A large number of criminal cases pending trial rely, to a greater or lesser extent, on the admissibility of communications made via the supposedly highly encrypted EncroChat service.
The Court of Appeal has now issued a ruling which, for some defendants, will present a significant hurdle for them to overcome – the main issue related to whether the communications were intercepted when they were transmitted or when they were recovered from storage.
The EncroChat material had been obtained by a Joint Investigation Team of French and Dutch investigators and prosecutors who had ‘interfered’ with the EncroChat communications system. It was then supplied to the United Kingdom authorities where it was used in a large number of investigations.
In the present case the judge heard evidence about how this had taken place and then made findings of fact. He applied the United Kingdom domestic law governing the admissibility of such material, which is found in the Investigatory Powers Act 2016 (“the 2016 Act”).
The 2016 Act adopts a domestic law framework which is unique in Europe. Historically, intercept material (for example, phone tapping) could be lawfully obtained by the authorities. Subject to a number of exceptions, however, it could not be used in evidence in proceedings.
In many other jurisdictions, including France and the Netherlands, there is no blanket prohibition on the admission into evidence of intercept material.
The 2016 Act superseded the law found in the Regulation of Investigatory Powers Act 2000, which itself replaced the Interception of Communications Act 1985. Major changes between the current regime and the one established in the 2000 Act concern the new regulatory and supervisory system established by the 2016 Act. The law relating to admissibility of intercept material, and the definition of what is and is not intercept material also changed in important ways.
The essential point before the Court of Appeal was the submission, rejected by the judge, that the EncroChat material was intercept material and inadmissible in criminal proceedings because of section 56 of the 2016 Act, and further that it was unlawfully obtained under a Targeted Equipment Interference warrant, when its obtaining should have been identified as a kind of interception which would require a Targeted Interception warrant.
Targeted Equipment Interference warrants are governed by Part 5 of the 2016 Act and may produce material which can be used in evidence. Targeted Interception warrants are governed by Part 2 of the Act and the product is inadmissible in evidence in almost all criminal proceedings.
The judge found that the EncroChat material in this case was obtained under Part 5 warrants. These were approved by Sir Kenneth Parker, a Judicial Commissioner, on 5 March 2020, and Sir Brian Leveson, the Investigatory Powers Commissioner, on 26 March 2020, prior to the obtaining of the EncroChat material.
The issue was whether that approach was correct, or whether on a true understanding of the way the data was obtained, and of the 2016 Act, the material had been obtained unlawfully under the wrong warrant and, in any event, was inadmissible.
The prosecution submitted that:
- the EncroChat messages were admissible and fell within the exception provided by section 56(1) and schedule 3 paragraph 2 of the Act because the messages were “stored in or by the system” at the time when they were intercepted; and, in any event
- that the material was not obtained as a result of “interception related conduct” because none of the five classes of such conduct (as contained within section 56(2) of the Act) applied to the present case, alternatively it was not conduct carried out in the United Kingdom within the scope of section 4(8) of the Act.
The key question was whether at the relevant time the communications were “being transmitted” or were “stored in or by the telecommunication system.” The judge found the latter to be the case. He concluded that the EncroChat messages fell within section 4(4)(b) of the 2016 Act and that they had been obtained in accordance with a Targeted Equipment Interference warrant for the following reasons:
1.) At the relevant time when the messages were made available they were not “being transmitted.” The incorporation of the nickname for the sender from the data held in the receiver’s device demonstrated that the transmission process of the data had finished. The EncroChat data was properly to be regarded as “stored in or by the system (whether before or after transmission)” and accordingly subject to section 4(4)(b) of the 2016 Act.
2.) The Equipment Interference Code of Practice was published pursuant to Schedule 7 of the 2016 Act and was admissible as evidence in criminal proceedings. It addressed the exercise of functions under Part 5 of the 2016 Act and the authorisation of Targeted Equipment Interference warrants and their operation. The judge considered that these provisions from this Code of Practice were consistent with the conclusions that he had already made in relation to this issue.
3.) Having considered the provisions of section 99 of the 2016 Act in relation to Targeted Equipment Interference warrants and the scope of such warrants, the judge decided that the interceptions in the present case had been carried out in accordance with the warrant that had been obtained. The warrant application accurately described the way in which the implant was to operate and the warrant authorised what had then been done.
What did the Court of Appeal rule?
The Court of Appeal held:
“… The communication is that which is transmitted. What remains on the device is not what has been transmitted, but a copy of it or what, in older forms of messaging, might be described as a “draft”. That is so however quickly after transmission the obtaining of the copy takes place, or even if the copy is extracted while the original encrypted communication is being transmitted. The fact that what was obtained was an unencrypted message, means that what was on the phone, and what was intercepted, was not the same as what had been transmitted because what had been transmitted was encrypted. It cannot therefore have been “being transmitted” when it was intercepted: it can only have been “being stored”.
That being so, the harvesting was interception but was rendered lawful by the Targeted Equipment Interference warrants issued under section 99 of the Act.”
“We have concluded that the only substantial question which the judge was required to answer was whether the EncroChat material was stored by or in the telecommunications system when it was intercepted. Like him, we consider that these communications were not being transmitted but stored at that time.”
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