R v A and Others
| Jurisdiction | England & Wales |
| Judgment Date | 2021 |
| Neutral Citation | [2021] EWCA Crim 128 |
| Date | 2021 |
| Year | 2021 |
| Court | Court of Appeal (Criminal Division) |
Crime - Evidence - Telephone intercept - Communications intercepted in course of transmission by means of telecommunication system - Interception taking place in accordance with targeted equipment interference warrants - Communications intercepted in accordance with such warrant admissible in evidence if “stored” in or by telecommunication system at time of interception - Whether communications “stored” or “being transmitted” at time of interception -
The four defendants were charged with criminal offences. As part of the case against them, the Crown sought to rely upon material which had been harvested from the EncroChat communication system by French investigators pursuant to targeted equipment interference warrants granted under Part 5 of the Investigatory Powers Act 2016F1. EncroChat was a system of encrypted communication which operated using handsets provided by the system operator which could only communicate with other handsets on the system. Any message was encrypted as it passed through its server between one handset and another, being decrypted at the receiving handset so that it could be read by the user. At a preparatory hearing the defendants contended that the EncroChat material was inadmissible pursuant to section 56(1) of the 2016 Act because it consisted of the contents of intercepted communications. Paragraph 2(1) of Schedule 3 provided that section 56(1) did not prohibit the admission in evidence of the contents of intercepted communications if their interception was lawful by virtue of section 6(1)(c), which permitted the interception, pursuant to a targeted equipment interference warrant, of communications “stored” in or by a telecommunication system. It was agreed that the EncroChat handsets formed part of a telecommunication system, but the defendants contended that at the time of their interception the relevant communications had not been “stored in or by the system”, within section 4(4)(b), but, rather, were “being transmitted” within section 4(4)(a), with the consequence that paragraph 2(1) of Schedule 3 did not apply. The judge rejected that argument, finding as a fact that the communications harvested by the French authorities had been extracted directly from users’ handsets, rather than while they were travelling to, through or from any other part of the system and holding that, therefore, the communications had been “stored” at the time of their interception. Accordingly, the judge held that the EncroChat material was admissible.
On the defendants’ appeal—
Held, dismissing the appeal, that the question whether an intercepted communication was “being transmitted” or “stored” at the relevant time, for the purposes of section 4(4)(a) and (b) of the Investigatory Powers Act 2016 did not require a minute examination of the inner workings of the relevant telecommunication system, since the statutory scheme, which used ordinary English words, had to be made to work whatever the technical features of the system in question; that, rather, the task for the court was to form an understanding of the system in question and then to decide whether, as a matter of ordinary language, the communication was being transmitted or stored at the time of its interception; that previous court decisions relating to the Interception of Communications Act 1985 and the Regulation of Investigatory Powers Act 2000 did not assist in that exercise; that, therefore, it was not necessary for the communication to be stored “in a manner that enabled the intended recipient to collect it or otherwise to have access to it”, which would be to read words into the 2016 Act which had appeared in section 2(7) of the 2000 Act but which Parliament had deliberately omitted from the 2016 Act; that, having regard to the clear and unambiguous meaning of the words used and the overall legislative purpose, the definition of “stored” in section 4(4)(b) of the 2016 extended to all communications stored on a telecommunication system, whether before, during or after their transmission; that, given the judge’s finding that the relevant communications had been extracted directly from the handset of the user and not while they were travelling to, through or from any other part of the system, he had been correct to hold that the communications had been “stored” at the relevant time, within section 4(4)(b); that, therefore, the interception of those communications had been lawful by virtue of section 6(1)(c) of the 2016 Act, having been carried out in accordance with a targeted interference warrant under Part 5, with the consequence that, pursuant to paragraph 2(1) of Schedule 3, the admission in evidence of the EncroChat material was not prohibited by section 56(1); and that, accordingly, the EncroChat material was admissible (post, paras 54–56, 60–63, 69, 79).
Quaere. Whether mobile telephone handsets form part of a “public telecommunication system” as defined in section 261(9) of the 2016 Act (post, para 18).
The following cases are referred to in the judgment of the court:
King’s Prosecutor, Brussels, Office of the v Cando Armas
R v Coulson
R (C) v Director of Public Prosecutions
The following additional cases were cited in argument:
R v E
R v Effik [
R v Hardy (Brian)
R v Knaggs
R v McDonald (unreported) 23 April 2002,
The following additional cases, although not cited, were referred to in the skeleton arguments:
Liangsiriprasert (Somchai) v Government of the United States of America [
Privacy International v Secretary of State for Foreign and Commonwealth Affairs
R v Aujla (Ajit Singh) [
R v Austin (Herbert)
R v Preston [
R v Sansom [
R v Sheppard
R v Smith (Wallace Duncan)
R v Treacy [
R (Chatwani) v National Crime Agency
R (Purdy) v Director of Public Prosecutions
APPEAL from Dove J
Following a preliminary hearing in criminal proceedings held under section 29 of the Criminal Procedure and Investigations Act 1996 between 16 November and 3 December 2020 in the Crown Court at Liverpool, Dove J ruled on 4 January 2021 that material which had been obtained by a team of French and Dutch investigators and prosecutors by interfering in a communications system called EncroChat and which had been obtained by the National Crime Agency from the authorities in France under a European investigation order (“EIO”) was admissible in evidence against the defendants, A, B, D and C.
The defendants appealed against the ruling pursuant to section 35 of the 1996 Act on the grounds that the judge had been wrong to rule: (1) that the EncroChat communications were not intercepted while they were being transmitted (within section 4(4)(a) of the Investigatory Powers Act 2016), but were intercepted while they were stored before or after transmission (within the definition of section 4(4)(b)); (2), alternatively, that section 56(2)(a) (as related to the offence under section 3 of the Act), could not apply, because the interceptions were not carried out by conduct in the UK, as defined by section 4(8) of the Act; (3) that section 56(2)(c), relating to the restriction on requesting mutual assistance in section 10 of the Act, did not apply, because the EIO made no request that fell within section 10(1)(a) or, in the alternative, the request in the EIO was the exercise of a statutory power for the purposes of section 10(2A); and (4) that section 56(2)(b), relating to the prohibition on an overseas authority to carry out the interception of communications imposed by section 9 of the 2016 Act, did not apply because the actions of the French and Dutch investigators, were not taken pursuant to a request by UK authorities to carry out the interception.
The facts are stated in the judgment of the court, post, paras 7, 10–12, 14.
Peter Wright QC and Ian Whitehurst (assigned by the Registrar of Criminal Appeals) for the defendant A.
Matthew Ryder QC and Simon McKay (assigned by the Registrar of Criminal Appeals) for the defendant B.
Andrew Radcliffe QC and Matthew Buckland (assigned by the Registrar of Criminal Appeals) for the defendant D.
Rupert Bowers QC and Sarah Vine (assigned by the Registrar of Criminal Appeals) for the defendant C.
Jonathan Kinnear QC and Tom Payne (instructed by
The court took time for consideration.
5 February 2021. LORD BURNETT OF MALDON CJ handed down the following judgment of the court.
Introduction1 The issue in this appeal is whether evidence obtained from a mobile phone system known as EncroChat (“the EncroChat material”), which was marketed to its users as totally secure, can be admitted in evidence in criminal proceedings or is excluded by the Investigatory Powers Act 2016 (“the 2016 Act”). The main question is...
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