Hullabaloo and . • •
By JOHN SPARROW FT HE 'tapping' controversy began in 1957. It I arose out of the disbarring of Marrinan, a barrister who was found guilty of improper relations with the notorious Billy Hill. The deci- sion to disbar Marrinan was facilitated by evi- dence which the police obtained by tapping Hill's telephone under a warrant from the Home Secre- tary, who authorised the disclosure of the 'inter- cepts' to the Bar Council and the Benchers of Marrinan's Inn.
This case led to the appointment of a committee of three Privy Councillors to report upon 'the exercise by the Secretary of State of the executive power to intercept communications' and to recom- mend 'whether, how and subject to what safe- guards, this power should be exercised and in what circumstances information obtained by such means should be properly used or disclosed.' The inquiry covered 'interception' in both its branches, the opening of letters and the tapping of tele- phones. The Committee reported that the power of interception was exercised only under a warrant granted personally by the Hotne Secretary and only for the prevention or detection of serious crime or for the preservation of the safety of the State, and that it had been effective in achieving these ends with 'infinitesimal' interference with individual privacy or liberty. They recommended the continuance of the power, subject to the safe- guards just mentioned, with a slight tightening-up of the procedure. They also recommended that `intercepts' should be available for use as evidence in'cOurt, but should never be disclosed to private persons or bodies, such as the Bar Council.
Most people, I think, regarded the Report as reassuring and accepted the Committee's safe- guards as sufficient, and no more was heard of the question for two years. The controversy that has recently broken out about it throws doubt not on the soundness of the Committee's rulings but on their scope.
This time, the excitement arose out of the case of one Fox, who was struck off the Medical Register the other day for Conduct about which it is enough to say that, if he was guilty of it (the qualification is important, for Fox has appealed, so that the case is still sub judice), he was at least as great a disgrace to the medical as was Marrinan to the legal profession.
In Fox's case there was a vital conflict of evidence between Fox himself and a lady who may be called 'Mrs. M.' : if Mrs. M. was telling the truth, Fox was guilty; Fox swore that she was lying. The GMC decided against Fox after hear- ing evidence of a telephone conversation between Fox and Mrs. M., which was 'listened in on' by the police (who had been called in by the Coroner investigating the death of one of Fox's patients).
As soon as it became known that this evidence had been used in the case, there was a flood of questions in Parliament, and a violent leader, 'The Tappers Return,' appeared in the Spectator. All the Committee's safeguards, said the Spectator, had been 'flagrantly violated': 'The tapping was not authorised by the Home Secretary, and it did not concern serious crime or national security; it was made available to a domestic tribunal'; and the writer, freely using such words as 'scandal,' 'corruption' and 'the road to ruin,' went on to call for the 'severe punishment' of the policemen con- cerned. The same tune was sung by a chorus in the House of Commons, led by Messrs. Paget, Lipton, Silverman and Gordon Walker.
Of course, the 'safeguards' had been flouted, if this was a case of tapping; if it was not, the safe- guards did not apply. Was it a case of tapping, or was it not?
Marrinan's was clearly such a case: the police, unknown to the parties, had tapped the line be- tween the two terminals. In Fox's case, on the other hand, they had listened. (1) at Mrs. M.'s terminal, (2) on her installation, and (3) with her full consent. The Spectator's leader, minting all mention of these three factors, treated the case as being indistinguishable from Marrinan's and clearly covered by the Committee's report.
I challenged this position in a letter to the editor, seeking to distinguish 'tapping' or 'interception' from terminal listening with consent, and adding: 'I do not pretend to say whether the Birkett Com- mittee ought to have dealt with the latter type of case, or how (if so) they ought to have dealt with it; the fact is that they did not deal with it at all.'
As the controversy over the Fox case in our correspondence columns had begun to be confusing, we suggested to Mr. John Sparrow, the Warden of All Souls, that he should set out his views on telephone- tapping in detail, as an article; and to Bernard Levin, that he should reply. We are content to let readers judge between them.
That I was right is proved by the Report itself. Paragraph 151 is explicit : 'It is an inevitable con- sequence of tapping the telephone' of a suspect, say the Committee, that 'all messages to him, innocent or otherwise, are necessarily intercepted too' This fits exactly what I call 'tapping,' but cannot be made to fit what was done in Fox's case —the terminal listening to an individual call; and the word 'inevitable' shows that what the Com- mittee had in mind covered every kind of tele- phone interception as they understood that term. A number of passages in the Report confirm, and nothing in it contradicts, this explanation of what the Committee meant by 'interception' This accords with the legal principle involved. The Committee was appointed to investigate 'the exercise of the executive power [my italics] of interception'—a power which depends (see para- graphs '9 to 52) on a prerogative or common law right of the Crown and is delegated by the Home Secretary's warrant. No such right need be invoked (either by the' police or by a private individual) in order to listen in on my telephone with my consent; my permission suffices; the executive power is not in question and no warrant is required. (That the Committee recognised this will be clear from a careful reading of para. 52 of their Report, with its reference to s.58 of the P.O. Act, 1953.) In short, the Spectator's and the MPs' violent , attacks upon the police were based 'on a, funds' mental misunderstanding of the Report and a failure to appreciate the main legal principle that underlay it.
Of course it is open to the Spectator now V' change its ground and to say either (a) that 111' Committee misinterpreted their terms orreference and ought to have dealt withterminal listening be- cause terminal listening is 'tapping' (or Intercer tion'), or (b) that their terms of reference ought to have been widened so as to include terminal listen' ing because terminal listening; though it is not WI' ping, ought to be treated as such.
These are matters of opinion. 1 can onll say that few, in my opinion, will agree with the' Spectator's doctrine that, 'If,' When' olie person is telephoning to another, a third perion is listening on the line, that communication is being inter. cepted'; as a matter of plain English, Ishould say that a person who, with my consent, listCns to a call on my library extension While I listeri to it in the study, is neither 'tapping' the Caller's line nor 'intercepting' his call to me. Nor does it seem to me reasonable that I should have to obtain a warrant from the Home Secretary before I allow a private individual,.or a palicemar4 to use a telephone extension in my house, even if the fact of his listening is unknown to the person making the call and my object is to secure proof that that person is blackmailing nic or otherwis. doing me wrong. No warrant is,peeded in the case (essentially indistinguishable) where a third party' hidden in the room, actually overhears the black' mailer. In either ease,*the culprit is being trapped, and the procedure is not nice for anyone con' cerned; but such traps are sometimes a necessity if an unscrupulous and resourceftl sCOunc:. el is to be unmasked. It is reasonable that a 'warrant should be required only where the very special executive power involved in a case of true 'tapping' is," invoked, for that is a power that can be used only by the authorities and without the knowledge of the persons concerned, and. it is desirable, therefore, that its exercise 'should be strictly, supervised. This (and this only) was what the Committee's report provided for.
There remains the question of 'disclosure. Whether the Committee was right to forbid th° use of intercepts by 'domestic' tribunals may be doubted—that, again, is a question that I should be delighted to argue if space permitted. But it haS no present relevance, for it is only to 'inter' cepts,' arising from true tapping, that the Coo mittee's safeguard has any application, and no violation of its ruling was involved in disclosing to the GMC the information obtained by terminal listening in the case of Fox.
The hullabaloo, to sum up, was all about a mare's nest. The 'great public concern and Mary alleged in the House of Commons by Mr. Gordon Walker, if it existed (which I do not believe), 05 founded all on a mistake, fostered,--innocen0, no doubt—by inflammatory agitation in the pres51 and in the House of Commons.
If my reasoning is cogent (and I hope it will not be thought to be the less so for not being couched in violent or abusive language), it Would seem thtit an apology is due to the authorities, and in Par- ticular to the police, for the intemperate criticise'' to call it by no stronger name, to which they h-i", r been undeservedly subjected.