Efforts will be made to take this case to the Supreme Court. It is unclear that a question will be certified. Given the trenchant way this judgment is expressed, certification may be considered unlikely. Even if successful in getting the case before the Supreme Court, it may regard the Court of Appeal’s previous decisions on the issue of whether data is live or stored as being as insignificant as the Court of Appeal has found them to be. There are arguments to be made, but there is no guarantee that they will even be heard, let alone prove persuasive.
As the judgment alludes to, the preponderance of the expert evidence was firmly in favour of the defence. Experts can continue to look at the issue of where this material was taken from, but they are up against paragraph 68 of the judgment:
“We have not found it necessary to set out in this judgment the expert evidence with which this conclusion is said to be inconsistent. 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.
They appear to have assumed that because a communication appears in the RAM as an essential part of the process which results in the transmission it did so while “being transmitted”. That is an obvious error of language and analysis.”
As noted, there was unanimity amongst the experts who were asked to comment. The Court appears to accept their evidence is accurate, but then dismisses the consequences. If that is right, does further expert evidence have any prospect of changing the status quo?
There are other evidential weaknesses in prosecution EncroChat evidence. Points can be taken on continuity and attribution. Can the Prosecution properly attribute the device and/or nickname to the defendant? Is the nickname properly linked to an IMEI/ IMSI /number? Can the prosecution reliably prove it to be so?
Can the Crown address continuity when all they have been given is a list of names and messages?
The question of conduct was not addressed in the judgment. It was argued on behalf of the defendants and there are points to be made – but the Court considered it unnecessary to engage with the argument. Clearing the hurdle that the question is necessary seems an unlikely route for defence success.
There remain abuse arguments to be taken, and other arguments under section 78 of the Police and Criminal Evidence Act 1984 to be advanced. It is of course unwise to comment on any individual argument but if the Court has rejected this challenge on admissibility then it is hard to see how one or other form of unfairness in the process is going to prove persuasive.
There may also be points of relevance that do not have global application. In a number of cases, it is apparent that the conversations are “woven” i.e. they rely on material that may be found on only one of the devices said to be a party to the conversation.
There is no explanation as to why. In the light of the above ruling is it safe to say the information has never been stored on your client’s device if the conversation cannot be found there? In those circumstances is it right to rely on those conversations? The .csv files will be needed from the Crown for each device in order to properly answer these questions.
The only safe conclusion is that this is a ruling expressing robust support for the approach of the NCA and the Crown.
The question is whether the reasoning is as comprehensive as the Court has undoubtedly intended it to be. There are defendants out there who intend to test that.
Each defendant must now make his own decision as to whether the consequences of failing to succeed in an exclusionary argument or abuse submission justify the risk being taken in attempting to demonstrate that this evidence should not be allowed to go before a jury.
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