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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
    1. Brutus v Cozens [1972] 2 All ER 1297
    2. Malone v Commissioner of Police of the Metropolis (No 2) [1979] 2 All ER 620
    3. R v Brown and other appeals [1993] 2 All ER 75
    4. R v Lemon; R v Gay News Ltd [1979] 1 All ER 898
    5. Attorney General v Times Newspapers Ltd [1973] 3 All ER 54
    6. Blackshaw v Lord and another [1983] 2 All ER 311
    7. Malone v Metropolitan Police Commissioner [1979] 2 All ER 620
    8. R v Home Secretary, ex parte Brind [1991] 1 All ER 720; [1991] 1 AC 696
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Malone v Commissioner of Police of the Metropolis (No 2) [1979] 2 All ER 620

SIR ROBERT MEGARRY VC:....[T]he question may be expressed in the simple form 'Is telephone tapping in aid of the police in their functions relating to crime illegal?' However, I think that I should make it clear that 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....

It was common ground that there was no English authority that in any way directly bore on the point. The only English authorities that could be adduced related to arguments for and against the right not to be tapped that the plaintiff claimed for his telephone lines, but did not decide it. The absence of any authority on the point is something that has to be borne in mind; but it certainly does not establish that no such right exists. This is the centenary of the telephone system in England; for the first telephone exchange was established in 1879, with a mere seven or eight subscribers. It is perhaps surprising that the question now raised has taken a hundred years to come before the courts; but there may be many explanations of that, and I certainly do not infer that a necessary or even probable explanation is that there is no right to immunity from telephone tapping. If the true view is that such a right exists, then the court must say so, despite the absence of any prior authority.

This year, in addition to being the centenary of the telephone system in England, is also the centenary of a celebrated dictum of Doe CJ of New Hampshire which I mentioned during the argument. As slightly varied, it is: 'As there was a time when there were no precedents, anything that could be done with them can be done without them': Metcalf v Gilmore ((1879) 59 NH 417 at 433). If authority on a point is lacking, neither equity nor common law is incapable of filling the gap in a proper case. Such an approach may be traced back at least to the 16th century. In Anon it was said in argument that there were no cases in the books on the point in issue. But Anderson CJ said: 'What of that? shall not we give judgment because it is not adjudged in the bookes before? We will give judgment according to reason, and if there bee no reason in the bookes, I will not regard them'.

Before I examine counsel's contentions for the plaintiff, I should indicate the basic thesis of the contentions of counsel for the defendant and the Solicitor General to the contrary. This was that apart from certain limited statutory provisions, there was nothing to make governmental telephone tapping illegal; and the statutory provisions of themselves assume that such tapping is not in other respects illegal. That being so, there is no general right to immunity from such tapping. England, it may be said, is not a country where everything is forbidden except what is expressly permitted: it is a country where everything is permitted except what is expressly forbidden.

As the plaintiff's contentions overlap to some extent, I shall set them all out first..... Counsel's [Mr Ross-Munro] first proposition for the plaintiff rested in the first place on a right of property. To tap a person's telephone conversation without his consent, he said, was unlawful because that person had rights of property in his words as transmitted by the electrical impulses of the telephone system, and so the tapping constituted an interference with his property rights. An analogy that he suggested was that the important part of a letter was the words that it contained rather than the paper that it was written on. I regret to say that counsel for the plaintiff found it difficult to persuade me that there was any reality in this contention, and he did not struggle long. I do not see how words being transmitted by electrical impulses could themselves (as distinct from any copyright in them) fairly be said to be the subject-matter of property. At all events, no argument which even began to support such a proposition was put before me.

The second ground on which counsel for the plaintiff sought to support his first proposition was that of the right of privacy. He accepted that the books assert that in English law there is no general right to privacy, and he referred me to a passage in Halsbury's Laws of England to this effect. But he contended that there was a particular right of privacy which the books did not mention, namely, the right to hold a telephone conversation in the privacy of one's home without molestation. In support of his contention, counsel for the plaintiff relied to a large extent on the common law offence of eavesdropping, the celebrated article on 'The Right to Privacy' by Samuel D Warren and the future Brandeis J in the Harvard Law Review, the Fourth Amendment to the Constitution of the United States of America, Katz v United States and Rhodes v Graham....

The offence of eavesdropping is described in Blackstone's Commentaries as being committed by those who listen under walls or windows or the eaves of a house, and frame slanderous and mischievous tales. The offence constituted a common nuisance, punishable by fine and finding sureties for good behaviour. This offence fell under the same broad head, dealt with on the same page of Blackstone, as being a common scold, which was punishable by immersion in the trebucket or ducking stool. The Criminal Law Act 1967, s 13, abolished these and a number of other offences, so that eavesdropping can now speak in support of counsel for the plaintiff with only a muted voice.

The article in the Harvard Law Review is, as counsel for the plaintiff emphasised, to a large extent founded on English authorities. No summary can do it justice; but some indication of its general effect may be given by saying that decisions based on property, on implied terms in a contract or on trust or confidence, are said to be instances of a broad principle giving individuals a right to privacy. A number of limitations of this right are suggested. These include a provision that the right to privacy does not prohibit the publication of any matter which is of public or general interest. The detection of crime is not mentioned in this context. The article could be urged in support of the general right of privacy which counsel for the plaintiff accepts does not exist in English law, but provides little or no support for the particular right of privacy for telephone conversations in the home for which he contends.

The Fourth Amendment to the Constitution of the United States, which dates from the 18th century, runs:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This, it is said in Halsbury's Laws of England, was 'mainly based on the English cases on general warrants, especially Entick v Carrington'. Counsel for the plaintiff read me extensive passages from this case, and contended that this supported the contention that, unless authorised by statute, the Secretary of State had no power to issue a warrant authorising any telephone tapping, whether general or specific. Although the language of the Fourth Amendment, chosen before telephones were known, does not seem very apt for telephone tapping, various decisions of the Supreme Court of the United States have applied it to telephone tapping effected without a proper warrant from a magistrate. In Katz v United States the majority of the Supreme Court held that a tapping effected by attaching a device to the exterior of a public telephone booth was contrary to the Fourth Amendment, and that a conviction obtained by means of the evidence of what the accused had said in telephone conversations recorded by these means must be reversed, even though the circumstances of the tapping were such that a magistrate could properly have authorised it. The court rejected previous authority which held that the Fourth Amendment was not violated by telephone tapping which was effected without any act of trespass or any seizure of any material object. In his dissent, Black J said (389 US 347 at 366) that 'wiretapping is nothing more than eavesdropping by telephone'..... The American authorities that I have mentioned are few indeed, and there are many, many others. In 1972 the Committee on Privacy, under the chairmanship of the Rt Hon Kenneth Younger, produced a valuable report on the whole subject....[T]he report contains a convenient summary of the development of the right of privacy in the United States of America, with many variations between the different States, and with statutes covering part of the ground. The Younger report as a whole demonstrates the great complexity of the subject, and the difficulty of framing legislation to regulate it in a satisfactory manner. I should also mention another report, specifically concerned with telephone tapping under the authority of the Home Secretary. This is commonly called the 'Birkett report'... Much of this was read to me, and although the report is not authority in any technical sense, it is plainly of much value. In particular, it sets out much material on the process of telephone tapping and its authorisation. In view of the paucity of any such evidence in the case before me, this is particularly useful....

I now turn to the third ground on which counsel for the plaintiff supports his first proposition, the right of confidentiality. This is an equitable right which is still in course of development, and is usually protected by the grant of an injunction to prevent disclosure of the confidence....

The application of the doctrine of confidentiality to the tapping of private telephone lines is that in using a telephone a person is likely to do it in the belief that it is probable (though by no means certain) that his words will be heard only by the person he is speaking to. I do not think that it can be put higher than that. As the Younger report points out, those who use the telephone are aware that there are several well understood possibilities of being overheard. A realistic person would not therefore rely on the telephone system to protect the confidence of what he says because, by using the telephone, he would have discarded a large measure of security for his private speech.

Extension lines, private switchboards and so-called crossed lines, for example, all offer possibilities of being overheard. [F]ew telephone users can be ignorant of the real possibility that telephones are subject to the risk (which most people will probably regard as being very small in their own cases) of being tapped by some governmental body with access to the telephone system.

It is against that background that I must consider counsel's submissions for the plaintiff. He contended that the categories of confidentiality were not closed, and that they should be extended. The leading case in this branch of the law is Prince Albert v Strange, as applied in Margaret, Duchess of Argyll v Duke of Argyll; and without citing the former, counsel for the plaintiff read me passages from the latter. If A makes a confidential communication to B, then A may not only restrain B from divulging or using the confidence, but also may restrain C from divulging or using it if C has acquired it from B, even if he acquired it without notice of any impropriety...In such cases it seems plain that, however innocent the acquisition of the knowledge, what will be restrained is the use or disclosure of it after notice of the impropriety. In the case of a telephone conversation, said counsel for the plaintiff, any conversation that was 'reasonably intended to be private' (in the words of Harlan J in Katz v United States ((1967) 389 US 347 at 362)) should be treated as a confidential communication. Even if the using of the telephone must be taken as implying some sort of consent to some risk of being overheard, that could not be taken to be any kind of consent to any publication to any third party.

Finally, there is the contention that as no power to tap telephones has been given by either statute or common law, the tapping is necessarily unlawful. The underlying assumption of this contention, of course, is that nothing is lawful that it not positively authorised by law. As I have indicated, England is not a country where everything is forbidden except what is expressly permitted. One possible illustration is smoking. I enquired what positive authority was given by the law to permit people to smoke. Counsel for the plaintiff accepted that there was none; but tapping, he said, was different. It was in general disfavour, and it offended against usual and proper standards of behaviour, in that it was an invasion of privacy and an interference with the liberty of the individual and his right to be let alone when lawfully engaged on his own affairs.

I did not find this argument convincing. A stalwart non-smoker, whether life-long or redeemed, might consider that most or all of what counsel for the plaintiff said applied with equal force to the not inconsiderable numbers of non-smokers. In leading an ordinary life they often find themselves unable to avoid inhaling in an enclosed space the products of a combustion deliberately caused by a smoker who knows that the fumes that he is creating will spread, and will affect other people. But in any case the answer destroys the underlying assumption and mutilates the proposition. The notion that some express authorisation of law is required for acts which meet with 'general disfavour', and 'offend against proper standards of behaviour', and so on, would make the state of the law dependent on subjective views on indefinite concepts, and would be likely to produce some remarkable and contentious results. Neither in principle nor in authority can I see any justification for this view, and I reject it. If the tapping of telephones by the Post Office at the request of the police can be carried out without any breach of the law, it does not require any statutory or common law power to justify it: it can lawfully be done simply because there is nothing to make it unlawful. The question, of course, is whether tapping can be carried out without infringing the law....

Now that I have dealt with these matters, I can consider the contentions of counsel for the plaintiff that I have attempted to summarise. I propose to take his three main contentions by stages. His first main contention was that by reason of the right of privacy and the right of confidentiality it was unlawful to tap a telephone, even under the authority of a warrant of the Home Secretary. I need not mention the argument based on property as I have already rejected it.

First, I do not think that any assistance is obtained from the general warrant cases, or other authorities dealing with warrants. At common law, the only power to search premises under a search warrant issued by a justice of the peace is to search for stolen goods: see Entick v Carrington ((1765) 19 State Tr 1029 at 1067). However, many statutes authorise searches under search warrants for many different purposes; and there is admittedly no statute which in terms authorises the tapping of telephones, with or without a warrant. Nevertheless, any conclusion that the tapping of telephones is therefore illegal would plainly be superficial in the extreme. The reason why a search of premises which is not authorised by law is illegal is that it involves the tort of trespass to those premises: and any trespass, whether to land or goods or the person, that is made without legal authority is prima facie illegal. Telephone tapping by the Post Office, on the other hand, involves no act of trespass. The subscriber speaks into his telephone, and the process of tapping appears to be carried out by Post Office officials making recordings, with Post Office apparatus on Post Office premises, of the electrical impulses on Post Office wires provided by Post Office electricity. There is no question of there being any trespass on the plaintiff's premises for the purpose of attaching anything either to the premises themselves or to anything on them: all that is done is done within the Post Office's own domain. As Lord Camden CJ said in Entick v Carrington (19 State Tr 1029 at 1066), 'the eye cannot by the laws of England be guilty of a trespass'; and, I would add, nor can the ear....

Third, there is the right of privacy. Here the contention is that, although at present no general right of privacy has been recognised by English law, there is a particular right of privacy, namely, the right to hold a telephone conversation in the privacy of one's home without molestation. This, it was said, ought to be recognised and declared to be part of English law, despite the absence of any English authority to this effect. As I have indicated, I am not unduly troubled by the absence of English authority: there has to be a first time for everything, and, if the principles of English law, and not least analogies from the existing rules, together with the requirements of justice and common sense, pointed firmly to such a right existing, then I think the court should not be deterred from recognising the right.

On the other hand, it is no function of the courts to legislate in a new field. The extension of the existing laws and principles is one thing, the creation of an altogether new right is another. At times judges must, and do, legislate; but, as Holmes J once said, they do so only interstitially, and with molecular rather than molar motions: see Southern Pacific Co v Jensen ((1917) 244 US 205 at 221), in a dissenting judgment. Anything beyond that must be left for legislation. No new right in the law, fully-fledged with all the appropriate safeguards, can spring from the head of a judge deciding a particular case: only Parliament can create such a right.....Where there is some major gap in the law, no doubt a judge would be capable of framing what he considered to be a proper code to fill it; and sometimes he may be tempted. But he has to remember that his function is judicial, not legislative, and that he ought not to use his office so as to legislate in the guise of exercising his judicial powers.

One of the factors that must be relevant in such a case is the degree of particularity in the right that is claimed. The wider and more indefinite the right claimed, the greater the undesirability of holding that such a right exists. Wide and indefinite rights, while conferring an advantage on those who have them, may well gravely impair the position of those who are subject to the rights. To create a right for one person, you have to impose a corresponding duty on another. In the present case, the alleged right to hold a telephone conversation in the privacy of one's own home without molestation is wide and indefinite in its scope, and in any case does not seem to be very apt for covering the plaintiff's grievance. He was not 'molested' in holding his telephone conversations: he held them without 'molestation', but without their retaining the privacy that he desired. If a man telephones from his own home, but an open window makes it possible for a near neighbour to overhear what is said, and the neighbour, remaining throughout on his own property, listens to the conversation, is he to be a tortfeasor? Is a person who overhears a telephone conversation by reason of a so-called 'crossed line' to be liable in damages? What of an operator of a private switchboard who listens in? Why is the right that is claimed confined to a man's own home, so that it would not apply to private telephone conversations from offices, call boxes or the houses of others? If they were to be included, what of the greater opportunities for deliberate overhearing that they offer? In any case, why is the telephone to be subject to this special right of privacy when there is no general right?

That is not all. Suppose that there is what for brevity I may call a right to telephonic privacy, sounding in tort. What exceptions to it, if any, would there be? Would it be a breach of the right if anyone listened to a telephone conversation in which some act of criminal violence or dishonesty was being planned? Should a listener be restrained by injunction from disclosing to the authorities a conversation that would lead to the release of someone who has been kidnapped? There are many, many questions that can, and should, be asked.....

Without attempting to answer these questions, let me turn to the authorities on which counsel for the plaintiff relied. I do not think that the common law offence of eavesdropping, abolished over ten years ago, gives him much help today. The gist of the offence was listening just outside a house with the object of spreading slanderous and mischievous tales; and this hardly seems apt if the listener tells nobody save the police. Telephone tapping for police purposes, too, does not involve any listening in proximity to any house, nor, of course, is it done with any object of spreading any tales, whether slanderous and mischievous or otherwise: indeed, a close confidence within official circles surrounds information obtained by tapping. I cannot see how such telephone tapping could possibly be said to be within the mischief of eavesdropping, even if eavesdropping were tortious.

As for the Warren and Brandeis article in the Harvard Law Review, this argues for the existence of a general right to privacy, which counsel for the plaintiff accepts does not exist in England, and does nothing to support the specialised right to telephonic privacy for which he does contend. The Fourth Amendment to the Constitution of the United States is different, of course. It has the especial force of being a part of the Constitution of that country; but there is no statute in this country which in any way corresponds to it. If there were such a statute here, it might indeed be that it would be construed in something like the same way: but there is not. Though mainly based on the English cases on general warrants, the Fourth Amendment goes far beyond anything to be found in those cases; and Katz v United States is explicitly based on the Fourth Amendment. I do not think that either the Fourth Amendment or the decision gives any real assistance to counsel's contentions for the plaintiff about the law of England.....

In the result, therefore, I can find nothing in the authorities or contentions that have been put before me to support the plaintiff's claim based on the right of privacy. I therefore hold that the claim, so far as thus based, must fail....

The right of confidentiality accordingly falls to be considered apart from any contractual right. In such a case, it has been said that three elements are normally required if a case of breach of confidence is to succeed:

First, the information itself, in the words of Lord Greene MR in the Saltman case [(1948) [1963] 3 All ER 413n at 415] must "have the necessary quality of confidence about it". Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it: see Coco v A N Clark (Engineers) Ltd ([1969] RPC 41 at 47), cited by Lord Widgery CJ in Attorney General v Jonathan Cope Ltd ([1975] 3 All ER 484 at 494, [1976] 1 QB 752 at 769). Of the second requirement, it was said in the Coco case ([1969] RPC 41 at 47) that "However secret and confidential the information, there can be no binding obligation of confidence if that information is blurted out in public or is communicated in other circumstances which negative any duty of holding it confidential". What was in issue in the Coco case was a communication by an inventor or designer to a manufacturer, and the alleged misuse of that information by the manufacturer. In the present case, the alleged misuse is not by the person to whom the information was intended to be communicated, but by someone to whom the plaintiff had no intention of communicating anything: and that, of course, introduces a somewhat different element, that of the unknown overhearer.

It seems to me that a person who utters confidential information must accept the risk of any unknown overhearing that is inherent in the circumstances of communication. Those who exchange confidences on a bus or a train run the risk of a nearby passenger with acute hearing or a more distant passenger who is adept at lip-reading. Those who speak over garden walls run the risk of the unseen neighbour in a tool-shed nearby. Office cleaners who discuss secrets in the office when they think everyone else has gone run the risk of speaking within earshot of an unseen member of the staff who is working late. Those who give confidential information over an office intercommunication system run the risk of some third party being connected to the conversation. I do not see why someone who has overheard some secret in such a way should be exposed to legal proceedings if he uses or divulges what he has heard. No doubt an honourable man would give some warning when he realises that what he is hearing is not intended for his ears; but I have to concern myself with the law, and not with moral standards. There are, of course, many moral precepts which are not legally enforceable.....

I would only add that, even if it was not clear before, this case seems to me to make it plain that telephone tapping is a subject which cries out for legislation. Privacy and confidentiality are, of course, subjects of considerable complexity. Yet, however desirable it may be that they should at least to some extent be defined and regulated by statute, rather than being left for slow and expensive evolution in individual cases brought at the expense of litigants and the Legal Aid Fund, the difficulty of the subject-matter is liable to discourage legislative zeal. Telephone tapping lies in a much narrower compass; the difficulties in legislating on the subject ought not to prove insuperable; and the requirements of the convention should provide a spur to action, even if belated. This, however, is not for me to decide. I can do no more than express a hope, and offer a proleptic welcome to any statute on the subject. 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. I may perhaps add that it would be wrong to allow my decision in this case to be influenced by the consideration that, if the courts were to hold that all telephone tapping was illegal, this might well offer a strong and prompt inducement to the government to persuade Parliament to legislate on the subject.