Tribunal that can demand evidence from NCA agrees to look at lawfulness of Encrochat evidence

A SPECIALIST tribunal that can demand any evidence from the National Crime Agency (NCA) or security services has agreed to examine the lawfulness of the Encrochat hack, Essex News and Investigations can reveal. Ten defendants facing Encrochat charges have lodged a complaint with the Investigatory Powers Tribunal (IPT), which the NCA would be compelled to provide evidence to, with a hearing due to proceed in early 2022, meaning delays for more prosecutions. Separately, the Court of Appeal (CoA) is expected to soon release its judgement in connection with a number of cases that had a preparatory hearing before Judge Mr Justice Ian Dove earlier this year. Judge Dove rejected defence claims the Encrochat evidence should be deemed inadmissible, but he granted leave to appeal his ruling to the CoA, which is expected to publish that judgement in the coming days. However, a separate complaint to the IPT is already underway and a brief hearing of the tribunal heard this could delay some Encrochat prosecutions further into 2022. Interestingly the IPT case will be headed by Lord Justice Andrew Edis (top image) with Desmond Browne QC. Lord Justice Edis was on the CoA panel that backed up earlier findings by Judge Dove in a case known as Sub Zero that found Encrochat real time message evidence was admissible. More than 1,500 people have been arrested under Operation Venetic, the National Crime Agency (NCA) investigation into the use of the encrypted phone system Encrochat by suspected drug and firearms traffickers and money launderers.

Last April Dutch and French investigators broke through the encryption of the supposedly secure Encrochat encrypted phone communication platform which was being used by around 50,000 people worldwide, including about 9,000 in the UK. They allowed police forces across Europe, including in the UK, access to previously sent and new "real time" messaging between suspected organised crime groups. It led to hundreds of raids, arrests and seizures of drugs, cash and firearms across the UK in a series of unconnected operations. Encrochat shut itself down when it discovered the hack in June. Police and other agencies are allowed in this country to tap into phone calls as they happen, known as a live intercept, but it can only be used for intelligence purposes and not as prosecution evidence in court.Yet, the NCA, police and CPS have introduced real time messages from the Encrochat hack into criminal prosecutions under Operation Venetic. In some cases defendants have been charged based on real time messages alone with no drugs, firearms, cash or other evidence found including devices. Defence lawyers argued that the real time messages were "live interceptions'', which are inadmissible as evidence in British courts, and sought a court ruling that the real-time messages could not be used as evidence during criminal trials.

However, in early 2021, Lord Burnett of Maldon, Lord Justice Edis and Justice Whipple, sitting at the CoA, prevented the Sub Zero test case, about the admissibility of the real-time messages, from being sent upwards to the Supreme Court. Court of Appeal judges agreed with Judge Dove, who also presided over Sub Zero, who said that because the messages were briefly stored on the sending device before being sent, and then briefly stored on the receiving device, before being read, it was not a live interference. The judges ruled that it was the same as hacking into the historic stored messages or even emails, which is called targeted interference and can access material that can be used in court.

In the current case before the CoA, Operations Embossed and Estervan, defence lawyers made further representations to Judge Dove about admissibility of the evidence before he allowed his decision to be appealed to the CoA.Other preparatory hearings about Encrochat are still to be heard at Cardiff Crown Court.But, now the IPT will look at the admissibility of Encrochat evidence separately to the criminal courts. The IPT is a judicial body that operates independently of government to provide a right of redress for anyone who believes they have been a victim of unlawful action by a public authority using covert investigative techniques. The ten applicants have argued that the Encrochat real time message evidence should not be admissible in criminal trials due to being a live intercept and have also taken issue with the warrants used by the NCA to access Encrochat data from foreign counterparts. The IPT website states: "The Investigatory Powers Act 2016 strengthened the provisions governing the tribunal by providing a new right of appeal from decisions and determinations of the tribunal in circumstances where there is a point of law that raises an important point of principle or practice, or where there is some other compelling reason for allowing an appeal." The NCA will have to provide the tribunal with any documents about Encrochat it requests, and cannot hold stuff back on national security grounds. The website adds: "The tribunal is under a duty both to investigate and to determine valid complaints and public authorities are under a duty to provide the tribunal with all documents and information the tribunal may require to assist in that investigation.

BUSTED? The Encrochat operation has led to huge amounts of drugs being seized across the UK (NCA)

"Nothing can be held back from the tribunal for reasons of secrecy or national security. To counter this, and to protect sensitive information, the tribunal may not disclose to the complainant anything which might compromise national security or the prevention and detection of serious crime, the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence services. "However, wherever possible, and subject to this limitation, the Tribunal will provide findings of fact or a summary of the determination." Lawyers for the ten defendants have also asked the IPT to look at the warrant the NCA used to access the Encrochat data from European counterparts. In the UK the Investigatory Powers Act (IPA) allows police and HMRC to apply for a warrant to carry out "targeted equipment interference" (TEI) to hack into emails or digital messages relating to a "specific" person location or operation. A TEI warrant can also be applied for in a "thematic" sense to hack into the same for a group of people who share a common purpose of criminality, but only for a single investigation or operation. A "Bulk Equipment Interference (BEI) warrant, to allow the interception of any whole sets of data, can only be applied for by the heads of MI5, MI6 or GCHQ in the interest of national security and only to obtain the data of people living outside the UK. The NCA applied for a "thematic" TEI, to obtain the data, even though it was seeking access to the messages of all around 9,000 users of Encrochat in the UK. It led to multiple investigations against unconnected suspects all under the banner of the NCA's Operation Venetic. A thematic TEI application should name as many people or organisations under investigation as reasonably possible. However, the NCA did not name anyone in its TEI application.Lawyers for the ten will argue to the IPT that what the NCA effectively applied for was a Bulk Data warrant under the pretence of a Thematic TEI one. A brief hearing of the tribunal heard that there about a further 25 Encrochat defendants who have lodged complaints with the IPT.

Lord Justice Edis said: "How will this impact on on custody time limits? "To what extent will this be a rehearing of the factual material considered my Mr Dove? Is it intended to rerun the factual investigations judges have done.

Matthew Ryder QC, on behalf of one defendant, said that some expert evidence in front of Judge Dove in the earlier Sub Zero case led to his ruling against the defendants. He said: "The fact the evidence proceeded on certain assumptions made by the experts at that time in Sub Zero led to the ruling, some discloses since made in Operation Embossed have called into question or undermined the assumption experts had made in reaching their opinions." Representing other defendants, Simon Csoka said: "The findings of fact were different in the two preparatory hearings. In Embossed it was accepted by Mr (Lee) Shrimpton, a technical officer called by the NCA, and Mr Harrison, an expert from GCHQ, that the assumption in end to end communication only holds good if the encryption is working as it should by design and it is possible the implant (hack) may have undermined the encryption so that it appeared the encryption was working." He said there has so far been no disclosure from the French on precisely how the implant worked, but further evidence may become available to the IPT. Legal challenges about Encrochat evidence are currently underway in France and the Netherlands. Mr Csoka said: "In the Netherlands the judge has already ordered further disclosures from the Dutch authorities. The Dutch were the technical part of the Joint Investigation Team and there may be further disclosures later this year on how the infiltration occurred. "We are aware of disclosures in Operation Embossed that were not given in Sub Zero and other Venetic cases where there has been inconsistent CPIA disclosure." Richard O'Brien, for the NCA said: "The NCA has not been served with claims and complaints other than from the ten listed today. Anything else should be stayed." One area that may be looked at by the IPT is advice given by top QC Lord Anderson (pictured above) to the CPS in May 2020 that the NCA warrants for the Encrochat data may have been unlawful. He later altered his position after being sent more detail from the NCA. Judge Edis said: "We have recently seen the advice of Lord Anderson to the CPS and need to think where this comes from and don't want any material that amounts to a contempt of court. "We do propose to proceed by designating lead cases and staying the other cases." The case was adjourned until later this year, with a five day hearing expected in early 2022.