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#Encrochat: "intercept a communication in the course of its transmission"



So what does it mean to "intercept a communication in the course of its transmission"?


s4 Investigatory Powers Act 2016 sets out the definition, but there are lots of references out to additional definitions:

... a person intercepts a communication in the course of its transmission by means of a telecommunication system if, and only if—

The definition of "relevant act" did not arise (see s4(2); it includes "monitoring transmissions"), but "relevant time" received significant discussion.


s4(4) defines "relevant time" in the following terms:

In this section “relevant time”, in relation to a communication transmitted by means of a telecommunication system, means—

 (a) any time while the communication is being transmitted, and   (b) any time when the communication is stored in or by the system (whether before or after its transmission).


First, if the communications in question were "stored in or by the telecommunication system", interception of them would take place with lawful authority if the acquiring agency had a TEI warrant (and the facts suggest that the NCA had such a warrant). There would be no offence of unlawful interception.


Second, if the interception was carried out under a TEI warrant, rather than a TI warrant, the provisions of s56 — exclusion of matters from legal proceedings — do not prohibit the disclosure of any content or secondary data of a communication, because of Paragraph 2 to Schedule 2 Investigatory Powers Act 2016:

if the interception of that communication was lawful by virtue of ... section 6(1)(c)"

In other words, the communications could be admitted as evidence.





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