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#Encrochat: The end for EncroChat legal challenge?

The Defendants argued that the EncroChat evidence disclosed by the Prosecution was inadmissible because it had been obtained by use of an intercept that operated while the messages were “being transmitted”, as in section 4(4)(a) of the Investigatory Powers Act 2016. The Prosecution’s position was that the messages were taken whilst “stored” and therefore 4(4)(b) applied.

This distinction is of great significance. If section 4(4)(a) applies, then the strict prohibition set out in section 56 of the Act bites and the evidence cannot be admitted at trial. If section 4(4)(b) applies, then the evidence is admissible, subject to any other challenge.

The Court of Appeal decided that all material taken from the devices was stored rather than being transmitted. This was not a lengthy judgment and many of the points argued by the defence were swept aside. Paragraph 62 perhaps cuts to the heart of the issue. Lord Burnett CJ said:

“As a matter of ordinary language, section 4(4)(b) is clear and unambiguous in its meaning.  It extends to all communications which are stored on the system, whenever that might occur.  That broad meaning coheres with the structure of the 2016 Act considered in overview, and importantly with the different types of warrantry for which the Act provides.  

Part 5 warrants are required for the interception of stored material, and Part 2 warrants for material which is to be intercepted while being transmitted.  It also advances the overall purpose of the legislation in preserving the legislative framework – and the distinction between the different types of intercept – to which we have referred.  The statutory question for any court in determining section 4(4)(b) applies is this: was the communication stored in or by the system at the time when it was intercepted?”

The argument about how a device stores data within RAM (Random Access Memory) and ROM (Read-only Memory, or Realm in the Encro device language) was dismissed by the Court on the basis that both should be treated equally.

Permanent and temporary storage, the Court held, are the same, and previous decisions that suggest otherwise are no longer good law because distinctions have to be drawn between the 2016 Act and its predecessors. The RAM and Realm issue was at the heart of the defendants’ case on the basis that it enjoyed the unqualified support of the experts who commented on the issue.

Because of the centrality of this issue to the judgment, it may well be where any future battle lines are drawn in other cases.



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