Malone v Metropolitan Police Commissioner
Under the old approach, the state could do anything not prohibited by law, so telephone tapping without legal authority was lawful.
Facts
Mr Malone, an antiques dealer, was prosecuted for handling stolen goods. During his trial, it emerged that the police had tapped his telephone under a warrant issued by the Home Secretary. There was no statute authorising telephone tapping. Mr Malone sought a declaration that the tapping was unlawful, relying among other things on a right to privacy and article 8 of the European Convention on Human Rights.
Legal principle
Sir Robert Megarry V-C held that the telephone tapping was not unlawful. No right of privacy was recognised by English law, the Convention was not then part of domestic law, and the tapping involved no trespass to Mr Malone's property. Since nothing in English law prohibited it, it was lawful, because England is a country where everything is permitted except what is expressly forbidden. He said that the subject cried out for legislation. The European Court of Human Rights later held, in Malone v United Kingdom (1984), that the tapping breached article 8, because it was not in accordance with the law, and Parliament passed the Interception of Communications Act 1985.
Related cases on rule of law
- Al Rawi v Security Service [2011] UKSC 34, [2012] 1 AC 531
- Burmah Oil Co Ltd v Lord Advocate [1965] AC 75
- Entick v Carrington (1765) 19 St Tr 1029
- Liversidge v Anderson [1942] AC 206
- M v Home Office [1994] 1 AC 377
- R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60, [2009] 1 AC 756
- R (Evans) v Attorney General [2015] UKSC 21, [2015] AC 1787
- R (UNISON) v Lord Chancellor [2017] UKSC 51, [2020] AC 869
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