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#Encrochat: Interception During Transmission or from Storage and the Importance of the Distinction

Of much greater significance was the question of whether the EncroChat material was intercepted during transmission from, or whilst being stored by or in, the telecommunications system. Historically, intercept material could be lawfully obtained by the authorities for intelligence use but not for use as evidence in criminal proceedings (at [8]).

Other European jurisdictions faced no such evidential hurdles as intercept evidence is permitted into trial within those jurisdictions. The blanket ban on “interception-related content” in the UK was removed by the IPA. Interception-related content remains inadmissible under Section 56 of the Act, but significant exceptions have been introduced.

Section 4 of the IPA defines ‘interception’ as being whether the material was “being transmitted” at the time it was accessed or whether it was being “stored in or by the telecommunication system”. In both instances, there is interception, but under the IPA, stored intercepted material may be admissible. Section 56(1) of IPA states that: “no evidence may be adduced, question asked, assertion or disclosure made, or other thing done in, for the purposes of or in connection with any legal proceedings or Inquiries Act proceedings which (in any manner)

(a) Discloses, in circumstances from which its origin in interception-related conduct may be inferredi) any content of an intercepted communication, orii) any secondary data obtained from a communication, or(b) tends to suggest that any interception-related conduct has or may have occurred or may be going to occur.”

The exceptions in Schedule 3 are as follows:

Schedule 3(2)(1)(a) states that section 56(1)(a) “does not prohibit the disclosure of any content of a communication, or any secondary data obtained from a communication, if the interception of that communication was lawful by virtue of … sections 6(1)(c) and 44 to 52.”

Section 6(1)(c)(i) significantly clarifies that “for the purposes of this Act, a person has lawful authority to carry out an interception if, and only if… in the case of a communication stored in or by a telecommunication system, the interception - is carried out in accordance with a targeted equipment interference warrant under Part 5 or a bulk equipment interference warrant under Chapter 3 of Part 6.”

The NCA had obtained just such a Targeted Equipment Interference warrant under Part 5, approved by a Judicial Commissioner and the Investigatory Powers Commissioner.



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