The Malone Case
Malone v. Commissioner for the Metropolitan Police (no.2)
 2 All ER 620
The Full Facts of the Malone Case:
The plaintiff, an antique dealer, was tried at the Crown Court on a number of offences of handling stolen property. During the trial the prosecution counsel stated that the plaintiffs telephone had been intercepted on behalf of the police on the authority of a warrant issued by the Secretary of State. Police practice regarding telephone tapping (ie the interception, monitoring and recording of private telephone conversations) was to obtain a warrant (a document giving official authorisation) to tap from the Home Secretary. The warrant was sent to the Post Office and the Post Office then made a recording of conversations on the line being tapped and forwarded that recording to the police. The plaintiff issued a writ against the police claiming declarations from the court
(i) that any tapping of the plaintiffs telephone lines without his consent or disclosure of the contents of conversations on those lines to third parties was unlawful, even if done pursuant to the Home Secretarys warrant,
(ii) that the plaintiff had rights of property, privacy and confidentiality in respect of telephone conversations on his telephone lines and that tapping was a breach of those rights, and
(iii) that the tapping of the plaintiffs telephone lines violated article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.
In support of these points, the plaintiff argued
(i) that the Crown had no power, either under statute or at common law, to tap telephones, and
(ii) that article 8 of the 1950 Convention conferred on him a direct right to have his private and family life, his home and his correspondence respected, or, if it did not confer a direct right, it was at least a guide to the interpretation and application of English law.
The decision in the Malone Case
Held (this term is used as legal short-hand to indicate what the court has decided as its view of the law and its application to the case)- The plaintiffs claim was dismissed for the following reasons
(i) No property rights belonging to the plaintiff had been infringed by the tapping since there was no right of property (apart from copyright) in words transmitted along telephone lines.
(ii) There was in English law neither a general of privacy nor a particular right of privacy regarding the holding of a telephone conversation without molestation, and therefore telephone tapping by the Post Office could not amount to a breach of such rights. The American case of Katz v United States (1967) 389 US 347 was considered by the court but was distinguished (this means that the court felt it did not have direct relevance to the decision in English law - mainly because it was based on US Constitutional rights which are not granted under the UK Constitution).
(iii) Neither the Post Office nor anyone else who overheard a telephone conversation was under a duty to respect the confidentiality of that conversation, because
(b) there was no general to have the confidentiality of an overheard telephone conversaton respected since a telephone user had to accept the risks of being overheard inherent in the telephone system;
(c) in any event, the police were entitled to have a telephone tapped, but methods which did not involve any trespass or other breach of the law, notwithstanding any supposed duty of confidentiality, if there was just cause or excuse in the public interest to breach that supposed duty of confidentiality, provided certain requirements were met. Those requirements were that there had to be grounds for suspecting that the tapping would materially assist in detecting or preventing crime or discovering criminals or would otherwise assist the police in their functions relating to crime, that the material obtained from the tapping was only used for those purposes, and the information not relevant to those purposes was confined to the minimum number of persons reasonably required to carry out the tapping. If tapping the plaintiffs telephones on behalf of the police was a breach of a duty of confidentiality, there was, on the facts, just cause or excuse for the tapping.
(iv) On the principle that everything was permitted in law except that which was expressly forbidden, telephone tapping was not unlawful since there was nothing, such as a trespass by the Post Office, to make it unlawful. It followed that, since telephone tapping by the Post Office at the request of the police could be carried out without any breach of the law, it did not require any statutory or common law power to justify it. Furthermore, although there was no statute which expressly authorised telephone tapping, where the tapping was done under warrant, statutory recognition of the lawfulness of the tapping was afforded by s 80 b of the Post Office Act 1969 which provided for a requirement to be laid on the Post Office to do what was necessary to inform Crown officers of matters being transmitted by post or telephone, and that provision assumed that telephone tapping was not in other respects illegal.
(v) Article 8 of the 1950 Convention did not confer a direct right on the plaintiff to obtain a declaration that his human rights and freedoms had been violated because the convention was a treaty and not part of the law of England and as such was not a matter which was justiciable (a matter which can be heard in trial by an English court). Any direct rights conferred on the plaintiff by the convention were only direct rights in relation to the European Commission of Human Rights and the European Court of Human Rights.
(vi) Nor could the court use the 1950 Convention as a guide to the interpretation and application of English law, because, although English law might not satisfy the requirements of the Convention that there had to be adequate and effective legal safeguards against any abuse of official telephone tapping, there was no legislation before the court requiring interpretation in conformity with the convention, and in the absence of legislation the court was unable to lay down new rules of law in a field as complex as telephone tapping.
Per Curiam.(This phrase is used by judges to indicate that they have thought especially carefully about this issue and that their statements in these matters are important.)
(i) Any regulation of so complex a matter as telephone tapping is essentially one for Parliament and not the courts. It is plain that telephone tapping is a subject which cries out for legislation.
(ii) Where on a motion a declaration is sought which rests on a foundation of facts (rather than, for example, the construction of some document or statute), the absence of a full process of trial, and the presence of some element of hypothesis, may make the court reluctant to grant relief by way of declaration, especially if the declaration sought is wide in its terms and possible application.
The Summary of the Malone Case
In the course of a criminal trial Mr. Malone alleged that the police were intercepting his telephone calls. After being acquitted of the criminal charges, he brought a civil action against the police claiming that the police interception of his phone calls had been unlawful on the grounds that it constituted a breach of confidence, a trespass, and an unlawful interference with his privacy. All claims were dismissed by Sir Robert Megarry. Mr. Malone took his case to the European Court of Human Rights under article 8 which is concerned with privacy against state interference in international law. Article 8 protects the individual because it values the autonomy of a person.
"Its object is essentially that of protecting the individual against arbitrary interference by the public authorities in his private or family life."
The European Court of Human Rights held in the Malone case, that the English practice of interception was insufficiently grounded in law to allow it to be justified under Article 8(2).
As a reaction to this judgment and other pendiong cases, legislation was later passed in the form of the Interception of Communications Act 1985 and the Police Act 1997 Part III.
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Last Updated 30 October 1997