Malone v Metropolitan Police Commissioner
| Jurisdiction | England & Wales |
| Date | 1978 |
| Court | Chancery Division |
Police - Powers - Telephone tapping - Home Secretary's warrant for interception of calls on private telephone - Claim for declaration that interception unlawful - Claim based on right of property, privacy, confidentiality and breach of human rights -
In a Crown Court prosecution of the plaintiff, one of five defendants charged with handling stolen property, the prosecution admitted that there had been interception of the plaintiff's telephone conversations on the authority of the Secretary of State's warrant. The plaintiff issued a writ claiming inter alia that such interception had been, and was, unlawful, and he sought by motion an injunction against the Metropolitan Police Commissioner to restrain interception, or monitoring of telephone conversations on his line. It was agreed to treat the motion as the trial of the action and, instead of the relief claimed in the writ, to seek relief in the form of declarations which, as finally settled, were grouped under the following heads: (1) that interception, monitoring or recording of confidential conversations on the plaintiff's telephone lines without his consent, or disclosing them to third parties, or making use of them was unlawful, even if done pursuant to a warrant of the Home Secretary, and disclosing details of telephone calls was similarly unlawful; that, in the alternative, all such interception, monitoring or disclosure was unlawful, where made without the plaintiff's consent, to any officer in the Metropolitan Police, the Home Secretary or the Home Office or any officer thereof; (2) that the plaintiff had a right of property, privacy and confidentiality in respect of telephone conversations on his telephone lines, and that interceptions, recordings and disclosures as in (1) were in breach thereof; (3) that, in the alternative and in relation to human rights, there was no remedy under English law for interceptions, monitorings or recordings of conversations on his telephone lines or the disclosure of the contents thereof to third parties; (4) that interceptions and monitorings of his telephone lines violated article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (which entitled everyone to “respect for his private and family life, his home and his correspondence”); (5) that, in the alternative, there was no effective remedy in the United Kingdom for any such violation of his private and family life, his home, and his correspondence.
On the question whether the declarations ought to be granted: —
Held, (1) that under
(2) That in so far as telephone tapping meant recordings by the Post Office for use by the police in the prevention or detection of crime, no unlawful conduct had been established since there was no law against it and, although no statute authorised telephone tapping, there had been statutory recognition, by section 80 of the
(3) That the plaintiff could have no immunity from telephone tapping based on a right of property for no property (apart from copyright) existed in words transmitted over the telephone (post, pp. 711H–712A).
(4) That because there was no general right of privacy recognised by English law and an offence under section 5 of the
(5) That the plaintiff had no contractual right of confidentiality arising from the provision of telephone services by the Post Office nor was there a remedy against conversations casually overheard, particularly where iniquity was suspected; further, that so far as concerned actions by the police, a breach of any general right of confidentiality would be excused where (a) there was just cause for telephone tapping in detecting or preventing crime, (b) no use was made of material obtained except for those purposes, (c) knowledge of information not relevant for those purposes was confined to the minimum number reasonably required to be engaged in the tapping; and that, in the circumstances of the present case, if there had in fact been any breach of confidentiality on the part of the police, there was just cause and excuse for it (post, pp. 728F–G, 729H–730A, D–F, H–731A).
(6) That, in any event, the claim for all the declarations against the defendant must fail, for interception of the plaintiff's telephone conversations was not by the defendant but by the Post Office and, accordingly, the plaintiff's claim failed in its entirety and would be dismissed (post, p. 736C–E).
Per curiam. Any regulation of so complex a matter as telephone tapping is essentially one for Parliament, not the courts. It is plain that telephone tapping is a subject which cries out for legislation. The difficulties in legislating ought not to prove insuperable and the requirements of the Convention should prove a spur to action (post. p. 733C–E).
The following cases are referred to in the judgment:
Adams v. Adams (Attorney-General intervening) [
Albert (Prince) v. Strange (
American Cyanamid Co. v. Ethicon Ltd. [
Anon. (
Argyll (Duchess) v. Argyll (Duke) [
Attorney-General v. Edison Telephone Co. of London Ltd. (
Attorney-General v. Jonathan Cape Ltd. [
Coco v. A. N. Clark (Engineers) Ltd. [
Entick v. Carrington (
Fraser v. Evans [
Gartside v. Outram (
Gouriet v. Union of Post Office Workers [
Guaranty Trust Co. of New York v. Hannay & Co. [
Hanson v. Radcliffe Urban District Council [
Hill v. C. A. Parsons & Co. Ltd. [
Initial Services Ltd. v. Putterill [
International General Electric Co. of New York Ltd. v. Commissioners of Customs and Excise [
Italy (Republic of) v. Hambros Bank Ltd. [
Katz v. United States (
Klass and Others, (European Court of Human Rights, July 4, 1978).
Kynaston v. Attorney-General (
Metcalf v. Gilmore (
National Provincial Bank Ltd. v. Hastings Car Mart Ltd. [
Nixon v. Attorney-General [
Pan-American World Airways Inc. v. Department of Trade [
Printers & Finishers Ltd. v. Holloway [
Proctor v. Bayley (
Reg. v. Chief Immigration Officer, Heathrow Airport, Ex parte Salamat Bibi [
Rhodes v. Graham (
Saltman Engineering Co. Ltd. v. Campbell Engineering Co. Ltd. (
Southern Pacific Co. v. Jensen (
Thorne Rural District Council v. Bunting [
Uppal v. Home Office, The Times, October 21, 1978.
The following additional cases were cited in argument:
Hubbard v. Vosper [
Hunter v. Mann [
Lewis v. Cattle [
Musgrove v. Chun Teeong Toy [
Rumping v. Director of Public Prosecutions [
Triefus & Co. Ltd. v. Post Office [
Zamora, The [
MOTION
By writ dated October 17, 1978, the plaintiff, James Malone, claimed as against the defendant, the Commissioner of Police for the Metropolis (1) an injunction restraining him, his servants or agents from...
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