• The DigitalBank Vault

#Encrochat: Important Legal Development



In the first “EncroChat” trial of 2020 (R v Coggins 2020) there have been a series of developments.

An Administrative Court hearing resulted in the court making a finding that the Crown Court and section 78 Police and Criminal Evidence Act 1984 was the correct procedural process to seek to exclude EncroChat evidence.


Mr Justice Dove presiding over the Crown Court (R v Coggins) ruled at first instance, that the EncroChat data was admissible and did not fall to be excluded under section 78 Police and Criminal Evidence Act 1984.


The legal grounds upon which exclusion was sought was further to the provisions of section 56 Investigatory Powers Act 2016. In summary, it was unsuccessfully argued that EncroChat messages were communications that had been intercepted at the time they were being transmitted and were not recovered from storage in the encro handsets.


The Court of Appeal considered this finding and upheld the ruling [R v A B D & C [2021] EWCA Crim 128]. The Court of Appeal commented at paragraph 6 of this judgement “If it is intended to repeat this kind of process in other pending cases involving EncroChat material, those involved should not be surprised if the trial judges deal with them rather more briskly”.

The Court of Appeal self regulates.


On 3 March 2020 the Court of Appeal confirmed that there was “no point of law of general public importance” that would justify referring their decision to allow intercepted communications to be used as evidence in criminal cases to secure convictions. Therefore, they refused leave to challenge the evidence in the Supreme Court.


 

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