Can intercepted communications be relied on in criminal cases?
Section 56(1) of the Investigatory Powers Act 2016 (IPA 2016) provides that evidence obtained from live monitored communications (for example phone tapping) is deemed unreliable if the interception was conducted in the UK and at least one of the parties to the communication is present in the country. Therefore, to be relied on in a court in England and Wales, the prosecution will need to prove that any EncroChat interception took place in France, an extremely tricky undertaking, especially given that French authorities are refusing to disclose their methodology.
Why did the French court rule that EncroChat evidence can be challenged by the defence?
The case arose from an appeal concerning the judgment of the Nancy Court of Appeal in the matter of Saïd Zaoui, who was arrested in June 2020 and indicted on charges of importing narcotics and possession of weapons and ammunition following the EncroChat hack. Because the investigative technique used by the police came under the category of national security, the defence was not able to assess how the hack was done. However, French law states that in such cases, the police must produce a ‘certificate of truthfulness’. The court in Nancy ruled that the police did not have to produce the certificate. However, the Court of Cassation stated the lower court erred in this decision and referred the case back to a Metz court to establish if a certificate of truthfulness exists.
Highly reliable sources have indicated that there is no such certificate in existence.
What will happen with UK cases involving EncroChat evidence?
In September 2022, the Investigatory Powers Tribunal (IPT) heard that the National Crime Agency (NCA) “deliberately concealed” information when it applied for a warrant to access hundreds of thousands of intercepted messages and photographs from EncroChat. The inceptions were accessed as part of Operation Venetic which led to the arrest of 1,550 people across the UK plus the seizure of 115 firearms, £54m in cash, and substantial quantities of illegal drugs.
In 2021, the Court of Appeal ruled that messages and photographs acquired through EncroChat were admissible as evidence as they were accessed through equipment interference rather than interception, the latter of which would have triggered the provision contained in Section 56(1) of the IPA 2016 (see above). But criminal defence solicitors have argued in the IPT that the NCA failed to fully explain to the judge who authorised the EncroChat surveillance warrant how the French and Dutch authorities were obtaining the data. This allowed the NCA to acquire a Targeted Equipment Interference (TEI) warrant which ensured the evidence obtained was admissible in court. Defence solicitors told the IPT that the correct warrant for the EncroChat operation would have been a Targeted Intercept (TI) warrant. TI evidence can not be relied on in court.
Concluding comments
The French decision is likely to strengthen defence solicitors’ arguments against the NCA’s “tenuous basis” for a TEI warrant. It also provides a basis for UK defence solicitors to challenge any convictions, prosecutions, or investigations in which the prosecution seeks to rely on evidence obtained from the EncroChat hack.
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