It is beyond doubt that there will be trials in England based solely or largely on evidence deriving from the penetration of the EncroChat servers. Inevitably, there will be challenges at those trials. Some of those challenges will be based in and on the facts of the individual cases with defendants maintaining that a particular handset and/or messages are not correctly attributed to
These are defences we have often seen for many years in prosecutions reliant upon telecommunications data and these defences will call for no special or different approach from that we have always adopted.
But there will obviously also be challenges based upon the circumstances in which the data was obtained. These challenges will likely take the following forms:
First, consideration will be given to whether the circumstances in which the data was obtained offends “the court’s sense of justice and propriety”. The courts have power to stay (or stop) cases where this is so3, but it is right to say that this is a power that is rarely exercised.
Second, there will be investigation into whether the circumstances in which the data was obtained from the Encrochat servers render a fair trial of the defendant impossible. Again, the courts have power to stay cases where this is so. Challenges under this head will be likely to focus not just upon the legality of what was done by the French and English, but also upon the reliability of what has been obtained as a result and the ability of the defence to understand and challenge what has occurred. If it proves to be the case that shadowy techniques were used to obtain the data and that the defence cannot analyse the accuracy of what has resulted or trace attribution because the servers are no longer available, there may be real issues about whether defendants can fairly be tried.
Third, applications to exclude EncroChat data may be made pursuant to section 78 of the Police and Criminal Evidence Act 1984 on the basis that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. This will engage similar issues in relation to legality and reliability.
Before practitioners are able to make informed decisions about whether any of these challenges is realistic in any particular case, much more will need to be known about the circumstances in which the data was hacked or harvested. However, I have little doubt that challenges will be available and will be made. A decision of the Court of Appeal Criminal Division is to be expected at an early stage, in order that the Crown Court approaches what will be many cases in a consistent way.
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