10
MALONE v. THE UNITED KINGDOM JUGDMENT
the act constituting the offence was done in obedience to a warrant under the hand of a
Secretary of State."
D. Judgment of Sir Robert Megarry V.-C. in Malone v.
Commissioner of Police of the Metropolis
31. In the civil action which he brought against the Metropolitan Police
Commissioner, Mr. Malone sought various relief including declarations to
the following effect:
- that any "tapping" (that is, interception, monitoring or recording) of
conversations on his telephone lines without his consent, or disclosing the
contents thereof, was unlawful even if done pursuant to a warrant of the
Home Secretary;
- that he had rights of property, privacy and confidentiality in respect of
conversations on his telephone lines and that the above-stated tapping and
disclosure were in breach of those rights;
- that the tapping of his telephone lines violated Article 8 (art. 8) of the
Convention.
In his judgment, delivered on 28 February 1979, the Vice-Chancellor
noted that he had no jurisdiction to make the declaration claimed in respect
of Article 8 (art. 8) of the Convention. He made a detailed examination of
the domestic law relating to telephone tapping, held in substance that the
practice of tapping on behalf of the police as recounted in the Birkett report
was legal and accordingly dismissed the action.
32. The Vice-Chancellor described the central issue before him as being
in simple form: is telephone tapping in aid of the police in their functions
relating to crime illegal? He further delimited the question as follows:
"... 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." ([1979] 2 All
England Law Reports, p. 629)
33. The Vice-Chancellor held that there was no right of property (as
distinct from copyright) in words transmitted along telephone lines (ibid., p.
631).
As to the applicant’s remaining contentions based on privacy and
confidentiality, he observed firstly that no assistance could be derived from
cases dealing with other kinds of warrant. Unlike a search of premises, the
process of telephone tapping on Post Office premises did not involve any
act of trespass and so was not prima facie illegal (ibid., p. 640). Secondly,