MALONE v. THE UNITED KINGDOM JUGDMENT
11
referring to the warrant of the Home Secretary, the Vice-Chancellor
remarked that such warrant did not "purport to be issued under the authority
of any statute or of the common law". The decision to introduce such
warrants in 1937 seemed "plainly to have been an administrative decision
not dictated or required by statute" (ibid.). He referred, however, to section
80 of the Post Office Act 1969 and Schedule 5 to the Act, on which the
Solicitor General had based certain contentions summarised as follows:
"Although the previous arrangements had been merely administrative, they had been
set out in the Birkett report a dozen years earlier, and the section plainly referred to
these arrangements; ... A warrant was not needed to make the tapping lawful: it was
lawful without any warrant. But where the tapping was done under warrant ... [section
80] afforded statutory recognition of the lawfulness of the tapping." (ibid., p. 641)
"In their essentials", stated the Vice-Chancellor, "these contentions seem
to me to be sound." He accepted that, by the 1969 Act,
"Parliament has provided a clear recognition of the warrant of the Home Secretary
as having an effective function in law, both as providing a defence to certain criminal
charges, and also as amounting to an effective requirement for the Post Office to do
certain acts" (ibid., pp. 641-642).
The Vice-Chancellor further concluded that there was in English law
neither a general right of privacy nor, as the applicant had contended, a
particular right of privacy to hold a telephone conversation in the privacy of
one’s home without molestation (ibid., pp. 642-644). Moreover, no duty of
confidentiality existed between the Post Office and the telephone
subscriber; nor was there any other obligation of confidence on a person
who overheard a telephone conversation, whether by means of tapping or
otherwise (ibid., pp. 645-647).
34. Turning to the arguments based on the Convention, the ViceChancellor noted firstly that the Convention was not part of the law of
England and, as such, did not confer on the applicant direct rights that could
be enforced in the English courts (ibid., p. 647).
He then considered the applicant’s argument that the Convention, as
interpreted by the European Court in the case of Klass and Others (judgment
of 6 September 1978, Series A no. 28), could be used as a guide to assist in
the determination of English law on a point that was uncertain. He observed
that the issues before him did not involve construing legislation enacted
with the purpose of giving effect to obligations imposed by the Convention.
Where Parliament had abstained from legislating on a point that was plainly
suitable for legislation, it was difficult for the court to lay down new rules
that would carry out the Crown’s treaty obligations, or to discover for the
first time that such rules had always existed. He compared the system of
safeguards considered in the Klass case with the English system, as
described in the Birkett report, and concluded: