Defence lawyers said the tribunal should completely ignore Kinnear’s submissions on the expert evidence as “they completely undermine the basis” of the tribunal hearing.
The IPT had agreed to take the case on the basis that the expert evidence had been “taken as read” but the expert had been effectively cross-examined without being present in the court.
“The respondents can’t have it both ways. They can’t on the one hand suggest that [the expert reports] are incomplete and tentative when they only reason that they are is because the order of this tribunal was suspended,” a defence lawyer told the court.
“On the critical fact of whether it was intercept taken from the server, he is saying [the expert evidence] is wrong,” he said.
The NCA was trying to “have their cake and eat it” by frustrating the court order that would have allowed the expert evidence to be completed, and then seeking to exploit the fact that the expert reports had not been completed.
“That compromise of being taken as read has not been adhered to by the respondents,” the lawyer said. “And it has completely wrong-footed how we would have taken the issues before this tribunal.”
Another defence lawyer told the tribunal: “If we had known that the incomplete nature of the [expert] reports was to be exploited at this hearing we would have approached things very differently. We would have asked for another hearing so that the court could reconsider how [the expert evidence] was being taken as read.”
He said defence lawyers accepted that historic messages obtained during stage one of the EncroChat hacking operation could not be anything other than intercepted while being stored in the handsets, because they were historic messages.
He said the tribunal’s February order, overturned at the request of the NCA, would have made it possible to explain definitively how stage two of the interception operation worked.
The order would have enabled the tribunal to determine definitively how EncroChat messages were exfiltrated, the lawyer told the court. It would show whether they were taken from storage, whether they were intercepted in transmission through a load-balancer server installed by the French in the datacentre used by EncroChat, or whether they were taken from the EncroChat server.
It has been a long-standing feature of British law that material obtained through interception cannot be disclosed as evidence in criminal trials to protect the surveillance techniques used by the intelligence services and law enforcement.
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