Notes of Cases

Publication Date01 Jan 1980
DOIhttp://doi.org/10.1111/j.1468-2230.1980.tb01583.x
NOTES
OF
CASES
EXECUTIVE
AUTHORITY
TO
TAP TELEPHONES
TELEPHONE
tapping by the police and others on governmental
authority has always been controversial not least because the legal
basis for the exercise of such power is unclear. The executive has
long claimed the power to intercept communications.’ The usual
justification advanced for this is that it is the exercise of a prero-
gative right of the Crown but no judicial pronouncements can be
found to support it and the leading authority on the prerogative does
not mention
it.2
An alternative view is that the power lies in a
common law right which derives from an inherent power in the
Crown to protect the realm against the misuse of postal facilities by
ill-disposed persons. Again, no support can be found for this view
in any judicial statement or legal textbook.
A
third view is that the
power to intercept letters was the result of the creation in 1710 of the
General Post Office and that the opening and detaining of letters
look place upon the footing that those who entrusted their letters to
the posts would render them open to inspection at the behest of the
Crown.
The legal position since 1710 has been that
an
officer of the Post
Office
who opens, delays or detains
a
postal packet commits an
offence unless it is his duty to do
so,
and it is a defence for him to
show that he acted on the authority of the Secretary of State’s
warrant.a It is sometimes argued that statutes relating to the Post
Office recognise the existence of the power as a lawful power by
making it clear that no offence is committed by a person who acts
in obedience to the Secretary of State’s warrant. This view, however,
is clearly untenable. The legislation merely declares that a Post
Office
employee who interferes with mail on the authority of the
Secretary of State’s warrant commits no criminal offence: it does
not
provide the legal justification for the interception
of
communi-
cations under executive warrant.
AU
of
these arguments were considered by the Birkett Committee
which was set up in 1957.4 While the committee was not prepared to
decide between these conflicting views, it expressed itself to be
“impressed by the fact that many Secretaries of
State
in many
administrations for many years past have acted upon the view that
the power to intercept communications was in the nature of a prero-
I
The earliest public reference to the warrant
of
the Secretary of State authorising
2
Chitty’s
Prerogatives
of
the
Crown
(1820).
4
lnlerceptfon
of
Communications,
Report
of
the Committee of Privy Councillors,
Cmnd.
283
(1957). Its terms
of
reference were
to consider and report upon the
exercise by the Secretary
of
Sate
of
the executive power to
intercept
communica-
tions
. . .
and to recommend whether, how and subject
to
what safeguards
this
power should be exercised 0nd
in
what circumstances information obtained by
such means should be properly used or disclosed.”
the opening
of
letters is
to
be
found in
a
Proclamation
of
1663.
Sce
Post
Office
Act 1953,
s.
58 (1).
59
60
THE
MODERN
LAW REVIEW
[Vol.
43
gative power.”5 In
so
far as the committee is here suggesting that
because successive Secretaries of State
thought
that they possessed
a prerogative power to intercept communications
this
is evidence that
the practice is lawful, its view is clearly unacceptable.
It would appear’ that until
1937,
the General Post Office acted
upon the view that the power which the Crown exercised
in
inter-
cepting telephone messages was possessed by any operator of tele-
phones and was not contrary to law. Accordingly, it
was
not the
practice to issue warrants authorising telephone tapping. In
1937.
however, the position was reviewed by the Home Secretary and the
Postmaster General and it was decided that it was undesirable
that recordings of telephone conversations should be made by Post
Office servants and disclosed to the police or security services without
the authority of the Home Secretary. The Home Office thought that
the prerogative power to intercept letters and telegrams on the
authority
of
the Secretary
of
State’s warrant covered the interception
of telephone messages. This view, however, presupposes a general
prerogative right to intercept communications and that this power is
so
wide as to extend to a method
of
communication not invented
when it was established. It is difficult to avoid the conclusion that in
1937
the Home Office was not applying an old (and dubious)
prerogative to modern circumstances, but creating a new one. The
Birkett Committee did not shed any light
on
these issues, but rather
lamely concluded that
“if
there
is
u
lawful
power
to
intercept
communications
in the form
of
letters and telegrams, then
it
is wide
enough to cover telephone communications as well.”
It is surprising that telephone tapping has not previously been
the subject of litigation. Recently however, Megarry V.-C. had an
opprtunity to consider many
of
the issues set out above in
Mulone
v.
Commissioner
of
Police
for
the Metropolis
(No.
2).8
In the trial of
the plaintif€ for handling stolen property, prosecution counsel stated
that the plaintiffs telephone conversations had been intercepted on
behalf
of
the police on the authority
of
a warrant issued by the
Secretary
of
State. The plaintiff claimed declarations
(1)
that any
tapping of his telephone without his consent or disclosure of conver-
sations
so
heard was unlawful, even
if
done pursuant to the Home
Secretary’s warrant,
(ii)
that he had rights of property, privacy and
confidentiality in respect of telephone conversations and that tapping
was a breach of those rights, and (iii) that the tapping violated
Article
8
of the European Convention on Human Rights.
Counsel for the plaintiff argued first, that an individual has pro-
perty rights in his words as transmitted by the telephone system
and thus tapping his telephone without his consent constituted an
interference with them. Secondly, even though English law recognises
-
_____.I__
~
.-
5
Ibid.
para.
38.
6
See
the
report
of
the Birkett Committee,
op.
dl.
para.
41.
7
Report
of
the Birkett Committee
pra.
51
(Emphasis added).
119791
2
All
E.R.
620.

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