12
MALONE v. THE UNITED KINGDOM JUGDMENT
"... Not a single one of these safeguards is to be found as a matter of established law
in England, and only a few corresponding provisions exist as a matter of
administrative procedure.
It does not, of course, follow that a system with fewer or different safeguards will
fail to satisfy Article 8 (art. 8) in the eyes of the European Court of Human Rights. At
the same time, it is impossible to read the judgment in the Klass case without it
becoming abundantly clear that a system which has no legal safeguards whatever has
small chance of satisfying the requirements of that Court, whatever administrative
provisions there may be. ... Even if the system [in operation in England] were to be
considered adequate in its conditions, it is laid down merely as a matter of
administrative procedure, so that it is unenforceable in law, and as a matter of law
could at any time be altered without warning or subsequent notification. Certainly in
law any ‘adequate and effective safeguards against abuse’ are wanting. In this respect
English law compares most unfavourably with West German law: this is not a subject
on which it is possible to feel any pride in English law.
I therefore find it impossible to see how English law could be said to satisfy the
requirements of the Convention, as interpreted in the Klass case, unless that law not
only prohibited all telephone tapping save in suitably limited classes of case, but also
laid down detailed restrictions on the exercise of the power in those limited classes."
This conclusion did not, however, enable the Vice-Chancellor to decide
the case in the way the applicant sought:
"It may perhaps be that the common law is sufficiently fertile to achieve what is
required by the first limb of [the above-stated proviso]: possible ways of expressing
such a rule may be seen in what I have already said. But I see the greatest difficulty in
the common law framing the safeguards required by the second limb. Various
institutions or offices would have to be brought into being to exercise various defined
functions. The more complex and indefinite the subject-matter the greater the
difficulty in the court doing what it is really appropriate, and only appropriate, for the
legislature to do. Furthermore, I find it hard to see what there is in the present case to
require the English courts to struggle with such a problem. Give full rein to the
Convention, and it is clear that when the object of the surveillance is the detection of
crime, the question is not whether there ought to be a general prohibition of all
surveillance, but in what circumstances, and subject to what conditions and
restrictions, it ought to be permitted. It is those circumstances, conditions and
restrictions which are at the centre of this case; and yet it is they which are the least
suitable for determination by judicial decision.
... Any regulation of so complex a matter as telephone tapping is essentially a
matter for Parliament, not the courts; and neither the Convention nor the Klass case
can, I think, play any proper part in deciding the issue before me." (ibid., pp. 647-649)
He added that "this case seems to me to make it plain that telephone
tapping is a subject which cries out for legislation", and continued:
"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