8
MALONE v. THE UNITED KINGDOM JUGDMENT
Provided that nothing in this section shall extend to ... the opening, detaining or
delaying of a postal packet ... in obedience to an express warrant in writing under the
hand of a Secretary of State."
"Postal packet" is defined in section 87 sub-section 1 of the Act as
meaning:
"a letter, postcard, reply postcard, newspaper, printed packet, sample packet or
parcel and every packet or article transmissible by post, and includes a telegram".
Section 58, which is still in force, reproduced a clause that had been on
the statute book without material amendment since 1710.
26. So far as telecommunications are further concerned, it is an offence
under section 45 of the Telegraph Act 1863 if an official of the Post Office
"improperly divulges to any person the purport of any message". Section 11
of the Post Office (Protection) Act 1884 creates a similar offence in relation
to telegrams. In addition, section 20 of the Telegraph Act 1868 makes it a
criminal offence if any Post Office official "shall, contrary to his duty,
disclose or in any way make known or intercept the contents or any part of
the contents of any telegraphic message or any message entrusted to the
[Post Office] for the purpose of transmission".
These provisions are still in force.
27. It was held in a case decided in 1880 (Attorney General v. Edison
Telephone Company, (1880) 6 Queen’s Bench Division 244) that a
telephone conversation is a "telegraphic communication" for the purposes of
the Telegraph Acts. It has not been disputed in the present proceedings that
the offences under the Telegraph Acts apply to telephone conversations.
28. The power to intercept telephone messages has been exercised in
England and Wales from time to time since the introduction of the
telephone. Until the year 1937, the Post Office, which was at that time a
Department of Government, acted upon the view that the power which the
Crown exercised in intercepting telephone messages was a power possessed
by any operator of telephones and was not contrary to law. Consequently,
no warrants by the Secretary of State were issued and arrangements for the
interception of telephone conversations were made directly between the
police authorities and the Director-General of the Post Office. In 1937, the
position was reviewed by the Home Secretary and the Postmaster General
(the Minister then responsible for the administration of the Post Office) and
it was decided, as a matter of policy, that it was undesirable that records of
telephone conversations should be made by Post Office servants and
disclosed to the police without the authority of the Secretary of State. The
view was taken that the power which had for long been exercised to
intercept postal communications on the authority of a warrant of the
Secretary of State was, by its nature, wide enough to include the
interception of telephone communications. Since 1937 it had accordingly
been the practice of the Post Office to intercept telephone conversations