PROCEDURE

The present case was referred to the Court by the European Commission of Human Rights (“the Commission“) on 16 May 1983, within the period of three months laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention“). The case originated in an application (no. 8691/79) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission on 19 July 1979 under Article 25 (art. 25) by a United Kingdom citizen, Mr. James Malone.

The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 8 and 13 (art. 8, art. 13) of the Convention.

In response to the inquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, Mr. Malone stated that he wished to participate in the proceedings pending before the Court and designated the lawyers who would represent him (Rule 30).

The Chamber of seven judges to be constituted included, as ex officio members, Sir Vincent Evans, the elected judge of British nationality (Article 43 of the Convention) (art. 43), and Mr. G. Wiarda, the President of the Court (Rule 21 para. 3 (b)). On 27 May 1983, the President of the Court drew by lot, in the presence of the Registrar, the names of the five other members, namely Mr. M. Zekia, Mrs. D. Bindschedler-Robert, Mr. G. Lagergren, Mr. R. Bernhardt and Mr. J. Gersing (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43) . Mr. Zekia and Mr. Bernhardt, who were prevented from taking part in the consideration of the case, were subsequently replaced by Mr. B. Walsh and Mr. E. García de Enterría, substitute judges (Rules 22 para. 1 and 24 para. 1).

Mr. Wiarda assumed the office of President of the Chamber (Rule 21 para. 5). He ascertained, through the Registrar, the views of the Agent of the Government of the United Kingdom (“the Government“), the Delegate of the Commission and the lawyers for the applicant regarding the need for a written procedure. On 24 June, he directed that the Agent and the lawyers for the applicant should each have until 16 September to file a memorial and that the Delegate should be entitled to file, within two months from the date of the transmission to him by the Registrar of whichever of the aforesaid documents should last be filed, a memorial in reply (Rule 37 para. 1). On 14 September, the President extended until 14 October each of the time-limits granted to the Agent and the applicant’s lawyers.

The Government’s memorial was received at the registry on 14 October, the applicant’s memorial on 25 October. The Secretary to the Commission informed the Registrar by letter received on 22 December that the Delegate did not wish to file any written reply to these memorials but would be presenting his comments at the hearings.

On 27 October, the Chamber unanimously decided to relinquish jurisdiction forthwith in favour of the plenary Court (Rule 50). On the same day, after consulting, through the Registrar, the Agent of the Government, the Delegate of the Commission and the lawyers for the applicant, the President of the Court directed that the oral proceedings should open on 20 February 1984 (Rule 38).

By letter received on 6 October 1983, the Post Office Engineering Union (“the POEU“) requested leave under Rule 37 para. 2 to submit written comments, indicating, inter alia, its “specific occupational interest“ in the case and five themes it would want to develop in written comments. On 3 November, the President granted leave but on narrower terms than those sought: he specified that the comments should bear solely on certain of the matters referred to in the POEU’s list of proposed themes and then only “in so far as such matters relate to the particular issues of alleged violation of the Convention which are before the Court for decision in the Malone case“. He further directed that the comments should be filed not later than 3 January 1984. On 16 December 1983, this time-limit was extended by the President by three weeks. The POEU’s comments were received at the registry on 26 January 1984.

On 17 February 1984, the lawyers for the applicant filed the applicant’s claims for just satisfaction under Article 50 (art. 50) of the Convention. On the same day, the Government supplied two documents whose production the Registrar had asked for on the instructions of the President. By letter received on 19 February, the Government, with a view to facilitating the hearings the following day, gave a clarification regarding a certain matter in the case.

The hearings were held in public at the Human Rights Building, Strasbourg, on 20 February. Immediately prior to their opening, the Court had held a preparatory meeting. There appeared before the Court:

for the Government Mr. M. Eaton, Legal Counsellor, Foreign and Commonwealth Office, Agent, Sir Michael Havers, Q.C., M.P., Attorney General, Mr. N. Bratza, Barrister-at-Law, Counsel, Mr. H. Steel, Law Officers’ Department, Mrs. S. Evans, Legal Adviser, Home Office, Advisers;

for the Commission Mr. C. Nørgaard, President of the Commission, Delegate;

for the applicant Mr. C. Ross-Munro, Q.C., Mr. D. Serota, Barrister-at-Law, Counsel. The Court heard addresses by Sir Michael Havers for the Government, by Mr. Nørgaard for the Commission and by Mr. Ross-Munro for the applicant, as well as their replies to its questions.

On 27 February, in fulfilment of an undertaking given at the hearing, the Government supplied copies of extracts from a document which had been referred to in argument at the hearing. By letter received on 5 June, they notified the Registrar of an amendment to this document.

AS TO THE FACTS

I. PARTICULAR CIRCUMSTANCES OF THE CASE

Mr. James Malone was born in 1937 and is resident in Dorking, Surrey. In 1977, he was an antique dealer. It appears that he has since ceased business as such.

On 22 March 1977, Mr. Malone was charged with a number of offences relating to dishonest handling of stolen goods. His trial, which took place in June and August 1978, resulted in his being acquitted on certain counts and the jury disagreeing on the rest. He was retried on the remaining charges between April and May 1979. Following a further failure by the jury to agree, he was once more formally arraigned; the prosecution offered no evidence and he was acquitted.

During the first trial, it emerged that details of a telephone conversation to which Mr. Malone had been a party prior to 22 March 1977 were contained in the note-book of the police officer in charge of the investigations. Counsel for the prosecution then accepted that this conversation had been intercepted on the authority of a warrant issued by the Secretary of State for the Home Department.

In October 1978, the applicant instituted civil proceedings in the Chancery Division of the High Court against the Metropolitan Police Commissioner, seeking, inter alia, declarations to the effect that interception, monitoring and recording of conversations on his telephone lines without his consent was unlawful, even if done pursuant to a warrant of the Secretary of State. The Solicitor General intervened in the proceedings on behalf of the Secretary of State but without being made a party. On 28 February 1979, the Vice-Chancellor, Sir Robert Megarry, dismissed the applicant’s claim (Malone v. Commissioner of Police of the Metropolis (No. 2), [1979] 2 All England Law Reports 620; also reported at [1979] 2 Weekly Law Reports 700). An account of this judgment is set out below (at paragraphs 31-36).

The applicant further believed that both his correspondence and his telephone calls had been intercepted for a number of years. He based his belief on delay to and signs of interference with his correspondence. In particular, he produced to the Commission bundles of envelopes which had been delivered to him either sealed with an adhesive tape of an identical kind or in an unsealed state. As to his telephone communications, he stated that he had heard unusual noises on his telephone and alleged that the police had at times been in possession of information which they could only have obtained by telephone tapping. He thought that such measures had continued since his acquittal on the charges against him. It was admitted by the Government that the single conversation about which evidence emerged at the applicant’s trial had been intercepted on behalf of the police pursuant to a warrant issued under the hand of the Secretary of State for the prevention and detection of crime. According to the Government, this interception was carried out in full conformity with the law and the relevant procedures. No disclosure was made either at the trial of the applicant or during the course of the applicant’s proceedings against the Commissioner of Police as to whether the applicant’s own telephone number had been tapped or as to whether other and, if so, what other, telephone conversations to which the applicant was a party had been intercepted. The primary reasons given for withholding this information were that disclosure would or might frustrate the purpose of telephone interceptions and might also serve to identify other sources of police information, particularly police informants, and thereby place in jeopardy the source in question. For similar reasons, the Government declined to disclose before the Commission or the Court to what extent, if at all, the applicant’s telephone calls and correspondence had been intercepted on behalf of the police authorities. It was however denied that the resealing with adhesive tape or the delivery unsealed of the envelopes produced to the Commission was attributable directly or indirectly to any interception. The Government conceded that, as the applicant was at the material time suspected by the police of being concerned in the receiving of stolen property and in particular of stolen antiques, he was one of a class of persons against whom measures of interception were liable to be employed.

In addition, Mr. Malone believed that his telephone had been “metered“ on behalf of the police by a device which automatically records all numbers dialled. As evidence for this belief, he asserted that when he was charged in March 1977 the premises of about twenty people whom he had recently telephoned were searched by the police. The Government affirmed that the police had neither caused the applicant’s telephone calls to be metered nor undertaken the alleged or any search operations on the basis of any list of numbers obtained from metering.

In September 1978, the applicant requested the Post Office and the complaints department of the police to remove suspected listening devices from his telephone. The Post Office and the police both replied that they had no authority in the matter.