is true, "considere[d] that it does not have to examine further the content of the other guarantees required by paragraph 2 of Article 8 (art. 8-2) and whether the system complained of furnished those guarantees in the particular circumstances" (paragraph 82).
This reservation makes clear that in limiting itself to
finding a violation
because the governmental interference was not in accordance
with the law, the Court did not intend, even implicitly, to mark approval of
the British system and thus reserved any adjudication on a possible
violation
of Article 8 para. 2 (art. 8-2).
In my opinion, however, the Court could at this point have completed its reasoning and analysed the components of the system so as to assess their compatibility and draw the conclusion of a breach of Article 8 para. 2 (art. 8-2), there being no judicial control.
Even if a "law", within the meaning of Article 8
paras. 1 and 2 (art. 8-1, art. 8-2), contains detailed rules which do not
merely legalise practices but define and delimit them, the lack of judicial
control could still entail, in my view,
a
violation
of Article 8 para. 2 (art.
8-2), subject of course to review by the Court.
It must also be borne in mind that the practice of police interception leads to the establishment of "prosecution" files which thereafter carry the risk of rendering inoperative the rules of a fair trial provided for under Article 6 (art. 6) by building up a presumption of guilt. The judicial authorities should therefore be left a full power of appreciation over the field of decision and control.
The object of the laws in Europe protecting private life is to
prevent any clandestine disclosure of words uttered in a private context;
certain laws have even made illegal any tapping of a telephone communication,
any interception of a message without the consent of the parties. The link between
laws on "private life" and laws on "interception of
communications" is very
close.
German law enumerates the offences for the detection of which measures of interception may be ordered. The list of offences set out in this law is entirely directed towards the preservation of democracy, the sole justification for the attendant interference.
In the Klass case and the accompanying comparative examination of the rules obtaining in the different signatory States of the Convention, the need for a system of protection in this sphere was emphasised. It admittedly falls to the State to operate such a system, but only within the bounds set by Article 8 (art. 8).
There were, in the Malone
case, factors permitting the Court
to draw a distinction between the dangers of a crisis situation caused by
terrorism (Klass case) and the dangers of ordinary criminality, and hence to
consider that two different sets of rules could be adopted. In so far as the
prevention of crime under the ordinary law is concerned, it is difficult to see
the reason for ousting judicial control, at the
very
least such control as
would secure at a later stage the right to the destruction of the product of
unjustified interceptions.
Reasoning along these lines could have been adopted by the
Court, even on an alterative basis. The interference caused by interception of
communications is more serious than an ordinary interference since the
"innocent" victim
is incapable of discovering it.
If, as the British Government submitted, only the suspected criminal is placed under secret surveillance, there can be no ground for denying a measure involving judicial or equivalent control, or for refusing to have a neutral and impartial body situated between the authority deciding on the interception and the authority responsible for controlling the legality of the operation and its conformity with the legitimate aims pursued.
The requirement of judicial control over telephone interceptions does not flow solely from a concern rooted in a philosophy of power and institutions but also from the necessities of protecting private life.
In reality, even justified and properly controlled telephone interceptions call for counter-measures such as the right of access by the subject of the interception when the judicial phase has terminated in the discharge or acquittal of the accused, the right to erasure of the data obtained, the right of restitution of the tapes.
Other measures are necessary, such as regulations safeguarding the confidentiality of the investigation and legal professional privilege, when the interception has involved monitoring a conversation between lawyer and client or when the interception has disclosed facts other than those forming the subject of the criminal investigation and the accusation.
Provisions of criminal procedure alone are capable of satisfying such requirements which, moreover, are consistent with the Council of Europe Convention of 1981 (Private Life, Data Banks). It is in fact impossible to isolate the issue of interception of communications from the issue of data banks since interceptions give rise to the filing and storing of the information obtained. For States which have also ratified the 1981 Convention, their legislation must satisfy these double requirements.
The work of the Council of Europe (Orwell Colloquy in Strasbourg on 2 April 1984, and Data Bank Colloquy in Madrid on 13 June 1984) has been directed towards the same end, namely the protection of the individual threatened by methods of storing and transmission of information. The mission of the Council of Europe and of its organs is to prevent the establishment of systems and methods that would allow "Big Brother" to become master of the citizen’s private life. For it is just as serious to be made subject to measures of interception against one’s will as to be unable to stop such measures when they are illegal or unjustified, as was for example the case with Orwell’s character who, within his own home, was continually supervised by a television camera without being able to switch it off.
The distinction between administrative interceptions and
interceptions authorised by a judicial authority must be clearly made in the
law in order to comply with Article 8 (art. 8); it would appear preferable to
lay down the lawfulness of certain interventions within an established legal
framework rather than leaving a legal vacuum
permitting arbitrariness. The
designation of the collective institutions responsible for ensuring the ex post
facto control of the manner of implementation of measures of interception; the
determination of the dates of cancellation of the tapping and monitoring
measures, the means of destruction of the product of interception; the
inclusion in the code of criminal procedure of all measures applying to such
matters in order to afford protection of words uttered in a private context or
in a private place,
verification
that the measures do not constitute an unfair
stratagem or a
violation
of the rights of the defence - all this panoply of
requirements must be taken into consideration to judge whether or not the
system satisfies the provisions of Article 8 (art. 8). The
Malone
case prompted
queries of this kind since the State cannot enjoy an "unlimited
discretion" in this respect (see the Klass judgment).
According to the spirit of the Council of Europe Convention of 1981 on private life and data banks, the right of access includes the right for the individual to establish the existence of the data, to establish the banks of which he is a "data subject", access properly speaking, the right to challenge the data, and the exceptions to and derogations from this right of access in the case notably of police or judicial investigations which must by nature remain secret during the initial phase so as not to alert the criminals or potential criminals.
Recommendation R (83) 10 of the Committee of Ministers of the Council of Europe states that respect for the privacy of individuals should be guaranteed "in any research project requiring the use of personal data".
The nature and implications of data processing are totally different as soon as computerisation enters the picture. The Karlsruhe Constitutional Court has rightly identified the concept of "informational self-determination", that is to say, the right of the individual to decide within what limits data concerning his private life might be divulged and to protect himself against an increasing tendency to make him "public property".
In 1950, techniques for interfering in private life were still archaic; the meaning and import of the term interference as understood at that time cannot prevail over the current meaning. Consequently, interceptions which in previous times necessitated recourse to tapping must be classified as "interferences" in 1984, even if they have been effected without tapping thanks to "bugging" and long-distance listening techniques.
For it is settled, as was recalled in paragraph 42 of the
Klass judgment, that Article 8 para. 2 (art. 8-2), since it provides for an
exception to a guaranteed right, "is to be narrowly interpreted" and
that "powers of secret surveillance of citizens, characterising as they do
the police State, are tolerable under the Convention only in so far as strictly
necessary for safeguarding the democratic institutions". To leave to the
police alone, even subject to the control of the Home Office, the task of
assessing the degree of suspicion or dangerousness cannot, in my opinion, be
regarded as an adequate means consistent with the aim pursued, even if that aim
be legitimate; and in any event, practices of systematic interception of
communications in the absence of impartial, independent and judicial control
would be disproportionate to the aim sought to be achieved. In this connection,
the Malone
judgment has to read with reference to the reasoning expounded in
the Klass judgment.
States must admittedly be left a domestic discretion and the scope of this discretion is admittedly not identical in respect of each of the aims enumerated in Articles 8 and 10 (art. 8, art. 10), but the right to respect for private life against spying by executive authorities comes within the most exacting category of Convention rights and hence entails a certain restriction on this domestic "discretion" and on the margin of appreciation. In this sphere (more than in the sphere of morality - cf. the Handyside judgment), it can be maintained that it is possible, whilst still taking account of the circumstances resulting from the threat posed to democratic societies by terrorism, to identify European standards of State conduct in relation to surveillance of citizens. The shared characteristics of statutory texts or draft legislation on data banks and interception of communications is evidence of this awareness.
The Court in its examination of cases of violation
of Article
8 (art. 8) must be able to inquire into all the techniques giving rise to the
interference.
The Post Office Engineering Union, during the course of the
Malone
case, referred to proposals for the adoption of regulations capable of
being adapted to new techniques as they are developed and for a system of
warrants issued by "magistrates".
The Court has rightly held that there was also violation
of
Article 8 para. 1 (art. 8-1) in respect of metering.
On this point, it would likewise have been possible to have given a ruling by applying Article 8 para. 2 (art. 8-2). The comprehensive metering of telephone communications (origin, destination, duration), when effected for a purpose other than its sole accounting purpose, albeit in the absence of any interception as such, constitutes an interference in private life. On the basis of the data thereby obtained, the authorities are enabled to deduce information that is not properly meant to be within their knowledge. It is known that, as far as data banks are concerned, the processing of "neutral" data may be as revealing as the processing of sensitive data.
The simple reference in the judgment to the notion of necessity in a democratic society and to the requirement of "adequate guarantees", without any eludication of the principles and principal conditions attaching to these guarantees, might well be inadequate for the purposes of the interpretation that the State should give to the Convention and to the judgment.
The Malone
judgment complementing as it does the Klass judgment,
in that it arrives at a conclusion of
violation
by finding unsatisfactory a
system that is laid down neither by statute nor by any statutory equivalent in
Anglo-Saxon law, takes its place in that continuing line of decisions through
which the Court acts as guardian of the Convention. The Court fulfils that
function by investing Article 8 (art. 8) with its full dimension and by
limiting the margin of appreciation especially in those areas where the
individual is more and more
vulnerable as a result of modern technology;
recognition of his right to be "left alone" is inherent in Article 8
(art. 8). The Convention protects the community of men; man in our times has a
need to preserve his identity, to refuse the total transparency of society, to
maintain the privacy of his personality.
* Note by the registry: The revised Rules of Court, which entered into force on 1 January 1983, are applicable to the present case.