EncroChat – A cause for concern?

A recent look into the decision in A, B, D & C [2021] EWCA Crim 128

What is EncroChat

EncroChat is a mobile phone company whose devices have had their microphones, cameras and GPS systems removed. The devices then have a unique operating system which includes a messaging system, which sends and receives encrypted messages. It is believed that a growing number of criminals had started using EncroChat to evade the usual police practises under RIPA to obtain suspects call, text and internet data.

It is worth repeating, possession of an encrypted phone is not in itself illegal, however, the police are increasingly finding that organised crime groups are using EncroChat to conduct their business and may suspect your involvement in a crime if you are in possession of an EncroChat device. This is evidenced when considering the MG5.

What happened in June 2020

The encrypted messaging system came to the attention of the French Gendarmerie in 2017, it was discovered that EncroChat was operating from servers based in France and the police were in effect able "to put a technical device in place" which allowed them to access the encrypted messages.

The French authorities who then worked with the EU Agency for Criminal Justice Cooperation (Eurojust) organised the processing of the data.

The data was shared with several member states and a joint investigation team was set up. The United Kingdom being one of those states. Eurojust then coordinated with Europol and police forces from Spain, Sweden, the UK and Norway.

This led to the interception and analysis of millions of messages between parties alleged to be planning serious criminal activity. As a result of the interception, there have been hundreds of arrests in the UK, in fact, on the 02 July 2020, the Metropolitan Police Service under operation Eternal made 171 arrests and seized £13.3 million in cash as a direct result of data obtained due to EncroChat.

Can the Crown use this evidence?

Several legal arguments have already come forward challenging the admissibility of this evidence. The primary objection to the use of EncroChat data was that the evidence amounted to ‘intercept evidence’.

The use of intercept evidence is highly regulated in law. For intercept evidence to be admissible, the prosecuting authority and police must obtain a warrant permitting the collection of the data, then for it to be admissible it must be authorised by a secretary of state and approved by a judge.

In most cases, it was submitted that the EncroChat material was inadmissible because of the exclusionary rule in section 56 of the Investigatory Powers Act 2016 because the data was “being transmitted”.

Arguments have also been made that the UK had made an unlawful request for assistance to the French authorities, contrary to prohibitions contained in sections 9 and 10 of the 2016 Act. the argument being that a targeted interception warrant had not been issued.

finally, a general argument to excluded the EncroChat data under section 78 of the Police and Criminal Evidence Act 1984 on the basis that it would be an abuse of process due to the lack of; and that the judge should stay the criminal proceedings as an abuse of the process due to the evidence being obtained unlawfully.

The prosecution argued for the evidence to be admitted on the basis that the exception provided by section 56(1) and schedule 3 paragraph 2 of the Investigatory Powers Act 2016 namely that the messages were “stored in or by the system” and therefore was not intercepted. It was also argued that the relevant conduct was not carried out in the UK within the scope of section 4(8) of the Act and therefore the evidence ought to be admissible evidence.

At the Crown Court, the judge heard detailed technical evidence about how the data had been gathered and how it should be described before applying the admissibility provisions in the UK’s Investigatory Powers Act 2016. In his decision, the judge set out the nature of the EncroChat system and how the data was captured.

The judge decided that the EncroChat messages were properly regarded as falling within section 4(4)(b) of the 2016 Act. At the relevant time when the messages were made available, they were not “being transmitted”. The judge, therefore, agreed with the prosecution’s submission on the admissibility of the evidence.

The Appel

The Court of Appeal on Friday 5 February 2021 has now issued a ruling.

The main question that was being considered was whether the communications were intercepted at the time they were being transmitted (s4(4)(a) of the IPA Act 2016) or were recovered from storage (s 4(4)(b) of the IPA Act 2016).

This distinction is of great importance as if, as the defence submitted section 4(4)(a) applies, namely that the data was being transmitted, then the prohibition set out in section 56 of the IPA Act 2016 applies and therefore, the evidence cannot be admitted at trial. If however, as the crown had submitted that section 4(4)(b) applies, namely that the data was stored then the evidence is admissible.

The Court of Appeal ruled that all material taken from the devices was stored rather than being transmitted. Lord Burnett CJ said:

“As a matter of ordinary language, section 4(4)(b) is clear and unambiguous in its meaning. It extends to all communications which are stored on the system, whenever that might occur. That broad meaning coheres with the structure of the 2016 Act considered in overview, and importantly with the different types of warrantry for which the Act provides. Part 5 warrants are required for the interception of stored material, and Part 2 warrants for material which is to be intercepted while being transmitted. It also advances the overall purpose of the legislation in preserving the legislative framework – and the distinction between the different types of intercept – to which we have referred. The statutory question for any court in determining section 4(4)(b) applies is this: was the communication stored in or by the system at the time when it was intercepted?”

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 admissibility of such material, which is found in the Investigatory Powers Act 2016 ("the 2016 Act").

The second argument raised as to whether the prosecution had unlawfully requested assistance from the French authorities was also dismissed. The court of appeal ruled that the harvesting was interception but was rendered lawful by the Targeted Equipment Interference warrants issued under section 99 of the Act."

In short, the Court of Appeal confirmed that the relevant authorisation for the request had been obtained by the exercise of a statutory power, namely the power to make the European Investigation Order.

What next?

There may be attempted to take this case to the Supreme Court, however at this time, It is unclear that a question will be certified by the Court of Appeal.

At this stage, however, it appears that defendants involved in these types of cases will have to evaluate their instructions and advocates will have to reconsider their advice in light of this decision.

How can I challenge this evidence?

There are other ways to challenge the prosecution evidence on EncroChat, advocates can challenge attribution and continuity of evidence particularly if the device is not found on the defendant.

Challenging the continuity of the EncroChat device from seizure to the requesting of data will be crucial.

Conclusion

Having considered the Court of Appeal decision it is clear that EncroChat evidence is a cause for concern and defendants should be advised according to having regard to the decision in A, B, D & C [2021] EWCA Crim 128. This will have a major impact on sentencing and therefore, it is important to get the advice right to avoid cases going to the Court of Appeal or complaints about legal advice being made.