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The legality and the route to admissibility for material “harvested” from the EncroChat system



The 15-day long preparatory hearing might be explained by the hearing of extensive expert evidence on the workings of the handsets and the broader EncroChat system.


The relevance of this evidence was largely dismissed in this judgment: ‘The 2016 Act does not use technical terms in this area. The experts have an important role in explaining how a system works, but no role whatever in construing an Act of Parliament.’ (at [68]).


The Court of Appeal focussed primarily upon the legality and the route to admissibility for material “harvested” from the EncroChat system: “The issue is whether the communications were intercepted while they were being transmitted or while they were stored in or by the system.” (at [51]).


The EncroChat messages were construed as essentially the same as any data downloaded from a mobile phone handset, albeit downloaded remotely. The material was “stored” when it was intercepted.


The only technical issue before the court was in determining when transmission began and when it ended.


The ultimate decision on a potentially technically complex point rested on whether the information obtained was encrypted or not: “The fact that what was obtained was an unencrypted message, means that what was on the phone, and what was intercepted, was not the same as what had been transmitted because what had been transmitted was encrypted.


It cannot therefore have been “being transmitted” when it was intercepted: it can only have been “being stored” (at [66]).

 

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