Lawyers acting for the defendants claim the NCA “deliberately misled” the independent judicial commissioner asked to authorise the NCA’s surveillance warrant by failing to provide a candid explanation of the hacking operation.
They told the tribunal yesterday that the warrant given to the NCA to enable it to use EncroChat evidence in criminal prosecutions was issued unlawfully and therefore was in breach of the right of privacy under Article 8 of the European Convention on Human Rights.
The IPT heard that the director general of the NCA, Lynne Owens, wrongly approved a Targeted Equipment Interference (TEI) warrant – the only warrant that would allow messages and images intercepted from EncroChat to be used as evidence in court.
“The director general was wrong in law to approve this as a TEI,” a defence lawyer told the tribunal.
He said that under the Investigatory Powers Act, the only warrant that could be lawfully used to request hacked messages from the French was a Targeted Interception (TI) warrant, which would only allow EncroChat messages to be used for intelligence purposes, rather than evidence.
The court previously heard that the NCA’s warrant application was based on an account of an off-the-record conversation between an NCA intelligence officer, Emma Sweeting, and a French cyber crime officer, Jeremy Decou, after the meeting at Europol.
The NCA has not asked for written confirmation from the French that the conversation between Decou and Sweeting took place, or that the NCA’s summary of the EncroChat operation that Sweeting asked Decou to confirm was accurate, the tribunal was told.
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