28
MALONE v. THE UNITED KINGDOM JUGDMENT
dangerous interference with the right to respect for private life and
correspondence.
68. There was also some debate in the pleadings as to the extent to
which, in order for the Convention to be complied with, the "law" itself, as
opposed to accompanying administrative practice, should define the
circumstances in which and the conditions on which a public authority may
interfere with the exercise of the protected rights. The above-mentioned
judgment in the case of Silver and Others, which was delivered subsequent
to the adoption of the Commission’s report in the present case, goes some
way to answering the point. In that judgment, the Court held that "a law
which confers a discretion must indicate the scope of that discretion",
although the detailed procedures and conditions to be observed do not
necessarily have to be incorporated in rules of substantive law (ibid., Series
A no. 61, pp. 33-34, paras. 88-89). The degree of precision required of the
"law" in this connection will depend upon the particular subject-matter (see
the above-mentioned Sunday Times judgment, Series A no. 30, p. 31, para.
49). Since the implementation in practice of measures of secret surveillance
of communications is not open to scrutiny by the individuals concerned or
the public at large, it would be contrary to the rule of law for the legal
discretion granted to the executive to be expressed in terms of an unfettered
power. Consequently, the law must indicate the scope of any such discretion
conferred on the competent authorities and the manner of its exercise with
sufficient clarity, having regard to the legitimate aim of the measure in
question, to give the individual adequate protection against arbitrary
interference.
(ii) Application in the present case of the foregoing principles
69. Whilst the exact legal basis of the executive’s power in this respect
was the subject of some dispute, it was common ground that the settled
practice of intercepting communications on behalf of the police in
pursuance of a warrant issued by the Secretary of State for the purposes of
detecting and preventing crime, and hence the admitted interception of one
of the applicant’s telephone conversations, were lawful under the law of
England and Wales. The legality of this power to intercept was established
in relation to telephone communications in the judgment of Sir Robert
Megarry dismissing the applicant’s civil action (see paragraphs 31-36
above) and, as shown by the independent findings of the Birkett report (see
paragraph 28 in fine above), is generally recognised for postal
communications.
70. The issue to be determined is therefore whether, under domestic
law, the essential elements of the power to intercept communications were
laid down with reasonable precision in accessible legal rules that
sufficiently indicated the scope and manner of exercise of the discretion
conferred on the relevant authorities.