Encrochat – what’s that?
A lot of cases are awaiting a criminal trial that will rely, to a greater or lesser extent, on the admissibility of communications made through the apparently highly encrypted Encrochat service.
The Court of Appeal has now issued rules following initial rulings at Liverpool Crown Court. Whilst this ruling does not mean that guilty pleas are certain, for some defendants it will present a significant problem for them to overcome.
The main question was whether the communications were interrupted at the time they were being transmitted or, as the judge found, were recovered from storage. If the judge was right, subject to a number of minor arguments, the evidence would be acceptable.
The EncroChat material was obtained by a Joint Investigation Team (JIT) of French and Dutch investigators and prosecutors by interfering in the EncroChat communications system. It was then supplied to the United Kingdom authorities where it was used in a large number of investigations, including the one which led to the present case. The judge was required to hear evidence about how this occurred, and then to make findings of fact. He then had to apply the United Kingdom domestic law governing the acceptability of such material, which is found in the Investigatory Powers Act 2016.
The 2016 Act adopted a domestic law framework which is unique in Europe and which is similar to previous rules. Historically, interrupting material could be lawfully obtained by the authorities. Subject to a number of unimportant exceptions, it could not be used in evidence in proceedings but was kept for intelligence use. The policy explanation for that approach has been debated on many occasions and centres around protecting sensitive abilities and wider operational and practical concerns. This was discussed in a report of a review of privy councillor provided to ministers. In many other authorities, including France and the Netherlands, there is no blanket prohibition on the price into evidence of intercept material. The 2016 Act out-dated the law found in the Regulation of Investigatory Powers Act 2000, which itself replaced the Interception of Communications Act 1985. The major changes between the current management and the one started in the 2000 act concern the new act established in 2016. The law relating to admissibility of intercept material, and the definition of what is and is not intercept material also changed in important ways.
The essential point before the Court of Appeal which was rejected by the judge is, that the EncroChat material is intercept material and inadmissible in criminal proceedings because of section 56 of the 2016 Act. Further, its obtaining should have been identified as a kind of interception which would require a Targeted Interception warrant. Targeted Equipment Interference warrants may produce material which can be used in evidence. Targeted Interception warrants are governed by Part 2 of the Act and the product is inadmissible in evidence in almost all criminal proceedings, including these. The judge found that the EncroChat material in this case was obtained under Part 5 warrants. These were approved by commissioners, prior to the obtaining of the EncroChat material. The second warrant was needed in order to widen the opportunity which is not to do with the issue here. The issue is whether that approach was correct, or whether on a true understanding of the way the data were obtained, and of the 2016 Act, they comprised material obtained unlawfully under the wrong warrant and, in any event, were inadmissible.
The prosecution submitted that:
- The EncroChat messages were acceptable and applied to the exception of the act because the messages were “stored in or by the system” at the time when they were intercepted, and any event that:
- That the material was not obtained as a result of “interception related conduct” because none of the five classes of such conduct in the act applied to the case, alternatively it was not conduct carried out in the United Kingdom within the scope of the act.
The key question was whether at the relevant time the communications were “being transmitted” or were “stored in or by the telecommunication system.” The judge found the second point to be the case. The EncroChat messages were properly regarded as falling within a section of the 2016 Act and they had been obtained in accordance with a Targeted Equipment Interference warrant. He decided that for the following reasons:
- At the relevant time when the messages were made available they were not “being transmitted”, it was clear from the evidence in relation to the data from the receiving device that the data was not made available whilst being transmitted. It was found the date in the receiver’s device demonstrated the transmission process of the data had finished. The judge indicated that he had no trouble in concluding that the EncroChat data was not being transmitted at the time that it was taken and was properly to be regarded as “stored in or by the system”. The judge ruled that he did not consider that the distinction between RAM and Realm as described by the defence experts equated to the distinction between “being transmitted” and being “stored”. The defence wanted to extend the notion of transmission well beyond anything which was planned by the 2016 act.
- The Equipment Interference Code of Practice was published pursuant to Schedule 7 of the 2016 Act and was admissible as evidence in criminal proceedings. It addressed the exercise of functions under Part 5 of the 2016 Act and the authorisation of Targeted Equipment Interference warrants and their operation. The judge considered that these provisions from this Code of Practice were consistent with the conclusions that he had already made in relation to this issue.
- Having considered the provisions of a section of the 2016 Act, which contained the power to make a Targeted Equipment Interference warrant and the scope of such a warrant, the judge decided that the interceptions were carried out in accordance with the warrant that had been obtained. The warrant application accurately described the way in which the implant was to operate and the warrant authorised what was then done. There was a finding of fact to which he was entitled to come, and there is no challenge to it in this appeal.
What did the Court of Appeal rule?
The Court held:
That that they agreed with the judge, the communication is that of which is transmitted. What is still on the device is not what has been transmitted but it is a copy of it or what may be described as a draft. However, that is so quickly after transmission the obtaining of the copy takes place, or even if the copy is took while the original encrypted communication is being transmitted. What was obtained was an unencrypted message, meaning that what was on the phone and what was intercepted wasn’t the same as what had been transmitted, as this was encrypted. So it cannot have been ‘’being transmitted’’ what it was intercepted it can only have been ‘’being stored’’.
That being so, the gathering was interception but was condensed lawful by the Targeted Equipment Interference warrants issued under section 99 of the Act.
Further they concluded the only substantial question which the judge was required to answer was whether the EnchroChat material was stored by or in the telecommunications system when it was intercepted. They considered these communications were not being transmitted but stored at that time, therefore the appeal was dismissed.
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