Malone v United Kingdom (1984) 7 EHRR 14
A. Interception of communications
2. Whether there was any interference with an Article 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. As telephone conversations are covered by the notions of 'private life' and 'correspondence' within the meaning of Article 8, the admitted measure of interception involved an 'interference by a public authority' with the exercise of a right guaranteed to the applicant under Article 8(1).
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. 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, 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, apart from any measures actually taken against him.' This being so, the Court, like the Commission, "does not consider it necessary to inquire into the applicant's further claims that both his mail and his telephone calls were interdopted 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 Article 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 judgment in SILVER V. UNITED KINGDOM, that, at least as far as interferences with prisoners' correspondence were concerned, the expression 'in accordance with the lawl.... in Article 8(2) should be interpreted in the light of the same general principles as were stated in the judgment in SUNDAY TIMES V. UNITED KINGDOM, to apply to the comparable expression - 'prescribed by law'... in Article 10(2).
The first such principle was that the word 'law' is to be interpreted as covering not only written law but also unwritten law. 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. 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.'
67. In the Government's 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. The phrase thus implies - and this follows from the object and purpose of Article 8 - that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by para 1. Especially where a power of the executive is exercised in secret, the risks of arbitrariness are evident. 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 SILVER v UNITED KINGDOM... 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.' The degree of precision required of the 'law' in this connection will depend upon the particular subject matter. 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... 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 executive's 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 applicant's telephone conversations, were lawful under the law of England and Wales....
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.....
79. [A]t 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. The Court is, however, required under the Convention to determine whether, for the purposes of Article 8(2), the relevant law lays down with reasonable clarity the essential elements of the authorities' powers in this domain....
[O]n 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 thin the discretion of the executive. In view of the attendant obscurity and uncertainty as to the state of the law in this essential aspect, 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.