MALONE VS.
METROPOLITAN POLICE COMMISSIONER
Case Citation: [1979] Ch 344
Decision Date: 28 February 1979
Bench Strength: 1
Number of Opinion(s): 1
Aspect(s) of Privacy: Surveillance, Search and Seizure
Legal Provision(s): Article 8 of the European Convention on Human Rights, 1953
(“ECHR”).
This document is part of the Privacy Law Library created and maintained by the Centre for Communication Governance at
National Law University, Delhi. It can be accessed at -
Malone vs. Metropolitan Police Commissioner (ccgnlud.org)
1
CASE BRIEF
In this case, the High Court of England and Wales (Chancery Division) (“High Court”)
held that there was no general right to privacy under English law, and that the ECHR
did not confer any direct rights enforceable in English courts. It also noted that only
the Parliament could create a right to privacy, and that the regulation of phone
tapping was a matter for the Parliament.
The Plaintiff was charged with handling stolen goods and claimed that his telephone
conversations were tapped without his consent. On becoming aware that his former
telephone line had been intercepted during the investigation, the Plaintiff
approached the High Court to seek an injunction against the Metropolitan Police
Commissioner (“Commissioner”). He sought to restrain them from intercepting and
monitoring conversations on his telephone line. However, he subsequently
amended his motion, and sought that the court make various declarations on the
legality of telephone tapping and the right to privacy.
The High Court dismissed the Plaintiff’s claims in their entirety. It noted that
declarations stating that interception, recording, and monitoring of phone lines by
‘anyone’ was illegal would be overbroad. It also noted that telephone tapping was
not necessarily illegal in England though there was no statute authorising it.
The Court rejected the Plaintiff’s claims to property rights over words spoken on the
telephone, and on the basis of breach of confidence. It observed that the police
would have just cause in tapping a person’s telephone in some cases, and
described broad factors that would provide just cause. It noted that the Parliament,
and not the judiciary, would have to provide the right to privacy, and that the
regulation of telephone tapping was also a matter for the Parliament.
This document is part of the Privacy Law Library created and maintained by the Centre for Communication Governance at
National Law University, Delhi. It can be accessed at -
Malone vs. Metropolitan Police Commissioner (ccgnlud.org)
2
CASE SUMMARY
FACTS
The Plaintiff, an antiques dealer, was among 5 defendants charged with handling
stolen goods. During his trial at the Crown Court at Newington Causeway in which
he was acquitted on certain counts, the Plaintiff learned about a note belonging to a
Detective Sergeant assigned to the case. This note indicated that the Plaintiff’s
former telephone line had been intercepted, and the counsel for the Crown stated
that it was carried out on the Secretary of State’s warrant.
The Plaintiff initially approached the High Court to seek an injunction against the
Commissioner, to prevent them from intercepting and monitoring his telephone line.
However, he subsequently amended his motion and sought that the Court make
various declarations on the legality of telephone tapping. Among others, the Plaintiff
sought declarations that the interception and monitoring of his telephone lines were
unlawful and that they violated his right to private life under Article 8 of the ECHR.
He also sought a declaration that he had no remedies under English law for the
actions undertaken by the State in the present case.
ISSUES
A) Whether the interception, monitoring, or recording of the Plaintiff’s telephone
lines without his consent was unlawful under English law.
B) Whether the Plaintiff had a right to property, privacy, and confidentiality for
telephone conversations, and whether interception and monitoring by the
State violated these rights.
This document is part of the Privacy Law Library created and maintained by the Centre for Communication Governance at
National Law University, Delhi. It can be accessed at -
Malone vs. Metropolitan Police Commissioner (ccgnlud.org)
3
C) Whether the Plaintiff had any remedies under English law for the alleged
interception of his telephone lines, or before national authorities in England
for the alleged violation of his right to privacy under Article 8 of the ECHR.
DECISION
The High Court dismissed the Plaintiff’s claims on all counts. The Court considered
the declarations on whether the interception and monitoring of the Plaintiff’s
telephone lines without his consent was unlawful. It noted that the post office, and
not the Commissioner or his officers had undertaken the interception, and that it
was therefore inappropriate for the Plaintiff to bring the case against the
Commissioner. It also held that a declaration stating that interception, monitoring,
and recording by ‘anyone’ was illegal would be too wide, and consequently
dismissed these declarations.
The Court also considered whether telephone tapping was legal in England. It
recognised that there was no statute that authorised telephone tapping, but noted
that this did not mean that telephone tapping was illegal. The Court examined this
issue in the context of search warrants, and noted that the reason searches without
warrants were illegal was because they involved the tort of trespass. It noted that
telephone tapping by the post office did not involve trespass, since there was no
trespass of the Plaintiff’s premises.
The Court rejected Plaintiff’s claims on the violation of his privacy. It noted that there
was no general right to privacy under English law, and considered the role of the
Courts in recognising legal rights. It held that the judiciary could not create a new
right, and that the Parliament would have to legislate on a right to privacy with
appropriate safeguards. It similarly held that the regulation of telephone tapping was
a matter for the legislature.
This document is part of the Privacy Law Library created and maintained by the Centre for Communication Governance at
National Law University, Delhi. It can be accessed at -
Malone vs. Metropolitan Police Commissioner (ccgnlud.org)
4
The Court also rejected the Plaintiff’s claim that he had property rights over his
words spoken on the telephone. It considered his arguments on the basis of
confidentiality, and noted that any confidentiality obligations would not apply to
those who overhear the conversation, and that there were nevertheless limits to
such obligations. In this context, the Court considered the balance of the rights of a
telephone subscriber with the interest of the larger public in addressing crime.
It observed that as long as certain requirements were satisfied, the police would
have just cause in tapping a person’s telephone. First, there must be grounds to
suspect that tapping a person’s telephone would assist in detecting or preventing
crime. Second, the material obtained from such tapping must only be used for the
purpose for which it was collected. Third, the information obtained would have to be
restricted to the minimum number of persons necessary to undertake the tapping.
While the Court noted that this was not an exhaustive list of requirements, such
elements would constitute a just cause for the police tapping a person’s telephone
for investigating a crime.
Finally, the Court refused to comment on whether the Plaintiff’s right to private life
under Article 8 of the ECHR was violated. The High Court held that its powers were
confined to making declarations on matters that could be adjudicated in the courts
of England. The ECHR was a treaty and was not justiciable in England. The Court
also held that the ECHR did not confer any direct rights on the Plaintiff that he could
enforce in English courts. It noted that while it was possible for the Court to
construe existing legislation to give effect to obligations imposed by the ECHR, it
would not do so where the Parliament had abstained from drafting legislation on a
particular area.
This document is part of the Privacy Law Library created and maintained by the Centre for Communication Governance at
National Law University, Delhi. It can be accessed at -
Malone vs. Metropolitan Police Commissioner (ccgnlud.org)
