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On 2 August 1984 at Strasbourg, the European Court of Human Rights delivered judgment in the Malone case, which concerns the laws and practices in England and Wales allowing interception of communications and “metering" of telephones by or on behalf of the police. The Court unanimously held that there had been violation of Mr. James Malone's right to respect for his private life and his correspondence, as guaranteed by Article 8 of the European Convention on Human Rights 1. The Court further considered, by sixteen votes to two, that it was unnecessary in the circumstances to examine Mr. Malone's complaint under Article 13 of the Convention (right to an effective remedy before a national authority)2.
***
I. BACKGROUND TO THE CASE A. Principal facts 1. The applicant in the present case is Mr. James Malone, a United Kingdom citizen who currently resides in Dorking, Surrey, in England. In March 1977, he was charged with offences relating to the dishonest handling of stolen goods; he was ultimately acquitted. During his trial, it emerged that a telephone conversation to which he had been a party had been intercepted by the Post Office on behalf of the police on the authority of a warrant issued by the Home Secretary.
2. Mr. Malone further believes that, at the behest of the police, his correspondence has been intercepted, his telephone lines "tapped" and, in addition, his telephone "metered" by a device recording all the numbers dialled. Beyond admitting the interception of the one conversation adverted to in evidence at his trial, the United Kingdom Government have neither admitted nor denied the allegations concerning correspondence and tapping, and have denied that concerning metering; they have, however, accepted that the applicant, as a suspected receiver of stolen goods, was one of a class of persons whose postal and telephone communications were liable to be intercepted.
3. It has for long been the publicly known practice for interceptions of postal and telephone communications for the purposes of the detection and prevention of crime to be carried out on the authority of a warrant issued under the hand of a Secretary of State, as a general rule the Home Secretary. There is, however, no overall statutory code governing the matter. Nonetheless, various statutory provisions are relevant, including one under which the Post Office - as from 1981, the Post Office and British Telecommunications - may be required to inform the Crown about matters transmitted through the postal or telecommunication services.
4. There also exists a practice, of which Parliament has been informed, whereby the telephone service - the Post Office prior to 1921 and thereafter British Telecommunications - makes and supplies records of metering at the request of the police in connection with police enquiries into the commission of crime.
5. In October Mr. Malone instituted civil proceedings in the High Court against the Metropolitan Police Commissioner, seeking, amongst other things, a declaration that any tapping of conversations on his telephone without his consent was unlawful even if done pursuant to a warrant of the Secretary of State. The Vice-Chancellor, Sir Robert Megarry, dismissed his claim in February 1979.
B. Proceedings before the European Commission of Human Rights
The present case originated in an application against the United Kingdom lodged with the Commission by Mr. Malone in July 1979. The Commission declared the application admissible in July 1981.
In its report adopted in December 1982, the Commission expressed the opinion:
- (by eleven votes, with one abstention) that there had been a breach of the applicant's rights under Article 8 by reason of the admitted interception of one of his telephone conversations and of the law and practice in England and Wales governing the interception of postal and telephone communications on behalf of the police;
- (by seven votes against three, with two abstentions) 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;
- (by ten votes against one, with one abstention) that there had been a breach of the applicant's rights under Article 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.
The Commission referred the case to the Court in May 1983.
II. SUMMARY OF THE JUDGMENT
A. ARTICLE 8 OF THE CONVENTION
1. Scope of the issues before the Court
The present case is concerned only with interception of communications and metering of telephones effected by or on behalf of the police within the general context of a criminal investigation, together with the relevant legal and administrative framework.
[see paragraphs 63 and 85 of the judgment]
2. Interception of communications
(a) Was there any interference with an Article 8 right? The one admitted interception of a telephone call to which Mr. Malone was a party involved an "interference" with the exercise of his right to respect for his private life and his correspondence. In addition, as a suspected receiver of stolen goods, Mr. Malone was a member of a class of persons against whom measures of postal and telephone interception were liable to be employed. This being so, the existence in England and Wales of laws and practices which permit and establish a system for carrying out secret surveillance of communications amounted in itself to such an "interference", apart from any concrete measures taken against him.
[see paragraph 64 of the judgment]
(b) Were these interferences "in accordance with the law"?
(i) General principles
The expression "in accordance with the law" in paragraph 2 of Article 8 means firstly that any interference must have some basis in the law of the country concerned. However, over and above compliance with domestic law, it also requires that domestic law itself be compatible with the rule of law. It thus implies 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. The Court accepted the Government's contention that the requirements of the Convention cannot be exactly the same in the special context of interception of communications for the purposes of police investigations as they are in other contexts. Thus, the "law" does not have to be such that an individual should be enabled to foresee when his communications are likely to be intercepted so that he can adapt his conduct accordingly. Nevertheless, the law must be sufficiently clear in its terms to give citizens in general 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. Furthermore, since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would becontrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the substantive law itself, as opposed to accompanying administrative practice, must indicate the scope and manner of exercise of any such discretion with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.
[see paragraphs 66 to 68 of the judgment]
(ii) Application of those principles to the particular facts
It was common ground that the settled practice of intercepting communications on behalf of the police in pursuance of a warrant issued by the Secretary of State was lawful under the law of England and Wales. There were, however, fundamental differences of view between the Government, the applicant and the Commission as to the effect, if any, of certain statutory provisions in imposing legal restraints on the manner in which and the purposes for which interception of communications may lawfully be carried out. The Court found that, on the evidence adduced, in its present state domestic law in this domain is somewhat obscure and open to differing interpretations. In particular, 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 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. The Court therefore concluded that the interferences found were not “in accordance with the law" within the meaning of paragraph 2 of Article 8.
[see paragraphs 69 to 80 of the judgment]
(c) Were the interferences “necessary in a democratic society” for a recognised purpose?
Undoubtedly, the existence of some law granting powers of interception of communications to aid the police may be "necessary" for prevention of disorder or crime". However, “in a democratic society'' the system of secret surveillance adopted must contain adequate guarantees against abuse. In the light of its conclusion under (b), the Court considered that it did not have to examine further the content of the other guarantees required by paragraph 2 of Article 8 and whether the system complained of furnished those guarantees in the particular circumstances.
[see paragraphs 31 to 82 of the judgment]
3. "Metering" of telephones 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 amounts to an interference with the exercise of a right guaranteed by Article 8. The applicant was potentially liable to be directly affected by the practice which existed in this respect. Despite the clarification by the Government that the .police had not caused his telephone to be metered , the applicant could claim to be the victim of an interference in breach of Article 8 by reason of the very of the practice. No rule of domestic law makes it unlawful for the telephone service to comply with a request from the police to make and supply records of metering. Apart from this 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, so the Court found, although lawful in terms of domestic law, the resultant interference was not "in accordance with the law", within the meaning of paragraph 2 of Article 8.This finding removed the need for the Court to determine whether the interference was "necessary in a democratic society".
[see paragraphs 83 to 88 of the judgment]
4. Recapitulation There had accordingly been a breach of Article 8 in the applicant's case as regards both interception of communications and release of records of metering to the police.
[see paragraph 89 of the judgment and point 1 of the operative provisions]
B. ARTICLE 13 OF THE CONVENTION Having regard to its decision on Article 8, the Court did not consider it necessary to rule on this issue.
[see paragraphs 90 to 91 of the judgment and point 2 of the operative provisions]
C. ARTICLE 50 OF THE CONVENTION4 By way of "just satisfaction" under Article 50, the applicant had claimed reimbursement of legal costs and an award of compensation. Judging that it was not yet ready for decision, the Court reserved the question and referred it back to the Chamber originally constituted to hear the case.
[see paragraphs 92 to 93 of the judgment and point 3 of the operative provisions]
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The Court gave judgment at a plenary session, in accordance with Rule 50 of the Rules of Court, and was composed as follows: Mr G. Wiarda (Dutch) President, Mr R. Ryssdal (Norwegian), Mr J. Cremona (Maltese), Mr. Thór Vilhjálmsson (Icelandic), Mr. W. Ganshof van der Meersch (Belgian), Mrs. D. Bindschedler-Robert .(Swiss”, Mr. D. Evrigenis (Greek), Mr. G. Lagergren (Swedish), Mr. F. Gö1cük1ü (Turkish), Mr. F. Matscher (Austrian), Mr. J. Pinheiro Farinha (Portuguese), Mr. E. García de Enterría (Spanish), I'~ir.. L.-E. Pettiti (French), Mr. B. Walsh (Irish), Sir Vincent Evans (British), Mr. R. Macdonald (Canadian), Mr. C. Russo (Italian) and Mr J. Gersing (Danish), Judges, and also Mr. M.A. Eissen, Registrar, and Mr H Petzold, Deputy Registrar. Three judges expressed separate opinions which are annexed to the judgment.
*** For further information, reference should be made to the text of the judgment, which is available on request and will be published shortly as volume 82 of Series A of the Publications of the Court (obtainable from Carl Heymanns Verlag K.G., Gereonstrasse 18-32, D - 5000 KOLN 1). 4 The text of Article 50 is set out in the appendix to the present release. |
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