Following the present judgment, it is likely we will see further EncroChat-related prosecutions as appetite to prosecute can only increase. For those prosecuting or defending EncroChat-related cases in the future, there are two immediate conclusions to be considered.
The first relates to any argument for exclusion of such material under s.78 PACE. The Court of Appeal has upheld Mr Justice Dove's judgment in R v Coggins (2020), Liverpool Crown Court, unreported, that EncroChat messages ought not to be excluded under S.78 of PACE, or for any arguments of abuse of process.
Defense teams should pay heed to the Court of Appeal's warning: “If it is intended to repeat this kind of process in other pending cases involving EncroChat material, those involved should not be surprised if the trial judges deal with them rather more briskly” (at [6]).
A further consideration for defence teams lies in recent judgments surrounding EncroChat and sentencing. In the case of R v Nelson & Markham[2020] EWCA Crim 718, confirmed in R v English & Read [2020] EWCA Crim 100, the Court of Appeal ruled the use of encrypted devices by drug dealers to be an aggravating factor, reflecting the sophistication of the organization.
Whilst questions may remain about whether the court may entertain further challenges based on the reliability of material obtained from the EncroChat system what is now clear is that, where the prosecution has lawfully obtained data which has been stored on handsets, whether as draft communications or otherwise, those messages are admissible.
A broader question for consideration is whether we have now reached a point, notwithstanding the relatively recent introduction of the IPA, where Parliament should legislate to allow the more general admission of intercept evidence within an appropriate statutory framework?
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