Megarry VC remarked that the situation in English law compared very unfavourably to West Germany, exemplified by the Klass case,[5] and cried out for legislation, which would be compatible with the Convention.

I may also say that the statutory recognition given to the Home Secretary's warrant seems to me to point clearly to the same conclusion.The European Court of Human Rights held that the UK allowing the phone tapping was in breach of its obligations under ECHR article 8, because there was no express law that indicated "with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities."

Accordingly, the present summary of the facts is limited to what is undisputed, the submissions in relation to the contested aspects of these provisions being dealt with in the part of the judgment "as to the law".

Provided that nothing in this section shall extend to ... the opening, detaining or delaying of a postal packet ... in obedience to an express warrant in writing under the hand of a Secretary of State.... 28.

Consequently, no warrants by the Secretary of State were issued and arrangements for the interception of telephone conversations were made directly between the police authorities and the Director-General of the Post Office.

In 1937, the position was reviewed by the Home Secretary and the Postmaster General (the Minister then responsible for the administration of the Post Office) and it was decided, as a matter of policy, that it was undesirable that records of telephone conversations should be made by Post Office servants and disclosed to the police without the authority of the Secretary of State.

Since 1937 it had accordingly been the practice of the Post Office to intercept telephone conversations only on the express warrant of the Secretary of State (see the Birkett report, paras.

8) – that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by paragraph 1 (art.

Undoubtedly, as the Government rightly suggested, the requirements of the Convention, notably in regard to foreseeability, cannot be exactly the same in the special context of interception of communications for the purposes of police investigations as they are where the object of the relevant law is to place restrictions on the conduct of individuals.

Nevertheless, the law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence.

Whilst the exact legal basis of the executive's power in this respect was the subject of some dispute, it was common ground that the settled practice of intercepting communications on behalf of the police in pursuance of a warrant issued by the Secretary of State for the purposes of detecting and preventing crime, and hence the admitted interception of one of the applicant's telephone conversations, were lawful under the law of England and Wales.

The legality of this power to intercept was established in relation to telephone communications in the judgment of Sir Robert Megarry dismissing the applicant's civil action (see paragraphs 31–36 above) and, as shown by the independent findings of the Birkett report (see paragraph 28 in fine above), is generally recognised for postal communications.

The issue to be determined is therefore whether, under domestic law, the essential elements of the power to intercept communications were laid down with reasonable precision in accessible legal rules that sufficiently indicated the scope and manner of exercise of the discretion conferred on the relevant authorities.

The foregoing considerations disclose that, at the very least, in its present state the law in England and Wales governing interception of communications for police purposes is somewhat obscure and open to differing interpretations.

In view of the attendant obscurity and uncertainty as to the state of the law in this essential respect, the Court cannot but reach a similar conclusion to that of the Commission.

In the opinion of the Court, the law of England and Wales does not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities.

To that extent, the minimum degree of legal protection to which citizens are entitled under the rule of law in a democratic society is lacking.

8) to respect for his private life and correspondence (see paragraph 64 above) were not "in accordance with the law".After the Malone decision, Parliament passed the Interception of Communications Act 1985 allowing any phone tapping with a warrant.

R (Fewings) v Somerset CC disapproved the view of Megarry VC that not every government act requires legal authority.