encrochat admissibility
0000021858 00000 n Rather, they had been recovered from storage. Vague suspicions and general indications are not sufficient to justify blanket spying on all users of the chat service, the court found. It's the first ground for appeal which interests me. In her criminal law practice she represents a variety of clients charged with serious matters and specialises in young and vulnerable clients. This means that the measures were unlawful, Reinhard wrote in a 22-page judgment. In the case of the sender the material was recovered in the form of unencrypted messages stored in the RAM of the device in a form in which they existed before they were transmitted from the device to the servers in Roubaix, via the telecommunications system. If the content of these encrypted mobile devices is admissible in UK courts, the next pointto consider will be whether or not the communication can be attributed. 285 0 obj <>stream Did you find this post interesting? They are rightly required to operate within the law. 2. But the mere use of an encrypted phone, even one with a high level of security, is not in itself a reason to conclude that criminal conduct had taken place, said the court. More speculatively, and accepting that I may be misreading the decision, but it strikes me that the Court placed a lot of weight on the evidence of the French authorities, in terms of how the implant worked, and its effect. If you are reading this because you're a telecoms operator and you're wondering what to do with a targeted equipment interference warrant or a targeted interception warrant received from an agency, feel free to get in touch for advice. The outcomes of a number of ongoing EncroChat cases, as well as the judgment of the Investigatory Powers Tribunal (the IPT) in the complaint proceedings concluded before it in December 2022, remain anxiously awaited. Like the EncroChat hack, it has not been disclosed how police in Belgium, France and the Netherlands infiltrated the Sky ECC network, despite the evidence being used for hundreds of arrests and prosecutions across Europe. In a novel hacking operation, the French Gendarmeries Centre for Combating Digital Crime (C3N) gained access to EncroChats servers, housed at the French datacentre provider OVH in Roubaix in April 2020. 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 . In advance of the trial, the judge ordered apreliminary hearing todetermine the admissibility of evidence (which had been gained during the EncroChat hack). There are two limbs: The relevant act (the hack) must be carried out by conduct within the UK, The communication must be intercepted by a public telecommunication system or a private telecommunication system where the sender or intended recipient is in the UK.[6]. This information was shared with police authorities across Europe, including UK law enforcement agencies. EncroChat was one of the worlds largest encrypted communications services, with around 60,000 users across Europe and approximately 9,000 in the United Kingdom. Eric Kind, a visiting lecturer at Queen Mary University London specialising in criminal justice and surveillance technologies, and director of data rights agency AWO, said that the verdict was likely to be appealed. In two open letters, 100 lawyers and 22 lawyers, respectively, many directly involved in defending EncroChat users, criticise the fact that defendants face unfair trials because prosecutors The subsequent discovery of criminal activities after the surveillance began cannot be used to retrospectively justify the interception operation, the court said. I can see why it reached it, and also the potential for an appeal, and for a superior court to reach a different decision.). The HoL also found that there was no breach of Article 6. Police infiltrated the network between at least March and June 2020 during a Europe-wide investigation. Immediately after the data breach, questions were raised over how the evidence was obtained. A TEI warrant does not authorise in relation to a communication other than a stored communication conduct which would (unless done with lawful authority) constitute the offence of unlawful interception (s99(6)). 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There's an interesting, if obiter, comment as to whether a mobile handset forms part of the "public telecommunications system". The police are often only able to identify that there is a password-secured encrypted partition on the device (which may or may not contain access to EncroChat) and they may also make inferences from the SIM card present in the phone (many have Dutch network sims). They added that data taken from the EncroChat phones, was not what has been transmitted, but a copy of it or what, in older forms of messaging, might be described as a draft. You can also change your choices at any time, by hitting the Tobias Singelnstein, chairman of criminology at the Ruhr-Universitt Bochum, told Computer Weekly that the Berlin courts decision was significant, being the first to take into account the serious legal problems inherent in the acquisition of evidence from EncroChat. But three judges found on 5 February 2021 that material gathered by French and Dutch investigators and passed to the UKs National Crime Agency (NCA) were lawfully obtained through equipment interference. The judges found that previous decisions made by courts on interception were not relevant as they had been decided under different statutory regimes, adding that the Investigatory Powers Act 2016 was a new statue on which there is no relevant authority. 7135273); Fair Trials Europe, registered public foundation in Belgium (No. Under UK law, intercepted communications can only be obtained if the authorities have aTargeted Equipment Interception warrant. It may also be time to push for a clearer funding model for mandatory assistance with TEI operations. (As opposed to, say, SQLite.). Information that has been obtained by interception in the UK cannot be relied upon by either the prosecution or defence. It's a side point, and doesn't really affect the analysis, but the specific reference to "Realm" as opposed to simply non-volatile storage puzzled me. The defendants advanced arguments under both Article 8 (right to a private and family life) and Article 6 (right to a fair trial). Fair Trials welcomes this scrutiny and urges countries to ensure that all evidence can be effectively examined and challenged. The Court of Appeals judgment in Murray & Others is in keeping with previous Court of Appeal rulings in EncroChat cases. Grounds for suspicion did not exist when the EIO was ordered and implemented, according to the judgment. Encryption technologies have also been supported by the Council of the European Union, which backs the technology to protect the digital security of governments, industry and society. The court ordered that no report of the judicial review can identify anyone suspected of crimes linked to Encrochat. The main argument of the conviction appeal was that the case should have been adjourned pending the outcome of the IPT proceedings, or to allow the expert findings from those proceedings to be heard one way or another. Given the primacy of the French authorities in this activity, there is a question as to whether s3(1)(b) that any interception was "carried out in the United Kingdom" was met. That being so the appeal is dismissed, they said. It will not be farfetched to assert that an authority capable of hacking and penetrating a military grade PGP encrypted server is capable of altering the evidence being relied upon. The case reached the House of Lords (HoL). They dismissed arguments from expert witnesses that law enforcement obtained messages from EncroChat phones while the communications were being transmitted, rather than in storage. The judges found that communications passed on from the French and the Dutch to the UK were obtained not while they were being transmitted, but while they were stored. Given the facts as applied by the Court, and the Court's ruling on the point of law, this is an expected outcome. Are they referring to the "Realm" database, used for local storage on Android? The High Court itself also dragged its heels, taking a week of constant nagging to supply a copy of a reporting restriction order attached to the public judgment. Furthermore, intercepted materials cannot be presented as evidence in court. 0000041615 00000 n Similarly, in February 2022, an application to adjourn the trial in light of an expert report produced in the IPT proceedings was refused, as the judge noted that there had already been several adjournments in a similar vein and the prior Court of Appeal judgments had determined that EncroChat was prima facie admissible. This is particularly true for assistance sought from you on the basis of s126 IPA, as opposed to s128 IPA. The Berlin Regional Court ruled that data obtained in a joint operation by the French and the Dutch to harvest millions of text messages from EncroChat users was in breach of German law. 0000041948 00000 n German police received daily downloads of data from the phones from Europol between 3 April 2020 until the operation against EncroChat was discontinued on 28 June 2020. hb``f`` a`e`p ,@Q20b7u !A*3010:3,d:XxIQC}6:;3#gy99L MFuM&00fpiv&-%``H35 P! I make no comment on those. Given that these devices cost approximately 1,500 for a 6-month contract, any evidence of such payments may also strengthen the Crowns case. (4) The ruling that s56(2)(b), relating to the prohibition on an overseas authority to carry out the interception of communications imposed by s9 of the 2016 Act, did not apply because the [Joint Investigation Team]'s activity, while 'in accordance with the Targeted Equipment Interference warrant' was nevertheless not pursuant to a request by UK authorities to carry out the interception.". Your Consent Options link on the site's footer. Likewise, seeking to rely upon expert evidence from other cases may not prove a successful course of action. That is an obvious error of language and analysis.. At a joint press conference today, French and Dutch law enforcement and judicial authorities, Europol and Eurojust have presented the impressive results of a joint investigation team to dismantle EncroChat, an encrypted phone network widely used by criminal networks. Germany has become the latest country to question the legality of evidence obtained from the EncroChat hack. If the authorities are relying solely on evidence obtained from a hacked server, there will be real arguable concerns about the reliability, accuracy and authenticity of the evidence that is being relied upon. Two crime bosses who conspired to buy and supply heroin, cocaine and guns on encrypted communications platform EncroChat have been jailed. I'd need to give that some further thought, and I note that the Court itself recognises that this is not a universally-held position (see paragraph 68). Courts in a number of other countries have recently raised similar questions about the admissibility of evidence from the EncroChat and SkyECC hacks. [s4(4)(b)] extends to all communications which are stored on the system, whenever that might occur. Weare specialist criminal defence lawyers who are committed togetting the very best possible result for our clients. 31 EIO Directive, which regulates the surveillance of telecommunications without the technical assistance of a Member State; The consequences of a possible infringement of EU law for the national criminal proceedings. s4(4) defines "relevant time" in the following terms: In this section relevant time, in relation to a communication transmitted by means of a telecommunication system, means, (a) any time while the communication is being transmitted, and. Historically, the UK has prevented the use of intercepted communications as legal evidence in court and has restricted its use to intelligence gathering in order to protect the secrecy of surveillance methods. 0000029761 00000 n The EncroChat service, which guaranteed anonymity for its customers at a charge of approximately 1,500 for the use of a phone for 6 months, was widely used to I understand this to mean that the Court's view is that a communication can be both "stored in or by the [telecommunication' system" and "being transmitted" at the same time, such that, even if a communication is being transmitted, it may also be "stored". Such warrants may produce material that can be used as evidence in court. However, the Court felt it did not need to address it in detail, given the conclusion it reached on what it termed its "key question". The EncroChat case have faced legal obstacles in Sweden, however, with defence lawyers raising issues over how the cracked material has been obtained and Having decided the question which it needed to answer, the court proceeded to lay out its reasoning. Judge Reinhard said: According to the information that has become known so far, it is to be assumed that there was no such request by the French state and no review by the competent Germany authority in this case.. Even if the interception operation was legal under French law, the use of the data in German criminal proceedings was not justified, said Regional Court judge Behrend Reinhard. The NCA investigation was codenamed Operation Venetic and consisted of little more than applying for the EIO and then passing EncroChat messages around British police forces and the Crown Prosecution Service. So what does it mean to "intercept a communication in the course of its transmission"? Lord Burnett, issuing the Court of Appeals judgment, noted that the conviction applications largely sought in a variety of ways to challenge the admissibility of the EncroChat evidence. A few weeks earlier, the UKs Investigatory Powers Tribunal (IPT) heard that the National Crime Agency (NCA) deliberately concealed information when obtaining a warrant to access data from the EncroChat hack. The EncroChat communications were intercepted whilst being stored, not when being transmitted, thereby making them admissible. InR v Aujla[1997], the defendants were convicted of conspiracy to facilitate the illegal entry of persons into the UK. The decision takes a broad interpretation of the circumstances in which access to communications can be carried out on the basis of TEI warrantry. 0000032972 00000 n R v Murray & Others no more admissibility adjournments for EncroChat defendants? The devices give users anonymity and the devices, if found, are likely to be wiped clean. The three judges said that the question they needed to answer to determine the admissibility of messages from EncroChat as evidence was whether the communications were stored in or by the system at the time they were intercepted. Some devices are even set to automatically wipe if not used in a 24-hour period. It would capture all data which had not been erased, typically therefore 7 days' worth of communications. A person intercepts a communication in the course of its transmission by means of a telecommunication system[3]if, and only if, the person does arelevant actin relation to the system; and. 251 35 It is a comment on the judgment, and the way in which the Court applied the rules under the Investigatory Powers Act 2016. Well, not yet. The judgment of Lord Burnett in the Court of Appeal judgment of R v Murray & Others, the latest of a series of leading judgments in the high-profile EncroChat cases, has further narrowed the scope for defendants in these cases to rely upon admissibility evidence from other EncroChat proceedings, particularly when seeking to obtain adjournment on these grounds. Their defence largely rested on the fact that the EncroChat evidence used by the prosecution was unreliable and misleading, and/or wrongly attributed to them. The consequences from this will be significant, he said. Data was obtained by French authorities and transferred to other European countries via Europol, resulting in thousands of people being arrested, detained and prosecuted across Europe. Data that would then be used to deprive thousands of people of liberty: the harshest measure a state can take against a person. The decision, on 1 July 2021, came as courts in the UK, France and the Netherlands face similar legal challenges over the admissibility of evidence from the EncroChat phone network, which UK police claim was almost entirely used by organised crime groups. If the Dutch authorities carried out the relevant act, the hacking, then the interception evidence isnotautomatically inadmissible under UK law. 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