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Michael Drury

Partner, BCL Solicitors LLP

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The NCA represented that it had done its best to understand the position of its European counterparts and the precise details on how it penetrated the EncroChat system were unclear and remain so today

EncroChat: the judgment from the Investigatory Powers Tribunal – not quite the end of the road

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EncroChat: the judgment from the Investigatory Powers Tribunal – not quite the end of the road

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Michael Drury discusses the implications of the recent ruling by the Investigatory Powers Tribunal on the issues surrounding the admissibility of evidence arising from the penetration of EncroChat

EncroChat cases have become a rich source of both work and, more importantly, interest for solicitors and barristers acting in the criminal courts since the cases flowing from the National Crime Agency’s (NCA) Operation Venetic started in or around 2020. The most recent development has come from the Investigatory Powers Tribunal (IPT) in its judgment delivered on 11 May 2023 (SF and Ors v NCA IPT 21 05 CH). 

The legal issues

Before we consider the implications of that and the future, it is worth briefly recording the key legal point at issue. Essentially, it is whether or not the evidence obtained from penetrating the encrypted communication carried by EncroChat, was the interception of a communication in the course of its transmission and is, therefore, prohibited from being provided as evidence in English criminal proceedings because of the absolute ban on the admission of such material provided for in Section 56 of the Investigatory Powers Act 2016 (IPA). 

That ban, controversial though it is, has been in place since the first thorough-going statutory attempt to regulate the interception of communications in the Interception of Communications Act 1985. A broader question is the extent to which the apparent powerful evidence to be seen in the decrypted communications carried on the EncroChat system gives rise to further attempts to lift the prohibition. There will continue to be views both ways, strengthened by the outcome in these cases, but that is another argument for another day. 

To the extent that the defence were able to assert that the evidence was obtained from the interception of a communication in the course of its transmission it would be inadmissible and much of the material to be used in evidence against defendants could not be deployed as function of the law without any possibility of argument. Section 56 is categoric: such evidence is not admissible. On its face, the evidence provided powerful – and often irrefutable proof – of involvement in serious criminal offences, particularly in the movement of drugs in large quantities, as well as threats to life. Hence, the NCA was keen to use the material wherever it could. 

The background

The factual background is that prior to 2020, an encrypted communications system called EncroChat using special handsets was developed, it seems, for use by criminals to enable them to communicate securely. The maxim that ‘it was reassuringly expensive’ applied and so the users of the systems, having bought into it and using what they believed to be entirely secure handsets, were indiscreet (to say the least) about the criminal nature of the activities. Unfortunately for them, the authorities in the Netherlands and France were able to penetrate the system and record, not only historic communications, but those in the future.

Sharing the data obtained with the NCA in the UK, by means of a European Investigation Order (as was then possible during the course of the UK’s membership of the European Union) has resulted in the NCA and the Crown Prosecution Service (CPS) securing nearly 1000 convictions (many of them on the basis of guilty pleas, surely due to the weight of the evidence), with well over 1500 individuals said to be awaiting trial. Arguably, this is the NCA’s biggest ever success. 

Challenging the evidence

It is against this background that the defence first in trials in Liverpool and Manchester sought to challenge the evidence resulting in the judgments by the Court of Appeal in A,B,D and C v R [2021] EWCA Crim128 and in R v Atkinson and others [2021] EWCA Crim 1447. Such is the secrecy that continues to surround these issues, the judgment in Atkinson remains unreported.

In those cases, the Court of Appeal rejected the defence arguments that the EncroChat communications were, in fact, intercepted while being communicated rather than when they were ‘stored,’ the significant difference being that in the latter case assuming that the NCA had obtained stored communications, the contents of such communications were admissible. In preliminary issues at trial, substantial evidence had been provided by NCA officers about what they knew about the methodology employed by their Dutch and French counterparts to access the ‘stored’ communications, but it seems clear that ultimately the precise methodology used remains unknown despite many attempts both by the NCA and experts instructed by the defence to discover it.

Accordingly, the Court of Appeal found the evidence to be admissible and gave short shrift to suggestions that future arguments could be raised in hearings in light of the ruling.

There were ancillary arguments about the extent to which actions outside the UK fell within the prohibition on the admissibility of communications intercepted in the course of their transmission; the use of mutual legal assistance warrants or interception under the IPA; and the extent to which the NCA was subverting the requirements of the IPA by seeking to have the Dutch and French law enforcement agencies undertake interception on its behalf.

However, the main point from those criminal cases remains that in EncroChat the communication being ‘intercepted’ was stored by or in the system at the time it was intercepted. It followed that its admissibility was not prohibited by Section 56, and the use by the NCA to legitimise its actions under a targeted equipment interference warrant (TEI) did not create the circumstances which made the evidence inadmissible, as would have been the case had the NCA applied for a targeted interception warrant under the IPA.

The latest ruling

As part of the ongoing assault on the actions of the NCA, parallel proceedings were brought before the IPT and it is those which resulted in its 11 May judgment in SF and Ors. The challenge there was the suggestion that the NCA knew or believed – or at the very least had no reason not to think – that the methodology applied by their Dutch and French counterparts was in fact intercepting a communication in the course of its transmission.

That being so, it was suggested that the NCA’s ‘duty of candour’ had not been met where it applied for a targeted equipment interference warrant under the IPA: in effect, the applicants were accusing the NCA of at worst bad faith and at best careless disregard for the facts motivated by the need to ensure that whatever evidence was being provided by their European counterparts was admissible in England. On this basis, it was suggested that the accompanying European Investigation Order should also not have been issued and that it was not lawful. (As an aside, the NCA’s position was that a TEI warrant was necessary to remove its criminal liability in the UK, as it would be party to what otherwise would constitute an offence of conspiracy to commit an offence under the Computer Misuse Act 1990 because interference in EncroChat handsets was/would be criminal in the UK to the extent the NCA was party to it.)

Before the IPT there were arguments about whether a TEI was required at all and if, in fact, what should have been obtained was a ‘bulk’ equipment interference warrant on the basis that the nature of the operation was too general in nature to permit a targeted interference.

In short, the IPT found on the facts that the NCA did not fail in its duty of candour in applying for a TEI and, therefore, had not acted unlawfully. It also found that it did not need to obtain a TEI (or for that matter a targeted interception warrant) to lawfully obtain the EncroChat data from its European counterparts. Nor did it find that a bulk equipment interference warrant was necessary.

Finally, it found that it did not have any jurisdiction to review a European Investigation Order.

Conclusion

None of these conclusions were, perhaps, particularly surprising on the facts. The NCA represented that it had done its best to understand the position of its European counterparts and the precise details on how it penetrated the EncroChat system were unclear and remain so today. As a separate point it is worth noting that the evidence being admitted in the criminal trials has arguably never been ‘strictly proved’ and so, at least theoretically, it is vulnerable to attack by the defence. However, the earlier judgments from the Court of Appeal Criminal Division and what is an effective bar on raising further arguments about admissibility has by and large ended such challenges.

In summary, the recent IPT decision has ended the parallel challenge that the NCA did not ‘play straight’ in seeking what it considered to be the relevant warrantary authority to make lawful its access to and subsequent use of the EncroChat material available to its European counterparts. This adds to the judgment of the Court of Appeal Criminal Division to the effect that such evidence is admissible in criminal trials. There is only one point remaining, which is that the IPT reserved its consideration of the issue on whether interception was in fact taking place in the course of a transmission. That may provide a glimmer of hope for those who would seek to revive arguments in criminal trials. But it is only a glimmer. The IPT in deferring its consideration of this issue specifically did so on the basis that criminal trials were pending based on the rulings in A,B,D and C v R indicating it would not consider the issue pending the conclusion of those proceedings. This, taken together with the IPT’s rulings about the need for a TEI warrant at all and the existing Court of Appeal judgments realistically give little succour to those who would seek to deny the admissibility of evidence arising from the penetration of EncroChat.

Michael Drury is a partner at BCL Solicitors
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