If the appeal is allowed to go ahead, lawyers are expected to argue that the National Crime Agency was wrongly granted a thematic equipment interference (TEI) warrant to obtain EncroChat data of UK EncroChat phone users from the French police.
Under Section 101(1) C of the Investigatory Powers Act 2016, TEI warrants – which permit surveillance of multiple targets – can only be issued for the purposes of “a single investigation” or a “single operation”.
The tribunal found in its 11 May decision that the use of TEI warrants was justified and the investigation could be classified as a single investigation into the criminal use of EncroChat.
The fact that once the material was obtained and analysed, it was conveniently divided up so that different aspects of the illegal behaviour could be prosecuted does not diminish from the overarching investigation,” it said.
However, defence lawyers are expected to argue that Regional Organised Crime Units and police forces across the UK carried out multiple investigations into criminal groups that were using EncroChat phones does not meet the definition of a single operation under the Investigatory Powers Act.
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