(Application no. 8691/79)
2 August 1984
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 CommissionÕs decision of 13 July 1981 declaring Mr. MaloneÕs 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
64. It was common ground that one telephone conversation to which the applicant was a party was intercepted at the request of the police under a warrant issued by the Home Secretary (see paragraph 14 above). As telephone conversations are covered by the notions of "private life" and "correspondence" within the meaning of Article 8 (art. 8) (see the Klass and Others judgment of 6 September 1978, Series A no. 28, p. 21, para. 41), the admitted measure of interception involved an "interference by a public authority" with the exercise of a right guaranteed to the applicant under paragraph 1 of Article 8 (art. 8-1).
Despite the applicantÕs 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 applicantÕs 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 applicantÕs further claims that both his mail and his telephone calls were intercepted for a number of years.
3. Whether the interferences were justified
65. The principal issue of contention was whether the interferences found were justified under the terms of paragraph 2 of Article 8 (art. 8-2), notably whether they were "in accordance with the law" and "necessary in a democratic society" for one of the purposes enumerated in that paragraph.
(a) "In accordance with the law"
(i) General principles
66. The Court held in its Silver and Others judgment of 25 March 1983 (Series A no. 61, pp. 32-33, para. 85) that, at least as far as interferences with prisonersÕ correspondence were concerned, the expression "in accordance with the law/ prˇvue par la loi" in paragraph 2 of Article 8 (art. 8-2) should be interpreted in the light of the same general principles as were stated in the Sunday Times judgment of 26 April 1979 (Series A no. 30) to apply to the comparable expression "prescribed by law/ prˇvues par la loi" in paragraph 2 of Article 10 (art. 10-2).
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 ŌlawÕ 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)
67. In the GovernmentÕs submission, these two requirements, which were identified by the Court in cases concerning the imposition of penalties or restrictions on the exercise by the individual of his right to freedom of expression or to correspond, are less appropriate in the wholly different context of secret surveillance of communications. In the latter context, where the relevant law imposes no restrictions or controls on the individual to which he is obliged to conform, the paramount consideration would appear to the Government to be the lawfulness of the administrative action under domestic law.
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.
68. There was also some debate in the pleadings as to the extent to which, in order for the Convention to be complied with, the "law" itself, as opposed to accompanying administrative practice, should define the circumstances in which and the conditions on which a public authority may interfere with the exercise of the protected rights. The above-mentioned judgment in the case of Silver and Others, which was delivered subsequent to the adoption of the CommissionÕs report in the present case, goes some way to answering the point. In that judgment, the Court held that "a law which confers a discretion must indicate the scope of that discretion", although the detailed procedures and conditions to be observed do not necessarily have to be incorporated in rules of substantive law (ibid., Series A no. 61, pp. 33-34, paras. 88-89). The degree of precision required of the "law" in this connection will depend upon the particular subject-matter (see the above-mentioned Sunday Times judgment, Series A no. 30, p. 31, para. 49). 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 be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.
(ii) Application in the present case of the foregoing principles
69. Whilst the exact legal basis of the executiveÕs power in this respect was the subject of some dispute, 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 for the purposes of detecting and preventing crime, and hence the admitted interception of one of the applicantÕs telephone conversations, were lawful under the law of England and Wales. The legality of this power to intercept was established in relation to telephone communications in the judgment of Sir Robert Megarry dismissing the applicantÕs civil action (see paragraphs 31-36 above) and, as shown by the independent findings of the Birkett report (see paragraph 28 in fine above), is generally recognised for postal communications.
70. The issue to be determined is therefore whether, under domestic law, the essential elements of the power to intercept communications were laid down with reasonable precision in accessible legal rules that sufficiently indicated the scope and manner of exercise of the discretion conferred on the relevant authorities.
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 CommissionÕs 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 GovernmentÕs view as to the effect of the 1969 Act (see paragraphs 136-142 of the report).
75. Firstly, the relevant wording of the section, and especially the word "may", appeared to the Commission to authorise the laying of a requirement on the Post Office for whatever purposes and in whatever manner it would previously have been lawfully possible to place a ministerial duty on the Postmaster General, and not to be confined to what actually did happen in practice in 1968. Yet at the time of the Birkett report (see, for example, paragraphs 15, 21, 27, 54-55, 56, 62 and 75), and likewise at the time when the 1969 Act was passed, no clear legal restrictions existed on the permissible "purposes" and "manner". Indeed the Birkett report at one stage (paragraph 62) described the Secretary of StateÕs discretion as "absolute", albeit specifying how its exercise was in practice limited.
76. A further difficulty seen by the Commission is that, on the GovernmentÕs 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 GovernmentÕs analysis of the law was not shared by Sir Robert Megarry in his judgment of February 1979. He apparently accepted the Solicitor GeneralÕs 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).
78. It was also somewhat surprising, so the Commission observed, that no mention of section 80 as regulating the issue of warrants should have been made in the White Paper published by the Government in the wake of Sir Robert MegarryÕs judgment (see paragraph 21 above). Furthermore, the Home Secretary, when presenting the White Paper to Parliament in April 1980, expressed himself in terms suggesting that the existing arrangements as a whole were matters of administrative practice not suitable for being "embodied in legislation", and were subject to change by governmental decision of which Parliament would be informed (see paragraphs 37 in fine and 54 in fine 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 authoritiesÕ 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.
80. In sum, as far as interception of communications is concerned, the interferences with the applicantÕs right under Article 8 (art. 8) to respect for his private life and correspondence (see paragraph 64 above) were not "in accordance with the law".
(b) "Necessary in a democratic society" for a recognised purpose
81. Undoubtedly, the existence of some law granting powers of interception of communications to aid the police in their function of investigating and detecting crime may be "necessary in a democratic society ... for the prevention of disorder or crime", within the meaning of paragraph 2 of Article 8 (art. 8-2) (see, mutatis mutandis, the above-mentioned Klass and Others judgment, Series A no. 28, p. 23, para. 48). The Court accepts, for example, the assertion in the GovernmentÕs White Paper (at para. 21) that in Great Britain "the increase of crime,and particularly the growth of organised crime, the increasing sophistication of criminals and the ease and speed with which they can move about have made telephone interception an indispensable tool in the investigation and prevention of serious crime". However, the exercise of such powers, because of its inherent secrecy, carries with it a danger of abuse of a kind that is potentially easy in individual cases and could have harmful consequences for democratic society as a whole (ibid., p. 26, para. 56). This being so, the resultant interference can only be regarded as "necessary in a democratic society" if the particular system of secret surveillance adopted contains adequate guarantees against abuse (ibid., p. 23, paras. 49-50).
82. The applicant maintained that the system in England and Wales for the interception of postal and telephone communications on behalf of the police did not meet this condition.
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.
83. The process known as "metering" involves the use of a device (a meter check printer) which registers the numbers dialled on a particular telephone and the time and duration of each call (see paragraph 56 above). In making such records, the Post Office - now British Telecommunications - makes use only of signals sent to itself as the provider of the telephone service and does not monitor or intercept telephone conversations at all. From this, the Government drew the conclusion that metering, in contrast to interception of communications, does not entail interference with any right guaranteed by Article 8 (art. 8).
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 CommissionÕs decision declaring Mr. MaloneÕs 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).
88. This conclusion removes the need for the Court to determine whether the interference found was "necessary in a democratic society" for one of the aims enumerated in paragraph 2 of Article 8 (art. 8-2) (see, mutatis mutandis, paragraph 82 above).
89. There has accordingly been a breach of Article 8 (art. 8) in the applicantÕs case as regards both interception of communications and release of records of metering to the police.
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."
91. Having regard to its decision on Article 8 (art. 8) (see paragraph 89 above), the Court does not consider it necessary to rule on this issue.