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A vast number of cases are awaiting a criminal trial that will rely, to a greater or lesser extent, on the admissibility of communications made via the supposedly highly encrypted Encrochat service.

The Court of Appeal has now issued a ruling following preliminary rulings at Liverpool Crown Court. Whilst this ruling does not mean that guilty pleas are inevitable, for some defendants it will nonetheless present a significant hurdle for them to surmount.

The main question was whether the communications were intercepted at the time they were being transmitted or, as the judge found, were recovered (intercepted) from storage. If the judge was right, subject to a number of subsidiary arguments, the evidence would be admissible.

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 2016 Act adopted a domestic law framework which is unique in Europe and which resembles previous regimes. Historically, intercept material (classically phone tapping, but not limited to that) could be lawfully obtained by the authorities. Subject to a number of immaterial exceptions, it could not be used in evidence in proceedings but was reserved for intelligence use. The policy justification for that approach has been debated on many occasions and centres around protecting sensitive capabilities and wider operational and practical concerns. All were discussed in Intercept as Evidence, December 2014 Cmnd 8989 which was the report of a review of Privy Councillors provided to Ministers. In many other jurisdictions, including France and the Netherlands, there is no blanket prohibition on the admission into evidence of intercept material. The 2016 Act superseded the law found in the Regulation of Investigatory Powers Act 2000, which itself replaced the Interception of Communications Act 1985. Major changes between the current regime and the one established in the 2000 Act concern the new regulatory and supervisory system established by the 2016 Act. 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 was the submission, rejected by the judge, that the EncroChat material is intercept material and inadmissible in criminal proceedings because of section 56 of the 2016 Act, and further that it was unlawfully obtained under a Targeted Equipment Interference warrant, when its obtaining should have been identified as a kind of interception which would require a Targeted Interception warrant. Targeted Equipment Interference warrants are governed by Part 5 of the 2016 Act and 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 Sir Kenneth Parker, a Judicial Commissioner, on 5 March 2020, and Sir Brian Leveson, the Investigatory Powers Commissioner, on 26 March 2020, prior to the obtaining of the EncroChat material. The second warrant was needed in order to widen the scope of the first for reasons which are not material to the issues before us. 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:

1. i) the EncroChat messages were admissible and fell within the exception provided by section 56(1) and schedule 3 paragraph 2 of the Act because the messages were “stored in or by the system” at the time when they were intercepted; and, in any event,
2. ii) that the material was not obtained as a result of “interception related conduct” because none of the five classes of such conduct (as contained within section 56(2) of the Act) applied to the present case, alternatively it was not conduct carried out in the United Kingdom within the scope of section 4(8) 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 latter to be the case. The EncroChat messages were properly regarded as falling within section 4(4)(b) of the 2016 Act and they had been obtained in accordance with a Targeted Equipment Interference warrant. He decided that for the following reasons:

i) 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 exfiltrated from the receiving device that the data was not made available whilst being transmitted. The incorporation of the nickname for the sender from the data held in the receiver’s device demonstrated that 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 (whether before or after transmission)” and subject to section 4(4)(b) of the 2016 Act. 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” as set out in the statutory provisions. The defence approach sought to extend the notion of transmission well beyond anything which was contemplated by the 2016 Act.

ii) 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.

iii) Having considered the provisions of section 99 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. This was a finding of fact set out in paragraphs 161 and 162 of the judge’s ruling. It 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:

“We agree with the judge. The communication is that which is transmitted. What remains on the device is not what has been transmitted, but a copy of it or what, in older forms of messaging, might be described as a “draft”. That is so however quickly after transmission the obtaining of the copy takes place, or even if the copy is extracted while the original encrypted communication is being transmitted. The fact that what was obtained was an unencrypted message, means that what was on the phone, and what was intercepted, was not the same as what had been transmitted because what had been transmitted was encrypted. It cannot therefore have been “being transmitted” when it was intercepted: it can only have been “being stored”.

That being so, the harvesting was interception but was rendered lawful by the Targeted Equipment Interference warrants issued under section 99 of the Act.”

and that:

“We have concluded that the only substantial question which the judge was required to answer was whether the EncroChat material was stored by or in the telecommunications system when it was intercepted. Like him, we consider that these communications were not being transmitted but stored at that time. That being so, the appeal is dismissed.”

How can we help?

 We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly. If you would like to discuss any aspect of your case, please contact one of our solicitors on 0115 9599550 or use the contact form below.

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The Health Protection (Coronavirus Restrictions) (England) Regulations 2020 imposes several restrictions.

Over the last week, the police have been keen to enforce compliance, even calling out the MP Stephen Kinnock over social media for visiting his father on his birthday or dying the lake at a Derbyshire beauty spot black.

Given the importance of protecting the NHS, it is likely that the police may take a harder line as the crisis worsens.  There is, however, a genuine concern that the police are imposing their own restrictions on individuals that aren’t present within the legislation.  Alternatively, they are applying an over-zealous interpretation of the law.

Restrictions on movement

During the emergency period, no person may leave the place where they are living without reasonable excuse.

A reasonable excuse includes the need—

• to obtain basic necessities, including food and medical supplies for those in the same household (including any pets or animals in the household) or for vulnerable persons and supplies for the essential upkeep, maintenance and functioning of the household, or the household of a vulnerable person, or to obtain money, including from any business listed in Part 3 of Schedule 2.
• to take exercise either alone or with other members of their household;
• to seek medical assistance, including to access any of the services referred to in paragraph 37 or 38 of Schedule 2;
• to provide care or assistance, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006(1), to a vulnerable person, or to provide emergency assistance;
• to donate blood;
• to travel for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living;
• to attend a funeral of a member of the person’s household, a close family member, if none of these are attending, a friend;
• to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings;
• to access critical public services, including— childcare or educational facilities (where these are still available to a child in relation to whom that person is the parent, or has parental responsibility for, or care of the child); social services; services provided by the Department of Work and Pensions; or, services provided to victims (such as victims of crime);
• in relation to children who do not live in the same household as their parents, or one of their parents, to continue existing arrangements for access to, and contact between, parents and children, and for the purposes of this paragraph, “parent” includes a person who is not a parent of the child, but who has parental responsibility for, or who has care of, the child;
• in the case of a minister of religion or worship leader, to go to their place of worship;
• to move house where reasonably necessary;
• to avoid injury or illness or to escape a risk of harm.

The word ‘need’ prefaces the exceptions and this implies an added necessity test.

Requirement to close premises and businesses during the emergency

A person responsible for carrying on a business which is listed in Part 1 of Schedule 2 must—

During the emergency period—

• close any premises, or part of the premises, in which food or drink are sold for consumption on those premises, and
• cease selling food or drink for consumption on its premises; or
• if the business sells food or drink for consumption off the premises, cease selling food or drink for consumption on its premises during the emergency period.

The provisions in relation to business closure are particularly complex and a number of police interventions have already been made such as to try and stop shops selling Easter eggs.

Please contact us for accurate up to date advice if you are unsure as to your legal obligations.

Restrictions on gatherings

During the emergency period, no person may participate in a gathering in a public place of more than two people except—

• where all the persons in the gathering are members of the same household,
• where the gathering is essential for work purposes,
• to attend a funeral,
• where reasonably necessary— to facilitate a house move; to provide care or assistance to a vulnerable person, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006; to provide emergency assistance, or
• to participate in legal proceedings or fulfil a legal obligation.

Penalties

Breach of these emergency regulations can result in fixed penalties (of up to £960) and unlimited fines.

Adults must do all they can to ensure that children comply, and failure in that regard can itself result in prosecution.

Other enforcement measures can be taken concerning business premises and failing to comply with restrictions.

If you have received a fixed penalty that you wish to challenge or are being investigated or prosecuted for an alleged breach, our expert team are able to advise.

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While accepting that society cannot slip into lawlessness during difficult times, it must also be accepted that it is incumbent on the police and prosecution to take steps to ensure the safety of suspects and their representatives while in police custody.

It was, after all, a police officer’s decision to detain and individual in the first place rather than take verifiable details and arrange an interview at a later date. Again, we accept that there will be circumstances where an arrest and detention will be unavoidable.

Partner and duty solicitor Jon Hullis attended upon a client at the Bridewell police station.  Although we had  earlier published emails that flowed from our attendance at the police station we have been asked to remove them so have done so.

In summary, observations were made:

• Jon’s experience was that literally no measures were being taken at the Bridewell to distance people.  Officers had to be asked to keep a safe distance.
• He was not offered any PPE, although to use it would have been pointless as nobody else was.
• No adjustments were being made to normal procedures in deciding whether interviews are actually necessary.  The client to be interviewed in this case was clearly shown on 18 separate sets of CCTV committing shop thefts.  The interview was planned to take 90 minutes.  The police had indicated the client would be charged in any event.
• In the event Jon’s client, following consultation, chose not to be interviewed.  This seemed unarguable bearing in mind the evidence and the current public health situation.
• The officer responded by saying that the Crown Prosecution Service insisted on an interview in every case and that position had not changed.  The CPS ‘would have a go at them’ if an interview did not take place.
• Jon made the personal observation that he had carefully followed Public Health England guidance and therefore this was the first time he had left his house in three days.  As a result at this attempt at a pointless interview, he has now risked exposing his family to the virus.
• This scenario is being repeated numerous times every day across the two Nottinghamshire custody suites.

A request was made that urgent advice be given from the CPS as to the necessity of recorded interviews in many cases, so that as many people as possible can be protected from wholly unnecessary risks.

We intend to provide advice and representation to all suspects who seek it.  There are many benefits to representation in police interview.

Read more here.

Now more than ever it might be that our early input into a case can secure your early release, either to return for interview on a future date or for no action to be taken.

However, we can only permit our staff to attend at police stations when it is safe to do so.  The police and prosecution can take simple steps to try and ensure safety.  We await confirmation of whether those steps are to be taken.

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On Tuesday 24 March the resident Judge at Derby Crown Court, HHJ Shant QC, hosted a telephone conference for local practitioners.  Derby solicitor advocate William Bennett took part in the call.

Local barristers had already announced that they would not be attending court to represent clients and would only take part in hearings by way of telephone or video conferencing.

Essentially it was to obtain thoughts and opinions on the way through the crisis, taking advantage of remote working, as well as discussing how else the court was to continue dealing with cases.

The Court confirmed that the court was running at approximately 25% of the usual staffing level.  It was anticipated that the Court would open one or two courts to deal with the admin cases.  The court building would not be open to anyone other than staff.

While some chambers and the Crown Prosecution Service had the benefit of ‘proper’ video facilities, others did not have that luxury.

The Learned Judge suggested that PTPH’s could be conducted without plea, but by telephone with the defendant absent, on the basis that instructions had been taken prior to the hearing.

Although this may be possible for bail cases, it seems increasingly unlikely that any progress can be made in custody cases unless special provision is made.

Prisons are not allowing visits.  Lawyers cannot access video link facilities if the courts are closed.  ‘Informal’ video conferences with prisoners are unlikely to be permitted, even if possible.  Telephone conference would need special arrangements with the prisons.

The Judge was concerned about this lack of access to defendants, although she was perhaps the only one of other more vocal contributors who did.

In terms of custody cases, it seems that an announcement will be imminent about legislation suspending custody time limits due to the crisis.  This will be at a time when our access to those prisoners is extremely restricted.

The Judge acknowledged that as matters stand it will be impossible to undertake sentences for those in custody.  As a result, it appears that they will simply remain there.

Those needing interpreters, whether in prison or on bail, pose another unique problem for the proposed telephone hearings.  Without defendants being part of the hearing then that problem may recede.

Judges may be more prepared to offer an opinion in relation to sentence or direction of a case, but that is still being developed.

A further meeting is scheduled for 25 March and we will again publish any useful information arising from it.

If you have any queries about the conduct of your case then please contact the lawyer dealing with it.  Although our lawyers are working remotely we are aiming for business to continue as usual as far as that is possible.

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A second telephone conference took place today between local practitioners, the prosecution and judiciary, led by HHJ Dickenson QC, in relation to how Nottingham Crown Court was going to respond to the continuing crisis.

The Lord Chief Justice published guidance this morning and in part this meeting was a reaction to that.  Adopting the general tone of that meeting, the Recorder of Nottingham stressed that, for example, trials would only start again in Nottingham once the safety of all those involved could be ensured.

He reflected that this might be unlikely, as staffing levels due to the virus were reduced, and it seemed likely that only the larger courts 1 to 3 would be kept in operation.  This would assist in ensuring that distance is kept, particularly if the court continues with its ‘one in one out’ approach to dealing with cases.

Although the Lord Chief Justice appears to recommend simply pushing trials back week after week until they are able to be heard, it seems unlikely that this approach will be adopted in Nottingham.  It would eventually lead to a list of hundreds of trials by the time that things return to normal, with the headache of re-listing at that stage.  As a result, cases are likely to go into a warned list.

The Judge has taken control of the standards of cleanliness within the building, and is expecting updates on the intention to clean ‘communal’ surfaces such as doors, keyboards and key pads etc every 2 hours.

Rather than prioritise trials, they would prioritise the admin list and try and deal with trials that were capable of sensible resolution.  This would mean the 90% of cases that pass through the courts.

Where possible, the court would attempt to move away from the traditional court based hearing.  Instead, hearings by way of telephone or video conferencing would be employed.  These are both capable of being recorded so can be ‘on the record’.

There was a further discussion of the 74 trials that remain listed to the end of April.  Just less than half of the defendants are in custody.  Many of them would resolve on the day of trial.

It is hoped that resolution could come sooner, particularly as any trial date is likely to be 6 months away.  Resolution might be assisted by judicial intervention, or a realistic approach from either the prosecution or defence.

It seems likely that all trials in any given week are listed on the Monday of that week in the absence of defendants to see whether they can ‘crack’ or whether they need re-listing.  Trials are to be allocated to specific Judges who will oversee progress and offer a judicial steer where appropriate.

These hearings are likely to take place as a recorded telephone conference.  If a case may be capable of resolution it can then be adjourned for the defendant to offer a view.  Negotiation between the Crown and defence is expected to take place prior to the hearing.

The point was accepted that the lay out of the cells meant that it was impossible to observe the ‘2 meter rule’ at Nottingham.  Local solicitor advocate Emma Coverley from the Johnson Partnership described how she had to make the judgement to take a colleague and interpreter into the cells that morning to meet a client face to face with the attendant risks.

HHJ Dickenson QC took all opinions on board and we can expect a protocol relevant to Nottingham to be issued within the next day or so.

It is obviously pleasing to be involved in such discussions and feel that the opinions of the defence are valued.  While some were vocal that nobody should come to court, issues such as the interests of the client, having a viable justice system at the end of this, and viable practices as well must all be in the mix.

Since finishing the meeting, there has been an announcement that HMCTS have decided that it will adjourn all bail cases except Domestic violence and those that involve children and vulnerable adults. This is likely to be the position for the coming weeks.   This in itself may dictate volume of cases before the Crown Court, the majority of defendants appearing there on bail.

If you have any queries about your case and how it may be affected then please contact the solicitor or litigator dealing with your matter.