The recent decision of the Investigatory Powers Tribunal (IPT), in some ways, represents a victory for the National Crime Agency. It affirms the lawfulness of hacking EncroChat communications. However, it is questionable how much this judgment really changes things for defendants currently in the midst of EncroChat cases.

On 11 May 2023 the IPT, who deal with complaints made against investigatory bodies, ruled that the National Crime Agency (NCA) did not fail to obtain proper warrants when accessing encrypted messages sent via EncroChat. However, the story is far from over as the IPT also declined to answer certain questions over the admissibility of these intercepted EncroChat communications.

 

EncroChat offered its users a platform to send encrypted messages that were seen to be safe from detection and attribution. As though straight from a spy film; all these devices include panic buttons where users can send a ‘kill pill’ to destroy the entire contents of their phones. However, in 2020 a joint European investigation team managed to recover communications through the EncroChat platform. On 26 March 2020 a targeting equipment interference warrant (TEI) was approved by the Investigatory Powers Commissioner, giving the NCA access to the product of this EncroChat infiltration. This TEI warrant is the subject of the Investigatory Powers Tribunal’s judgment. Under the codenames Operation Eternal (Met Police) and Venetic (NCA), investigators began to analyze vast amounts of data resulting in hundreds of arrests, seizures and convictions.

 

Defendants embroiled in cases involving EncroChat communications have sought previously to challenge its admissibility, without any success. The IPT proceedings are the latest in the string of challenges and, while it has clarified some areas of contention, it has not resolved all of them.

 

In the criminal law context, the Court of Appeal had previously considered the admissibility of Encrochat material (A & Others [2021] EWCA Crim 128). There were two categories of argument in that decision: that the material was inadmissible by statute because it was intercepted during the transmission of messages; and that the investigatory powers were defective and so the proceedings were unfair. The Court of Appeal rejected both limbs.

 

The IPT judgment focuses on the second of these, given its role, and confirmed that the NCA acted lawfully in applying for and executing the warrants under review. It is a separate question as to whether the evidence was gathered in line with the warrants as granted, which has a significant overlap with the first question as both rely on whether the material was gathered in transit or from storage.

 

This is a question of fact that is the subject of technical evidence. At the time of A & Others, there was no evidence to rebut the NCA’s assertions. This may change and is not settled. For this reason, the IPT has declined to rule further pending the decisions in the Criminal Courts.

 

It should be noted that Defendants wishing to mount admissibility challenges face two significant hurdles. First, the rule barring the use of transit-intercept material is one of policy not principle: it is to protect the law enforcement process, not the privacy of criminal suspects. Second, in the law of England and Wales, unlawfully gathered evidence is not inadmissible as of right and the Court will have to balance up the interests of justice in each case.

 

For this reason, it is important to remember that for those facing EncroChat proceedings, challenging admissibility is not the only option defendants have and that, especially following these rulings, EncroChat evidence should be approached like any other communications evidence, which raises questions such as:

· Is the data complete?

· Is there proper continuity?

· Has the user of a device or handle been properly attributed?

· Do the messages mean what they appear to say?

· What other evidence is there in the case as a whole?

 

Lloyds PR Solicitors have a wealth of experience in defending EncroChat and similar cases. If you are facing proceedings contact us on 020 8963 1050.

 

 

 

 

 

Read the full judgment here:

https://investigatorypowerstribunal.org.uk/judgement/sf-and-ors-v-nca-ipt-21-05-ch/