MALONE v. THE UNITED KINGDOM JUGDMENT
15
statutory control on similar lines to that which we have recommended for search
warrants. As with all features of police investigative procedures, the value of
prescribing them in statutory form is that it brings clarity and precision to the rules;
they are open to public scrutiny and to the potential of Parliamentary review. So far as
surveillance devices in general are concerned this is not at present so.
...
We therefore recommend that the use of surveillance devices by the police
(including the interception of letters and telephone communications) should be
regulated by statute."
These recommendations were not adopted by the Government.
40. A few months later, the Law Commission, a permanent body set up
by statute in 1965 for the purpose of promoting reform of the law, produced
a report on breach of confidence (presented to Parliament in October 1981 Command Paper 8388). This report examined, inter alia, the implications
for the civil law of confidence of the acquisition of information by
surveillance devices, and made various proposals for reform of the law
(paras. 6.35 - 6.46). The Law Commission, however, felt that the question
whether "the methods which the police ... may use to obtain information
should be defined by statute" was a matter outside the scope of its report
(paras. 6.43 and 6.44 in fine). No action has been taken by the Government
on this report.
F. The practice followed in relation to interceptions
41. Details of the current practices followed in relation to interceptions
are set out in the Government’s White Paper of 1980. The practices there
summarised are essentially the same as those described and recommended
in the Birkett report, and referred to in Parliamentary statements by
successive Prime Ministers and Home Secretaries in 1957, 1966, 1978 and
1980.
42. The police, H.M. Customs and Excise and the Security Service may
request authority for the interception of communications for the purposes of
"detection of serious crime and the safeguarding of the security of the State"
(paragraph 2 of the White Paper). Interception may take place only on the
authority of the Secretary of State given by warrant under his own hand. In
England and Wales, the power to grant such warrants is exercised by the
Home Secretary or occasionally, if he is ill or absent, by another Secretary
of State on his behalf (ibid.). In the case of warrants applied for by the
police to assist them in the detection of crime, three conditions must be
satisfied before a warrant will be issued:
(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;