Report No. 38
Report of Committee in England Regarding Interception of Communications
In England, a Committee examined the question of interception. The circumstances in which the committee was appointed are thus stated1:-
1. 1957 Public Law 254 (255).
Telephone communications (interception).-On June 6, 1957, the Home Secretary was asked in the House of Commons in what circumstances he had authorised the police to supply the Bar Council, in connection with a disciplinary matter affecting a barrister, with transcript of intercepted telephone conversations in the London area.
Mr. Butler replied that the material in question was obtained under the authority of a warrant of the Secretary of State and related to the case of a notorious and self-confessed criminal; that it was disclosed to the Bar Council in response to a request from the Council for assistance in inquiries which they were making into complaint about the professional conduct of a particular barrister; that the Member who asked the question could be assured that the Secretary of State only acted in this way when he realised that the public interest necessitated such action; that this action would never be used except in the interests of public order; that he was not prepared to go into detail in this matter, which derived from the prerogative and which was a power that he should exercise at his discretion; that he considered that the circumstances of this case justified the action that was taken (571 H.C. Deb. 1469-1471; see also 1487-1497, 1500-1501).
On June 7, 1957, the Home Secretary made a statement and answered further questions. He said that the prerogative power of intercepting telephone communications could be used only by the personal authority of the Secretary of State; that this power was one which Parliament had always recognised to be essential for the protection of society; that it was used solely in cases involving the security of the State, or for the purpose of detecting serious crime; that information from this source was jealously guarded and it was settled principle that it was not disclosed to persons outside the public service; that the circumstances of this case were, however, wholly exceptional; that it was represented to the Secretary of State that the disclosure of this information to the Bar Council was desirable in the interests of maintaining our high standard in the administration of justice and that the Secretary of State felt it to be his duty to supply to the Bar Council information which had already been obtained; that he must make clear that this case would not be treated as a precedent; that Her Majesty's Government appreciated to the full the necessity of preventing any abuse of this necessary but distasteful power; that the decision was taken by his predecessor as Secretary of State; that in (Mr. Butler's)opinion, the general principle that this sort of information was not disclosed to persons outside the public service should be the line of conduct in future; that there was no question of using this power to obtain information about what passed between a lawyer and his instructing solicitor or a member of the legal profession and client; that the power was used to detect serious crime and would never be used for prying into confidential communications between an accused person and his legal adviser (571 H.C. Deb. 1573-1579; see also 572 H.C. Deb. 413-424, June 27, 1957).
On June 248, 1957, it was announced that a committee composed of Sir Norman Birkett, Lord Monckton and Mr. Patrick Cordon Walker, would inquire into the practice. Their terms of reference are "to consider and report upon the exercise by the Secretary of State of the executive power to intercept communications and, in particular, under what authority, and to what extent, and for what purposes this power has been put; and to recommend whether, how, and subject to what safeguard, this power should be exercised, and in what circumstances information obtained by such means should properly be used or disclosed."
The main points made in the Report of the Committee of Privy Councillors have been thus summarised1.
1. See (1958) Public Law 71 to 73, extracting the summary from Commonwealth Survey (Commonwealth Office of Information) Vol. 12, 1957.
Telephone communications (interception).-On October 31, 1957, the Prime Minister stated that he had received the Report of the Committee of Privy Councillors, that the Government accepted all recommendations and that arrangements were being made to give effect to those which called for a change in procedure (575 H.C. Deb. 398-399).
The Committee's report stated that the origin of the power of the Executive to intercept communications could only be surmised, but the power had been exercised from very early times and had been recognised as lawful by a succession of statutes covering the last 200 years or more. The manner of its exercise had from time to time been the subject of public discussion, and in 1844 had been the subject of investigation by two secret committees, one of each House of Parliament, which inquired into the law respecting the detaining and opening of letters at the General Post Office, but both these committees had recognised the power as lawful.
The committee found some difference of view on the authority to intercept telephone messages; in one view it was identical with the power to open letters; in another, it rested on a comparatively modern statute.
It is today the invariable practice that the interception of communications is carried out only on the authority of the Secretary of State for Home Affairs (or, in the case of Scotland) given by warrant under his own hand; the warrant sets out the name and address or telephone number of the person whose communications are to be intercepted. The Secretary of State has to satisfy himself, on the facts of each particular case, that it is proper to issue his warrant. In practice, the principle on which he acts is that the purpose of the interception must be either to detect serious crime or to safeguard the security of the State.
The power of interception is now almost exclusively exercised, under warrant from the Secretary of State, by the Metropolitan Police, the Board of Customs and Excise and the Security Service; the Committee found that "it is used with the greatest care and circumspection, under the strictest rules and safeguards." They were satisfied that "the Secretaries of State and all the officials concerned have taken, and continue to take, scrupulous care to ensure the strict observance of the purposes to which it is intended by the Home Office that the interception of communications should be directed and confined", that "interception is highly selective and is used only where there is good reason to believe that a serious offence or security interest is involved", and that the use of the power has been effective in detecting major criminals and preventing injury to national security.
They recommended that the exercise of the power in these limited spheres should be allowed to continue under the same strict rules and supervision: "the criminal and the wrongdoer should not be allowed to use services provided by the State for wrongful purposes quite unimpeded, and the Police, the Customs, and the Security Service ought not to be deprived of an effective weapon in their efforts to preserve and maintain order for the benefit of the community." In the opinion of the committee, "the interference with the privacy of the ordinary law-abiding citizen or with the individual liberty is infinitesimal and only arises as an inevitable incident of intercepting the communications of some wrongdoer. It has produced no harmful consequences.
The committee reached the conclusion, however, that, in the Marrinan case, which had given rise to the investigation, the decision of the Home Secretary, Lord Tenby, to permit the disclosure of information contained in telephone intercepts to the Bar Council and the Benchers of Lincoln's Inn was a mistaken decision, though there could be no doubt that it was "wholly governed by considerations of the public interest". They recommended that "in no circumstances should material obtained by interception be made available to any body or person whatever outside the public service".
Among other safeguards which, the committee recommended, should be adopted, were:
that there should be a regular review of outstanding warrants not less than once a month;
that warrants should be valid only for a stated period;
that each warrant should relate only to one individual, of whom particulars should be specified;
that, full records should be kept in the Home Office in each case;
that there should be no extension of the powers of interception beyond those existing powers which the committee has defined.
While agreeing with other members of the committee on their main conclusions and recommendation, Mr. Gordon Walker made reservations on the continued use of the existing power of interception in view of public repugnance. He considered that the power should be used for the detection of crime only in the most rare and urgent cases, such as the apprehension of dangerous criminals or lunatics; and for security purposes only for direct counter-espionage and protection of high secrets of State, or for the prevention of the employment of fascists or communists on work vital to the State (the two purposes he added, for which the Security Service at present mainly intercepts communications)"1.
1. Even after the Committee's Report, a controversy arose in 1959. See Comment, "Interception, Partial and Impartial", (1960) Public Law 5, and 514 HC Deb. 1184-1388 and 615 HC Debates 1523-1536 et seq.
As regards the 1957 Report, the following extract from one study1 would be of interest-
An important limitation on the principle in Entick v. Carrington must, however, be noted. The principle assumes that the action of the administrator which has been called in question infringes some legally protected interest of the private citizen. Yet, upon investigation it may be decided by the court that no such legally protected interest has been infringed.
This was very clearly brought out in an affair which gave rise to much public discussion, and resulted in the appointment of a committee whose report is entitled "Report of the Committee of Privy Councillors appointed to inquire into the interception of communications"2. Three Privy Councillors of undisputed authority, Lord Birkett, Lord Monckton and the Rt. Hon. Patrick Gordon Walker, considered how far the practice of wire-tapping (as it is commonly known) could be justified.
The Committee found that the power was on the whole wisely used; warrants for interception were sparingly granted (in 1956, 183 letters and 159 telephone interceptions were authorised) and only when the Home Secretary was personally satisfied that the public interest required it. The origin and basis of the power of intercept communications is obscure, though it has been exercised for many years. (In the eighteenth century the Bishop of Bath and Wells was the chief government decoder). The Committee's conclusions suggest that there are two views as to the origin and basis of the power.
First, it is said that there is a prerogative power, or a power in the nature of a prerogative power, to intercept communications in the public interest. (Prerogative, we may here interpose, is that law for the Queen which is no law for the subject. It is the name for the common law discretionary power of the Crown). This power is said to be impliedly recognised by a long series of statutes relating to the Post Office from 1710 to 1953. Thus, section 58, sub-section (1) of the Post Office Act, 1953, makes it an offence for any officer of the Post Office to open any communication except under the express warrant in writing of a Secretary of State.
Now it is certainly a curious prerogative which enables one Minister of the Crown to interfere with the statutory functions of another; and it is also certainly curious that none of the many writers on the prerogative throughout the centuries has referred to this power; and it is of course clear that long user of itself does not make legal what is otherwise illegal. There is, therefore, much to be said for the second view, which is simply that no prerogative power is needed to intercept communications because no unlawful act is thereby committed. This was the view of the Post Office down to 1937 so far as telephonic communications were concerned.
The Postmaster-General's view until that year, when he was persuaded to follow the Home Office practice, was that anyone could tap telephone, and indeed if one looks at the statutes it appears there is some justification for this view. The Acts do not authorise the Secretary of State to issue a warrant, presumably because anyone may do so; they merely make it a criminal offence to interfere with communications except under the authority of such a warrant. This view depends upon the fact that a legal power is only required if some legally protected interest of the subject is being invaded, and in the case of interception of communications it is hard to see just what that interest may be.
If we look at the recognised heads of civil liability it is hard to see how interference with a postal packet, or even more, a telephonic communication, can possibly be fitted into any of them. Breach of contract is out of the question, for it was reaffirmed by the Court of Appeal in 19571 that the services which the Postmaster-General renders are not of a contractual character. Nor does a Post Office servant who opens a letter commit any tort or breach of bailment.
Trespass to chattels is out of the question because the plaintiff is not in possession of the article, nor indeed has he a right to immediate possession of it, for the Post Office regulations provide that one who has posted a letter is unable to retrieve it. The other torts such as conversion or detinue seem equally inappropriate; in any event section 9(1) of the Crown Proceedings Act, 1947, effectually bars such actions2. The conclusion would seem to be that it is time for Parliament to review the situation and place the whole matter on a firm statutory basis."
1. Heuston Essays in Constitutional Law, (1964), pp. 50-52.
2. H.M.S.O., (1957) Cmd. 283.
3. Triefiu & Co. v. Post Office, (1957) 2 QB 352: (1947) 2 All ER 387 (CA).
4. The sub-section not only relieves the Crown from liability in respect of all telephone messages, loss of or damage to all unregistered postal packets, but also exempts from liability any officer of the Crown except at the suit of the Crown itself. It seems that one is without any remedy if a postmaster destroys one's mail before one's eyes. This is a remarkable, perhaps a unique exception to the principle that every official is individually responsible for his torts.