News 5th Feb 2021

Jonathan Kinnear QC acts in landmark EncroChat decision

The Court of Appeal delivered judgment today in respect of the admissibility of evidence obtained by the National Crime Agency from the French and Dutch authorities who had infiltrated EncroChat, a bespoke encrypted global communication service said to have been used exclusively by criminals. The provision of the evidence led to the UK’s largest ever law enforcement operation, resulting in over 1000 arrests and the seizure of tens of millions of pounds in cash, tonnes of drugs and a wide range of firearms, including assault rifles and grenades. It was described by the Home Secretary as “a game-changing moment in our fight to tackle serious and organised crime”.

The admissibility of the evidence was challenged at first instance as part of a preparatory hearing lasting 14 days, on the basis that it should be excluded further to the provisions in s.56 of the Investigatory Powers Act 2016 (“the IPA”) as the EncroChat messages were communications that had been intercepted at the time they were being transmitted and were not recovered from storage in the Encro handsets.

The judgment of the the Court, delivered by The Lord Burnett of Maldon CJ, considers for the first time the scope of the IPA and in particular the exclusionary powers in s.56 and the construction of s.4(4)(a) and (b) relating to whether material is intercepted when it is being transmitted or at a time when it is stored in or by the system.

Dismissing the appeal the Court concluded that s.4(4)(b) was clear and unambiguous in its meaning and extended to all communications which are stored on the system whenever that might occur and that as the evidence fell into that category it was admissible. The Court further concluded that transmission takes place after the communication has been put into its final form i.e. after it had been encrypted and only when the device is in contact with the rest of the system for the purpose of sending or receiving a communication, and when the communication is travelling through other parts of the system.

Jonathan Kinnear QC, leading Tom Payne, is instructed by the CPS Organised Crime Division to oversee the national strategy in respect of all 250 or so prosecutions based on EncroChat evidence and to deal with challenges relating to the admissibility of that evidence.

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