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BLOG: The end for EncroChat challenge?

08/02/2021

Matthew Buckland – junior counsel for B – and Silas Lee, pupil, consider the Court of Appeal’s refusal to overturn the first instance decision of Dove J on the admissibility of the evidence obtained by French law enforcement from the EncroChat devices, and the consequences for those representing defendants facing EncroChat evidence.


Overview

Social media has been buzzing with the news of the ruling in this case. The most popular refrain appears to have been “Did you really expect any different?”  For those involved in this case it was always recognised that the defence would need to find compelling arguments to counter the strong public policy considerations that led the National Crime Agency (NCA) to declare that they could not afford to waste this opportunity as it would not arise again. That the Judiciary would share that view was obvious, but where does this judgment now leave these cases? Are there ways to challenge this ruling on behalf of clients? Before we look forward, a quick look at where we are now.  

The ruling

EncroChat was a system of encrypted communication that included a modified Android phone operating system that could be used by customers to communicate (via voice calls, texts, photos) with each other in a secure format. Following allegations that the system was being used to conduct criminal activity, the French and Dutch authorities deployed a successful exploit into the system enabling them to intercept user material. That material was then passed to the NCA.

There are presently several hundred Defendants against whom proceedings have been brought on the basis of this material. The ruling handed down on Friday 5 February 2021 by the Court of Appeal in the case of A, B, D & C [2021] EWCA Crim 128 will be of interest to all those involved in such proceedings.

The Defendants argued that the EncroChat evidence disclosed by the Prosecution was inadmissible because it had been obtained by use of an intercept that operated while the messages were “being transmitted”, as in section 4(4)(a) of the Investigatory Powers Act 2016. The Prosecution’s position was that the messages were taken whilst “stored” and therefore 4(4)(b) applied.

This distinction is of great significance. If section 4(4)(a) applies, then the strict prohibition set out in section 56 of the Act bites and the evidence cannot be admitted at trial. If section 4(4)(b) applies, then the evidence is admissible, subject to any other challenge.

The Court of Appeal decided that all material taken from the devices was stored rather than being transmitted. This was not a lengthy judgment and many of the points argued by the defence were swept aside. Paragraph 62 perhaps cuts to the heart of the issue. 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 argument about how a device stores data within RAM (Random Access Memory) and ROM (Read-only Memory, or Realm in the Encro device language) was dismissed by the Court on the basis that both should be treated equally. Permanent and temporary storage, the Court held, are the same, and previous decisions that suggest otherwise are no longer good law because distinctions have to be drawn between the 2016 Act and its predecessors. The RAM and Realm issue was at the heart of the defendants’ case on the basis that it enjoyed the unqualified support of the experts who commented on the issue.

Because of the centrality of this issue to the judgment, it may well be where any future battle lines are drawn in other cases.

Where next?                                                                                                                      

Before asking the obvious question of where defence practitioners should look next, we must acknowledge that this judgment represents a seismic shift in how the Courts will approach these cases. Anyone who is looking to take this further must do so in the knowledge that it is close to inevitable that from now on there will be diminishing credit if pleas are to be entered. Given that the vast majority of these cases are well above Category 1 in the Drugs Sentencing Guidelines the stakes are high.

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 (particularly Coulson) 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.

Conclusions

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.

***

Matthew Buckland has a practice which covers the full range of serious crime and white-collar defence work. Described as a ‘masterful’ advocate by Criminal Law & Justice Weekly and ‘deft and subtle’ by The Guardian, he also undertakes professional discipline and tax tribunal work.

Silas Lee is coming to the end of his first six months of pupillage. Recipient of the Buchanan Prize, the Hardwicke Aware and a Lord Denning Scholarship, he worked on the IICSA and the Infected Blood Inquiry prior to coming to the Bar. 

08/02/2021

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