Report

of the Committee of Privy Councillors appointed to inquire into the interception of communications

 

Presented to Parliament by the Prime Minister by Command of Her Majesty October 1957

 

LONDON

HER MAJESTY'S STATIONERY OFFICE PRICE 1s. 9d. NET

 

Cmnd.283

 

CONTENTS

 

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

 

REPORT OF THE COMMITTEE OF PRIVY COUNCILLORS APPOINTED TO INQUIRE INTO THE INTERCEPTION OF COMMUNICATIONS

 

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.

 

  1. The arrest and conviction of a number of Billy Hill's close associates.

 

  1. The recapture of a number of escaped convicts.

 

  1. The arrest and conviction of a large-scale smuggler believed to have illicitly exported £6,000,000 over a period of three years.

 

  1. Major spies identified; the discovery of highly secret material in passage through the post in extremely ingenious forms, some of which we saw for ourselves; the detection of Communists operating secretly in the Civil Service.

 

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: -

 

  1. There are continuous organised and dangerous efforts to spy out secrets of the State.

 

  1. Similar organised and continuous efforts are made to spread subversion and to penetrate the apparatus of the Government and work of high security.

 

  1. The weakest link in this highly skilled and trained chain of espionage and subversion is communication between the agents and persons concerned.

 

  1. Methods of interception are highly effective; they are often the only effective method of countering espionage and subversion and of safeguarding the vital secrets of the State. We received a great deal of direct evidence of the success achieved solely by the interception of communications.

 

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

 

HOW SHOULD THE POWER TO INTERCEPT COMMUNICATIONS

 

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

 

SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS

 

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.

 

 

RESERVATION BY MR. P. C. GORDON WALKER

 

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

 

INTERCEPTIONS IN SCOTLAND, 1946 TO 1956

 

 

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.



* In this Report “letters “includes postal packets and telegrams except where they are expressly excluded

* The Times Newspaper, 5th July 1923.