POLICE AND TELEPHONE CONVERSATION (Hansard, 17 December 1959)

§ LORD MORRISON OF LAMBETH
My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.

§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, I understand that in this case the police listened on a private extension of a telephone, and made a shorthand note of the conversation, with the consent of the subscriber, in the course of criminal investigations made at the request of the deputy coroner. I should make it clear at the outset that this was not"telephone tapping", in the sense of secret interception of telephone conversations without the knowledge of either party, with which alone the Birkett Committee was concerned. It did not therefore require the authority of the Secretary of State, and no infringement of the law was involved.
After the police had reported to the deputy coroner and the inquest was concluded, the deputy coroner thought it right to report the circumstances to the General Medical Council. The subscriber in question later informed a solicitor acting on behalf of the General Medical Council that the conversation had taken place and that there was a note of it in existence. A subpœna was served on the police shorthand writer to give evidence and produce the note before the Disciplinary Committee of the General Medical Council. The Chief Constable thereupon referred to my right honourable friend the Home Secretary the question whether Crown privilege should be claimed. After taking the advice of the Law Officers, he decided that it should not, because to do so might have involved some extension of the scope of Crown privilege and because the evidence of the subscriber as to the content of the conversation was available.
My Lords, the case raises two questions, and they are of deep importance. First, how far is it proper for the police to listen in to a telephone conversation with the consent of a party? Second, is it right that information obtained by the police in the course of criminal investigations should be made available to the disciplinary tribunals of professional bodies for another purpose?
531 With regard to the first question, it would, in the Government's view, be wrong to tie the hands of the police by prohibiting them from listening to a telephone conversation with the consent of a subscriber when they are investigating serious crime, and it would be unjustifiable and impracticable to require them to obtain the Secretary of State's authority before doing so. My right honourable friend, the Home Secretary, is informed that this method of inquiry is sparingly employed, but he proposes to bring to the notice of chief officers of police the views expressed in both Houses of Parliament. He will also ask them to notify him in any case where they are required by any disciplinary body to produce evidence, so that he may consider whether it would be in the public interest to make a claim of Crown privilege.
The more important question is whether professional bodies, in the conduct of disciplinary proceedings, should be able, by the use of their powers of subpœna, to compel the police to produce the evidence which they have obtained from their investigations, and, if so, on what conditions and subject to what safeguards this power should be exercised. This is a difficult question, which in the view of the Government merits authoritative and impartial examination. They have therefore decided to appoint a Committee to consider this problem. The terms of reference of the Committee will be as follows:— To consider to what extent and subject to what conditions subpœnas (or in Scotland citations) should be issuable to secure the attendance of witnesses and the production of documents before disciplinary tribunals; and in particular to consider whether subpœnas should be issuable to secure the production before such tribunals of evidence obtained by police officers in the course of criminal investigation; and to make recommendations. I am glad to be able to inform the House that my noble and learned friend, Lord Simonds, has agreed to act as Chairman of the Committee. There will be two other members, one from Scotland and one from England, whose names will be announced shortly.

§ LORD MORRISON OF LAMBETH
My Lords, the House will be obliged to the noble and learned Viscount the Lord Chancellor, for that comprehensive reply to the Question I put. May I ask one or two questions with regard to points on 532 which the reply does not appear to cover the ground concerned? May I first ask the noble and learned Viscount whether he recalls that in the Summary of Conclusions of the Report of the Birkett Committee, it was stated: We consider that the decision of the then Secretary of State to make transcripts of intercepted telephone conversations available to the Bar Council and the Benchers of Lincoln's Inn was a mistaken decision. Does not the Lord Chancellor's reply appear to be in conflict with the recommendation of the Birkett Committee, which we understood was generally accepted by Her Majesty's Government? There was a second recommendation, in paragraph 154: We recommend that in no circumstances should material obtained by interception be made available to any body or person whatever outside the public service. It may be argued that what occurred in the case we are discussing was not interception: it was merely listening in, with the consent of one of the parties, to the conversation. But there was another party to the conversation who apparently was not consulted.

THE LORD PRESIDENT OF THE COUNCIL AND SECRETARY OF STATE FOR COMMONWEALTH RELATIONS (THE EARL OF HOME)
My Lords, if I may interrupt, I was wondering whether we are going to have a debate. Would the noble Lord ask a question?

§ LORD MORRISON OF LAMBETH
I was not trying to make a debate. I am much obliged. May I ask, then: is this reply in accordance with the decisions of the Birkett Committee? Finally, may I ask the noble and learned Viscount whether the fact that the subpœna was responded to, and the Government did not rely upon Crown privilege, was also in accordance with the spirit of the Birkett Report?

§ THE LORD CHANCELLOR
My Lords, I think that I should be adequately interpreting the noble Lord's first question if I put it in this form: whether the conduct of the police and the Home Secretary in this case infringes the spirit, if not the letter, of the Birkett Report, My answer to that question is an emphatic, No. Secret interception by the Post Office of telephone conversations or letters in the course of transit 533 without—I repeat, without—the knowledge or consent of either party is one thing. Listening to a conversation with the consent of the subscriber, or reading a letter with the consent of the recipient, is another. Secret interception may be done only on the authority of an express warrant of the Secretary of State. The Birkett Committee were concerned with that practice alone.
I point out to my noble friend (it is really unnecessary to do so, because he has occupied the position of Home Secretary; and I myself gave evidence before the Birkett Committee as to the legal position which has existed for many centuries and as to the practice of Home Secretaries; and that is an important matter) that it can be done only on the express warrant of the Home Secretary. The noble Lord has given those warrants, just as I have, and he would agree with me that they are given only after the most serious and careful consideration of the fact that the interests of the State require that the warrant is given. I am sure he never transgressed that; I tried not to trangress that. The Birkett Committee were concerned with that practice alone. The Government accepted the recommendations of the Committee. It has faithfully carried them out and will continue to do so.
Listening to a telephone conversation by the police on an extension with the consent of the subscriber is quite another matter. It does not differ in principle from other methods of inquiry which involve disclosure by one party of a transaction without the knowledge of another—for example, reading a letter without the consent of the writer, or listening to a conversation from a place of concealment with the consent of the person on whose premises it takes place. If I may remind as good a Shakespearean as the noble Lord, Lord Morrison of Lambeth, he will remember that in Hamlet the Queen knew that Polonius was listening to the conversation behind the arras, but Hamlet did not. The position would not have been substantially different in this particular case if the subscriber had made a note of the conversation herself or if a friend or relative had listened and made a note and she had given this to the police.
There is no justification for singling out this method of inquiry from others—and I venture to emphasise this point—which are essential to police investiga- 534 tion in their fight against crime, but which, of course, we should hesitate to use for our private purposes. It would be unjustifiable either to prohibit the police from listening to telephone conversations altogether, or to require them to obtain the prior authority of the Secretary of State. I am sure the noble Lord will agree with that. The idea of provincial forces ringing up the Home Office and getting on to the noble Lord before they decided what action would enable them to discover a crime, is not one which appeals to one's practical instincts. Of course it would be quite impracticable, because there is usually no time in which to refer the matter to the Home Office.
I come to the second question. I hope your Lordships will forgive me for taking so much time on this matter, but it is one which I consider of great importance. Crown privilege may be claimed only for certain classes of document, and the document in question did not clearly fall within any of the classes for which privilege has been claimed in the past and, in particular, it did not belong to the class defined by my noble and learned friend, the late Lord Simon, which it is necessary for the proper functioning of the public service to keep secret. I can say this. For the five and a quarter years I have been Lord Chancellor, and for many years before, all the public pressure has been to restrict the use of Crown privilege, for this very good reason: that Crown privilege means that the executive can say,"This evidence will not be used," and the rights of individual subjects of Her Majesty are determined on the rest of the evidence without what might be vital evidence. So long as I am Lord Chancellor, I propose to stand by it that Crown privilege will not be exercised unless it is absolutely essential within the rules, because if one tried to extend it as my right honourable friend was asked to extend it here, it would be denying justice between subjects as to their ordinary rights.

§ VISCOUNT STANSGATE
My Lords, if there is a representative of the Post Office, may I, as a telephone subscriber, put a question to him? I am told that I cannot have a telephone unless I share it with a neighbour. May I insert in the contract that that neighbour shall not give facilities for the police to overhear my conversation?

§ THE LORD CHANCELLOR
My Lords, I am sure that those of us who have known the noble Viscount for as long as I have are certain that the police would never have any interest in, however much reverence they will have for, his conversation.

§ VISCOUNT ALEXANDER OF HILLSBOROUGH
My Lords, I have no desire to prolong this matter. I would only say that we are grateful for the comprehensive way in which the Lord Chancellor has dealt with the case and that we agree with a great deal of what he has said. Nevertheless, we ask him to remember that there is a feeling of grave uncertainty and anxiety about the method of passing over such conversations as occurred in the case to the General Medical Council.

§ THE LORD CHANCELLOR
My Lords, if I may say so—I do so without the thought of being fulsome—the noble Viscount who leads the Opposition has put his hand on the point on which I entirely agree: there is Parliamentary and public disquiet as to how far information obtained for one purpose, for the discovery of crime, should be used for evidence. It is because we entirely agree with the noble Viscount that we have appointed this Committee to consider this important point. I ask him to accept that quite fully and without reservation.