MALONE v. THE UNITED KINGDOM JUGDMENT
31
administrative in character and had not, even in their principal aspects, been
made binding legal requirements by virtue of section 80 (see paragraph 34
above).
78. It was also somewhat surprising, so the Commission observed, that
no mention of section 80 as regulating the issue of warrants should have
been made in the White Paper published by the Government in the wake of
Sir Robert Megarry’s judgment (see paragraph 21 above). Furthermore, the
Home Secretary, when presenting the White Paper to Parliament in April
1980, expressed himself in terms suggesting that the existing arrangements
as a whole were matters of administrative practice not suitable for being
"embodied in legislation", and were subject to change by governmental
decision of which Parliament would be informed (see paragraphs 37 in fine
and 54 in fine above).
79. The foregoing considerations disclose that, at the very least, in its
present state the law in England and Wales governing interception of
communications for police purposes is somewhat obscure and open to
differing interpretations. The Court would be usurping the function of the
national courts were it to attempt to make an authoritative statement on such
issues of domestic law (see, mutatis mutandis, the Deweer judgment of 27
February 1980, Series A no. 35, p. 28, in fine, and the Van Droogenbroeck
judgment of 24 June 1982, Series A no. 50, p. 30, fourth sub-paragraph).
The Court is, however, required under the Convention to determine
whether, for the purposes of paragraph 2 of Article 8 (art. 8-2), the relevant
law lays down with reasonable clarity the essential elements of the
authorities’ powers in this domain.
Detailed procedures concerning interception of communications on
behalf of the police in England and Wales do exist (see paragraphs 42-49,
51-52 and 54-55 above). What is more, published statistics show the
efficacy of those procedures in keeping the number of warrants granted
relatively low, especially when compared with the rising number of
indictable crimes committed and telephones installed (see paragraph 53
above). The public have been made aware of the applicable arrangements
and principles through publication of the Birkett report and the White Paper
and through statements by responsible Ministers in Parliament (see
paragraphs 21, 37-38, 41, 43 and 54 above).
Nonetheless, on the evidence before the Court, it cannot be said with any
reasonable certainty what elements of the powers to intercept are
incorporated in legal rules and what elements remain within the discretion
of the executive. In view of the attendant obscurity and uncertainty as to the
state of the law in this essential respect, the Court cannot but reach a similar
conclusion to that of the Commission. In the opinion of the Court, the law
of England and Wales does not indicate with reasonable clarity the scope
and manner of exercise of the relevant discretion conferred on the public