Essay: Police-Powers – Telephone Tapping

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 – Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969), arts. 8, 13.
During the first Crown prosecution, I believe that details of telephone conversations by plaintiff (Mr Malone) prior to 22nd March 1977 was recorded by police officer whom was in charge of the current investigation. This information was recovered within a notebook and was used by defendant for arrest of plaintiff. The facts of the case made by defendant and plaintiff’ respected councils are set below.
Ratio of judgment:
The plaintiff was charged and acquitted, by a jury, for a variety of offences including handling stolen property by a crown Court prosecution for handling stolen property. The plaintiff, ultimately, mentioned the possible Human Rights violations comes to bear where the claims of this evidence of charges made against the defendant through police interception through phone hacking of the plaintiff’s phone and with legislative authority which is discussed later . I believe, therefore, this controversial civil action, of telephone tapping by plaintiff, was used by the defendant’s council as evidence relied upon by the Metropolitan Police. Controversy, after admission from prosecution, stems due to plaintiff issuing a motion against the Metropolitan Police Commission (defendant) in the form of an injunction. Meaning an injunction, through civil action, stating that Metropolitan Police department should not interfere with plaintiff’s right to uninterrupted and uncensored telephone conversations of his line by, prohibiting human right of private life (Article 8), of restraints and monitoring plaintiff. To elaborate further, defendant’s counter claim that the limitation presented in Article 8, whereby, the rights for plaintiff is permissible if it is for “prevention of disorder of crime” as a way of balancing competing interests wholly, thus, circumventing miscarriages of justice in court. The third party involved, the Post Office, raises the complexity of my judgement. I will start by introducing the main question needed to be asked in this courtroom is: By this, accounts to counsel, the court finds it appropriate to analyse plaintiff seeks action by declarations as opposed to a writ for establishing the question:
(A) Did Public authority acted in a way which is incompatible with the, mentioned later, European Convention of Human Rights (1950)?
There are 3 potential avenues that plaintiff may succeed over defendant in terms of the violation of this essential Human Right which I shall further discuss. The court moves to the provisions of Article 8 and 13 for the European Convention of Human Rights the interceptions of communication by defendant. Legislative, statutory provisions ensure that investigatory powers are used in accordance with Human Rights. I find this to be evidential that plaintiff considered against defendant. The Rights of Article 8 and 13 could potentially make the defendant’s conduct unlawful, however, it must define clearly what term ‘interception’ means in light to the Convention rights violations. Violations and interceptions are mentioned within the European Convention rights as Article 8 s.1 and s.2, 13 and I will briefly elaborate on this later.
Now, I will discuss the Convention Rights in light of the Solicitor General’s agreement for writ and the lack of checks and balances in existence for the Post Office. Thus, reading legislative authority domestically is required before finding no breach of Article 8 and 13 of the European Convention on Human Rights. However, I find it unusual that although it is the prerogative of Solicitor-General whom sign agreement for the interception of the telephone wires, that there is no oversight upon this procedure. I believe that the exercise of the Secretary of State (Solicitor-General) power to issue warrants should be limited to specific categories. When mentioning these categories, they should align with conventions to determine whether the warrant is lawfully given. The Birkett Report shows the statutory provision required for these categories. It recognises that grounds which an application, according to the Committee of Privy Council could be made: laying out clear principles governing the issue of warrants to Security Services. The Court finds it apparent to mention a core argument of issuing the warrant to evidence that is plausibly unlawfully obtained by interception must be of direct use in compiling the information that is necessary to the Security Services in carrying out the declarations of tasks laid upon it by the state.
I believe that the summary of declarations is the following;
(a) Firstly, “interception, monitoring or recording of private conversations on the plaintiff’s telephone lines without consent of plaintiff, or disclosing the contents thereof to third parties, is unlawful, even if done pursuant to a warrant the Home secretary has provided, ultimately going against his rights of privacy, generally, under Article 8 of the European Convention of Human Rights.
The plaintiff’s claim should be dismissed for the interception of the telephone lines of the plaintiff for the use of gaining information. This claim could be one of fabrication as it is not the defendant’s, but, post office whom intercepted plaintiff’s conversation. Controversial issue will be detailed at later date in judgement.
(b) Secondly, Article 8 (1) through denying plaintiff’s right of “privacy and confidentiality of telephone conversations and breach thereof disclosing interceptions and recordings”. This ultimately challenged plaintiff’s Human Right of respect for his correspondence whereby interference by the defendants (Metropolitan Police).
I. An interception of communications legislation meant prosecution’s claim that there was no statutory code governing interceptions of communications may be significant, however, authority may arise here with the introduction of Post Office Act 1969 Schedule 5.
(c) Thirdly, that of article 8 (s.2) stating that a public body shall not interfere in exercising this right under Article 8 (1) except if following the law and if required as a matter of national security within a state’s democratic society, in addition to public safety, to protect freedoms and rights of others and prevention of disorder or crime. Therefore, in relation to Human Rights, telephone disclosure and interceptions could be in breach thereof.
(d) Subsequently similar to Article 8 is Article 13, suggesting that if any person’s rights or freedoms are violated as set forth within this Convention shall have before a national authority an effective remedy notwithstanding that the violation of the Convention has been committed by persons acting in an official capacity. Was the injunction and warrant received by plaintiff a violation of Convention rights?
Per curiam: with such declarations being of a complex nature, in the definitive sense that, no effective legislation nor remedy is provided to plaintiff. I suggest that this be a matter for Parliament, our elected and unelected judiciary, to discuss further. This is so to prevent further misfortunes within the Court of law. In addition, to enforce within, court judicial action is requiring for this specific legal matter which may lead to creation of effective legislation. This may lead to ambiguity and lack of clarity to address the main English authorities in relation to the European Convention rights for my judgement.
Complying with statement mentioned is the Vice Chancellor whom suggested that any regulation as so complex as telephone tapping is essentially a matter for Parliament, not the Courts and it is clear the case of telephone tapping is a subject which cries out for legislation.
In contrast, there is still legislative authorities which, if appropriately used, may show the conferred powers to act by Secretary of State as it is not a violation of Convention Rights.
Rather, the limitations of legislative authority, this is not a matter for the courts to interfere within as it is subject to Parliamentary approval. This includes what my judgement has established continuously, that is, creating legislation regulating criminal or civil offence for any persons unlawfully intercepting communications. However, with the limited statutory provisions, it is difficult to say that it is not legal for the telecommunications of plaintiff being wire tapped by Solicitor-General on behalf of Home Secretary. I am certain judicial and legislative matters are separate and legislation would be the effective way forward.
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To further elaborate, if the above declarations in relation to the Convention rights are received;
It is therefore Held;
(1) That treaties are justiciable matters which are isolated within English court of law when concluding a judgement, and the Human Rights convention and violations of plaintiff’s telephone line has similar status to that of a treaty. Therefore, Human Rights conventions is not a justiciable matter for English courts.
Hansen v Radcliff Urban District Council was considered.
(a) Postal services and telecommunications – telephone tapping by the Post Office by means of recording telephone conversations is not against English law as mentioned by Sir Robert Megarry V. Therefore, I conclude that the status of the Convention is a matter which isn’t arbitrary to discuss for purpose of judgement.
(2) Article 8 of the Convention Rights claimed by plaintiff cannot be legally used in defence or dependence for justification of rights made. Accordingly, it is not possible for courts to make this specific Convention rights enforceable within the declaration.
(3) As for the issue regarding telephone tapping/interceptions by the Post Office, as during the period of the case, it is unfortunate that there is no legislation effectively ruling the interception of telephone line by plaintiff’s phone illegal. Ultimately, recording disclosed by the third party (Post Office) helping resolve the misconducted the plaintiff alleges through Convention Rights violations. Thus, as far as telephone tapping is concerned, the use of a warrant from the Home Secretary bears relevance effectively in English law according to Section 80 of the Post Office Act 1969.
(a) As a conscious reminder, there is not a legal consequence that arises if Secretary of State agree to sign the warrant which, in conclusion, gives Post Office relevant permissions for interception of telephone line and communication.
(4) When following the current Human Rights violations by plaintiff, Article 13 distinctively mentions if violations have been ‘set forth within the convention rights and freedoms requires persons to have a remedy’. However, I believe this is irrelevant suggesting this comment as the national authority requires for the legislation to be in existence. Here, I entirely agree that there is no effective legislation nor treaty, as council for plaintiff should recognise, in domestic courts for there to be an existing violation of privacy in accordance to plaintiff’s rights.
Here, I have referenced the cases used within my judgement;
Coco v A.N. Clark (Engineers) Ltd. [1967] R.P.C. 41
Fraser v Evans [1969] 1 QB. 349; [1968] 3 W.L.R. 1172; [1969] 1 All E.R. 8, C.A
Hanson v Radcliffe Urban District Council [1922] 2 Ch. 490, C.A.
Preiser v. Rodriguez, 411 US 475 – Supreme Court (1973)
Klass and Others (European Court of Human Rights, July 4, 1978).
MOTION:
An injunction was issued by this court to protect law-abiding citizens from mistreatment of domestic privacy law. Thus, the order for injunction was granted to the plaintiff through judicial jurisdiction, thus, the court presented the option of a civil proceeding in confliction with the Metropolitan Police Commissioner;
(a) Plaintiff sought an injunction against the particular act of interception and mishandling of telephone communications. Thus, in relation to the Post office, interception information through telephone lines. Ultimately leading police to seek the arrest of plaintiff. Relation to convention preventing arrest, Article 8 which injunction would lead to right being effectively protected from interference by Solicitor- General and may lead to a writ in from of relief.
Coco v A.N. Clark (Engineers) Ltd examines the interlocutory relief was not in this case appropriate as plaintiff’s allegations not determinant on evidence.
(b) Evidence collected by interception of plaintiff’s telecommunication lines. For the reason that, conduct authorised by issuing warrant from Security-General was not proportionate to what the warrant seeks to achieve. The interception of the lines by defendants, I find, could be obtained in a new way. The evidence collected, I believe through this injunction was the only evidential basis for plaintiff’s arrest.
The writ which came with the authority of a warrant has no structure in place where there was no supervision. By the Secretary of state, presented to the court as the Secretary General, agreeing to the warrant, I have come to the conclusion that Secretary General was not in accordance with the law. Therefore, the plaintiff may not a fair trial because the warrant issued was the sole basis for arresting and detaining the plaintiff.
Preferably one which does not violate plaintiff’s right to the formerly mentioned declaration, that of ‘privacy and confidentiality’ when disclosing information on telecommunication lines which is further discussed after the injunction and relief that arises from the interception itself.
Plaintiff sought part of the relief through the motion by way of an injunction which denied defendants overrode European convention rights. The Commissioner was ordered, thereby in this court, to discontinue monitoring and intercepting the claimant’s telephone lines. This lead this court to continue questioning whether the primary prohibition of telephone tapping was a legislative function in which the court of England. The claimant was not denied part of a relief because of the actions taken by Commissioner through the writ he so forth claimed.
Preiser v. Rodriguez, 411 US 475 – Supreme Court (1973) considered.
Justice Stewart of the case stated plaintiff sought injunctive relief to compel restoration of the credits which resulted in their immediate release from confinement. Contrasting judgement to the Malone case, claimant should seek an injunction which acts as a blockade denying defendants to violate his rights by way of the motion. I firmly find that, due to this controversial mater, I will grant the injunction as it is necessary for interest of justice. However, to find whether or not defendants could have other routes for acting differently as there may be powers conferred on the duty to act. Therefore, I believe that evidence shall not be destroyed and dismiss this claim.
With ruling to allow evidence gathered, it perhaps the case to submit and to summarise whether a conferred duty of power to act as the Solicitor-General on behalf of the plaintiff. Therefore, concluding duty to act is incompatible with plaintiff’s rights. To continue the point of ‘privacy and confidentiality’, I find consent is not needed as, previously mentioned, the relevant exception to Article 8 – for the prevention of crime is an exception. Below, is case authority outlining this point distinctively?
Klass and Others v Germany claims against the Metropolitan Police by legislation for infringement of Art. 8 or right to respect correspondence and Art.13 for breach of convention, a right for plaintiff to have effective remedy before national authority. Similarly, my judgement precludes the infringement of Art. 8 (2) but within Klass case law, the infringement was allowed to be enacted on the interests for national security. However, I am bound to say the plaintiff in my judgement is not a victim of this law, rather the presumption that international law would supersede to succeed. Hence, the Post Office intercepted into plaintiff’s telephone communications. It is it held that the secrecy of the telephone communications being recorded and monitored was permitted for this specific reason which I will know mention.
Due to legislation passed For Klass case – it restricted the right to secrecy of post and telecommunications. The Court held that there was no violation of Article 8 of the European Court of Human Rights. Because the guidelines were established within the Brikett Report, but specifically, the Telecommunications Act, the Court found there was a self-explanatory reason for interfering in lawyer’s rights which is the “preventing disorder crime”. It was necessary as long as it followed EU Convention rights for safeguarding its citizens. What is convenient is that Malone case is akin to this view that Article 8 was a necessity for the plaintiff to be stripped of his Article 8 and 13 rights because I believe it is in the exception. I accept that the arrest by Metropolitan Police is in the interest of the prevention of crime committed by plaintiff.
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Incompatibility with the European Convention Rights also stems as the main line of questioning. Now, I will discuss the reasoning for the warrant being issued to defendants and the “privacy and confidentiality” legislation of Article 8. Within the case of Fraser v Evans (1969), Lord Denning suggests that there is a just excuse where Article 8 of the ‘right to private life’ and ensuring plaintiff’s confidentiality and privacy remains. The wording of Denning M.R. implies that it would be imperatives for the matter of public interest that “the truth is out by justifying conduct and making fair commentary”. I think, therefore, it is the Solicitor-General, in this instance, could only act in a manner in so far is permissible because of this statutory provision. I do not believe that there were other avenues defendant (Solicitor-General) could have ascertained in thin moment of time.
Summary:
For basis of judgement, I entirely conclude that plaintiff’s claim based on Article 8 and Article 13 of the European Convention of Human Rights, purely based on there being no legislative authority regarding the Post office’s conduct. There is no authority of domestic law preventing the infringement of privacy and confidentiality of plaintiff’s telephone interception. I do, however, allow injunction by a writ for plaintiff to receive from the Post Office for mishandling the information of interception. This is because information received was the sole piece of evidence that lead to arresting the plaintiff. Overall, with the small amount of legislative authority including constitutions specifying that privacy through telephone communications is guaranteed, evidential cases suggest that domestic law supersedes. The injunction given for evidence, although I believe it is the only basis for arrest, is necessary to be used for the claims of plaintiff to be assessed in the court. With bearing all of this in mind, I conclude that plaintiff’s claim is denied.