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The latest EncroChat appeal, R v Murray & Ors: Commentary by Greg Unwin

28 April 2023

Photos of dogs, children and celebratory champagne on completion of drug deals continue to incriminate defendants in EncroChat cases. Participants in serious organised crime – who you might expect would know better – had such confidence in the encryption that they abandoned caution, mixing selfies with snaps of cocaine shipments.

The cost of EncroChat phones was sufficiently prohibitive that they tended to be reserved for use in the most heavyweight criminality. Corresponding heavy sentences provide a powerful incentive for defendants to endure lengthy adjournments in custody in the hope that one of the novel points being argued up and down the country might render the intercepted material inadmissible. But such

adjournment applications are pitted against the countervailing public interest in the resolution of serious criminal proceedings, especially with the courts striving to subdue the behemothic backlog.

The most recent EncroChat decision was handed down by the Court of Appeal on 16th March 2023. R v. Murray & Ors [2023] EWCA Crim 282 was an appeal from Kingston-upon-Thames Crown Court presided over by the Lord Chief Justice who repeated his warning from the Liverpool case, R v. A, B, D and C [2021] EWCA Crim 128, that attempts to rehash pre-trial admissibility arguments will be “dealt with … briskly”.

At the time of the judgment the tally of EncroChat cases had reached 950 convictions, mostly guilty pleas, with 1,800 awaiting trial, mostly in custody. New arrests arising out of Operation Venetic continue and these cases can be expected to keep progressing through the system for months or years to come.

The Kingston defendants were convicted of conspiring to export half a tonne of MDMA to Australia hidden in a digger and received sentences of up to 28 years. The grounds of appeal of interest to future EncroChat cases were:

  • that the trial should have been adjourned to await the outcome of the proceedings before the Investigatory Powers Tribunal;
  • that the defence should have been able to deploy the expert report disclosed from the IPT proceedings, or at least the report of an expert endorsing its findings;
  • that admission of EncroChat evidence was unfair because of questions of reliability raised in the report and because it was in breach of the ACPO guidelines on digital evidence.

Refusing leave, the Lord Chief dealt with these submissions briskly, finding them all unarguable and without merit.

IPT

In September and December 2022, several big beasts of the Bar fought out the legality of the NCA’s Targeted Equipment Interference Warrants before the Investigatory Powers Tribunal. The claimants hope to quash the warrants with the consequence that data obtained in pursuit of them would be rendered inadmissible in criminal proceedings by section 56 of the Investigatory Powers Act 2016.

This is an argument that defendants are prohibited from advancing in the Crown Court, by virtue of section 99(11) of the IPA 2016. However, some of the submissions advanced by the claimants are in tension with the findings of Dove J. upheld by the Court of Appeal in both A, B, D and C and in R v. Atkinson and others [2021] EWCA Crim 1447 (full judgment embargoed at the time of writing). The latter case, from Manchester, considered further expert evidence and an “alternative hypothesis” that the EncroChat material was intercepted during transmission. This was rejected.

Uninstructable expert

A Professor of Security Engineering at the Universities of Cambridge and Edinburgh, Ross Anderson, provided expert reports both in the Manchester and IPT proceedings. The latter report was disclosed to the Kingston defendants. Their attempts to secure an adjournment to instruct Professor Anderson, or to exclude the EncroChat material on the strength of his report for the IPT, or to admit a late report by another expert describing Professor Anderson’s conclusions as “plausible”, all failed.

The Professor is not accepting further instructions in EncroChat matters, so could never have been instructed in this case. The Court found that his report only advanced a theoretical possibility anyway. The surrogate expert’s report made no attempt to form independent conclusions and was not an appropriate device to get Professor Anderson’s findings in through the back door.

ACPO

In robing room debates about EncroChat cases, much has been said about the potential utility of the ACPO (Association of Chief Police Officers, replaced by the National Police Chiefs’ Council in 2015) Good Practice Guidance for Digital Evidence. But here’s what the Lord Chief had to say: “given that the EncroChat messaging was exfiltrated in France, we do not think that the ACPO guidelines provide any further support for the argument”.

Concluding Remarks

Most of the decisions in this case are explicable as following from application of the Criminal Procedure Rules and the principles behind them.

However, the application by the Kingston defendants to adjourn pending the IPT judgment was made back in November 2021. At the time, the trial had already been adjourned more than once. The Court of Appeal considered the trial judge’s refusal unimpeachable in the circumstances. The interests of justice “militated against a further adjournment for what in effect would have been an indefinite period on no more than a hope that the outcome of the IPT proceedings might assist the defendants”.

A court considering a similar defence application today would be weighing a different balance. Although the hope of a favourable outcome may remain speculative, the publication of the IPT judgment is expected imminently. Yet even that landmark may not be the end of the road: in 2019 the Supreme Court held that decisions of the IPT are amenable to judicial review by the High Court.

For the time being, EncroChat evidence remains prima facie admissible. Generic reliability arguments are unlikely to distract juries from probative pictures of people’s personal lives. Of course, there remain cases where the attribution evidence is less compelling. These are likely to constitute the main trial battlegrounds unless something seismic comes out of the IPT.

28 April 2023

Addendum: IPT Update (11 May 2023)

On 11th May 2023, almost five months after the last hearing date, the IPT handed down its 40-page judgment in SF and Ors v NCA IPT 21 05 CH (Lord Justice Edis, Lady Carmichael, Stephen Shaw KC).

The IPT determined four issues against the claimants about the legality of the warrant. However, they deferred determination of the most interesting issue, about whether the interception was of communications in the course of transmission. If it was, the conduct would not be in accordance with the TEI warrant, and not protected by section 99(11).

Although Dove J’s previous determination of this issue was upheld in the Court of Appeal, assessment of the new expert evidence, including that of Professor Anderson, remains within the jurisdiction of the Crown Court. The IPT noted that criminal proceedings were at an advanced stage and deferred adjudicating on this point until the conclusion of proceedings and appeals arising from them.

Perhaps a 3 on the Richter scale.

Greg Unwin

187 Chambers