Lord Burnett, issuing the Court of Appeal’s judgment, noted that the conviction applications largely sought in a variety of ways to challenge the admissibility of the EncroChat evidence. He highlighted that the admissibility issue had been a driving force behind the continuous delays in the case, as the trial had been adjourned more than once.
On balance, Lord Burnett considered that the interests of justice, including the public interest, were sufficient grounds for the judge to refuse further adjournment. He also agreed that the IPT expert evidence was directed at other matters and the expert instructed in R v Murrayitself only served as a mouthpiece for him. The s78 application was deemed ‘bound to fail’. The Court of Appeal similarly found the applicants’ subsidiary points to be without merit.
The Court of Appeal also refused leave for the applicants to appeal their sentences.
Significantly, at paragraph 8 of his judgment, Lord Burnett stated that:
‘…At the heart of the collective defence endeavour was an application that the trial be adjourned to await the outcome of the IPT proceedings and to obtain further expert evidence. We were told that the defendants are happy to remain…in custody for so long as that may take. […] But there is a strong public interest in the swift resolution of criminal proceedings, compatibly with fairness and the interests of justice which include the interests of the prosecution. The defendants in this case, and others, have had years to get their cases in order. Applications for adjournments on the basis that something may turn up will not prosper.’
The Court of Appeal’s judgment in Murray & Others is in keeping with previous Court of Appeal rulings in EncroChat cases. The general sentiment they express is that EncroChat cases remain numerous and lengthy largely due to the issues of principle raised with regards to the EncroChat evidence, and the courts’ patience for these arguments is wearing thin.
Whether admissibility will definitively be ruled out as a defence in the EncroChat case law remains to be seen, but defendants seeking to delay their own cases to await developments in other EncroChat cases are likely to be disappointed. Likewise, seeking to rely upon expert evidence from other cases may not prove a successful course of action.
In any event, R v Murray & Others serves as a reminder that EncroChat cases continue to prove a complex area of the law, and that specialist legal advice will be essential to any successful defence, particularly if defendants wish to rely on admissibility as a defence.
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