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Introduction
Part I.- The authority of
the Secretary of State to intercept communications
Part II.-Purpose, use and
extent of the power of interception
1. Purpose
2. The Marrinan Case
3. Use and Result ...
4. Members of
Parliament...
5. Unauthorised
tapping
Part III .-Suggested future
use of the power of interception
Summary of Conclusions and
Recommendations
Reservation by Mr. P. C.
Gordon Walker
Appendix I
Appendix II
To the Right Honourable
Harold Macmillan, M.P.
We, the undersigned Privy Councillors, having been appointed “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, to what extent and for what purposes this power has been exercised and to what use information so obtained has been put; and to recommend whether, how and subject to what safeguards, this power should be exercised and in what circumstances information obtained by such means should be properly used or disclosed,” submit the following Report.
2. We were appointed on
29th June, 1957, and we held our first meeting in private on 2nd July. We held
16 further meetings for the purposes of discussion and 12 meetings for the
hearing of oral evidence.
3. We heard evidence from
all the Secretaries of State for the Home Department who have held office since
1939, the Permanent Under-Secretary of State at the Home Office, and the
officers in charge of those authorities that use interception of communications
as part of their work.
4. We received much
assistance on the law from the Lord Chancellor, the Attorney-General, Sir Edwin
Herbert. and others. Sir Hartley Shawcross gave evidence about the Marrinan
case. We also received a number of valuable memoranda. We called for records
and files selected at random, and examined them.
5. We have confined our
detailed investigations to the interception of communications over the last
twenty years - that is to say, to the period from 1937 to 1957. This period covers
pre-war and post-war practice. and the practice under both the Administrations
that have held office since the war .
6. We have looked into the
practice and procedure of a number of foreign countries, Commonwealth countries
and Colonial Territories.
7. Following the example of
the Secret Committee of both Houses of Parliament appointed in 1844 to consider
the same problem that has been referred to us. we decided not to publish the
evidence and so informed those who gave evidence before us.
8. We set out our
conclusions and recommendations at length in the pages that follow. The gist of
our Report may be thus summarised: -
(1) The origin of the power to intercept communications
can only be surmised. but the power has been exercised from very early times; and
has been recognised as a lawful power by a succession of statutes covering the
last 200 years or more.
(2) There is some difference of view on the authority to
intercept telephone messages. On one view the power is identical with the power
to open letters and rests on the ancient power to intercept communications.
Another view is that the power rests on a comparatively modern statute. We
discuss these views fully in our Report. (Paragraphs 9-52.).
(3) The power to intercept communications is exercised for
the prevention and detection of serious crime and for the preservation of the
safety of the State.
(4) The power is now almost exclusively exercised by the
Metropolitan Police. the Board of Customs and Excise and the Security Service.
II is used with the greatest care and circumspection, under the strictest ,
rules and safeguards. and never without the personal considered approval of the
Secretary of State. (Paragraphs 62-90.)
(5) The use of the power has been effective in detecting
major criminals and preventing injury to national security. (Paragraphs 107-
113.)
(6) The exercise of the power in these limited spheres
should be allowed to continue under the same strict rules and supervision and
in the special circumstances we have set out. 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. (Paragraphs 132-152.)
(7) The interference with the privacy of the ordinary
law-abiding citizen or with his individual liberty is infinitesimal, and only
arises as an inevitable incident of intercepting the communications of some
wrongdoer. It has produced no harmful consequences.
(8) Mr. Gordon Walker has reservations to sub-paragraphs (6) and (7) which he sets out in a separate Note of his own. (Paragraphs 170-179.)
PART I
THE AUTHORITY OF
THE SECRETARY OF STATE TO INTERCEPT COMMUNICATIONS
9. The origin of the
authority of the Executive to intercept communications is obscure, and it is
not surprising that conflicting views about the source of the power have been
placed before us. The first public reference to the warrant of the Secretary of
State authorising the opening of letters is in the Proclamation of May 25th,
1663, which forbade the opening of any letters or packets by anybody, except by
the immediate warrant of the Principal Secretary of State. But long before this
date the practice of opening letters had been followed.
10. It is a singular
circumstance that the source of the power has never been the subject of
judicial pronouncement, and the text-book writers have not discussed it in any
fullness. In the fourth edition of Anson's Law and Custom of the Constitution,
Vol. II, Part II, for example, the subject is thus dealt with: -
“The right and the duty, if occasion requires, of detaining and opening letters in the Post Office rests in Great Britain upon the Home Secretary in Northern Ireland upon the Governor. This `power, which extends to telegraphic communications, is occasionally, though not frequently, used….and is extended to telegrams….”
11. The existence of the
power from early times has frequently been acknowledged; its exercise has been
publicly known; and the manner of its exercise has been the subject of public
agitation from time to time, and has been made the subject of debate in the
House of Commons and the House of Lords. In the year 1844, a great agitation
arose in the country, because the Secretary of State, Sir James Graham, had
issued a warrant to open the letters of Joseph Mazzini; and after debates in
both Houses of Parliament. two Secret Committees were set up, one of the House
of Commons and one of the House of Lords. Both Committees were asked to inquire
into the state of the law in respect of the detaining and opening of letters at
the General Post Office. It is significant that both Committees avoided any
discussion of the source of the authority upon which the Secretary of State
exercised his power, and were content to recognise the existence of the power
to intercept communications, and to rely upon the various statutes which refer
to the existence of the power. This is significant because in the debates which
preceded the setting up of the Committees, the origin of the power had been
discussed. In the House of Lords, Lord Campbell, who was at that time a member
of the Judicial Committee of the Privy Council: and afterwards was to be Lord
Chief Justice and Lord Chancellor, discussed the question, and in his
Autobiography he says :-
“In the debates which
arose this session upon the practice of opening letters at the Post Office
under a warrant from the Secretary of State, I contended that it was neither
authorised by common law nor statute, although the Secretary of State, like any
other magistrate, or indeed any private individual, may seize and detain
documents which constitute evidence of the commission of a crime.”
12. On the question of law,
the Committee of the House of Commons reported:
“The inquiry,
therefore. what the state of the law now is respecting such detention and
opening, is reduced to the inquiry what the state of the law was, respecting
the same matter immediately upon the passing of the Statute of Anne .... the
law on the matter In question was the same in 1711 that it is in 1844.”
13. They also said on the
point of law:-
“In preference to
discussing the purely legal question, how far the Statute of Anne. in
recognising the practice, on the part of the Secretaries of State of issuing
Warrants to open Letters, rendered it lawful for the Secretaries of State to
issue such Warrants, Your Committee propose, so far as they have materials for
that purpose, to give the history of this practice, prior and subsequent to the
passing of that Statute: these materials being such as ought not to be
overlooked in investigating the grounds on which the exercise of this authority
rests.”
14. Some further extracts
from the history the Committee set out may be given: -
(a) “It does not
appear at what precise period the Crown undertook to be the regular carrier of
Letters for its subjects. The Crown doubtless, found it necessary, at a very
early period, to the exercise of the functions of Sovereignty, to be able to
convey with speed and security its own despatches from one part of the realm to
another, and from and to parts beyond the seas; and for that purpose it
appointed certain messengers or runners, called the Posts. These Posts were
also employed for the personal convenience of the Sovereign, and the
individuals composing the Royal Court. In course of time, a Master of the Posts
was appointed, and the first of these on record was Brian Tuke, Esq. ….who held
that office in 1516….”
(b) “The practice
probably began at an early period and afterwards grew into a regular custom. of
allowing private persons to avail themselves of the King's Posts for
transmitting their correspondence. This probably became a perquisite to the
Postmasters, while, at the same time, it gave to the Ministers of State the
power of narrowly inspecting the whole of the written communications of the
country.”
15. The Committee of the
House of Lords had two former Lord Chancellors as members, Lord Brougham and
Lord Cottenham, and in their Report the Committee said: -
“The Committee have
not thought it necessary to attempt to define the Grounds upon which the
Government has exercised the Power afforded by public Conveyance of Letters of
obtaining such Information, as might be thought beneficial for the public
Service; it seems sufficient for the present Purpose to state, that the
Exercise of this Power can be traced from the earliest Institutions in this
Country for the Conveyance of Letters from Orders in Council of the 22nd of
November, 1626 and 24th of February, 1627…. In 1657, upon the first
Establishment of a regular Post Office, it was stated in the Ordinance to be
the best Means to discover and prevent any dangerous and wicked Designs against
the Commonwealth .... The Power, therefore, appears to have been exercised from
the earliest Period, and to have been recognised by several Acts of Parliament.
This appears to the Committee to be the State of the Law in respect to the
detaining and opening of Letters at the Post Office and they do not find any
other Authority for such detaining or opening.”
16. The situation with
regard to the opening and detaining of letters and postal packets is
substantially the same in 1957 as it was in 1844, for section 58 (1) of the
Post Office Act of 1953, which is the Act now governing the opening and
detaining of letters, is substantially in the same terms as the earlier
statutes of 1908, 1837 and 1710.
17. We have made these
quotations from the two important Reports of 1844, because it is clear that not
only were questions of law debated in both Houses of Parliament, but both
Committees considered the questions of law with great care. Both Committees
recognised that the Executive had exercised the power of opening letters over a
very long period of time, and neither Committee ever suggested or concluded
that the exercise of the power was in any way unlawful or did they suggest in
terms that the exercise of the power was the exercise of a prerogative fight of
the Crown. They leaned heavily upon the Post Office statutes, although none of
the statutes contain clauses conferring the power to intercept communications,
but recognise the power as an existing power which it is lawful to exercise.
18. In view of the
conflicting opinions that have been put before us on the source of the
Secretary of State's power to intercept communications, we think it best to set
out briefly the arguments as they were presented to us.
19. The first submission
made was that the power of the Secretary of State to issue his warrant for the
interception and opening of letters was in exercise of a prerogative right of
the Crown. The Royal Prerogative has been defined as comprehending all the
special liberties, privileges and powers and royalties allowed by common law.
It is created and limited by the common law. Blackstone defined the Royal
Prerogative in these words -
“Prerogative can only
be applied to those rights and capacities which the King enjoys alone in
contradistinction to others and not to those which he enjoys in common with any
of his subjects.”
20. It was contended before
us that the procedure of opening letters so far as it was known and set out in
the Secret Committees' Reports of 1844, was such that in all respects it was proper
to describe it as a prerogative right. The nature of that right was said to be
a right to intercept communications. It is true that for some centuries,
communications in fact were confined to letters and postal packets, but as
science invented new modes of communication, such as the telegraph and the
telephone, and they came into general use, it was submitted that the
prerogative power to intercept communications was wide enough to include not
only letters and postal packets, but every subsequent means of communication
that became known and was used. The prerogative right, therefore, to intercept
communications applied now to letters and telegrams and telephonic
communications alike.
21. It would appear that
the view entertained by the Home Office has always been that the power
exercised by the Secretary of State is not expressly conferred by statute, but
that the statutes relating to the Post Office recognise the existence of the
power as a lawful power for the purpose of making it clear that no offence is
committed by a person who acts in obedience to a warrant of the Secretary of
State issued by him in the exercise of that power. On this view the power
exercised from the very earliest times is a prerogative power to intercept,
examine, and disclose for certain purposes connected with the safety of the
State or the preservation of public order, any messages carried by the Crown;
and this Prerogative attached to the new methods of carrying messages that were
undertaken by the Crown in the nineteenth century by means of the telegraph and
the telephone. It was conceded that no new Prerogatives can be created, and the
prerogative power to intercept a telephone message must therefore be the same
prerogative power which authorises the interception of letters.
22. In connection with this
argument the principle must be borne in mind that, where the legislature has
intervened and covered by statute. the ground covered by the Prerogative, the
statute thereafter rules. But this doctrine does not seem applicable here,
since there has been no intervention of this character by the legislature.
23. The opponents of the view that the power to intercept is a prerogative power emphasise the fact that no constitutional writer when dealing with the Royal Prerogative, mentions this particular power as being a prerogative power. In Chitty's Prerogatives of the Crown published in 1820, the learned author states that he has attempted “to present a comprehensive and connected, yet compressed and logical, view of every prerogative and corresponding right of the subject “; but nowhere is any reference made to a prerogative power of detaining and opening communications. Reliance is also placed on the doctrine laid down by Lord Camden in Entick v. Carrington, 19 State Trials 1030. In the year 1762, the Secretary of State issued a warrant directing certain persons to search for John Entick, the author of certain numbers of “The Monitor or British Freeholder” and to seize him, “together with his books and papers,” and to bring them to the Secretary of State. Certain messengers, empowered by the warrant, seized Mr. Entick in his house, and seized his papers. Entick brought an action in trespass against the messengers for seizure of his papers. The case was tried before the Lord Chief Justice and a jury, and the jury returned a special verdict, which is very lengthy, and is set out in the report of the case. If the Defendants were liable, the fury assessed the damages at £300. This special verdict was twice argued in the Court of Common Pleas at great length, and with much learning; and finally in 1765 Lord Camden delivered the elaborate judgment which was the judgment of the Court. Many questions were argued and decided, but the main question was the legality of the general warrant. Lord Camden declared that -the practice of issuing general warrants was illegal and unconstitutional. The jury found by their special verdict that the practice of issuing general warrants had been in existence for many years, but Lord Camden nevertheless denied their legality.
24. It was suggested that
the arguments used to support the legality of general warrants before Lord
Camden and his fellow judges were the same arguments used to support the
prerogative power exercised by the Secretary of State to intercept
communications, namely that no court of justice had ever declared the powers to
be illegal, that the powers were essential to government, and the only means of
quieting clamours and seditions. Lord Camden said -
“With respect to the
practice itself, if it goes no higher, every lawyer will tell you it is much
too modern to be evidence of the common law; and if it be added that these
warrants ought to acquire some strength by the silence of those courts which
have heard them read so often upon returns without censure or animadversion, I
am able to borrow my answer to that pretence from the Court of King's Bench,
which lately declared with great unanimity in the case of General Warrants that
as no objection was taken to them on the returns and the matter passed sub
silentio, the precedents were of no weight. I most heartily concur in that
opinion....”
“To search, seize, and
carry away all the papers of the subject on the first warrant: that such a
right should have existed from the time whereof the memory of man runneth not
to the contrary, and never yet have found a place in any book of law; is
incredible. But if so strange a thing could be supposed, I do not see how we
could declare the law upon such evidence.”
“If it is law it will
be found in our books. If it is not to be found there it is not law.”
25. It was submitted in
reply that there is a distinction to be drawn between the general warrants
condemned by Lord Camden, and the limited, strictly governed use of the
Secretary of State's warrant into the exercise of which we have been enquiring;
and in this connexion we emphasise once more the exact nature of the procedure
we set out in Part II of this Report.
26. It was further pointed out that the provisions of section 9 (I) of the Crown Proceedings Act of 1947 giving certain immunities to the Crown are inconsistent with the existence of a prerogative power for the section provides that “…no proceedings in tort shall lie against the Crown for anything done or omitted to be done in relation to a postal packet by any person while employed as a servant or agent of the Crown, or for anything done or omitted to be done in relation to a telephonic communication by any person whilst so employed; nor shall any officer of the Crown be subject, save at the suit of the Crown, to any civil liability for any of the matters aforesaid.” It may very well be that in 1947 the question of intercepting a telephone message was not in contemplation, and therefore no reference was made to a prerogative power, but the words of the section are very wide in their terms.
27. An alternative view was
put before us which differed in some respects from the assertion of the
prerogative right, but scarcely differed in substance. It was submitted that
the origin of the power of the Secretary of State to intercept communications
lay in a common law right which was not a part of the Prerogative, but which
derived from an inherent power in the Crown to protect the realm against the
misuse of postal facilities by ill-disposed persons. This common law right, it
was said, continues to exist and is recognised in the Post Office statutes. No
statute has enacted the power in express terms, but in addition to recognising
and acknowledging the power, the statutes have indicated certain ways in which
the power should be exercised, as for example, by the issue of a warrant by the
Secretary of State authorising the interception to be made.
28. No support for this
view is to be found jn any judicial pronouncement, or in any legal text book.
Indeed in Chitty's Royal Prerogative in England published in 1830, the learned
author says at page 66
“In modern times the
prerogative of the Crown has been so strictly defined by law…that though the
old doctrines of absolute sovereignty and transcendent domination still
disfigure our law books, they are little heard of elsewhere. Occasionally
however it happens that in Parliamentary discussions, assertions are hazarded
of latent prerogatives in the Crown which are supposed to be inherent in the
very nature of sovereignty. That such pretensions are unfounded it is not
difficult to make out.”
29. It was said before us
that this common law power which was clearly an ancient power and derived from the
actions of the monarchy when seeking to safeguard the realm, was a power wide
enough to cover every form of communication which might come into being at any
time. This second view is difficult to distinguish from the first view save
that the use of the word “Prerogative” is avoided.
30. A third argument was
put before us, which we summarise in paragraphs 31-37, that from the earliest
times the power to intercept and open letters had been in existence. Throughout
many centuries the practice had continued. How it arose can only be conjectured
because historical records are wanting, but that the power existed and was used
permits of no doubt whatever.
31. The Ordinance of 1657
recited in the Preamble that one of the advantages of erecting and settling one
General Post Office was that it 'c was the best means to discover and prevent
many dangerous and wicked designs which have been and are daily contrived
against the peace and welfare of the Commonwealth, the intelligence whereof
cannot well be communicated but by letter of escript.” One of the principal
objects of that Ordinance, it was suggested, was to prohibit persons other than
the Postmaster-General from conveying letters, and the public reference to
“discovering many dangerous and wicked designs “would seem to throw some light
on the probable origin of the power. The Act of Parliament of 1660 followed the
Ordinance of 1657 and agreed mutatis mutandis with its content. The
Proclamation of 1663 prohibiting the opening of letters save by the warrant of
the Secretary of State would seem to imply that it was not unlawful to open a
letter before that Proclamation, otherwise the prohibition would have been
superfluous.
The object of the
legislation of 1657 and 1660 was to create a monopoly for the Crown and to
ensure that the letters would be carried by persons appointed or licensed by
the Crown, with the object of enabling the Crown to inspect the contents of the
letters carried. It was also pointed out that in none of these public
declarations was there any assertion of the Royal Prerogative. The origin of
the power to intercept letters, on this view, was the result of the creation of
a monopoly, created and developed for this among other purposes; and the
opening and detaining of letters by the Crown took place not because of any
prerogative right, but upon the footing that those who entrusted their letters
to the Posts would render them open to inspection at the wish of the Crown. It
is of course understandable how this power should be referred to as a Prerogative,
because the Crown alone could exercise the power; but, however the power is
described, it was said that from the 17th century at least it cannot be doubted
that the power to open letters has been lawfully exercised by the Crown.
32. In 1710, an Act was
passed “for establishing a General Post Office for all Her Majesty's Dominions,
etc.”and again it was enacted by section 40 “that no person…shall presume to
open detain, or delay…any…Letter after same is or shall be delivered into the
General or other Post Office…except by an express Warrant in Writing under the
Hand of one of the Principal Secretaries of State for every such opening,
detaining, or delaying…”
33. Section 58 (I) of the
Post Office Act, 1953 provides-
“If any officer of the
Post Office, contrary to his duty, opens…any postal packet in course of
transmission by post, or wilfully detains or delays…any such postal packet, he
shall be guilty of a misdemeanour….Provided that nothing in this section shall
extend to the opening, detaining or delaying of a postal packet returned for
want of a true direction, or returned by reason that the person to whom it is
directed has refused it, or has refused or neglected to pay the postage
thereof, or that the packet cannot for any other reason be delivered, or to the
opening, detaining or delaying of a postal packet under the authority of this
Act or in obedience to an express warrant in writing under the hand of a
Secretary of State.”
34. Postal packet is
defined in section 87 (1) as meaning-
“A letter, postcard, reply postcard, newspaper, printed packet, sample packet, or parcel, and every packet or article transmissible by post, and includes a telegram.”
35. Section 58 of the Act
of 1953 reproduces section 56 of the Post Office Act, 1908 which reproduces
section 25 of the Post Office (Offences) Act. 1837 which in return re-enacted
without material amendment section 40 of the Post Office (Revenue) Act of 1710.
36. The legal position
since 1710 and now is 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, or
one of the conditions mentioned in the section as justifying his conduct is
satisfied. It is a defence to show that the letter was opened, delayed or
detained on the authority of the Secretary of State's warrant.
37. As telegrams are postal
packets for the purposes of the Post Office Act of 1953, and are telegraphic
messages for the purposes of the Telegraph Act of 1869 by virtue of section 3,
it is an offence for an officer of the Post Office to open delay or detain “a
telegram in course of transmission by post unless it is his duty so to do, or
the opening, &c., is authorised by the warrant of the Secretary of State,
or ii is justified on one or other of the grounds mentioned in section 58 (I)
of the Post Office Act, 1953.
38. We have thought it
right to set out at some length the different Views which were expressed to us
by high legal authorities. We recognise that we have no authority ourselves to
decide between these conflicting views and to declare the Jaw. We have been
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 prerogative power. It had never been
thought necessary for any statute to confer the right, but all the statutes had
recognised the right as an existing right at the time of their enactment. It
was beyond doubt that the power bad existed independently of the statutes its
precise origin alone remaining in doubt.
39. If the problem
confronting us had merely been concerned with letters, we should have been
inclined to follow the example of the two Secret Committees in 1844 and to say that
there can be no doubt whatever of these things-
(a) The power to intercept letters and postal packets and
to disclose their contents and otherwise to make use of them had been used and
frequently used through many centuries.
(b) Such a power existed and was exercised widely and
publicly known as the debates in the House of Commons and the House of Lords
plainly showed.
(c) At no time had it been suggested with any authority
that the exercise of the power was unlawful.
But we recognise that the
chief controversy which resulted in the setting up of the present committee was
concerned with the interception of telephone messages, and therefore we do not
feel able to leave the matters in question quite as the two Secret Committees
were able to do.
40. The power to intercept
telephone messages has been exercised in this country from time to time since
the introduction of the telephone; and until the year 1937, the Post Office
acted upon the view that the power, which the Crown exercised in intercepting
telephone messages, was a power possessed by any other operator of telephones
and was not contrary to law. No warrants by the Secretary of State were
therefore issued, and any arrangements for the interception of telephone
conversations were made directly between the Security Service or the Po)ice
Authorities and the Director-General of the Post Office.
41. In 1937 the position
was reviewed by the Home Secretary and the Postmaster-General and it was then
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 or to the Security Service without the authority of the Secretary of
State. Apart from thinking that the former practice was undesirable, the Home
Office was of opinion that the power on which they had acted to intercept
letters and telegrams on the authority of a warrant issued by the Secretary of
State, was wide enough in its nature to include the interception of telephone
messages also. It was accordingly decided to act on this view of the law; and
it has since been the practice of the Post Office to intercept telephone
conversations only on the express warrant of the Secretary of State. that is,
upon the authority which had already been recognised in the statutes to which
we have referred dealing with letters and telegrams.
42. If it be said that a
prerogative right could not extend to the interception of telephone
conversations. because telephones were undreamt of when the prerogative power
was first taken and exercised, reference should be made to the case of In re a
Petition of Right, 1915 3 K.B. 659 in the Court of Appeal (Cozens-Hardy, M. R..
Pickford and Warrington L.JJ), when Lord Cozens-Hardy said in affirming the
judgement of Avory J .
“If it be said that
the prerogative right cannot extend to an aerodrome because aeroplanes were
unknown in the reign of Richard I., I think that the answer is to be found in
the somewhat analogous case of Mercer v. Denne (1905) 2 Ch. 538, 585, where
this Court held that a customary right to' cutch ' fishing nets was not limited
to materials known in the reign of Richard I., but extended to drying nets with
suitable materials. So the prerogative applies to what is reasonably necessary
for preventing and repelling invasion at the present time, regard being had to
the invention of gunpowder and the use of aeroplanes in warfare.”
Warrington L.J. said
“The circumstances
under which the power may be exercised and the particular acts which may be done
in the exercise thereof must of necessity vary with the times and the advance
of military science…”
43. The prerogative power
in question in that case was the power to take lands without compensation for
the purposes of the Defence of the Realm, but if in the question we have to
consider, the existence of a prerogative power to intercept all communications
was established, the objection that the telephone was a modern invention would
not defeat the application of the power.
44. But if the view
accepted and followed by the Home Office for many years is rejected, then it
was submitted that the power to intercept telephone messages was governed by
special considerations which were somewhat different from those that govern the
question of letters and telegrams. If there be no prerogative power governing
all communications, and thus including telephonic communications and if there
be no power at common law to the like effect, then the only relevant statutory
reference to be considered, would be section 20 of the Telegraph Act of 1868.
45. The material words of
the section are-
“Any person having official
duties connected with the Post Office or acting on behalf of the
Postmaster-General, who shall, contrary to his duty, disclose or in any way make
known or intercept the contents or any part of the contents of any telegraphic
messages or any message entrusted to the Postmaster-General for the purpose of
transmission, shall in England and in Ireland be guilty of a misdemeanour…and
the Postmaster-General shall make regulations to carry out the intentions of
this section, and to prevent “the improper use of any person in his employment
or acting on his behalf of any knowledge he may acquire of the contents of any
telegraphic message.”
46. No regulations have in fact been made under this section. It is a little difficult to think that the word “intercept” in section 20 of the Act of 1868 contemplated the listening in to telephone conversations for the telephone exchange was only instituted in England in 1879 and then there were only seven or eight subscribers.
47. In the case of the
Attorney-General v. Edison Telephone Company, IB80 6 Q.B.D. p. 244, it was held
that a telephone conversation is a “telegraphic communication” for the purposes
of the Telegraph Acts, though at the time of the decision the question of
listening into or intercepting a telephone message was not being considered.
48. In view of the
decision, however, it was argued that by reason of section 20 of the Telegraph
Act of 1868 it was open to the Postmaster-General to instruct post office
officials and those acting on his behalf to listed in, to record and disclose
telephone conversations, just as he had the power to intercept, disclose and
make known the contents of a telegram. It was also argued that the fact that it
is not now the practice for the Postmaster-General to give any such
instructions except on the authority of the Secretary of State's warrant had no
legal significance.
49. If this argument is
rejected, then it was submitted that, so far as the interception of telephone
messages is concerned, reliance could be placed on the doctrine followed until
1937 that the Post Office was entitled to intercept and that it was not
unlawful to do so, and that in any event the provisions of the Crown
Proceedings Act made the Post Office immune from any legal action for any acts
relating to die telephone.
50. We should not be happy
to feel that so important a power as the power to intercept telephone messages
rested on either of the grounds set out in paragraphs 44-49. We favour the view
that it rests upon the power plainly recognised by the Post Office statutes as
existing before the enactment of the statutes, by whatever name the power is
described.
51. We are therefore of the
opinion that the state of the law might fairly be expressed in this way.
(a) The power to intercept letters has been exercised from
the earliest times, and has been recognised in successive Acts of Parliament.
(b) This power extends to telegrams.
(c) It is difficult to resist the view that if there is a
lawful power to intercept communications in the form of letters and telegrams,
then it is wide enough to cover telephone communications as well.
52. If, however, it should
be thought that the power to intercept telephone messages was left in an
uncertain state that was undesirable, it would be for Parliament to consider
what steps ought to be taken to remove all uncertainty if the practice is to
continue. So far as letters and telegrams are concerned, the provisions of the Post
Office Act of 1953 appear to have worked in practice without any difficulty. If
it were thought necessary, a suitable amendment to that section of the Act of
1953 would remove doubts whether telephonic communications were in the same
position as letters and telegrams.
PART II
PURPOSE, USE AND
EXTENT OF THE POWER OF INTERCEPTION
I. Purpose
53. We were further
instructed under our terms of reference “to consider and report upon the
exercise by the Secretary of State of the executive power to intercept
communications and, in particular, ... to what extent and for what purposes
this power has been exercised and to what use information so obtained has been
put.”
54. The exercise by the
Secretary of State of the executive power to intercept communications is by
warrant under his own hand (and in the case of Scotland under the hand of the
Secretary of State for Scotland). If either of these Secretaries of State were
ill or absent the power would be exercised on his behalf by another Secretary
of State: but this has very rarely happened,
55. It is to-day the
invariable practice that the interception of communications is carried out only
on the authority of one or other of these two Secretaries of State (see
paragraph 41 above).
56. The warrant of the
Secretary of State sets out the name and address or telephone number of the
persons whose communications are to be intercepted. On occasion, a single
warrant has been issued in the past to cover a number of names. We think this
practice is undesirable. In our opinion each warrant should in future specify
the name and address or telephone number of the person who is the subject of
the warrant.
57. 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 the Secretary of State
acts is that the purposes for which communications may be intercepted must be
either for the detection of serious crime or for the safeguarding of the
security bf the State.
58. We discuss first the
procedure in relation to crime. Changing circumstances during the past twenty
years have made some acts serious offences that were not previously so
regarded. For instance, during a.
for a period after the last war, breaches of food regulations were for a time serious offences. After the war, exchange control was introduced to protect the nation's gold and dollar reserves and attempts to contravene ill provisions are still regarded as serious offences.
59. On the other hand, some
offences which had previously been considered serious enough to justify
warrants for the interception of communications have ceased to be so regarded.
The interception of letters* to
prevent the transmission or illegal lottery material began in 1909 but was
abandoned in November 1953. The main grounds for the decision to cease
interception for this purpose were, we were told, doubts about its efficacy and
the feeling that, owing to the changed public attitude towards lotteries, it
was no longer necessary or appropriate to use this power for this particular
purpose.
60. In the 1930's
considerable numbers of warrants were issued for the interception of letters,
mainly passing to or from places abroad, believed contain obscene and indecent
matter. The number of warrants steadily declined after the war and none has
been issued in the last two and a half years. We were informed that one of the
main reasons for this was not any doubt as to the efficacy of methods of
interception in this case but a growing reluctance to use the expedient of
interception for this particular purpose.
61. The issue of warrants
for the interception of letters in connection with offences under the Dangerous
Drugs Acts began in 1922. After the war the number of warrants sharply declined
and no warrants have been issued since early in 1956. This coincided with a
decline in the traffic in drugs. The Department of the Home Office concerned
with the administration of the Dangerous Drugs Acts and with duties under the
International Narcotics Conventions is of the opinion that it might again
become necessary to intercept letters in the discharge of its statutory and
international obligations.
62. Since the Secretary of
State's discretion is absolute he may issue a warrant for the interception of
communications to any person, authority, agency or Department of State; but in
fact such warrants have been granted to a limited number of authorities. We set
out in Appendix II a list of all die authorities to whom warrants have been
issued over the past twenty years.
63. The great majority of
warrants for interception for the purpose of the detection of crime have been,
and are now granted to the Metropolitan Police and Board of Customs and Excise.
In what we say below about the interception of communications for the detection
of crime, we confine our observations to these two authorities. For the sake of
brevity we sometimes refer to them as the “Police” and the “Customs.”
64. The principles on which
the Home Office acts in deciding whether to grant an application for a warrant
to intercept communications for the detection of crime were first reduced to
writing in letters in similar terms sent to the Metropolitan Police and Customs
in September 1951. These letters were occasioned by a recent increase in the
number of applications and an increase in the number rejected by the Home
Office. It was stated in these letters that the procedure of interception was
“an inherently objectionable one,” that “the power to stop letters and
intercept telephone calls must be used with great caution,” and that it must be
regarded as “an exceptional method.” In particular, three conditions were laid
down both for the Police and for the Customs that must be satisfied before a
warrant could be issued.
These were:
(a) The offence must be
really serious.
(b) Normal methods of
investigation must have been tried and failed, or must from the nature of
things, be unlikely to succeed if tried.
(c) There must be good
reason to think that an interception would result in a conviction.
65. It was indicated in the
letter to the Police that what the Home Office regarded as “serious crime” were
offences for which a man with no previous record could reasonably be expected
to be sentenced to three years' imprisonment, or offences of lesser gravity in which
a large number of people were involved.
66. The type of crime that
the Customs seek to detect is necessarily somewhat different from the violent
crime with which the Metropolitan police is mainly concerned. The definition of
“serious crime” upon which the Home Office acts when considering the issue of
warrants to the Customs is that “the case involves a substantial and continuing
fraud which would seriously damage the revenue or the economy of the country if
it went unchecked.”
67. The arrangements concerning
the issue of warrants to the Security Service are similar, but the objectives
of the Security Service are different from those of the Police or Customs. The
Home Office considers each case. The principles governing the issue of warrants
to the Security Service can be stated in these terms: -
(a) There must be a
major subversive or espionage activity that is likely to injure the national
interest.
(b) The material
likely to be obtained by interception must be of diced use in compiling the
information that is necessary to the Security Service in carrying out the tasks
laid upon it by the State.
68. The same provision applies to the Security Service as to the Customs and Police about the failure of normal means of detection. But less stress is laid on the need to secure convictions, since the Security Service is primarily concerned with safeguarding the State and keeping itself informed about dangers to its security. Besides securing convictions, the Security Service has the duty to keep up to date its information covering espionage and subversion and to inform Ministers and Departments of State about security matters that concern them.
.
69. The Metropolitan
Police, the Customs and Excise and the Security Service have adopted policies
and internal procedures designed to ensure that warrants are sought only when
they satisfy the appropriate conditions laid down by the Home Office. The
request for a warrant can be sent to the Home Office only by the Chief of the
authority concerned or his deputy.
70. All applications for
warrants to intercept communications for the detection of crime are considered
by senior officers in the Criminal Department of the Home Office, who, if they
approve the application, submit it to the Permanent Under-Secretary of State,
who, if he considers that sufficient case has been made out, submits the
application to the Secretary of State for his personal decision. Applications
for warrants sought by the Security Service go in the first place direct to the
Permanent Under-Secretary. All the Secretaries of State who appeared before us
said that they gave close personal consideration to every request for a warrant
submitted to them. If the procedure that has been laid down is faithfully
followed, there are likely to be very few applications that need to be rejected
and this was in fact confirmed by the evidence.
71. Close supervision over
the use of methods of interception is maintained by the Home Office. There is a
quarterly review of outstanding warrants by the Permanent Under-Secretary. At
this review, or earliest if the Home Office thinks that warrants have not been
cancelled after a reasonable period, the authorities concerned are sent for and
asked to make a case for their continuance. Not only are individual warrants
reviewed in this manner but also the number of warrants in operation. We have
already referred to the letters sent by the Home Office in 1951 to the
Metropolitan Police and Customs (above paragraph 64). A further letter was sent
to the Metropolitan Police in April 1956 drawing attention to the increase in
the figures of warrants granted during the previous five years and emphasising
the need to keep applications to a minimum. This led to the adoption by the
Metropolitan Police of a new and more effective system of review which reduced
the average duration of warrants and brought about an increase ii the
proportion of arrests to interceptions.
72. The Customs have a
regular quarterly review of all outstanding warrants individually. A similar
review is undertaken by the Security Service every six months. Since 1956 the
Metropolitan Police has instituted a weekly review every Monday. All these
authorities cancel warrants when they are considered to be of no further use
without waiting for their own regular review of outstanding warrants.
73. The authority
concerned, when an interception is no longer needed, immediately instructs the
Post Office to discontinue the interception. The Customs and Police inform the Home
Office forthwith and ask for the formal cancellation of the warrant. The
Security Service does this only at three-monthly intervals. We should point out
that despite this variation of practice we have found no evidence of
interceptions being kept on longer than was thought necessary for the case in
hand.
74. We feel that the
outstanding warrants should be reviewed more frequently. We therefore recommend
that there should be a regular review not less than once a month both by the
Home Office and by every authority that is granted a warrant to intercept. This
review should be not only of the numbers of warrants outstanding, but of each
particular warrant.
75. We recommend
that warrants should no longer be valid until they are cancelled, but that
their validity should be for a defined period that appears on their face.
Normally this should be for a period no longer than a month and in no case
should it be for a period longer than two months. If an extension of the
validity of the warrant is desired, the reasons for this should be sent to the
Home Office for their consideration before any extension is approved.
76. We recommend
that when a warrant for the interception of communications is cancelled by the
authority to whom it was issued, this cancellation should be forthwith reported
to the Home Office.
77. The Secret Committee of
the House of Lords in its Report of 1844 thought that “a more detailed account
than is already kept of the grounds upon which each warrant is granted would
frequently have the effect of leaving in the Office a grave accusation, without
affording an opportunity of Reply or Defence.”
78. But we are of opinion
that the keeping of full and accurate records is a necessary part of any
procedure to ensure that the use to which interception may be put is
effectively controlled. The Home Office records of warrants issued for the
detection of crime are reasonably full. Each case is separately recorded in a
file. These all contain the ground on which the warrant was issued, a copy of
the warrant itself and the date of its cancellation.
79. We think that in one or
two respects the procedure could be improved. For example we found that in some
cases part of the consultations between the Home Office and the authority
seeking or in possession of a warrant had been oral, and had not been recorded.
In a few cases there was no precise record of the usefulness or otherwise of
the interception. There were no records of the rejection by the Home Office of
applications for warrants.
80. Until 1947 the Home
Office kept a card index of names and addresses showing alphabetically by name
and geographically by area all the warrants issued for security purposes. In
1947, at the suggestion of the Security Service, which was disturbed by the
existence of these records in the Home Office, all of them were destroyed and
no complete records were kept thereafter except for the serial numbers of the
warrants issued. From 1954 the covering minutes were also preserved-we examined
a number of them. These minutes contain very brief summaries of the reasons for
the issue of each warrant.
81. The Metropolitan Police
destroyed all warrants between 1937 and 1946 upon their cancellation, and the
same practice was followed from 19461-953, except that a bare record was kept
of the number of interceptions authorised by the Secretary of State. Detailed
records exist only room 1953. The Security Service also destroyed detailed
records before 1952 although it kept figures of the numbers of warrants issued.
It was not possible to discover the exact number of interceptions in earlier
years, but only the number of warrants issued; the discrepancy between these
two figures would, however, be very small indeed.
82. We wish to emphasise
that none of the matters referred to in the three preceding paragraphs has in
practice affected the strict control of the use of the power to intercept
communications.
83. Arrangements to keep
fuller and more uniform records were made early in 1957 by the Home Office
before our inquiry was announced. We were informed that, since our inquiry
started, the Home Office has worked out an elaborate system for keeping records
on a uniform basis, both for security purposes and for the detection of crime.
84. It is not necessary
that such secret records should be kept in a number of different places. but
they should be preserved in one secure place. We therefore recommend
that full records should be kept in the Home Office showing in each particular
case
(a) The ground on which the warrant is applied for,
(b) A note of any subsequent decisions concerning the
warrant.
(c) A copy of the warrant issued or, alternatively, a note
that the application has been rejected.
(d) A record of the date of the cancellation of the
warrant and the reason therefore.
These records should be preserved
for a reasonable time by the Home Office. Before any warrants or any records
relating to them are destroyed by the authority to whom the warrants were
issued, the Home Office should be consulted.
85. It has been urged in
some quarters that the authority for the issue of warrants for interception
should not be left exclusively in the hands of the Secretary of State. The
chief suggested alternatives that have come to our attention are that the Home
Secretary should be assisted by an Advisory Committee or that warrants should
be issued only on a sworn information before magistrates or a High Court judge.
86. In our opinion, neither
of these proposals would improve matters. If a number of magistrates or judges
had the power to issue such warrants, the control of the use to which methods
of interception can be put would be weaker than under the present system. It
might very well prove easier in practice to obtain warrants. Moreover, it would
be harder to keep and collate records. If an Advisory Committee were set up
this would, at the best, leave things as at present because the ultimate
discretion would still lie with the Secretary of State; at the worst it would
tend to weaken the sense of responsibility of the Secretary of State, and might
lead to a loosening of the principles, the strict maintenance of which is the
chief means of ensuring that interception of communications is limited to the
uses for which it is intended.
87. One exceptional purpose
for which the Secretary of State issues warrants for the interception of
communications is the stopping and returning of letters to the sender. This
power has tong been exercised and was referred to by the Secret Committee of
the House of Commons of 1844 in their Report.
Beyond stating that some
doubt existed how far this could lawfully be done and giving the number of such
warrants issued as 7 over a period of 45 years they made no further comment or
recommendation.
88. In recent years this
power has been exercised somewhat more frequently, but still on a very small
scale. From 1946-57 there were 28 cases in all. We have examined all these
cases in detail and have found that, in all but one or two instances warrants
were issued only on the grounds of a major public interest.
89. It seems to us that the
interception of letters for this purpose falls into quite a distinct category
in that no one suffers any damage if a sender's own letter is returned to him.
There might, however, be administrative difficulties if the interception of
letters at the sender's request became a general practice: We therefore feel
that this power should be exercised only m .cases where in the opinion of the
Secretary of State a clear public interest is involved.
90. As a result of our
inquiry into the purposes for which warrants authorising the interception of
communications are issued. we are satisfied that Secretaries of State and all
the officials and authorities 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.
2. The Marrinan
Case
91. Since it was the
warrant of the then Secretary of State, giving power to intercept the telephone
communications of one. Billy Hill. which gave rise to what is now known as the
Marrinan case. we have felt it right to consider that case with great care so
far as it would appear to be relevant to our inquiry.
92. It has been the settled
policy of the Home Office that, save in the most exceptional cases. information
obtained by the interception of communications should be used only for the
purposes of detection, and not as evidence in a Court or in any other Inquiry.
93. We have listened to the
evidence of the Attorney-General.
Sir Reginald
Manningham-Buller; to Sir Hartley Shawcross, the Chairman of the Bar Council;
and to Viscount Tenby, who was the Secretary of State at the relevant time.
94. It will be convenient
to set out a summary of the principal dates: -
(1) On the '9th October, 1956, reports appeared in certain
newspapers of a case tried at the Central Criminal Court, where it was alleged
that a barrister had obstructed the police when they were acting in the course
of their duty in Dublin.
(2) On the 17th October, Mr.Boulton, the secretary of the
Bar Council, wrote for information to Mr. R. E. Seaton, the counsel who had
prosecuted in the case, and in the meantime Mr. Seaton himself had informed the
Attorney-General of the circumstances.
(3) On the 26th October the Attorney General brought to
the notice of the Bar Council the alleged professional misconduct on the part
of Mr. Marrinan.
(4) On the 20th November Mr. Boulton wrote to Mr. R. L.
Jackson, the Assistant Commissioner of Police in charge of the Criminal
Investigation Department. to ask him whether any information was available
about Mr. Marrinan’s alleged unprofessional conduct.
(5) On the 26th November Mr. Jackson was authorised by the
Home Secretary to show to Sir Hartley Shawcross personally, as Chairman of the
Bar Council, the material obtained in June and July 1956 in the course of the
interception of the telephone line of Billy Hill.
(6) On the 12th December Mr. Boulton, in Sir Hartley
Shawcross's absence abroad, called upon Mr. Jackson. He appears to have been
regarded as the personal representative of Sir Hartley Shawcross rather than
the~ secretary of the Bar Council, for he was shown a copy of the transcript of
the intercepted telephone conversations. Mr. Jackson was not present at that
interview, but on the 18th December he showed the transcript of the intercepted
telephone conversations to Sir Hartley Shawcross, and told him that if he
thought it necessary to show it to other people, Sir Hartley should himself
seek the authority of the Home Secretary so to do. He informed Sir Hartley
Shawcross in some detail of the view of the Police about the character and
activities of Billy Hill. Sir Hartley was informed that Mr. Marrinan was
believed to be acting improperly in concert with Hill in certain matters, well
knowing him to be a criminal, and that Scotland Yard had been interested in the
activities of Mr. Marrinan for some considerable time.
(7) Sir Hartley informed the Assistant Commissioner of
Police that the intercepts of the telephone conversations would be valueless to
him unless he had permission to show them to the members of the Bar Council who
were inquiring into the conduct of Mr. Marrinan, and also to the Benchers of
Lincoln's Inn who might be inquiring into Mr. Marrinan's conduct, and also to
Mr. Marrinan himself.
(8) Accordingly Sir Hartley Shawcross on the same day (the
18th December) wrote to ask for the Home Secretary's authority to disclose the
transcripts of the interceptions to the persons mentioned in (7) above.
(9) On the 20th December, 1956, a letter was sent to Sir
Hartley Shawcross by the Permanent Under-Secretary of State on behalf of the
Home Secretary giving to Sir Hartley the authority he had sought.
95. There can be no doubt
that the actions of Sir Hartley Shawcross and Viscount Tenby were wholly
governed by considerations of the public interest.
96. Apart from the evidence
contained in the telephone intercepts, there was a good deal of additional
evidence in Sir Hartley's possession concerning Mr. Marrinan which in Sir
Hartley's view directly affected the integrity of the Bar and the proper
administration of justice. He was aware that in some other countries the
improper association of members of the legal profession with avowed criminals
was known to exist, and that this association was for the purpose of assisting
criminals in their unlawful activities, and was highly injurious to the proper
administration of justice. It was for these reasons that he decided to ask the
Secretary of State to disclose the telephone intercepts to him and to his
colleagues on the Bar Council, and to permit him to show them to the Benchers
of Lincoln's Inn who were concerned with the professional conduct of Mr.
Marrinan as a member of Lincoln's Inn. and also to Mr. Marrinan himself. He did
this, he insisted before us, because he thought the integrity of the Bar was of
vital importance to the proper administration of justice in this country; and
as Chairman of the Bar Council he felt that a special responsibility lay upon
him to preserve this integrity, and he regarded the administration of justice
as being one of the most important public functions exercised in the State, and
the peculiar care of the Home Office.
97. Viscount Tenby, who was
at the time the Secretary of State, himself had an interview with the Assistant
Commissioner of Police, Mr. Jackson, and heard from him in detail the view
which the police entertained of Hill and his activities. When the request
therefore was made to him by Sir Hartley Shawcross, the Chairman of the Bar
Council, to allow the Bar Council and the Benchers of Lincoln's Inn, and Mr.
Marrinan, to see the intercepts, Viscount Tenby regarded the case “as the most
exceptional that I had ever come across. “In view of the information he had
received from the Assistant Commissioner of Police concerning the character of
Hill, and in particular the fact that he was carrying on his activities in
connivance with a member of the Bar such as Mr. Marrinan, Viscount Tenby came
to the conclusion that the circumstances were so utterly exceptional and the
ground of the application was of such high importance, that he would depart
from the normal practice which he and his predecessors had always followed.
98. Viscount Tenby was most
clearly impressed first of all by the evidence given to him of the character of
Hill, and in turn by the argument of Sir Hartley Shawcross that in his view the
actions of Mr. Marrinan were such that they struck at the very heart of the
proper administration of the law. Thereupon he made !he two decisions with
which we have been concerned. He decided to disclose the intercepts to Sir
Hartley Shawcross personally, and then also decided to consent to Sir Hartley
Shawcross's subsequent request for permission to show the intercepts to the Bar
Council, the Benchers of Lincoln's Inn. and to Mr. Marrinan. These two
decisions were clearly within the powers of the Secretary of State, and it is
right to say that Viscount Tenby accepts the fullest responsibility for them.
99. Viscount Tenby regarded
the situation as being utterly exceptional, and there does not appear to have
been any previous case which could in any sense be regarded as a precedent. The
closest parallel that we have discovered occurred in 1953, in a disciplinary
inquiry before the Metropolitan Police Discipline Board into charges of
corruption against two police officers. In that case the Secretary of State had
issued a warrant authorising the interception of messages on the telephones of
the two officers, and upon application being made that these intercepts might
be used in the disciplinary proceedings the Home Office had granted permission.
But in that case the disclosure was within the public service, and cannot in
any sense be said to apply to the position which existed in the Marrinan case.
We entertained some doubt whether the decision to use the Intercepts in the
police inquiry in 1953 was in fact justifiable. We are of the opinion that
Viscount Tenby's decision to permit the disclosure of the information contained
in the telephone intercepts in question to the Bar Council and to the Benchers
of Lincoln's Inn, was a mistaken decision.
100. We are anxious not to
use language which might imply that the decision of Viscount Tenby was
unreasonable, for we quite recognise that the facts before Viscount Tenby,
which we have summarised, were indeed highly exceptional. The fact that the
administration of justice was involved was the governing consideration in the
mind of Viscount Tenby, and it is easily to be understood that the importance
of that consideration led him to the conclusion that the action which he took
was in all the circumstances of the case justifiable. But we are of opinion
that the power given to the Secretary of State to issue a warrant to intercept
communications, whether by letter or by telegram or by telephone, is a power of
such importance and consequence that it should be most rigorously confined to
the purposes which convinced the Home Secretary that it was right to issue the
warrant in the first place.
101. We therefore conclude
by recommending that there should be no disclosure of the information obtained
on public grounds by the exercise of this great power, to private individuals
or private bodies or domestic tribunals of any kind whatsoever.
3. Use and Result
102. The various authorities
that use methods of interception put them to somewhat different specific uses
according to the sort of crime or offence that they are seeking to detect and
suppress.
103. The major uses to
which methods of interception are put by the Metropolitan Police are: to break
up organized and dangerous gangs; to catch men on the run (escaped convicts and
men wanted for serious crime); to detect receivers of stolen property. The
reason why the overwhelming majority of warrants issued for police purposes are
applied for by, and granted to, the Metropolitan Police is that London is a
natural centre for criminal, as for other, activities. Much of the major crime
in the provinces, even in large cities, is the work of criminals based on
London. The leader of a gang cannot put his schemes into effect without
directly or indirectly communicating with his henchmen, almost always by
telephone. A receiver who works on a large scale is often either the organizer
or focal point of a number of criminals who are dependent upon him for a
market. A man on the run has often revealed his whereabouts by telephone to his
home or his associates.
104. The use of
interception by the Board of Customs and Excise started in 1946, that is to
say, at a time when exchange control and quota restrictions induced a great
increase in smuggling of a kind very damaging to the national economy. In
particular, interception is used to frustrate the illicit export of capital,
usually in the form of diamonds. The extent of the smuggling of diamonds has
been largely determined by the strength or weakness of sterling. It is
estimated to have reached a value of £9,000,000 in 1952, and is still running
at a very considerable figure, probably around £6,000,000 a year. Diamond
smuggling is internationally organised by a very small, closed group of people.
It is hard to get reports from informers or by normal means of detection, and
the smugglers normally make contact by post or telephone. Interception is also
used to detect the large-scale smuggled import of Swiss watches which adversely
affects the balance of payments, and to detect conspiracies to effect major
fraudulent evasions of purchase tax which involve the Revenue in considerable
loss.
105. The uses to which the
Security Service puts the power to intercept are determined by the duties laid
upon that Service by the Government. These are broadly to detect and counter
espionage and subversion and, in the words of Mr.Attlee (as he then was) in the
House of Commons on the 15th March, !948, cc to ensure that no one who is known
to be a member of the Communist Party or to be associated with it in such a way
as to raise legitimate doubts about his or her reliability is employed in
connection with work, the nature of which is vital to the security of the State.
The same rule will govern the employment of those who are known to be closely
associated with Fascist organisations.” This policy was confirmed by the
present Government in March 1956, in the White Paper on the Findings of the
Conference of Privy Councillors on Security (Cmd. 9715).
106. Espionage is carried
out by highly trained people who take extreme precautions. Communications are
the weakest link in their organisation, and, without penetration of these
communications, it would often be impossible to detect major espionage at all.
107. Interception has not
always proved an effective means of detection or deterrence. The interception
of letters did not greatly reduce the traffic in lottery tickets, and this was
one reason for the abandonment of this use of interception in 1953. But, with
regard to the present day uses of interception, we received conclusive evidence
of their effectiveness. We were told of many major wrong-doers who had been
brought to justice, and of the frustration of espionage. We give here only a
few examples of results directly achieved by methods of interception.
108. All the authorities
that use methods of interception are firmly convinced that the effect on their
operations would be greatly, if not calamitously, reduced if they were to be
deprived of the power to intercept communications. The Treasury indicated to us
the value that they attach to the results achieved through interceptions by the
Customs and Excise. All the Secretaries of State who gave evidence before us
emphasised the great effectiveness of interception of communications as a means
of detection.
109. One measure of the
effectiveness of interception as a means of detection is the number and
proportion of convictions thereby obtained, which could not have been obtained
by any other means. Difficulties, however, arise in the application of this
test. First, interception may be only one line of inquiry that is being
followed, and it may not be easy to judge the extent to which a conviction was
due to interception. Secondly, it is impossible to say with absolute certainty
that a wrong-doer caught by one method of detection might not have been caught
then or later by some other means. Thirdly, a number of telephone lines may be
tapped in the course of a single investigation directed to the detection of one
major offence.
110. Between 1953 and 1956
the number of arrests made by the Metropolitan Police of important and
dangerous criminals as the result of direct interception was 57 per cent. of
the number of telephone lines tapped. The effectiveness of interception by the
Police has been getting steadily greater, especially in the last few years. So
far in 1957 every interception but one has led to an arrest.
111. The number of cases of
detection of major Customs frauds directly or indirectly due to interceptions
of mail and telephone lines was 80 per cent. of the number of interceptions.
Another way of measuring the effectiveness of interceptions by the Customs is
by the value of the seizures of illicit exports and imports. As a result of
interceptions of communications between 1948 and 1957, such seizures amounted
to a total of £736,490. Account should also be taken of the removal from the
field of highly skilled operators and the deterrent effect upon others. The
sums lost to the reserves and to the revenues might otherwise have reached
considerably greater proportions.
112. The proportion that
the number of arrests or convictions obtained by interception bears to the
total of convictions is small. This is naturally to be expected for the reason
that in the vast majority of criminal cases these methods of interception are
not used. They are reserved for cases of serious crime as we have explained. It
was emphasised in the evidence given to us that the use of methods of
interception is strictly limited to the biggest and most dangerous offenders
and that on the whole the most important captures and seizures are made as the
result of interception.
113. As we have pointed out
in paragraphs 105 and 106, the obtaining of arrests and convictions is not
necessarily a major objective of the Security Service. It is therefore not
possible to. measure the effectiveness of interception as used by the Security
Service by reference to arrests and convictions.
The evidence we heard
overwhelmingly established the following facts: -
114. We enquire closely into the number of people who have access to the information obtained by the interception of communications.
115. We visited a centre
where telephone tapping is operated and we ourselves held a telephone
conversation that was tapped and recorded by a machine in our presence. There
is a very small number of persons supervising this purely mechanical operation,
and they listen to a tapped conversation only occasionally and briefly to check
whether the machines are in order.
116. It is at the point
when the recording is passed to the authorities concerned with the use of
interception that the whole content of the interceptions becomes known to
officials, whether it is relevant to the inquiry in hand or not, whether or not
it contains private and personal or even privileged conversations.
117. The number of
officials who have access to this information is small. In no particular case
of interception is the number in excess of three or four carefully chosen
officers. They have the duty to select and transcribe only those parts of the
material that are relevant to the inquiry in hand. The quantity of relevant
material that is thus transcribed varies from case to case. It can be extensive
but in the great majority of cases it bears a small proportion to the total
material recorded by the machines. The material that is not selected and
transcribed is destroyed.
118. The selected and
transcribed material necessarily becomes known to a larger number of people,
all of whom are directly concerned with an investigation. In the Police and the
Customs about half a dozen officers have access to this sifted material in any
particular case; in the Security Service only two officers. Material that is of
security interest, whether obtained by interception or from other sources, is
collated in the general records of the Service and may be made available to the
Departments of State who have an interest in such information.
119. In our view public concern
may be in some degree allayed by knowledge of the actual extent of the
interception of letters and telephone messages which has been exercised on a
much smaller scale than many people seem to have thought. In considering the
best manner of presenting the statistics. we had to weigh the consequences of
any disclosure of figures at all upon the effectiveness of the interception of
communications. All the authorities that use the power of interception say that
such disclosure would impair the effectiveness of the method as a means of
detection. After very careful consideration we have come to the conclusion that
it would be in the public interest as an exceptional measure on this occasion
to publish figures showing the extent of the interception of communications. We
recognise, however, that this should be done in a manner that does as little
injury as possible to the public interest.
120. We are in particular aware of the danger of disclosing even on a single occasion the extent of interception for security purposes. The best course therefore seems to us to group the figures for interceptions for each of the years from 1937-56 under these heads
(1) interceptions by security, Police, Customs and Post
Office;
(2) interceptions in connection with dangerous drugs, lotteries
and obscene publications.
We set out these figures in
Appendix I, Table I. From this Table it appears that the average annual number
of interceptions of telephone lines from 1937 to 1956 was 130. The
corresponding figure for interception of letters and telegrams was 501.
121. We are strongly of the
opinion that it would be wrong for figures to be disclosed by the Secretary of
State at regular or irregular intervals in the future. It would greatly aid the
operation of agencies hostile to the State if they were able to estimate even
approximately the extent of the interceptions of communications for security
purposes.
122. Figures for
interception of communications authorised by the Secretary of State for
Scotland since the war are set out in Appendix I, Table II. These figures show
that in this period three warrants were issued for the interception of
telephones; the average duration of these warrants was eight weeks. One warrant
was issued for the interception of one telegram. Fifty-one warrants were issued
for the interception of letters in connection with lotteries - a practice that
was abandoned in 1953.
123. As a result of our
review of the use and result of the power to intercept communications, we are
satisfied that all the officers and officials concerned are scrupulous and
conscientious in the use and exercise of the power to intercept communications.
We are satisfied that interception js highly selective and that it is used only
where there is good reason to believe that a serious offence or security
interest is involved. We are satisfied that the number of people with access to
material obtained by interception, either in its original or in its selected
form, is kept to an absolute minimum. We are further satisfied that
interception of communications has proved very effective in the detection of
major crimes, customs frauds on a large scale and serious dangers to the
security of the State.
4. Members of Parliament
124. Questions have
recently been asked in the House of Commons about the propriety of intercepting
the communications of Members of Parliament. We have therefore taken advice
upon this matter and considered it. The essential point is whether the
interception of a Member of Parliament's letters or telephone would constitute
a breach of privilege. This is of course for the House itself to determine. So
far as we have been able to discover, a Member of Parliament is not to be
distinguished from an ordinary member of the public, so far as the interception
of communications is concerned, unless the communications were held to be in
connection with a Parliamentary proceeding. On the question of the interception
of Members' letters the House of Commons expressed itself clearly in a
Resolution in 1735. This was reported in the Report of the Secret Committee of
the House of Commons of 1844 in these words
“That it is a high
infringement of the privilege of the knights, citizens and burgesses. chosen to
represent the Commons of Great Britain in Parliament, for any postmaster. his
deputies or agents, in Great Britain or Ireland, to open or look into, by any
means whatsoever, any Letter directed to or signed by the proper hand of any
Member, without an express Warrant in writing, under the hand of one of the
principal Secretaries of State, for every such opening and looking into; or to
detain or delay any Letter directed to or signed with the name of any Member
unless there shall be good reason to suspect some counterfeit of it, without an
express Warrant of a principal Secretary of State, as aforesaid, for every such
detaining or delaying.”
125, This seems to be a
clear recognition by the House of the right of the Secretary of State to
intercept Members' postal packets by the use of an express warrant. So far as
we know this recognition has never subsequently been rescinded or modified.
126. On 2nd August, 1956,
Mr, Francis Noel-Baker, M.P., complained amongst a number of other points, that
his correspondence addressed to British subjects in the Seychelles had been
interfered with. The Speaker replied to this part of Mr. Noel-Baker's complaint
in these terms: -
“.... The first
complaint of the hon. Member was about the interference with correspondence
from hon. Members. The law on that subject, as I understand, is that letters
can be detained and opened by a warrant of a Secretary of State, There is a
long series of Acts on this subject. the principal one being that passed in
1912. The fact that that Act was passed by this House, and that in it there is
no exception for letters addressed either to or from Members of Parliament,
shows that there can be no question of Privilege involved in that.”
127. No question seems ever
to have arisen in the House on the specific question of the interception of a Member's
telephone conversation. Subject to any decision by the House on this point, it
appears probable that the rulings concerning letters would extend by analogy to
telephones.
128. It is difficult to
imagine the circumstances in which a telephone conversation might be held to be
related to a “proceeding in Parliament ,,a term which seems never to have been
precisely defined. In 1939 the Select Committee on the Official Secrets Act
held in its Report (Command Paper 113. 1937-38, Vol. 7), that privilege protected
a draft of a parliamentary question which a Member showed to a Minister. This
might presumably be held in certain circumstances to cover a communication in
writing or by telephone about an intended parliamentary question. It has also
been suggested that a breach of privilege might be committed if the Secretary
of State were induced to issue a warrant for interception of a Member's
telephone by something that that Member said in the House in relation to a
Parliamentary proceeding.
5. Unauthorised Tapping
129. All the evidence we
heard was to the effect that there is, and has been, no tapping of telephones
by unauthorised persons in this country.
130. We also received
evidence that, for technical reasons. the unauthorised tapping of telephones
would be much more difficult in this country than in the United States of
America. However, there can be no certainty that unauthorised tapping of
telephones does not occur and it might even be done without the commission of a
trespass upon private or Crown property.
131. In these circumstances
Parliament may wish to consider whether legislation should be passed to render
the unauthorised tapping of a telephone line an offence.
PART III
BE USED IN THE
FUTURE?
132. We are conscious that
this is perhaps the most controversial question contained in our terms of
reference and we therefore set out here the main considerations we have had in
mind in answering it.
133. There is no doubt that the interception of communications, whether by the opening or reading of letters or telegrams, or by listening to and recording telephone conversations, is regarded with general disfavour. In this country where the power to detain and open letters has been in existence from very early times. and has been used by successive Governments for very many years, public feeling has only been aroused on rare occasions when it was suspected or feared that the practice was being abused in some way, in circumstances which do not warrant its use. Whether practised by unauthorised individuals or by officials purporting to act under authority, the feeling still persists that such interceptions offend against the usual and proper standards of behaviour as being an invasion of privacy and an interference with the liberty of the individual in his right to be “let alone when lawfully engaged upon his own affairs.” The Secret Committee of the House of Commons in its Report in 1844 spoke of “the strong moral feeling which exists against the practice of opening Letters, with its accompaniments of mystery and concealment....”and Sir lames Graham, the Home Secretary, said in a debate in the House of Commons in 1845 that the practice of opening letters was “odious, invidious and obnoxious.” It is important to observe that this dislike of interception is not confined to those who feel that as a matter of principle the liberty of the individual outweighs all other considerations, or that the exercise of the power is not justified by the results obtained; it is also shared by those who think it right that the power to intercept communications should be used by the State, under proper safeguards, for well defined purposes. We think it important to emphasise this aversion to the interception of communications, for just as the wise administration of the criminal law must depend finally upon the support and approval of public opinion, so the principles by which the law is enforced must win the same approval if they are to be exercised effectively and without public unrest The disquiet expressed by Members of the House of Commons which resulted in the setting up of the present Inquiry was due, we think. in some measure at least, to the dislike of obtaining information by means of tapping telephone wires, quite apart from the separate questions of the propriety of opening letters, or the extent of the practice of intercepting letters and telephone conversations, or of the value of the information obtained, or of the use that had been made of the information so acquired. In considering the questions contained in our terms of reference, therefore, we have reminded ourselves at all times that the liberty of the subject was involved, and that there was considerable opposition to any use of methods of intercepting communications for any purpose, public or private.
134. In framing our
recommendations as to the future use of any powers of intercepting
communications, it was necessary for us to understand and appreciate, as far as
we were able to do so, the grounds of the antipathy to the methods of
interception of communications in general. It is impossible, of course, to do
more than to speculate upon the attitude of the public at large, but there is
reason to suppose that some of the objections at least can be thus stated:
(i)
The powers of
interception are in the hands of State officials. They are exercised in secret,
and the extent of the exercise and the purposes for which the powers are
exercised are not publicly known.
(ii)
There is some apprehension
that the powers may be used to invade private rights, and to interfere with the
liberty of the subject unnecessarily.
(iii)
The circumstances in
which the powers may be exercised do not give to the subject any reasonable
opportunities for protest or objection.
135. The greatest agitation which ever arose upon the question of detaining and opening letters was in 1844, when Sir lames Graham, the Secretary of State, had opened the letters of Joseph Mazzini and had communicated some of their contents to the Neapolitan Government, In Parker's “Life and Letters of Sir James Graham,” a detailed account is given of that great controversy, and it is quite clear that the feeling was based, in some measure, on the suspicion that the practice of opening letters was very widespread and that the letters of the ordinary citizen were not immune. In the Greville Memoirs, Vol. V, at p. 182, there are certain interesting references to this agitation, and Greville states that “it lit up a flame throughout the country. Every foolish person who used papers and pens fancied their nonsense was read at the Home Office.”
136. We have referred in
paragraph 11 of this Report to the terms of reference of the two Secret
Committees, and it is interesting to notice that, when the reports of those two
Committees were made known, and the special circumstances in which the power
was exercised were made plain, the public anger at once subsided. According to
Greville, who was a close observer of the parliamentary scene, when the Member who
had raised the original Question moved that a Select Committee should inquire
into the opening of his own letters in February, 1845, “the House was tired of
the subject and the motion was defeated.” So in the present inquiry we cannot
but feel that some of the antipathy to the methods employed, particularly those
of tapping telephone wires, is due to the fear, or the suspicion, or the belief
that it is practised on a large scale, and that the telephones of ordinary
citizens are likely to be the subject of such interference, or could possibly
be the subject of such interference. Some Questions which were asked in the
House of Commons would seem to lend colour to this view. It is important,
therefore that it should be made as widely known; as considerations of public
policy permit, that the power of intercepting communications is very strictly
reserved for the very special cases where the public interest is deeply
involved to which we have referred in detail in another part of this Report.
137. We have examined the
exact circumstances in which the powers of the Secretary of State have been
exercised, in order to see what is the extent of the interference with the
privacy of the individual or his liberty, and whether such interference ought
to be prohibited for the future, or whether it is necessary or justifiable in.
the interest~ of the citizens as a whole that the procedure in force at the
present time should continue. The freedom of the individual is quite valueless
if he can be made the victim of the law breaker.
Every civilised society
must have power to protect itself from wrongdoers. It must have powers to
arrest, search and imprison those who break the laws. If these powers are
properly and wisely exercised, it may be thought that they are in themselves
aids to the maintenance of the true freedom of the individual. It is therefore
most important to observe that from the evidence tendered to us, it is plain
that the exercise of the power to intercept communications by the Secretary of
State has never been regarded as a general power, but as a power, carefully
restricted to special and well-defined circumstances and purposes, and hedged
about with clearly formulated rules and subject to very special safeguards.
138. In the Report of the
Secret Committee of the House of Lords of 1844. appointed to inquire into the
state of the law in respect of the detaining and opening of letters by the Post
Office, and into the mode under which authority given for such opening and
detaining has been exercised, and to report their opinion and observations
thereupon to the House, there is one passage which seems to us to be applicable
to the evidence we ourselves have heard –
“The Committee are
bound, in conclusion, to state, that having looked back to the Proceedings of
several Secretaries of State during successive Administrations over more than
Twenty Years, they have found the Practice has been nearly uniform, that the
Power has been very sparingly exercised, and never from personal or Party
Motives, and that in every case investigated it seems to have been directed by
an earnest and faithful Desire to adopt that Course which appeared to be
necessary, either to promote the Ends of Justice or to prevent a Disturbance of
the public Tranquillity , or otherwise to promote the best Interests of the
Country .”
The Committee of 1844 said
that they left it to the legislature to determine whether the power should
continue to exist, and it is interesting to note that the power has continued
to exist without any interruption and has continued to be recognised by the
statutes.
139. We have set out in
paragraphs 57 et seq of our Report the procedure which is followed by
the Secretary of State before the issue of any warrant and we have been very
much influenced in our conclusions by the nature of that procedure. In the
light of evidence given before us we are satisfied that if the practice of
issuing warrants is to continue for the purposes we have specified, apart from
the suggestions we make in the body of our Report, no further safeguards are
needed to see that the power is properly and wisely executed; for in our
opinion the best possible safeguard lies in the final responsibility of the
Secretary of State. All the Secretaries of State for the Home Department who
have held office since the beginning of the war were of the same opinion that
the power to intercept communications should still be permitted under the
conditions and safeguards which have existed in the past; further that they
were all of opinion from their very intimate knowledge of the procedure that
there had been no case where the liberty of the subject had been invaded to his
detriment. This very powerful testimony seemed to us of the highest importance.
It is true that they were all men who had exercised authority in the highest
positions of the State, and who were naturally concerned with the efficiency of
methods of government, but just as the Secret Committee of the House of Lords
of 1844 were impressed by the witnesses who had held high office. we too in our
turn, were impressed by this unanimity of opinion. The Secret Committee of the
House of Lords of 1844 reported “it is the concurrent Opinion of Witnesses who
have held high Office. and who may be most competent to form a sound Judgment,
that they would reluctantly see this Power abolished...”We repeat this sentence
as representing the views of the Secretaries of State who have been good enough
to give evidence before us.
140. The Secret Committee
of the House of Lords of 1844 also reported
- and we think that their finding is applicable to present conditions -
“They think that the
Responsibility will be more effective when resting upon the Individuals who are
mainly charged with the Preservation of Peace and the Prevention of Crime in
this Country than if it were divided with others...”
We considered whether it
would be an advantage to require all applications to the Secretary of State for
the issue of his warrant to be made on oath but when it is remembered that the
applications from the Security Service and the Police are made only after the
rigorous examinations we have described in Part II of our Report, and that the
applications, when made, are made only by the very highest officials of the two
Departments, we do not feel that any additional security or advantage is to be
gained by requiring the applications to be made on oath though Mr. Gordon
Walker is of a contrary opinion as his Note discloses.
141. In the first great
field where the power has been and is exercised that of national security-we
feel no doubt at all in recommending that the powers of interception should
continue to be used subject to the conditions and safeguards which we have set
out at length in Part II and in the summary of conclusions. The Security
Service is part of the defence system of the country, and its supreme task is
the defence of the Realm, and this necessarily involves protection from
espionage, from sabotage, and indeed from every kind of action that threatens
the security of the State. It is upon the security or the State that the
citizens rely for the enjoyment of their freedom, and it would be folly to
hamper or hinder the Security Service by withdrawing essential powers from them
unless the necessity to do so were quite overwhelming. It is important to note
that it is no general power that is exercised, but one limited expressly to the
cases where there is reasonable cause to believe that subversive activities are
already being carried on. We are quite satisfied that the problems of national
security are such that no reasonable weapon should be taken from the hands of
those whose duty it is to watch over all subversive activities in the
safeguarding of British interests. We are further satisfied, from the evidence
before us, that the methods of interception hitherto employed are necessary,
and have been productive of important results which could not have been
obtained in any other way.
142. We now consider the
exercise of the power by the Secretary of State in cases of serious crime, which
is the second great field of activity. The detection and suppression of crime
is essential to the good government of any society, but it is not so
fundamental as the security of the State itself. Other methods are available
for the detection of crime, and, even if some criminals do escape detection,
the injury to the State cannot compare with the kind Of injury the Security
Service seeks to prevent. If, therefore, it could be shown that this method of
intercepting communications, either by letter or by telegram or by telephone
conversation, affected the law-abiding citizen to his detriment, even though
the power was being exercised to prevent and detect crime, we should have
hesitated to recommend that the power of interception should continue to be exercised
for this purpose. But so far from the citizen being injured by the exercise of
the power in the circumstances we have set out. we think the citizen benefits
therefrom. The adjustment between the rights of the individual and the rights
of the community must depend upon the needs and conditions which exist at any
given moment, and we do not think that there is any real conflict between the
rights of the individual citizen and the exercise of this power to intercept by
the Secretary of State in the limited circumstances which we have set out in
Part n of this Report. The issue of warrants by the Secretary of State in these
well-defined circumstances is exercised with the avowed intention of detecting
and preventing crime, and of thus securing those conditions which will permit
the freedom of the individual to be unimpeded, and make his liberty an
effective, as distinct from a nominal, liberty.
143. It is to be noted that
no warrant is even applied for unless a crime of a serious nature has been
committed and is actually under investigation, and other methods of
investigation have either been tried and have failed, or must from the nature
of the case be unlikely to succeed if they were tried; so that there is no
likelihood of the ordinary law-abiding citizen being affected to his detriment
by this procedure. The evidence be(ore us showed that the Police do not seek to
use methods of interception save in the very special cases of serious crimes to
which they are specially applicable and which in practice have proved most
useful and efficacious. The nature of the serious crime was disclosed to us,
and specific instances of serious crimes were given. These crimes were
described as “those organised and carried out by professional criminals who
want to make a great deal of money and would not think of making it in any
other way than by crime, at the expense of their fellow citizens,”
144. We cannot think it to
be wise or prudent or necessary to take away from the Police any weapon or weaken any power they now possess in their
fight against organised crime of this character. The Police ought not to be
handicapped in their efforts to prevent or to detect crime, whilst the criminal
is allowed to use every modem method to achieve his purpose. If .it be said
that the number of cases where methods of interception are used is small and
that an objectionable method could therefore well be abolished, we feel that
though the number of cases may be small this is not a reason why criminals in
this particular class of crime should be encouraged by the knowledge that they
have nothing to fear from methods of interception” We therefore think that no
useful purpose would be served by recommending that the power of interception
be no longer exercised in the detection and prevention of crime, for it would
remove from the hands of the Police a weapon which they have found to be
effective when all other methods have been unavailing, and would announce to
potential wrong-doers that they have nothing to fear from the Police in this particular
respect. This, in our opinion so far from strengthening the liberty of the
ordinary citizen. might very well have the opposite effect.
145. The Secret Committee
of the House of Commons reporting in 1844 said on this point “It must also be
remembered that if such a power as this were formally abolished, the question
would not be left quite in the same condition as though the power had never
been exercised or disputed; by withdrawing it, every criminal and conspirator
against the public peace would be publicly assured that he could enjoy secure
possession of the easiest, cheapest, and most unobserved channel of
communication, and that the Secretary of State would not under any
circumstances interfere with his correspondence. It must not be forgotten, however,
that at present other rapid means of communicating their views are of easy
access to the evil intentioned, and that, as far as internal order is
concerned, the same rapid means afford the Government unexampled facilities for
suppressing tumult.”
146. The foregoing
observations are intended to apply to all the activities of the Police as we
have set them out, and also to the activities of the officials of the Board of
Customs and Excise.
147. It is important to
remember at all times that the power to open letters has been exercised in this
country for many hundreds of years, and that power has been the subject of
debate in Parliament on several occasions.
148. We have referred to the year 1844, when the two Secret Committees were set up, but long before that date the practice of intercepting letters bad been exercised and had been made publicly known. The details are fully set out in the Report of the Secret Committee of the House of Commons in 1844. The Reports of the Secret Committees of both Houses of Parliament in 1844 contain a wealth of historical information which we have found to be of the greatest service to us in our work. The Report of the Committee of the House of Commons is particularly valuable for the documents which are set out in full, for the extracts from the Lords and Commons Journals, from the Reports of the Council of State and for the references to the Stale Trials, and other sources of information. We do not think it necessary to produce much of this material in our Report but it is available for reference. In 1735, a complaint being made in the House of Commons by certain of the Members that their letters had been. opened and read by the clerks of t be Post Office on the pretence of ascertaining whether or not the franks of those Members were counterfeit, the matter was referred to the consideration of a Committee to make a Report to the House, and upon the Committee doing so the House passed the Resolution, which we have set out in paragraph 124 of Part II of this Report, which recognised the authority of the Secretary of State to issue warrants to intercept communications.
149. Parliament therefore
with the knowledge of the method of intercepting letters had permitted it to
continue for this great length of time and there has been no view so far as we
know adverse to the method expressed in the Courts of law. On the contrary
letters so detained and opened have been used. though rarely, in cases coming
before the Courts. In the years 1722-3 in the course of the proceedings on passing
the Bills of Pains and Penalties against Atterbury, the Bishop of Rochester.
and his two associates, Kelly and Plunket, the principal evidence adduced
against the parties accused was that of Post Office clerks and others who, in
obedience to warrants from the Secretary of State had detained, opened, copied
and deciphered letters to or from those parties. In the Committee on the Bill
against the Bishop in the House of Lords the clause of the Statute of Anne was
referred to and commented on by the Bishop's Counsel, Mr. Wynne-State Trials,
Vol. 16. page 544, and doubt was raised whether the copying of a letter was
sanctioned by the Act of Anne; but in no one of these three cases was any
question raised as to the legality of the warrants. In the year 1758, Dr.
Hensey, a physician, was tried on a charge of high treason, being accused of
treasonable correspondence with the enemy. The principal evidence on which he
was convicted was that of a letter carrier and a Post Office clerk, the latter
of whom had opened Dr. Hensey's letters and delivered them to the Secretary of
State. In the trial of Horne Tooke for High Treason in 1795, State Trials Vol.
25, a letter written to Horne Tooke by the printer was intercepted al the Post
Office and was stated by Home Tooke to be the immediate occasion of his
apprehension. On his requiring its production, it was produced in Court by the
Crown Officers and was given in evidence. In 1923 at the trial before Mr.
Justice Swift of Art O'Brien and others for seditious conspiracy, a number of
original letters intercepted in the post were produced in evidence*. In his summing up to the jury the
learned judge said “it was no doubt a matter of surprise to the jury to learn
of the mass of correspondence passing between London and Dublin and of relief
to know that the authorities in this country were not so blind or stupid as
they were sometimes thought to be and that they knew a little more of what was
going on than those who did these things either suspected or imagined.... It is
well for this country that there is an organisation-when it is suspected that a
crime is about to be perpetrated-which has a means of watching the suspected
persons.”
150. We feel that to
announce the abandonment of this power now would be a concession to those who
are desirous of breaking the law in one form or another, with no advantage to
the ordinary citizen or to the community in general. If the Police were to be
deprived of the power to tap telephone wires in cases of serious crime, the
criminal class would be given the use of the elaborate system set up by the
State and use it to conspire and plot for criminal purposes to the great injury
of the law-abiding citizen. The telephone could then be used with impunity to
arrange the last-minute details for example, of a mail van robbery, a theft on
an organised scale, an assault with robbery on a citizen, or indeed any form of
crime. In the large centres of population like London it would be an immensely
powerful aid to criminal conspiracies of every kind if it were made known that
the power to intercept telephone communications had been prohibited, and it
would permit the telephone system to be used without hindrance by the criminal
classes and aid them in their criminal enterprises without any advantage either
to the individual or to the State. Thus, in the view we take, if the power of
intercepting telephone conversations were to be taken away from the Police, the
law-abiding citizen would get nothing in return, and might indeed suffer the
greatest loss.
151. Two objections can be
dealt with shortly. If it should be said that at least the citizen would have
the assurance that his own telephone would not be tapped, this would be of
little comfort to him. because if the powers of the Police are allowed to be
exercised in the future, as they have been in the past under the safeguards we
have set out, the telephone of the ordinary law-abiding citizen would be quite
immune. as it always has been. Secondly, if it is said that when the telephone
wires of a suspected criminal are tapped all messages to him, innocent or
otherwise, are necessarily intercepted too, it should be remembered that this
is really no hardship at all to the innocent citizen. The information so
obtained goes only to the Police and, until the recent case affecting Mr.
Marrinan, had never been disclosed to any outside person and had always been
destroyed. This cannot properly be described as an interference with liberty;
it is an inevitable consequence of tapping the telephone of the criminal; but
it has no harmful results, and the testimony of the Secretaries of State who
have given evidence before us confirms this view. The citizen must endure this
inevitable consequence in order that the main purpose of detecting and
preventing crime should be achieved. We cannot think, in any event, that the
fact that innocent messages may be intercepted is any ground for depriving the
Police of a very powerful weapon in their fight against crime and criminals. No
single ground of complaint under this head has been made known to us, and we
feel the question we are asked to answer should be answered in the light of
practical reality, rather than in imagined or fanciful circumstances. To
abandon the power now would be a concession to those who are desirous of
breaking the law in one form or another, without any advantage to the community
whatever.
152. With regard to the use
to be made of the information discovered. we feel that that should be confined
to the authority empowered by the warrant to discover it, and it should not be
disclosed to private persons or to private bodies. It should be recognised that
this is a very great and responsible power confided to the executive
exclusively for State purposes and we feel that it should be so confined. We
are told that in practice the Home Office insists that the power should be
exercised for the purpose of detection only, primarily on the ground that the
use of the informal ion so obtained. if used in Court, would make the practice
widely known and thus destroy its efficacy in some degree. But we do not feel
for ourselves that we need argue the wisdom or otherwise of this practice,
although we see no reason why in a proper case the evidence should not be
tendered, for when the occasion arises the admissibility of the evidence will
be decided by a Court before whom the evidence is tendered, and the history of
.the law of evidence is proof enough of the immense care that is taken in the
administration of justice to see that the evidence submitted both in civil and
criminal cases is evidence that it is proper to admit in all the circumstances
of the case. II should be noted that the limitations which have been placed by
the Courts and by the judges upon the powers of the Police have at all times
been for the protection of the citizen, and the important question has always
been the quality of the evidence in the proceedings actually before the Court,
and how far that evidence tends to serve the true purpose of justice. We think,
therefore. that the practice of applying for the warrants of the Secretary of
State in the special circumstances we have set out, and the procedure under
which such warrants are granted, should be permitted to continue, but that
there should be no relaxation of the rigid conditions and safeguards which have
proved of such value in practice, and that there should be no extension of
these powers beyond those we have so carefully defined
153. We consider that the
decision of the then Secretary of State to make transcripts of intercepted
telephone conversations available to the Bar Council and the Benchers of
Lincoln's Inn was a mistaken decision. (Paragraph 99).
154. We recommend
that in no circumstances should material obtained by interception be made
available to any body or person whatever outside the public service.
(Paragraphs 100 and 101.)
155. We are satisfied that
Secretaries of State and all the official 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 (Paragraph 90.)
156. We are satisfied that interception is highly selective and that it is used only where there is good reason to believe that a serious offence c security interest is involved. (Paragraphs 64-70.)
157. We are satisfied that
only the minimum number of people have access to intercepted material either in
its original or in its selected form an that this number is very small.
(Paragraphs 115-118.)
158. We are satisfied that
interception has proved effective in the detection of major crimes, customs
frauds and dangers to the security of the State. (Paragraphs 107-113.)
159. We recommend
that there should be a regular review of outstanding warrants not less than
once a month both by the Home Office and by every authority that is granted a
warrant to intercept. (Paragraph 74.)
160. We recommend
that warrants should no longer be valid until they are cancelled, .but that
their validity should be to a defined period that appears on their face.
(Paragraph 75.)
161. We recommend
that the cancellation of a warrant by the authority to whom it was issued
should be forthwith reported to the Home Office. (Paragraph 76.)
162. We recommend
that in future each warrant issued by the Secretary of State should specify the
particulars that we have set out. (Paragraph 56.)
163. We recommend
that full records showing the details we have set out should be kept in the
Home Office in each case of interception. (paragraph 84.)
164. We recommend
that the power to intercept letters at the request of the sender should
continue to be exercised in cases where a clear public interest is involved.
(Paragraphs 87-89.)
165. It would be against
the public interest for the Secretary of State to give figures of the extent of
the interception in communications, for the reasons set out. (Paragraphs
119-121.)
166. So far as we can
determine, a Member of Parliament is in exactly the same position as any
private citizen in regard to the interception of his communications unless
those communications were held to be connected with a proceeding in Parliament.
(Paragraphs 124-128.)
167. It is for Parliament to consider whether legislation should be introduced to make the unauthorised tapping of a telephone line an offence. (Paragraphs 129-131.)
168. We recommend that the
powers of interception should continue to be used subject to the conditions and
safeguards we have set out in Part III and in this summary of conclusions, but
that there should be no extension beyond those we have so carefully defined.
(Paragraphs 139-152.) Mr. Gordon Walker has reservations on this recommendation
- as set out below.
169. We cannot conclude
without placing on record our recognition of the very efficient work of our
Secretary. Mr. G. A. Peacock. This is no conventional acknowledgment. We are
conscious that we laid on him a very heavy burden of work, which he has discharged
with great ability. In particular, his assistance in compiling the statistics
and checking all questions of fact has been quite invaluable, and his help at
every stage of the work has greatly assisted us in our task.
NORMAN
BIRKETT .
MONCKTON
OF BRENCHLEY.
P.
C. GORDON WALKER.
G. A. PEACOCK,
Secretary.
18th September, 1957.
170. Whereas I concur in
the other main conclusions and recommendations in our Report, I regret that I
cannot wholly agree with my colleagues in their conclusion that the present use
of the power to intercept communications should continue unchanged. In my view
the purposes for which warrants are issued should in future be judged by new
and stricter standards particularly in regard to the detection of crime: with
the effect that interception would practically cease to be used for this
purpose.
171. I feel that this would
be in closer accord with our general ideas in this country about the methods
that we permit the Police to use and with the state of public opinion
concerning the interception of communications. We are proud in Britain that our
rules of evidence are more favourable to the accused than in some other
countries, and that an innocent man should not be wrongly convicted, although this
may result in some guilty persons escaping punishment. Although the Police may
put any question to an arrested or suspected person, the Judges' Rules
prescribe and limit the answers that the Police may tender as evidence.
172. The reason why we
enforce such high standards and tie the hands of the Police in certain respects
is that this aids the enforcement of law and order; for the methods used by the
Police must carry public support. In ~y opinion public concern about telephone
tapping is such that if the interception of communications for the detection of
crime continues as in the past there may be some danger of a weakening of the
popular approval without which the Police cannot in the long run carry on
effectively.
173. A restriction or the
purposes for which the interception of communications is used in the detection
of crime would be in accord with the general trend of policy since the war. One
of the factors determining the evolution of policy in regard to the
interception of communications has been the state of public opinion towards the
exercise of this power. As we record in our Report, the interception of letters
to prevent the transmission of illegal lottery material was abandoned in
November 1953; shortly afterwards the interception of letters believed to
contain obscene matter was similarly discontinued. In my view the interception
of communications should never have been used for either of these purposes;
neither of the illegal actions aimed at can be regarded as a crime serious
enough to justify the exercise by the State of so great and exceptional a
power. One of the reasons for the abandonment of interception in these two
cases was (we were told) a change in public opinion towards the offence in
question and a growing reluctance to use interception for the purpose in
question. (See paragraph 59.) In 1951 the Home Office in letters to the
Metropolitan Police and Customs laid down more stringent and precise conditions
governing the grant of warrants. (Paragraph 64.)
174. Public repugnance to
the interception of communications has, it seems to me, increased and there
should therefore be a further restriction upon the use of this power for the
purposes of the detection of crime. In future the interception of
communications should, in my submission, no longer be regarded as an admissible
method of detection in what may be called ordinary cases of crime. even when
these are “serious” as this term has been defined by the Home Office; but
should be authorised only when the Secretary of State is satisfied that there
is the most extreme and urgent reason. The sort of rare and exceptional case I
have in mind is that a dangerous criminal or lunatic is at large who is likely
to commit violence or murder and the interception of communications may provide
the best or only means of his speedy recapture; or that a highly organised and
dangerous gang is committing violence and cannot be broken up by other means of
detection. The application of these new. and much stricter standards of
judgment by the Secretary of State should, I suggest, be such that the
interception of communications for the detection of crime would in practice
cease to be used for long periods of time. It would be a power held in reserve
for unusual and extraordinary cases of the utmost urgency, in which there could
be no doubt that the use of the power would carry overwhelming public support.
175. There would, of
course, be a price to pay if my recommendation were adopted. It would bring
comfort to some criminals and smugglers. The price can, however, be
exaggerated. It is true, as we make clear in paragraph 112 of our Report, that
methods of interception are used only in a small number of serious cases.
Nevertheless the proportion that the number of arrests or convictions obtained
by interception bears to the total of arrests or convictions seems to me
significant. I have taken out figures for certain recent years. The number of
detections of offenders secured through interception by the Customs was 0.7 per
cent. of the total number of convictions for offences against customs
regulations. The number of arrests made by the Metropolitan Police as the
result of interceptions was 0.13 per cent. of the total number of arrests for
indictable offences. These figures seem to me to suggest that, even if the
interception of communications for the detection of crime were practically
brought to an end, there would be no catastrophic increase in the amount of
crime that might in consequence escape detection. Moreover, it is scarcely to
be doubted that most of the offenders would be caught, if not so promptly, by
normal means of detection. It must also be taken into account that the danger
would be reduced that the public repugnance to telephone tapping ~ay weaken
popular support and approval of the methods used by the Police.
176. A distinction must in
my view be drawn between the interception of communications for the detection
of crime and for security purposes. As my colleagues point out, “even if some criminals
do escape justice the injury to the State cannot compare with the kind of
injury the Security Service seeks to prevent.” A far larger proportion of the
information that the Security Service must discover is obtained by interception
of communication than in the case of the Police or the Customs. A great deal of
this vital information could be discovered by no other means. There cannot,
therefore in my view be the same sharp restriction of the use of the
interception of communications by the Security Service as I recommend in regard
to the use of this power for the detection of crime.
177. Even in the field of
security the strictest possible limits should be set to the use of the power to
intercept communications. It should in my view be allowed for two purposes
only: -
(1) direct counter-espionage and protection of high
secrets of State;
(2) the prevention of the employment of Fascists or
Communists in connection with work, the nature of which is vital to the State.
It is fair to state that these are the two purposes for which the Security Service at present mainly intercepts communications.
178. In addition to the
detailed suggestions and recommendations contained in our report. 1 would like
to propose that no warrant to authorise the interception of communications
should be issued by the Secretary of State save on a sworn informal ion or
affidavit. This would impart an element of formality and precision that seems
to me appropriate to the exercise of so great and exceptional a power.
179. I also propose that no
material obtained by the interception o communications should be used by the
Crown as evidence in any Court of Law or in any Inquiry in the public service.
This seems to me to accord with public feeling about the use of evidence that
is necessarily obtained by furtive means and normally consists only of selected
extracts from the, communications that have been intercepted.
P. C. GORDON WALKER.
APPENDIX I
TABLE I
NUMBER OF
INTERCEPTIONS AUTHORISED BY THE SECRETARY OF STATE
Year |
Police, customs, Post
Office and Security |
Drugs, Lotteries and
Obscene Publications |
Totals |
|||
Telephones |
Letters |
Telephones |
Letters |
Telephones |
Letters |
|
1937 |
17 |
335 |
- |
221 |
17 |
556 |
1938 |
20 |
422 |
- |
288 |
20 |
710 |
1939 |
29 |
643 |
- |
330 |
29 |
973 |
1940 |
125 |
1,192 |
- |
365 |
125 |
1,557 |
1941 |
180 |
833 |
- |
29 |
180 |
862 |
1942 |
164 |
512 |
- |
2 |
164 |
514 |
1943 |
126 |
327 |
- |
2 |
126 |
329 |
1944 |
102 |
213 |
- |
- |
102 |
213 |
1945 |
56 |
90 |
- |
- |
56 |
90 |
1946 |
73 |
139 |
- |
- |
73 |
139 |
1947 |
110 |
162 |
- |
28 |
110 |
190 |
1948 |
103 |
156 |
- |
714 |
103 |
870 |
1949 |
133 |
183 |
- |
458 |
133 |
641 |
1950 |
179 |
232 |
- |
124 |
179 |
356 |
1951 |
177 |
261 |
- |
225 |
177 |
486 |
1952 |
173 |
237 |
- |
225 |
173 |
462 |
1953 |
202 |
240 |
- |
219 |
202 |
459 |
1954 |
222 |
223 |
- |
4 |
222 |
227 |
1955 |
231 |
205 |
10 |
- |
241 |
205 |
1956 |
159 |
183 |
- |
- |
159 |
183 |
APPENDIX I
TABLE I
|
Year
|
Number |
Applicant |
Letters… |
1947 |
22 |
Scottish Home Department |
|
1948 |
9 |
|
|
1949 |
3 |
|
|
1950 |
4 |
|
|
1951 |
6 |
|
|
1952 |
7 |
|
Telegrams… |
1952 |
1 |
Crown Office |
Telephones… |
1946 |
1 |
Police |
|
1949 |
1 |
Customs and Excise |
|
1955 |
1 |
APPENDIX II
AUTHORITIES THAT
INTERCEPTED COMMUNICATIONS BETWEEN 1937 AND 1956
1. The Ministry of Food
was granted, between 1941 and 1944, warrants to intercept thirty-one telephone
lines and five warrants to intercept letters.
2. The Treasury was,
in 1939, granted a warrant to tap one telephone line.
3. One warrant was issued
in 1952 to the Crown Office in Scotland to intercept telegrams in
connection with a case of culpable homicide.
4. The Investigation
Branch of the Post Office has on a relatively small number of occasions
been granted warrants in connection with the detection such crimes as large-scale
mail-van robberies and persistent attacks on safes on Post Office premises.
5. The Port of London
Authority Police was granted in 1952 one warrant to tap two telephone
lines.
6. Chief Constables
were granted warrants to tap fourteen telephone lines and six warrants for the
interception of letters.
7. At the request of the Director
of Public Prosecutions a warrant was issued in 1937 for the interception of
letters. In the following year a particular letter and telegram were
intercepted at the request of a Chief Constable so that they could be shown to
the Director of Public Prosecutions.
8. In 1944 a warrant was
issued to the City of London Police for the interception of letters.
9. There was one example of
interception in 1944 which it is not easy classify. One of Her Majesty's
Judges of Assize made an order instructing the Post Office to pass to the
Police the correspondence of a woman convicted of false pretences. The
Secretary of State issued a warrant to regularise the matter.
10. The Home Office
(for dangerous drugs, lotteries and obscene publications).
11. The Metropolitan
Police.
12. The Board of Customs
and Excise.
13. The Security Service.
14. The Scottish Home
Department for lotteries only.