The National Crime Agency “deliberately concealed” information when it applied for a warrant to access hundreds of thousands of intercepted messages and photographs from the EncroChat network a court has heard.
The claim was made this week during the first day of a hearing by the Investigatory Powers Tribunal (IPT), Britain’s most secret court, in a case that is likely to have significant ramifications for the Use of intercepted evidences in criminal prosecutions.
The lawyers representing defendants claim that the NCA did not give the independent judge - known as a judicial commissioner - who authorised the NCA’s surveillance warrant, a full explanation of the basis of its understanding of how the French hacking operation worked.
Matthew Ryder KC told the court that the NCA had decided that it wanted 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 NCA sought approval from the Investigatory Powers Commissioner, Sir Brian Leveson, for a hacking technique without knowing how the technique was carried out. “The obvious risk is that the warrant may be issued in error,” said Ryder.
The NCA made “serious and fundamental errors” by basing its warrant application on a position that was “tenuous at best”.
“The determination by the National Crime Agency to see it as Targeted Equipment Interference not Targeted Intercept led to wilful blindness by officers or at the very least a wholly inadequate analysis of the information they need to put before judicial commissioners,” said Ryder.
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