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#Encrochat: The Importance of the Expert Evidence

The Court was dealing with principle and admissibility rather than technical arguments about the EncroChat system. This was articulated by the court (at [55]):

We do not accept that this issue requires a minute examination of the inner workings of every system in every case.

Parliament has not chosen to define the “relevant time” when interception takes place by reference to whether the communication is in the RAM of the device at the point of the extraction, or whether it is in its permanent storage database, or by any other technical definition.

Given the speed at which technology changes, both concepts may become obsolete or be superseded. The statutory scheme must work whatever the technical features of the system in question. The words used are ordinary English words: “transmission” and “stored”.

The “system” is also defined in non-technical language. The task of the court, as the judge correctly said, is to understand the system and then to decide whether, as a matter of ordinary language, the communication was being transmitted or stored at the time of extraction.

Taken at face value this appears to be a sensible approach. The avoidance of an overly technical focus allows the court to lay down general principles, consistent with the intention of the statutory provisions and less likely to be rendered obsolete by ongoing technical changes.

As identified in the extract from the judgment above, the job of the court is to understand the systemand then make a determination about how the material was obtained. In order to achieve the first step, the court will often require the assistance of experts. As is well established, and now contained in Part 19A.1 of the Criminal Practice Direction (Crim PD), expert opinion evidence is admissible at common law if it is relevant to a material issue in the proceedings, the matter with which the court requires the assistance of the expert falls outside of the “knowledge and experience of the court” (R v Turner [1975] 1 All ER 70) and the expert is competent (or “peritus”, see e.g. R v Silverlock[1894] 2 QB 766).

Relatively recent amendments to Part 19 of the Criminal Procedure Rules (Crim PR) and to the associated Crim PD, based in part on the decision of the Court of Appeal in R v Dlugosz and others[2013] EWCA Crim 2, require the court to consider whether the expert opinion evidence is founded on a “sufficiently reliable scientific basis for the evidence to be admitted.” (Dlugosz [at 11]). Whether such amendments amount to the creation of a discreet admissibility criterion remains a moot point (see e.g. Stockdale, M and Jackson, A, Expert Evidence in Criminal Proceedings: Current Challenges and Opportunities, (2016) J. Crim. L. 80(5)) but it certainly the case that where a court determines that expert opinion evidence lacks sufficient reliability it may be properly excluded on that basis.

The NCA were permitted access to the EncroChat material gathered by the JIT pursuant to an EIO issued by UK authorities (at [13]). The lawfulness of the EIO was separately challenged in R (C) v DPP [2020] EWHC 2967 (Admin) before Singh LJ and Dove J who refused an application seeking judicial review of the granting of the EIO and finding the Order to have been properly obtained. As discussed above, further challenges to the lawfulness of this process were brought and dismissed under grounds 3 and 4.



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