MALONE v. THE UNITED KINGDOM JUGDMENT
9
only on the express warrant of the Secretary of State (see the Birkett report,
paras. 40-41).
The Birkett Committee considered that the power to intercept telephone
communications rested upon the power plainly recognised by the Post
Office statutes as existing before the enactment of the statutes (Birkett
report, para. 50). It concluded (ibid., para. 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."
C. Post Office Act 1969
29. Under the Post Office Act 1969, the "Post Office" ceased to be a
Department of State and was established as a public corporation of that
name with the powers, duties and functions set out in the Act. In
consequence of the change of status of the Post Office and of the fact that
the Post Office was no longer under the direct control of a Minister of the
Crown, it became necessary to make express statutory provision in relation
to the interception of communications on the authority of a warrant of the
Secretary of State. By section 80 of the Act it was therefore provided as
follows:
"A requirement to do what is necessary to inform designated persons holding office
under the Crown concerning matters and things transmitted or in course of
transmission by means of postal or telecommunication services provided by the Post
Office may be laid on the Post Office for the like purposes and in the like manner as,
at the passing of this Act, a requirement may be laid on the Postmaster General to do
what is necessary to inform such persons concerning matters and things transmitted or
in course of transmission by means of such services provided by him."
30. The 1969 Act also introduced, for the first time, an express statutory
defence to the offences under the Telegraph Acts mentioned above (at
paragraph 26), similar to that which exists under section 58 para. 1 of the
Post Office Act 1953. This was effected by paragraph 1 sub-paragraph 1 of
Schedule 5 to the Act, which reads:
"In any proceedings against a person in respect of an offence under section 45 of the
Telegraph Act 1863 or section 11 of the Post Office (Protection) Act 1884 consisting
in the improper divulging of the purport of a message or communication or an offence
under section 20 of the Telegraph Act 1868 it shall be a defence for him to prove that