MALONE v. THE UNITED KINGDOM JUGDMENT
29
This issue was considered under two heads in the pleadings: firstly,
whether the law was such that a communication passing through the
services of the Post Office might be intercepted, for police purposes, only
pursuant to a valid warrant issued by the Secretary of State and, secondly, to
what extent the circumstances in which a warrant might be issued and
implemented were themselves circumscribed by law.
71. On the first point, whilst the statements of the established practice
given in the Birkett report and the White Paper are categorical para. 55 of
the Birkett report and para. 2 of the White Paper - see paragraph 42 above),
the law of England and Wales, as the applicant rightly pointed out (see
paragraph 56 of the Commission’s report), does not expressly make the
exercise of the power to intercept communications subject to the issue of a
warrant. According to its literal terms, section 80 of the Post Office Act
1969 provides that a "requirement" may be laid on the Post Office to pass
information to the police, but it does not in itself render illegal interceptions
carried out in the absence of a warrant amounting to a valid "requirement"
(see paragraph 29 above). The Commission, however, concluded that this
appeared to be the effect of section 80 when read in conjunction with the
criminal offences created by section 58 para. 1 of the Post Office Act 1953
and by the other statutory provisions referred to in paragraph 1, subparagraph 1 of Schedule 5 to the 1969 Act (see paragraphs 129-135 of the
report, and paragraphs 25, 26 and 30 above). The reasoning of the
Commission was accepted and adopted by the Government but, at least in
respect of telephone interceptions, disputed by the applicant. He relied on
certain dicta to the contrary in the judgment of Sir Robert Megarry (see
paragraphs 31-36 above, especially paragraphs 33 and 35). He also referred
to the fact that the 1977 Home Office Consolidated Circular to Police made
no mention, in the section headed "Supply of information by Post Office to
police", of the warrant procedure (see paragraph 50 above).
72.
As to the second point, the pleadings revealed a fundamental
difference of view as to the effect, if any, of the Post Office Act 1969 in
imposing legal restraints on the purposes for which and the manner in which
interception of communications may lawfully be authorised by the Secretary
of State.
73. According to the Government, the words in section 80 - and, in
particular, the phrase "for the like purposes and in the like manner as, at the
passing of this Act, a requirement may be laid" - define and restrict the
power to intercept by reference to the practice which prevailed in 1968. In
the submission of the Government, since the entry into force of the 1969
Act a requirement to intercept communications on behalf of the police can
lawfully be imposed on the Post Office only by means of a warrant signed
personally by the Secretary of State for the exclusive purpose of the
detection of crime and satisfying certain other conditions. Thus, by virtue of
section 80 the warrant must, as a matter of law, specify the relevant name,