22
MALONE v. THE UNITED KINGDOM JUGDMENT
H. Possible domestic remedies in respect of the alleged violation of
the Convention
57. Commission, Government and applicant are agreed that, at least in
theory, judicial remedies are available in England and Wales, in both the
civil and the criminal courts, in respect of interceptions of communications
carried out unlawfully. The remedies referred to by the Government were
summarised in the pleadings as follows:
(i) In the event of any interception or disclosure of intercepted material
effected by a Post Office employee "contrary to duty" or "improperly" and
without a warrant of the Secretary of State, a criminal offence would be
committed under the Telegraph Acts 1863 and 1868 and the Post Office
(Protection) Act 1884 (as regards telephone interceptions) and under the
Post Office Act 1953 (as regards postal interceptions) (see paragraphs 25-27
above). On complaint that communications had been unlawfully intercepted,
it would be the duty of the police to investigate the matter and to initiate a
prosecution if satisfied that an offence had been committed. If the police
failed to prosecute, it would be open to the complainant himself to
commence a private prosecution.
(ii) In addition to (i) above, in a case of unlawful interception by a Post
Office employee without a warrant, an individual could obtain an injunction
from the domestic courts to restrain the person or persons concerned and the
Post Office itself from carrying out further unlawful interception of his
communications: such an injunction is available to any person who can
show that a private right or interest has been interfered with by a criminal
act (see, for example, Gouriet v. The Union of Post Office Workers, [1977]
3 All England Law Reports 70; Ex parte Island Records Ltd., [1978] 3 All
England Law Reports 795).
(iii) On the same grounds, an action would lie for an injunction to
restrain the divulging or publication of the contents of intercepted
communications by employees of the Post Office, otherwise than under a
warrant of the Secretary of State, or to any person other than the police.
Besides these remedies, unauthorised interference with mail would
normally constitute the tort of trespass to (that is, wrongful interference
with) chattels and so give rise to a civil action for damages.
58. The Government further pointed to the following possible nonjudicial remedies:
(i)
In the event that the police were themselves implicated in an
interception carried out without a warrant, a complaint could additionally be
lodged under section 49 of the Police Act 1964, which a chief officer of
police would, by the terms of the Act, be obliged to investigate and, if an
offence appeared to him to have been committed, to refer to the Director of
Public Prosecutions.