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#Encrochat: the Legal Battles, rejecting all four grounds and dismissing the appeals.



On Ground 1 the court found that the material was obtained by way of “a process which is like any other means of downloading the content of a mobile phone handset. It is done remotely, but it is done by interrogating the RAM of the phone, not by intercepting the communication after it has left the phone.” (at [63]).


Further the court determined that “What remains on the device is not what has been transmitted, but a copy of it or what, in older forms of messaging, might be described as a “draft”.” (at [66]). Thus, as the handsets formed part of a telecommunications system, the material was being stored in or by the system and not being transmitted at the time of interception: “That being so, the harvesting was interception but was rendered lawful by the Targeted Equipment Interference warrants issued under section 99 of the [2016] Act.” (at [67]). This decision on Ground 1 rendered consideration of Ground 2 unnecessary.


On Grounds 3 and 4 the court acknowledged the potential for a challenge to be brought under s.78 Police and Criminal Evidence Act (PACE) 1984 on the basis of non-compliance with ss.9 & 10 of the IPA despite the fact that “Compliance with sections 9 and 10 is not a statutory condition of admissibility” (at [71]) under s.61(1)(c) IPA. The court observed that “It would be a surprising exercise of that power to exclude evidence which Parliament has provided in clear terms should be admissible” (at [71]) but nevertheless deemed the Grounds worthy of consideration.


On Ground 3 the court held, contrary to the position of Dove J, that the EIO did constitute “a “request” for the purposes of section 10 [IPA]” (at [75]) however, consistent with the alternative ruling of Dove J, that also meant that the EIO involved the exercise of a statutory power making it permissible under s.10(2A) IPA and as such Ground 3 was “without merit” (at [75]).

On Ground 4 the court upheld the decision of Dove J that s.9 IPA “governs only a “request” made by means other than an EU mutual assistance instrument or an international mutual assistance agreement.” (at [78]). No such request was made by the UK with the request for access to the material falling under s.10 IPA (as per Ground 3, above).


Ultimately the court “concluded that the only substantial question which the judge was required to answer was whether the EncroChat material was stored by or in the telecommunications system when it was intercepted.” (at [79]).


As discussed above in the context of Ground 1, on that question the court agreed with the ruling of Dove J at the preliminary hearing and dismissed the appeal accordingly.


To understand the significance of the decision in the present case it is important to consider the broader context in which the appeal was brought. As a result of Operation Venetic, described by the NCA as the “biggest and most significant operation of its kind in the UK”


1,348 people were charged and at least 260 convicted of various offences as of March 2022




 

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