In the case of R v Murray & Others, the Court of Appeal rejected challenges to the use of EncroChat evidence, upholding the convictions and sentences of the defendants involved in a large-scale drug conspiracy. The court’s decision has some implications for future EncroChat cases, reaffirming the admissibility and reliability of such evidence or at least doing so for the time being. Benjamin Knight summarises the essence of the ruling.
The case for trial in the lower court involved a drug conspiracy using EncroChat messaging. The appeals of the convicted defendants were against both their convictions and sentences.
The appeal arguments were primarily focused on the admissibility and reliability of EncroChat evidence, which was obtained through a covert operation by the French authorities. The Court of Appeal ultimately rejected the appeals, finding no merit in the grounds raised, and dismissing the concerns over the EncroChat evidence.
The defendants in R v Murray & Others  EWCA Crim 282 raised several grounds of appeal, including the following:
The judge’s refusal to adjourn the trial to await the outcome of the Investigatory Powers Tribunal (IPT) proceedings, which the defendants hoped might assist their case.
The question before the Investigatory Powers Tribunal (IPT) in relation to the EncroChat case was whether the hacking and interception of EncroChat communications by law enforcement agencies were lawful and compliant with human rights. The IPT investigates complaints regarding the conduct of public bodies in carrying out covert surveillance and interception, ensuring that their actions are consistent with legal requirements, including those set out by the Regulation of Investigatory Powers Act 2000 (RIPA) and the Investigatory Powers Act 2016 (IPA).
The issue in the appeal might be fairly summarised as the defence wanting an adjournment of the trial (not for the first time) so that the IPT could provide its report into EncroChat evidence – in the hope that the content may be of some use to these defendants. The Court of Appeal balanced the public interest in delaying proceedings in this serious matter against the potential that the report by the IPT might contain something upon which these defendants could rely. They found that the report was not on the issues that might have been argued before the trial court and that delaying for such a report was, therefore, pointless and against the public interest.
The judge’s refusal to adjourn the trial to enable the instruction of Professor Anderson, whose report questioned the reliability of the EncroChat data. The use of EncroChat material being in breach of the ACPO guidelines, which require that a criminal defendant should be in a position, with expert assistance, to replicate any tests forming the basis of the Crown’s evidence against them.
Professor Anderson (who no longer undertakes Encrochat work in criminal proceedings, apparently), provided a report in which he discussed various issues to do with the reliability of data extracted from Encrochat handsets. The Court of Appeal was of the view that his report was not directly connected with the substance of the case before the trial court. As such, it was not admissible. This is a problem that arises when legal teams seek to identify an expert in a field but do not or are prevented from allowing the expert to analyse the specific evidence that is in question. Moreover, it will never be admissible for an expert to provide general information about a subject in the hope of merely muddying the water.
The ACPO (Association of Chief Police Officers) guidelines mentioned in the case pertain to the handling of digital evidence. The argument raised by the defence was that the use of EncroChat material in the case breached the ACPO guidelines, which stipulate that a criminal defendant should be in a position, with expert assistance, to replicate any tests that have formed the basis of the Crown’s evidence against him. The Court of Appeal, however, did not find the ACPO guidelines point to be a strong argument for the defence, as the EncroChat messaging was “exfiltrated” (i.e., the data were extracted using covert or dubious methodology] in France, and the guidelines did not provide any further support for the argument based on unfairness or prejudice.
Blunty the ACPO guidelines point was never likely to get off the ground. The guidelines clearly didn’t contemplate the sort of operation that went into gaining access to EncroChat, nor are they a binding power over the relevant legislation.
Ms. Saunders’ reliance on Professor Anderson’s conclusions and her admissibility as a witness to support the argument that EncroChat data may be unreliable.
Ms. Saunders played a role as an expert witness for the defence in this case. She was said to have independently reviewed Professor Anderson’s methodology and findings. The defence argued that Ms. Saunders was entitled to adopt Professor Anderson’s conclusions and give evidence of fact as to what she found when she interrogated the EncroChat phone in question. However, the Court of Appeal determined that Ms. Saunders could not properly give opinion evidence as the mouthpiece for Professor Anderson, as she had not formed her own conclusion but was tentatively endorsing the plausibility of his findings. This is perhaps a little interesting as the Crown often substitutes experts and “analysts” at Court and they rarely give evidence of their own findings. They do exactly was Ms. Saunders did and that the Court of Appeal rejected.
The Court of Appeal also found that the anomalies Ms. Saunders identified were minor and explicable on the basis that the phone was designed to delete messages after a short period. That “burn time” is a hallmark feature of EncroChat (although it is also a feature of countless “secure” messaging services, including WhatsApp).
The admission of archived internet pages (in relation to the Diamond Secure system and a surveillance log), which the defendants argued were inadmissible as evidence.
The issue raised with using archived web pages as evidence was that the defence argued it was a “pernicious practice.” The judge at first instance, however, was found to have conducted a thorough and fair examination of all the considerations under section 114(1)(d) of the Criminal Justice Act 2003 before admitting the hearsay evidence. The judge did not find any unfairness in admitting the archived web pages as evidence in the case.
Section 114(1)(d) of the CJA 2003 states that hearsay evidence is admissible if the court is satisfied that it is in the interests of justice for the evidence to be admitted, taking into account various factors. These factors may include the probative value of the evidence, whether the evidence could be reasonably obtained from the original source, the nature of the proceedings, and any risk of unfairness to the parties involved. The judge in the case considered these factors before admitting the archived web pages as evidence and so this was not a successful argument before the Court of Appeal.
The Court of Appeal rejected all of the grounds raised, finding that the judge’s decisions were unimpeachable and that there was no merit in the defendants’ arguments.
The implications for EncroChat cases are that the courts will continue to consider such evidence admissible and reliable, unless there are specific circumstances that might warrant a different approach. This case reinforces the position that EncroChat evidence can be used in criminal proceedings, and defendants will face challenges in contesting its admissibility and reliability.
In reality, there is a feeling amongst criminal lawyers that the EncroChat “breakthrough” – such as it is – was not done by the UK police or intelligence services and it yielded significant amounts of data relating to the operations of organised groups of criminals. As such, unless there is a significant change in the State’s view of this type of evidence-gathering. That seems unlikely as the overriding public interest in monitoring and capturing criminals is likely to continue to trump the rights of defendants in such cases. This is, perhaps, where a gulf will open between this jurisdiction and, for example, the United States of America (where defendants’ rights are commonly felt to be more sacrosanct).