What remains less clear from the judgment in the present case was the way in which the EncroChat system was initially infiltrated and the material gathered by the original investigators. Whilst the court engaged in a detailed consideration of the workings of the EncroChat system for the purposes of determining whether the material gathered was intercept material (Part 2, IPA) or, as determined, equipment interference material (Part 5, IPA) it does not appear to have applied the same level of scrutiny to the reliability of the technique(s) used to gather the material in the first place.
The court satisfied itself (at [13]) that;
The French has all of the necessary legal instruments in place to undertake the extraction of the material from the devices all over the world lawfully as a matter of French law.
The implant was loaded by the French Authorities on to the EncroChat servers in Roubaix and then via the servers uploaded on to all EncroChat devices worldwide.
The approach of the court in the present case therefore appears to have operated on the assumption that the technique(s) used to infiltrate and gather material from the EncroChat system were reliableper sewithout full details about how the material was gathered.
The decision of the French authorities to withhold details about the exact manner in which the EncroChat system was infiltrated on the basis of “defence secrecy” was unsuccessfully challenged in the French Constitutional Court (Décision no 2022-987 QPC du 8 avril 2022). Ironically, the protection from scrutiny of the covert capabilities of the security services remains one of the long-standing justifications for the restrictions on the use of intercept material as evidence in the United Kingdom.
Crim PD 19.5 provides a non-exhaustive list of factors to be taken into account by a court seeking to determine the reliability of expert opinion evidence. This list includes inter alia; “the extent and quality of the data on which the expert's opinion is based, and the validity of the methods by which they were obtained” (Crim PD 19.5 (a)), “if the expert's opinion relies on the results of the use of any method (for instance, a test, measurement or survey), whether the opinion takes proper account of matters, such as the degree of precision or margin of uncertainty, affecting the accuracy or reliability of those results” (Crim PD 19.5 (c)) and “the completeness of the information which was available to the expert, and whether the expert took account of all relevant information in arriving at the opinion (including information as to the context of any facts to which the opinion relates)” (Crim PD 19.5 (f)).
It is difficult to see how any of these questions can be answered with any degree of certainty, and therefore any proper determination of reliability be made, whilst the exact manner in which the material was obtained remains unclear. If the technique(s) utilised to infiltrate and gather the EncroChat material are in fact sound, then the issue is more of academic than practical concern.
However, if the technique(s) are subsequently shown to be flawed it will cast serious doubt on the evidentiary reliability of the evidence subsequently gathered. Possibly of greater concern is how, in a process shrouded in secrecy, any such flaws might come to light?
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