MALONE v. THE UNITED KINGDOM JUGDMENT
7
Finally, in March 1981 a report by Lord Diplock, a Lord of Appeal in
Ordinary who had been appointed to monitor the relevant procedures on a
continuing basis (see paragraphs 54 and 55 below), was published outlining
the results of the monitoring he had carried out to date.
22.
The legal basis of the practice of intercepting telephone
communications was also examined by the Vice-Chancellor in his judgment
in the action which the applicant brought against the Metropolitan Police
Commissioner (see paragraphs 31-36 below).
23. Certain changes have occurred in the organisation of the postal and
telephone services since 1957, when the Birkett Committee made its report.
The Post Office, which ran both services, was then a Department of State
under the direct control of a Minister (the Postmaster General). By virtue of
the Post Office Act 1969, it became a public corporation with a certain
independence of the Crown, though subject to various ministerial powers of
supervision and control exercised at the material time by the Home
Secretary. The Post Office Act 1969 was repealed in part and amended by
the British Telecommunications Act 1981. That Act divided the Post Office
into two corporations: the Post Office, responsible for mail, and British
Telecommunications, responsible for telephones. The 1981 Act made no
change of substance in relation to the law governing interceptions. For the
sake of convenience, references in the present judgment are to the position
as it was before the 1981 Act came into force.
B. Legal position relating to interception of communications prior to
1969
24.
The existence of a power vested in the Secretary of State to
authorise by warrant the interception of correspondence, in the sense of
detaining and opening correspondence transmitted by post, has been
acknowledged from early times and its exercise has been publicly known
(see the Birkett report, Part I, especially paras. 11, 17 and 39). The precise
origin in law of this executive authority is obscure (ibid., para. 9).
Nevertheless, although none of the Post Office statutes (of 1710, 1837, 1908
or 1953) contained clauses expressly conferring authority to intercept
communications, all recognised the power as an independently existing
power which it was lawful to exercise (ibid., paras. 17 and 38).
25. At the time of the Birkett report, the most recent statutory provision
recognising the right of interception of a postal communication was section
58 sub-section 1 of the Post Office Act 1953, which 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 ... .