34
Consequently, the billing records could only be obtained under s.94. It is plain
that, in accordance with ordinary principles of statutory construction, contrary
to the submissions of Mr de la Mare, s.45 must be read subject to s.94, and
s.94 must be read in the context of s.45.
35
The power to issue intercept warrants was placed on a statutory footing by s.2
of the Interception of Communications Act 1985 (“the 1985 Act”), which
read:
“2 Warrants for interception
(1) Subject to the provisions of this section and section 3 below, the
Secretary of State may issue a warrant requiring the person to whom it
is addressed to intercept, in the course of their transmission by post or
by means of a public telecommunication system, such communications
as are described in the warrant; and such a warrant may also require
the person to whom it is addressed to disclose the intercepted material
to such persons and in such manner as are described in the warrant.
(2) The Secretary of State shall not issue a warrant under this section
unless he considers that the warrant is necessary—
(a) in the interests of national security ;
(b) for the purpose of preventing or detecting serious crime ; or
(c) for the purpose of safeguarding the economic well-being of
the United Kingdom.”
36
S. 11(1) of and Schedule 2 to the 1985 Act established a new s. 45 in the 1984
Act:
"45(1). A person engaged in the running of a public
telecommunications system who otherwise than in the course of his
duty intentionally discloses to any person -- (a) the contents of any
message which has been intercepted in the course of its transmission
by means of that system; or (b) any information concerning the use
made of telecommunication services provided for any other person by
means of that system, shall be guilty of an offence.
(2). Subsection (1) above does not apply to -- (a) any disclosure
which is made for the prevention or detection of crime or for the
purposes of any criminal proceedings; (b) any disclosure of matter
falling within paragraph (a) of that subsection which is made
obedience to a warrant issued by the Secretary of State under section 2
of the Interception of Communications Act 1985 ... or (c) any
disclosure of matter falling within paragraph (b) of that subsection
which is made in the interests of national security or in pursuance of
the order of a court."
The new s.45 (3) introduced the provision for a PII certificate to be conclusive
evidence of the interests of national security.
15