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#Encrochat Trials: the unlawful reliability of data extracted from Encrochat handsets

Professor Anderson (who no longer undertakes Encrochat work in criminal proceedings, apparently), provided a report in which he discussed various issues to do with the reliability of data extracted from Encrochat handsets.

The Court of Appeal was of the view that his report was not directly connected with the substance of the case before the trial court. As such, it was not admissible. This is a problem that arises when legal teams seek to identify an expert in a field but do not or are prevented from allowing the expert to analyse the specific evidence that is in question. Moreover, it will never be admissible for an expert to provide general information about a subject in the hope of merely muddying the water.

The ACPO (Association of Chief Police Officers) guidelines mentioned in the case pertain to the handling of digital evidence. The argument raised by the defence was that the use of EncroChat material in the case breached the ACPO guidelines, which stipulate that a criminal defendant should be in a position, with expert assistance, to replicate any tests that have formed the basis of the Crown’s evidence against him.

The Court of Appeal, however, did not find the ACPO guidelines point to be a strong argument for the defence, as the EncroChat messaging was “exfiltrated” (i.e., the data were extracted using covert or dubious methodology] in France, and the guidelines did not provide any further support for the argument based on unfairness or prejudice.

Blunty the ACPO guidelines point was never likely to get off the ground. The guidelines clearly didn’t contemplate the sort of operation that went into gaining access to EncroChat, nor are they a binding power over the relevant legislation.

Ms. Saunders played a role as an expert witness for the defence in this case. She was said to have independently reviewed Professor Anderson’s methodology and findings. The defence argued that Ms. Saunders was entitled to adopt Professor Anderson’s conclusions and give evidence of fact as to what she found when she interrogated the EncroChat phone in question.

However, the Court of Appeal determined that Ms. Saunders could not properly give opinion evidence as the mouthpiece for Professor Anderson, as she had not formed her own conclusion but was tentatively endorsing the plausibility of his findings. 

This is perhaps a little interesting as the Crown often substitutes experts and “analysts” at Court and they rarely give evidence of their own findings.

They do exactly was Ms. Saunders did and that the Court of Appeal rejected.

The Court of Appeal also found that the anomalies Ms. Saunders identified were minor and explicable on the basis that the phone was designed to delete messages after a short period. That “burn time” is a hallmark feature of EncroChat (although it is also a feature of countless “secure” messaging services, including WhatsApp).

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