MALONE v. THE UNITED KINGDOM JUGDMENT
13
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." (ibid., p. 649)
35. As a final point of substance, the Vice-Chancellor dealt, in the
following terms, with the applicant’s contention that as no power to tap
telephones had been given by either statute or common law, the tapping was
necessarily unlawful:
"I have already held that, if such tapping can be carried out without committing any
breach of the law, it requires no authorisation by statute or common law; it can
lawfully be done simply because there is nothing to make it unlawful. Now that I have
held that such tapping can indeed be carried out without committing any breach of the
law, the contention necessarily fails. I may also say that the statutory recognition
given to the Home Secretary’s warrant seems to me to point clearly to the same
conclusion." (ibid., p. 649)
36. The Vice-Chancellor therefore held that the applicant’s claim failed
in its entirety. He made the following concluding remarks as to the ambit of
his decision:
"Though of necessity I have discussed much, my actual decision is closely limited.
It is confined to the tapping of the telephone lines of a particular person which is
effected by the Post Office on Post Office premises in pursuance of a warrant of the
Home Secretary in a case in which the police have just cause or excuse for requesting
the tapping, in that it will assist them in performing their functions in relation to crime,
whether in prevention, detection, discovering the criminals or otherwise, and in which
the material obtained is used only by the police, and only for those purposes. In
particular, I decide nothing on tapping effected for other purposes, or by other persons,
or by other means; nothing on tapping when the information is supplied to persons
other than the police; and nothing on tapping when the police use the material for
purposes other than those I have mentioned. The principles involved in my decision
may or may not be of some assistance in such other cases, whether by analogy or
otherwise: but my actual decision is limited in the way that I have just stated." (ibid.,
p. 651)
E. Subsequent consideration of the need for legislation
37.
Following the Vice-Chancellor’s judgment, the necessity for
legislation concerning the interception of communications was the subject
of review by the Government, and of Parliamentary discussion. On 1 April
1980, on the publication of the White Paper, the Home Secretary announced
in Parliament that after carefully considering the suggestions proffered by
the Vice-Chancellor in his judgment, the Government had decided not to
introduce legislation. He explained the reasons for this decision in the
following terms:
"The interception of communications is, by definition, a practice that depends for its
effectiveness and value upon being carried out in secret, and cannot therefore be
subject to the normal processes of parliamentary control. Its acceptability in a