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Academic Discussion about the legality of #Encrochat evidences collected by unlawful hacking.

The judge decided that the EncroChat messages were properly regarded as falling within IPA 2016, s 4(4)(b). At the relevant time when the messages were made available, they were not ‘being transmitted’. He found that the defence approach sought to extend the notion of transmission well beyond anything contemplated by IPA 2016 and that the exclusionary provisions of IPA 2016, s 56 did not apply. He also decided that the data had been obtained by conduct in France, and not in the UK. The consequence of this was that the argument about the nature of the warrantry obtained was rendered somewhat academic.

In light of his findings, however, even if the data had been obtained by conduct in the UK, it had been obtained in accordance with an existing targeted equipment interference warrant and was consistent with the exercise of functions under IPA 2016, Part 5, having rejected a submission that a targeted interception warrant under Part 2 should have been in place. Part 5 warrants are required for the interception of stored material, and Part 2 warrants are required for material which is to be intercepted while being transmitted.

In other words, the judge found in favour of the prosecution and part of the decision was the subject of an appeal. The appellants challenged four of the judge’s decisions, but they are dealt with together here because the appeal court’s task was essentially confined to the legal issue of the admissibility of the EncroChat material. In summary, the Court of Appeal considered whether the EncroChat material was intercept material and inadmissible in criminal proceedings because of IPA 2016, s 56 and whether its obtaining should have been identified as a kind of interception requiring a targeted interception warrant. The critical issue was the construction of IPA 2016, s 4(4).

The Crown Court judge found that the EncroChat material in this case had been obtained for the purposes of UK proceedings under two Part 5 warrants. The issue for

the Court of Appeal was whether that approach was correct, or whether on a true understanding of the way the data were obtained, and of IPA 2016, they comprised material obtained unlawfully under the wrong warrant and, in any event, were inadmissible. Interestingly, the appeal court opened its consideration by reference to an agreement that the handsets were part of the ‘public telecommunications system’, and therefore that material stored on them

is stored ‘in or by the system’.

The appeal court had reservations about this, but proceeded by reference to the agreement between the parties. If the handsets had not been regarded as part of the system,

then extracting the content would not have amount to interception at all, and the issue of admissibility would not have arisen.

At a hearing on 20 January 2021 in the Court of Appeal, judges found that the data had been recovered (intercepted)

from storage and not in the course of ‘transmission’. The communications were lawfully intercepted while stored on the handsets and are admissible by virtue of IPA 2016, Sch 3, para 2. In arriving at this conclusion, they rejected the notion that cases would turn upon a minute examination of each system in every case.

Parliament did not choose to define the relevant timing of the capture by reference to whether the information was, for example, in the device’s random-access memory or its permanent storage database. The words ‘transmission’, ‘system’ and ‘stored’ are ordinary English words.

The judges stated at para [55] that the court’s task is to: ‘...understand the system and then to decide whether, as a matter of ordinary language, the communication was

Criminal LEGAL UPDATE 13 being transmitted or stored at the time of extraction. If the former, it is inadmissible.

If the latter, it is admissible, provided the appropriate warrant was in place. On the findings of the judge the appropriate warrant was in place and the extraction was carried out in accordance with it’.

Interestingly, the court disagreed with

the Crown Court judge in respect of whether the European investigation order (EIO) for the product of the French operation was a ‘request for assistance in connection with interception’ for the purposes of IPA 2016, s 10, a further route to engaging the prohibition in IPA 2016, s 56. The court went on to reject the defence’s argument that the evidence could not be admitted because the NCA had not applied for a mutual assistance warrant (as stipulated by IPA 2016, s 10(2)), saying that the relevant authorisation for the request had been obtained by the exercise of a statutory power, namely the power to make the EIO itself. The court therefore found that the evidence was admissible and dismissed the appeal.

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