The Sunday Times (No 1) v The United Kingdom: ECHR 26 Apr 1979

Offence must be ;in accordance with law’

The court considered the meaning of the need for an offence to be ‘in accordance with law.’ The applicants did not argue that the expression prescribed by law required legislation in every case, but contended that legislation was required only where the common law rules were so uncertain that they did not satisfy the requirement of legal certainty.
Held: ‘In the Court’s opinion, the following are two of the requirements that flow from the expression ‘prescribed by law’. First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.’
and ‘Where there has been an interference with the Art. 10(1) right, it is not sufficient that its subject-matter fell within a particular category or was caught by a legal rule formulated in general or absolute terms; the Court has to be satisfied that the interference was necessary having regard to the facts and circumstances prevailing in the specific case before it’.
Article 10(1) confers not only the right to ‘impart’ information and ideas but also the right to ‘receive’ them.
Article 10(2) specifically identifies ‘maintaining the authority and impartiality of the judiciary’ as a legitimate aim which may justify interference with freedom of expression. The phrase has a wide scope . .
The term ‘judiciary’ (‘pouvoir judiciaire’) comprises the machinery of justice or the judicial branch of government as well as the judges in their official capacity. The phrase ‘authority of the judiciary’ includes, in particular, the notion that the courts are, and are accepted by the public at large as being, the proper forum for the ascertainment of legal rights and obligations and the settlement of disputes relative thereto; further, that the public at large have respect for and confidence in the courts’ capacity to fulfil that function.’
and ‘The Court would reiterate its opinion that the phrase ‘in accordance with the law’ does not merely refer back to domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention. The phrase thus implies – and this follows from the object and purpose of Article 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. Especially, where a power of the executive is exercised in secret, the risks of arbitrariness are evident. 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. In particular, the requirement of foreseeability cannot mean that an individual should be enabled to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. 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.’

G Balladore Pallieri, President
6538/74, (1979) 2 EHRR 245, [1979] ECHR 1
Worldlii, Bailii
European Convention on Human Rights 10
Human Rights
Cited by:
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CitedDirector of Public Prosecutions v Hammond QBD 13-Jan-2004
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CitedA v British Broadcasting Corporation (Scotland) SC 8-May-2014
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See AlsoThe Sunday Times v The United Kingdom (No 1) ECHR 6-Nov-1980
The Court had held, inter alia, that there had been a breach of Article 10 by reason of an injunction granted against Times Newspapers Limited in accordance with the English law of contempt of court but no breach of Article 14 (art. 14).
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Updated: 02 January 2022; Ref: scu.164890