Malone v Commissioner of Police of the Metropolis (No.2)

Facts

Malone was an antiques dealer who was charged with handling stolen goods. During the prosecution it emerged that his telephone had been tapped by the police, under a warrant issued by the Home Secretary. He then sued the Metropolitan Police Commissioner, seeking declarations that the interception of his telephone calls, and the recording of the numbers he dialled by a practice known as metering, were unlawful.

History

The action was brought in the Chancery Division of the High Court, and Megarry V-C gave judgment for the Commissioner, dismissing the claim for declarations.

Issue

Whether the tapping of the telephone of Malone by the police was unlawful as a trespass, a breach of confidence, an infringement of a right of privacy, or a breach of Article 8 of the European Convention on Human Rights, and whether the absence of a statutory power to tap made it unlawful.

Held

The claim was dismissed. The tapping of the telephone, and the metering of the numbers dialled, were not unlawful, because it involved no trespass to the property of the claimant, there was no right of privacy in English law, and the Convention was not enforceable in domestic courts.

Ratio

• Interception of a telephone line carried out without entering the premises of the subscriber involves no trespass, and it does not interfere with a legal right of the subscriber in the absence of a recognised cause of action. An individual may do anything that the law does not forbid, and the lack of any specific statutory authority for tapping does not make it unlawful when it infringes no right.
• The European Convention on Human Rights, not being incorporated into English law, cannot be relied on to create rights enforceable in the domestic courts, and English law contains no general right of privacy.

The judgments

Key reasoning

• Entick v Carrington concerned trespass to property, and where no trespass is involved the principle that the executive needs legal authority does not apply in the same way, because a person is free to do what is not prohibited.
• The information on the telephone line was not confidential in a sense that would allow a claim for breach of confidence against the person tapping it, and the law had not developed a right of privacy to cover it.
• The Convention is an international treaty and, as it has not been incorporated, does not give rise to rights that the domestic courts can enforce, though it may be relevant if the law is ambiguous.

Obiter

• Megarry V-C said that the lack of any clear legal framework for tapping, and its reliance on administrative practice, was unsatisfactory, and that it would be open to Parliament to regulate it in the light of the Convention.

Where it fits in the module

In the module on the Crown and executive power the case tests the principle in Entick v Carrington, and the contrast between the freedom of individuals and the need for legal authority of the executive. The key question is whether the court gave too narrow a reading to the principle by confining it to trespass, and whether the executive needs a legal basis for interference with privacy. The later judgment of the European Court of Human Rights in Malone v United Kingdom, and the statutes that followed, show the weakness of the common law position.

Criticisms

• The reasoning reads Entick v Carrington as a rule about trespass instead of a general rule that executive interference needs legal authority, which defeats the purpose of the principle where modern interference does not involve physical entry.
• By saying that anything not forbidden is permitted, the judgment applies to the executive the freedom that belongs to individuals, and this cannot be reconciled with the idea that public authorities have only the powers the law gives them.
• The court declined to protect privacy or to use the Convention to shape the common law, leaving a serious intrusion unregulated, and the United Kingdom was found by the European Court of Human Rights to have breached Article 8.